The number holder (NH) was domiciled in Oregon at the time of her death; therefore, we apply Oregon law to determine if the claimant was the NH’s spouse. The claimant presented an Oregon Public Employee Benefit Board (PEBB) Affidavit of Domestic Partnership document. We believe the courts of Oregon would find that the claimant cannot inherit as NH’s widower under Oregon law based on the Oregon PEBB Domestic Partnership document as it is not equivalent to a registered domestic partnership under Oregon domestic partnership law. Also, the claimant is not the NH’s widow based on the marriage ceremony held in California prior to the State’s legal recognition of same-sex marriages. In addition, neither California nor Washington permit common law marriage, so the claimant cannot be considered the NH’s widow, based on a same-sex common law marriage. Accordingly, we believe the agency is justified in finding that claimant is not NH’s widow or deemed widow under Title II and is not entitled to widow’s benefits on NH’s earnings record.

QUESTION PRESENTED

Issue: Whether D~ W~ (the claimant) is the widow of D~ B~, the deceased number holder (NH), for purposes of the entitlement to widow’s benefits under title II of the Social Security Act (Act). The claimant presented evidence of a marriage ceremony in California prior to the State’s legal recognition of same-sex marriages. The claimant also presented an Oregon Public Employee Benefit Board (PEBB) Affidavit of Domestic Partnership document. You asked if the agency could find the claimant and the NH were legally married in the California ceremony. If not, could the agency find the couple had a common law marriage in California or Oregon? If no marriage can be found, could the agency deem the couple as married based on their Oregon PEBB Affidavit of Domestic Partnership?[1]

BRIEF ANSWER

No the claimant is not the NH’s widow based on the marriage ceremony held in California prior to the State’s legal recognition of same-sex marriages. In addition, neither California nor Washington permit common law marriage, so the claimant cannot be considered the NH’s widow on that basis. Finally, we believe the courts of Oregon would find that claimant cannot inherit as NH’s widower under Oregon law based on the Oregon PEBB Affidavit of Domestic Partnership document. Accordingly, we believe the agency would be justified in finding claimant is not NH’s widow or deemed widow under title II and therefore is not entitled to widow’s benefits on NH’s earnings record.

SUMMARY OF FACTS

In May 2001, before California law recognized same-sex marriages, the claimant alleges that she and the NH participated in a ceremonial marriage officiated by Reverend R~ G~, a minister of the United Churches of Religious Science in Santa Rosa, Sonoma County, California. The claimant provided a certificate of marriage with the date of the ceremony, which she had notarized in Sonoma County, California on November X, 2014. The claimant also provided an Oregon PEBB Affidavit of Domestic Partnership document signed on November XX 2005.

In July 2010, the NH died in Oregon. Her death certificate lists Oregon as her place of domicile, and describes her marital status as never married. The claimant then applied for surviving spouse benefits in Oregon. The claimant stated that her marriage was not legally recognized in California. She also said that she and the NH planned to register “with the state as domestic partners,” but did not do so because her daughter, and then the NH, became sick and both died.

DISCUSSION

I. Applicable Law

A. Federal Statute and Regulation

A claimant may be entitled to widow’s insurance benefits if she is the widow of an individual who died fully insured and she and the insured were married for at least nine months immediately prior to the insured’s death.[2] Act § 202(e)(1); 20 C.F.R. § 404.335(a); Program Operations Manual System (POMS) RS 00207.001A.1.b.1. A claimant can establish that she is the widow of an insured individual if the courts of the State where the insured was domiciled when she died would find that the claimant and insured were validly married. If the claimant was not validly married, we must examine if the claimant has the same status as a widow with respect to taking the insured individual’s personal property through State intestacy laws. Act § 216(h)(1)(A); 20 C.F.R. §§ 404.335(a), 404.345; POMS GN 00305.001A.2.a; POMS RS 00207.001A.1.a.1.

