ISSUE PRESENTED
You asked whether Pennsylvania courts would recognize a domestic partnership entered
into by a same-sex couple in New Jersey on February XX, 2007.
SUMMARY
We believe that Pennsylvania courts would recognize the valid New Jersey domestic
partnership to permit the claimant to inherit from the NH under the Pennsylvania intestacy
statutes.
BACKGROUND[1]
On February XX, 2007, G~ (the claimant) and J~ (the Number Holder) entered into a
domestic partnership in W~, New Jersey.[2]
On July XX, 2014, the claimant contacted Social Security to file an application for
aged spouse’s benefits on the record of the NH. The couple has continuously resided
in Pennsylvania since the claimant filed his application for benefits.
DISCUSSION
1. Federal Law and Agency Guidance
A “non-marital legal relationship (such as a civil union, domestic partnership, or
reciprocal beneficiary relationship) can be treated as a marital relationship for
purposes of determining entitlement to benefits” if two requirements are met: (1)
the non-marital legal relationship “was valid in the place it was established” and
(2) it “qualifies as a marital relationship using the laws of the state of the [number
holder’s] domicile.” POMS GN 00210.004(B); see also 20 C.F.R. § 404.345 (agency must look to the laws of the insured’s domicile when
he applied). With respect to the second inquiry, when the NH is still living, the
agency must look to the domicile state’s intestacy laws at the time of the application
or while the application was pending to determine whether the relationship qualifies
as a marital relationship. POMS GN 00210.004(C)(2).
Thus, even though they were never married, the claimant will be considered the NH’s
spouse for Social Security benefit purposes if:
(1) their domestic partnership was valid in New Jersey, and
(2) Pennsylvania law would allow members of a New Jersey domestic partnership to inherit
the same share as a spouse under its intestacy laws at the time of the application.
We will address each point in turn.
2. The Domestic Partnership Between the Claimant and the Wage Earner Was Valid in
New Jersey
Initially, we conclude that the domestic partnership between the claimant and the
wage earner was valid under New Jersey law.
New Jersey enacted legislation permitting domestic partnerships effective July 10,
2004. L. 2003, c. 246, N.J. Stat. Ann. § 26:8A-1 to -13 (West 2016). Recognizing that
same-sex couples were “unable to enter into a marriage… recognized by New Jersey law,”
this legislation allowed same-sex couples to enter into a domestic partnership “conferring
certain rights and benefits, as well as obligations and responsibilities, upon domestic
partners.” [3] N.J. Stat. Ann. § 26:8A-1 (West 2016).
To establish a domestic partnership, the couple must meet the following requirements:
(1) have a common residence and demonstrate they are otherwise jointly responsible
for each other’s common welfare by showing one of the designated proofs of joint financial
arrangements/ownership;
(2) agree to be jointly responsible for each other’s basic living expenses;
(3) neither party is in a marriage recognized by New Jersey law or a member of another
domestic partnership;
(4) neither person is related to the other by blood or affinity up to and including
the fourth degree of consanguinity;
(5) both persons are of the same sex and therefore unable to enter into a marriage
with each other that is recognized by New Jersey law (except for two persons who are
each 62 years of age or older and not of the same sex);
(6) both persons have chosen to share each other’s lives in a committed relationship