Thus, if there is no valid marriage, but the claimant alleges a non-marital legal relationship (NMLR), such as a domestic partnership or civil union, as the basis for entitlement, the agency may deem the claimant and NH married if: (1) the NMLR is valid in the State where it was established; and (2) the State of the NH’s domicile recognizes the NMLR as equivalent to a marriage, or because under State intestacy law, the parties to the NMLR can inherit a spouse’s share of the of each other’s personal property, should one party die. Act § 216(h)(1)(A); 20 C.F.R. § 404.345; cf. POMS GN 00210.004A; POMS GN 00305.005 (determining marital status).

B. Oregon Law

In May 2014, the United States District Court for the District of Oregon declared unconstitutional Oregon’s previous ban on in-state same-sex marriages and non-recognition of out-of-state same-sex marriages. Geiger v. Kitzhaber, 994 F. Supp. 2d 1128 (D. Or. 2014). Thus, as of the date of the court’s order, Oregon began issuing same-sex marriage licenses and recognizing out-of-state same-sex marriages.[3]

In 2007, the Oregon State Legislature enacted the Oregon Family Fairness Act, allowing same-sex couples to enter into registered domestic partnerships effective February 4, 2008. See 2007 Oregon Laws Ch. 99 (H.B. 2007), §§ 1-9 (codified at Or. Rev. Stat. §§ 106.300-106.340). These domestic partnerships “extend benefits, protections and responsibilities to committed same-sex partners and their children that are comparable to those provided to married individuals and their children by the laws of this state.” Or. Rev. Stat. § 106.305(5); see also Or. Rev. Stat. § 106.340. As a result, Oregon domestic partnerships convey spousal inheritance rights. Or. Rev. Stat. § 106.340; see also POMS GN 00210.004.D. Thus, if an Oregon domestic partnership meets the criteria in Or. Rev. Stat. § 106.325, the agency can find the registered domestic partnership qualifies as marital relationships for SSA benefits purposes. POMS GN 00210.004D.

To enter into a registered domestic partnership under Oregon law, individuals must file a Declaration of Domestic Partnership on which each individual shall: (1) state that she or he is at least 18 years old and capable of entering into a domestic partnership; (2) state whether the individual resides in Oregon; (3) provide a mailing address; (4) state that she or he consents to the jurisdiction of Oregon courts for any proceeding related to the partners’ rights and obligations; and (5) indicate the individual’s name after domestic partnership. Or. Rev. Stat. § 106.325. Both partners must sign and notarize the declaration. Id.

C. California

Historically, same-sex marriage first became legal in California on June 16, 2008, when the California Supreme Court held that a State law barring same-sex marriages was contrary to the State Constitution. See In re Marriage Cases, 43 Cal. 4th 757 (Cal. 2008). However, same-sex marriages were again barred beginning November 5, 2008, after the passage of Proposition 8, a State constitutional amendment. See Strauss v. Horton, 46 Cal. 4th 364, 397-98 (Cal. 2009). On August 4, 2010, the United States District Court for the Northern District of California held that Proposition 8 was unconstitutional. See Perry v. Schwarzenegger, 704 F. Supp.2d 921, 1004 (N.D. Cal. 2010). The United States Court of Appeals for the Ninth Circuit imposed a stay pending appeal, and later affirmed the district court’s decision. See Perry v. Brown, 671 F.3d 1052, 1096 (9th Cir. 2012); Perry v. Schwarzenegger, 2010 WL 3212786 (9th Cir. Aug. 16, 2010). On June 26, 2013, the United States Court of Appeals for the Ninth Circuit lifted its stay. See Perry v. Brown, 725 F.3d 968 (9th Cir. 2013).

California also has various requirements that must be met before a marriage is valid under State law. Cal. Fam. Code §§ 300 et seq. In part, the parties must obtain a marriage license from a county clerk, consent and solemnize the marriage as provided by law, and register the license with the country recorder.[4] Cal. Fam. Code §§ 300(a)-(b). A marriage license issued by a county clerk does not become a marriage certificate until it is registered with the county recorder. Id. at § 300(b).

II. Analysis

A. Oregon Would not Recognize an Invalid California Marriage

When considering whether two individuals were spouses for the entitlement to survivor benefits, the agency looks to the laws of the State where the insured individual was domiciled when he or she died. Because the NH was domiciled in Oregon at the time of her death, we apply Oregon law to determine if she and the claimant were spouses. 20 C.F.R. § 404.335(a) (referencing 20 C.F.R. § 404.345).

Oregon recognizes any marriage that is valid in the State it was entered into. Garret, 449 P.2d at 858. The claimant and the NH participated in a ceremonial marriage in California in 2001, seven years before same-sex marriage first became legal in California. See In re Marriage Cases, 53 Cal. 4th 757 (Cal. 2008). On June 26, 2015, the United States Supreme Court held that all same-sex couples may exercise the fundamental right to marry under the United States Constitution. See Obergefell v. Hodges, 576 U.S. ---, 135 S. Ct. 2584, 2604-05 (2015). The Court held State laws invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. Id., 135 S. Ct. at 2605. Pursuant to Harper v. Va. Dept of Taxation, 509 U.S. 86, 94-98 (1993), the agency should give Obergefell full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate Obergefell. As a result, the agency considers state-law same-sex-marriage bans, whether based on state constitutional or statutory provisions or on case law, void and ineffective. See POMS GN 00210.002A (stating the agency will recognize a valid same-sex marriage as of the date of the marriage, including during periods when the number holder’s state of domicile did not recognize same-sex marriages).

Therefore, while we cannot consider a state’s ban on same-sex marriage as invalidating a marriage, we still must consider whether a marriage that occurred prior to the date same-sex marriage became legal in California otherwise satisfies the criteria for a valid California marriage, and thus could be recognized by Oregon.

In California, a marriage is valid only if the parties obtain a marriage license from a county clerk, consent and solemnize the marriage as provided by law, and register the license with the county recorder. Cal. Fam. Code §§ 300(a)-(b). A marriage license issued by a county clerk does not become a marriage certificate until it is registered with the county recorder. Id. at § 300(b). Here, the claimant and the NH consented and had a ceremony in Santa Rosa, California; received a document that purports to be a “marriage certificate” (herein after “souvenir certificate”) from the officiant of their ceremony (Reverend R~ G~), and later notarized the souvenir certificate in Sonoma County, California.[5] As Santa Rosa is located in Sonoma County, there must be evidence that a marriage license was obtained from a Sonoma county clerk and registered with the county recorder, at the time of their marriage. Although the souvenir certificate was notarized in Sonoma County, California, on November X, 2014, there is no evidence that a license was obtained from a county clerk or registered.[6] Thus, the marriage is not valid under California law and therefore the courts of Oregon would not recognize it as valid under Oregon law.

B. Oregon Public Employee Benefit Board Affidavit of Domestic Partnership

Because the claimant and NH did not enter into a valid marriage, we must examine whether the Oregon PEBB Affidavit of Domestic Partnership, signed by the Claimant and the NH, established a registered domestic partnership under Oregon law for basis of entitlement to social security benefits. An Oregon domestic partnership that meets the criteria in Or. Rev. Stat. § 106.325 qualifies as equivalent to a marital relationships under Oregon law and thus for SSA benefits purposes. POMS GN 00210.004D

To enter into a domestic partnership under Or. Rev. Stat. § 106.325,[7] individuals must file a Declaration of Domestic Partnership on which each individual shall:

a) state that she or he is at least 18 years old and capable of entering into a domestic partnership;

b) state whether the individual resides in Oregon;

c) provide a mailing address;

d) state that she or he consents to the jurisdiction of Oregon courts for any proceeding related to the partners’ rights and obligations;

e) indicate the individual’s name after domestic partnership;

f) sign the form with a declaration that representations made on the form are true, correct and contain no material omissions of fact to the best knowledge and belief of the individual; and

g) have a notary public acknowledge the individual’s signature.

Here, the Oregon PEBB domestic partnership document provided by the claimant does not comply with all of the criteria for a Declaration of Domestic Partnership required by Or. Rev. Stat. § 106.325. In particular, it does not appear to be on the requisite form required by the Oregon Health Authority pursuant to Or. Rev. Stat. § 106.320. Instead, it is on an Oregon PEBB form.[8]

Or. Rev. Stat. §106.325(1), and (2), a document of Domestic Partnership must be filed with a county clerk and registered. Once registered, the county clerk will return a copy of the registered form and a Certificate of Registered Domestic Partnership to the partners. The document claimant provided does not appear to have been filed or registered with a county clerk. In addition, the requirements in Or. Rev. Stat. §106.325(3) and (4,) contemplate a formal dissolution of the domestic partnership, with the consent of the court. The document the claimant supplied the agency merely requires a statement of termination of the domestic partnership with “payroll” or their “personal representative.” Finally, the signatures are not notarized, as required by Or. Rev. Stat. § 106.325(5)(g). Thus, although claimant and NH had a domestic partnership for PEBB purposes, it does not meet the criteria of a registered domestic partnership under Oregon domestic partnership law at Or. Rev. Stat. §106.325. Therefore, the claimant cannot inherit as NH’s spouse under Oregon and thus SSA find a deemed marriage for purposes widow’s benefits.

CONCLUSION

The claimant is not the NH’s widow based on the marriage ceremony held in California prior to the State’s legal recognition of same-sex marriages. In addition, neither California nor Washington permit common law marriage, so the claimant cannot be considered the NH’s widow, based on a same-sex common law marriage. Further, we believe the courts of Oregon would find that claimant cannot inherit as NH’s widower under Oregon law based on the Oregon PEBB Domestic Partnership document as it is not equivalent to a registered domestic partnership under Oregon domestic partnership law at Or. Rev. Stat. §106.325. Thus, the agency cannot find a deemed marriage based on the PEBB Domestic Partnership. Accordingly, we believe the agency is justified in finding that claimant is not NH’s widower or deemed widower under Title II and therefore Claimant is not entitled to WIB on NH’s earnings record.

Footnotes:

[1] You did not ask whether claimant could be deemed the widow of the NH based on their Oregon PEBB Affidavit of Domestic Partnership document. However, we will also address this issue. SOCIAL SECURITY ADMINISTRATION BALTIMORE MD 21235-0001

[2] In addition to establishing that she is the widower of the insured, the claimant must establish he meets the other criteria for entitlement to widower’s benefits. See 20 C.F.R. § 404.335. You have not asked, and we have not analyzed, whether the claimant meets these other requirements.

[3] Oregon does not permit common-law marriages. In Re Hanlon, 557 B.R. 801, 806 (U.S. Bankr. Ct., D. Or. 2016) (citing Huard v. McTeigh, 232 P. 658, 663 (Or. 1925); Johnston v. Georgia– Pac. Corp., 581 P.2d 108, 109 (Or. App. 1978)). Therefore. we will not address whether claimant and NH entered into a common law marriage in Oregon.

[4] California does not permit common law marriage. Burkes v. Apfel, 233 F.3d 1220, 1225 (10th Cir. 2000) (citing Tatum v. Tatum, 241 F.2d 401 (9th Cir.1957)). Therefore, we will not address whether claimant and NH entered into a common law marriage in California.

[5] Pursuant to POMS GN 00301.050 Evaluating the Validity of Documents and Records, souvenir certificates may “[l]ack of a state or county seal or certification” and “are not acceptable as preferred evidence of… marriage.”

[6] As previously explained, infra, California did not permit same-sex marriage at this time. However, the couple could have entered into a California domestic partnership. Beginning January 2000, California permitted any two same-sex individuals to enter a registered domestic partnership if (1) neither person had an ongoing marriage or domestic partnership with someone else; (2) the individuals were not related by blood; (3) both individuals were at least 18 years of age; and (4) both individuals were capable of consenting to the domestic partnership. Cal. Fam. Code § 297(b); see POMS GN 00210.004(D)(5). Registered domestic partners in California have the same rights, protections, benefits, responsibilities, obligations, and duties “as are granted to and imposed upon spouses.” Cal. Fam. Code § 297.5(a). An individual in a registered domestic partnership has a right to inherit intestate from the other partner the same as a surviving spouse. Cal. Fam. Code § 297.5(c). California’s domestic partnership requirements and benefits, which are comprehensive, are substantially similar to Oregon’s. Compare Or. Rev. Stat. §§ 106.315 & 106.340, and Cal Fam. Code § 297.5. Therefore, Oregon would recognize a validly formed California domestic partnership for inheritance purposes.

[7] In addition to these criteria, individuals are precluded from entering a domestic partnership when: (1) either party had another partner or spouse living at the time of the domestic partnership; (2) the parties were first cousins or any nearer kin to each other; or (3) either party was incapable of consenting to the contract for want of age or understanding. Or. Rev. Stat. §106.315. Here, it appears that the claimant and the NH were not precluded from entering a domestic partnership for any of these reasons.

[8] The website for the Oregon PEBB (which contracts for and administers health benefits for eligible state employees), contemplates that a registered domestic partnership under State law differs from one “by affidavit.” According to the PEBB website: Our benefit program accommodates two types of domestic partnership: by affidavit and by registered certificate.

1. Domestic partnership by affidavit is established between two individuals of same or opposite sex when they attest on a PEBB affidavit to the relationship as described in our Summary Plan Description.

2. Domestic partnership by registered certificate is established between two individuals of the same sex by Oregon Revised Statute.

https://www.oregon.gov/oha/pebb/Benefits/domestic-partners.pdf(last visited on March 31, 2020). Thus it appears that a domestic partnership for purposes of Oregon PEBB is different We have found no case law stating that an Oregon PEBB domestic partnership is equivalent to a domestic partnership formed pursuant to Or. Rev. Stat. § 106.325. With respect to the criteria in from a domestic partnership under the Oregon domestic relationship law at Or. Rev. Stat. § 106.325.

The number holder (NH) was domiciled in Oregon at the time of his death; therefore, we apply the laws of the State of Oregon. The claimant and the NH registered as domestic partners in March 2011. With respect to the claimant and the NH’s domestic partnership, the agency has already determined that an Oregon domestic partnership qualifies as a marriage for benefit purposes under the Act. Despite being the NH’s widower, the claimant does not qualify for widower’s benefits by virtue of his domestic partnership with the NH because the domestic partnership did not satisfy the nine-month duration requirement. Moreover, we believe that the claimant is not entitled to a LSDP because he did not file his application within the two-year period.

QUESTION PRESENTED

Whether the claimant is eligible for widower’s benefits and a lump sum death payment as a surviving spouse because the number holder (NH), who died on May X, 2011, named the claimant a trustee of his living trust on March XX, 1997, and entered into an Oregon same-sex domestic partnership with the claimant on March xx, 2011?

BRIEF ANSWER

No. The claimant is not entitled to widower’s benefits because his domestic partnership did not satisfy the nine-month duration-of-marriage requirement. In addition, we believe the courts of Oregon would not find that the claimant’s status as a trustee on the NH’s living trust would enable the claimant to inherit as the NH’s spouse under Oregon intestate law. Finally, the claimant does not qualify for a lump sum death payment because his application was untimely.

SUMMARY OF FACTS

J~ (the claimant) and W~ (the NH) met and began living together in 1974. In August 1995, the NH made the claimant a beneficiary of his retirement benefits; and, on March XX, 1997, the NH made the claimant a trustee of his living trust. In the NH’s will, dated September 2006, the NH described the claimant as his life partner, and he bequeathed his estate to the claimant, as trustee of his living trust. The claimant and the NH registered as domestic partners on March xx, 2011, and, the following day, the NH amended his will to reflect this domestic partnership. On MayXX, 2011, the NH died of cancer. On September XX, 2014, the claimant applied for widower’s benefits and a lump sum death payment. The claimant informed the agency that he and the NH would have gotten married had the law permitted them to do so. Friends and business associates indicated that they considered the NH and the claimant to be life partners since well before they formed their domestic partnership in 2011.

DISCUSSION

I. Applicable Law

A. Federal Law

To be entitled to widower’s insurance benefits under title II of the Social Security Act, a claimant must establish that he is the widower of the insured and that he and the insured were married for at least nine months immediately prior to the insured’s death.^[1] 42 U.S.C. §§ 402(f), 416(g)(1)(E); 20 C.F.R. § 404.335. A claimant is the widower of the insured for title II purposes if the courts of the State in which the insured was domiciled at the time of death would find that they were validly married at the time of death. 42 U.S.C. 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Alternatively, the agency will deem the claimant to be the insured’s widower for title II purposes if, under the laws of the State where the insured was domiciled at the time of death, the claimant would be able to inherit a surviving spouse’s share of the insured’s personal property if he died without leaving a will. 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345. Here, the laws of the State of Oregon apply to this matter because the NH was domiciled in Oregon at the time of his death.

For entitlement to a lump sum death payment (LSDP)^[2] under title II of the Social Security Act, a claimant must establish that he is the widower of the insured and that he was living in the same household as the insured at the time of the insured’s death. 42 U.S.C. § 402(i); 20 C.F.R. §§ 404.390, 404.391. Additionally, a claimant must file his application within two years after the insured’s death, unless there is a showing of good cause for the late filing or the claimant is entitled to an extension under the Soldiers’ and Sailors’ Civil Relief Act of 1940. 42 U.S.C. § 416(i)(2); 20 C.F.R. § 404.621(b).

B. Oregon Law

In 2008, the State of Oregon recognized same-sex domestic partnerships. Or. Rev. Stat. (“ORS”) § 106.340. Oregon law granted individuals registered as domestic partners the same inheritance rights under intestacy as married couples. ORS § 106.340. However, Oregon law does not provide for inheritance rights under intestacy to individuals based on their status as designated beneficiaries of living trusts or other legal documents. ORS §§ 106.340, 112.045.

II. Analysis

A. Widower's Insurance Benefits

The claimant did not enter into a marriage with the NH. Therefore, the agency will deem the claimant to be the insured’s widower for title II purposes if, under the laws of the State where the insured was domiciled at the time of death, the claimant would be able to inherit a surviving spouse’s share of the insured’s personal property if he died without leaving a will. 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345. With respect to the claimant and the NH’s domestic partnership, the agency has already determined that an Oregon domestic partnership qualifies as a marriage for benefit purposes under the Act. POMS GN 00210.004D; ORS §§ 106.340. Despite being the NH’s widower, the claimant does not qualify for widower’s benefits by virtue of his domestic partnership with the NH because the domestic partnership did not satisfy the nine-month duration requirement.

The claimant and the NH entered into a domestic partnership on March XX 2011, and the NH died on May XX, 2011, less than two months later.^[3] Further, none of the alternative methods for meeting the nine-month duration-of-marriage requirement apply: the NH’s death was not accidental, the NH did not die while in active duty as a member of the uniformed services, and the NH was not in a prior marriage to the claimant or another individual. See 20 C.F.R. § 404.335(a)(2). Accordingly, the claimant is ineligible for widower’s benefits because his domestic partnership does not meet the duration requirement.

Next, the agency must consider if the claimant can be deemed a widower of the NH based on a living trust. Oregon law does not provide for a spousal share of inheritance rights to trustees of a living trust. ORS §§ 112.045, 106.340. Consequently, we believe that an Oregon court would conclude that the claimant is not a widower of the NH based on the living trust.

B. LSDP

Unlike with widower’s benefits, there is no nine-month duration criteria for a LSDP. Because the agency will consider the claimant the NH’s widower based on his domestic partnership with the NH, we must examine whether the claimant satisfies all the requirements necessary to receive a LSDP. The claimant survived the insured and was living in the same household with the NH at the time of the insured’s death. However, the claimant did not file his application for a LSDP until September 2014, over two years after the NH’s death in May 2011. The claimant has not alleged any exception to the two-year filing requirement, and it does not appear that any exception applies. Specifically, the claimant did not provide evidence that he had good cause for failure to file his application within the two-year period due to (1) circumstances beyond his control, such as extended illness; (2) incorrect or incomplete information furnished by the agency; (3) efforts to get evidence to support his claim without realizing that he could submit the evidence after filing the application; or (4) unusual or unavoidable circumstances which show that he could not reasonably be expected to know of the time limit. See 20 C.F.R. § 404.621(b)(1). Nor is there any evidence that the claimant was in military service and was entitled to an extension of time to file his application under the Soldiers’ and Sailors’ Civil Relief Act of 1940. See 20 C.F.R. § 404.621(b)(2). Because the claimant did not file his application within two years after the death of the NH, and there is no evidence that an exception applies, the claimant does not qualify for a LSDP.

CONCLUSION

We believe that the claimant is not entitled to widower’s benefits because he did not satisfy the nine-month duration-of-marriage requirement, and he would not be able to inherit as the NH’s spouse under Oregon intestate law as a trustee of the NH’s living trust. Moreover, we believe that the claimant is not entitled to a LSDP because he did not file his application within the two-year period.

The number holder (NH) passed away while domiciled in Oregon; therefore, we look to the Oregon law to determine if the Claimant is entitled to survivor’s benefits on the NH’s record. The Claimant and the NH registered as same-sex domestic partners in California and there is no evidence that their domestic partnership was not validly formed. Both Oregon and California provide for spousal inheritance rights. Under Title II of the Act, the agency could deem the claimant and NH as married based on their California registered domestic partnership because, under Oregon law, such relationship allows for intestate inheritance rights as a spouse. Accordingly, the claimant is entitled to survivor’s benefits on the NH’s record.

QUESTION PRESENTED

S~ (the claimant) and P~ (the number holder (NH)) registered as same-sex domestic partners in California, and the NH later passed away while the couple was domiciled in Oregon. Is the claimant entitled to widow’s benefits on the NH’s record under Title II of the Social Security Act (the Act)?

BRIEF ANSWER

Yes, the agency would consider the claimant as the NH’s spouse based upon the California domestic partnership. Here, where the domestic partnership laws of Oregon and California are substantially similar, and both provide for spousal inheritance rights, Oregon policy would not prevent recognition of this validly formed California domestic partnership. Thus, because the claimant can inherit as the NH’s spouse under Oregon law, the agency should consider the claimant and the NH as married for benefits purposes when the NH passed away while domiciled in Oregon.

SUMMARY OF FACTS

The NH and claimant registered as same-sex domestic partners in California on July XX, 2003. There is no evidence that their domestic partnership was not validly formed. The couple moved to Oregon sometime in 2004. They never married, nor did they register their domestic partnership in Oregon. The NH died in Oregon on December XX, 2010. On September XX, 2015, the claimant applied for widow’s benefits on the NH’s record.

DISCUSSION

I. Applicable Law

Federal Law

An individual must establish a marital relationship with the NH in order to be entitled to widow’s or widower’s benefits. 42 U.S.C. § 402(e) & (f); 20 C.F.R. § 404.335. Where there is a non-marital legal relationship rather than a marriage, the agency determines whether the non-marital legal relationship qualifies as a marital relationship using the intestacy laws of the state of the NH’s domicile when he or she died. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. If, under state law, a claimant could inherit a spouse’s share of the NH’s personal property if the NH died without leaving a will, the agency treats the couple’s non-marital legal relationship as a marital relationship for purposes of determining entitlement to benefits. 20 C.F.R. § 404.345. In this case, the NH was domiciled in Oregon at the time of death; therefore, Oregon state law governs.

Oregon Law

At the time of the NH’s death, Oregon state law recognized same-sex domestic partnerships. Or. Rev. Stat. § 106.340. Domestic partnerships were allowed except when (1) either party had another partner or spouse living at the time of the domestic partnership; (2) the parties were first cousins or any nearer kin to each other; or (3) either party was incapable of consenting to the contract for want of age or understanding. Or. Rev. Stat. § 106.315. Oregon law granted couples registered as domestic partners the same survivor benefits as married couples. Or. Rev. Stat. § 106.340(1). Thus, Oregon registered domestic partnerships qualified as marital relationships for SSA benefits purposes. POMS GN 00210.004D.

There is no explicit provision in Oregon law either recognizing or rejecting out-of-state registered domestic partnerships. However, as a general principle of Oregon law, “a marriage which is recognized as valid in the state where it was performed will be recognized in Oregon.” Garrett v. Chapman, 252 Or. 361, 364, 449 P. 2d 856 (1969). There is a potential exception to that rule “where the policy of this state dictates a different result than would be reached by the state where the marriage was performed.” Id. Thus, when considering the validity of marriages formed in other states, the question is whether any Oregon policy would prevent recognition of the marriage.

California Law

Beginning January 2000 (and at all times relevant here), California permitted any two same-sex individuals to enter a registered domestic partnership if (1) neither person had an ongoing marriage or domestic partnership with someone else; (2) the individuals were not related by blood; (3) both individuals were at least 18 years of age; and (4) both individuals were capable of consenting to the domestic partnership. Cal. Fam. Code § 297(b); see POMS GN 00210.004(D)(5).

As in Oregon, registered domestic partners in California had the same rights, protections, benefits, responsibilities, obligations, and duties “as are granted to and imposed upon spouses.” Cal. Fam. Code § 297.5(a). An individual in a registered domestic partnership had a right to inherit intestate from the other partner the same as a surviving spouse. Cal. Fam. Code § 297.5(c).

II. Analysis

Because the claimant does not allege that there was a marriage, we need not address the requirements for a valid marriage in Oregon. We address instead the claimant’s registered domestic partnership.

Applying the Garrett analysis to these facts, the State of Oregon would recognize the claimant and the NH’s out-of-state domestic partnership. The domestic partnership was registered in California, which, like Oregon, prohibits domestic partnerships between partners who are married to another, related by blood, under 18 years of age, or incompetent. Cal. Fam. Code § 297(b); Or. Rev. Stat. § 106.315. California’s domestic partnership requirements and benefits, which are comprehensive, are substantially similar to Oregon’s. Compare Or. Rev. Stat. §§ 106.315 & 106.340, and Cal Fam. Code § 297.5. Therefore, Oregon policy would not prevent recognition of this validly formed California domestic partnership. Because Oregon would recognize this domestic partnership for inheritance purposes, the agency may treat the couple’s relationship as a marital relationship for purposes of determining entitlement to benefits.

CONCLUSION

Under Title II of the Act, the agency could deem the claimant and NH as married based on their California registered domestic partnership because, under Oregon law, such relationship allows for intestate inheritance rights as a spouse. Accordingly, the claimant is entitled to survivor’s benefits on the NH’s record.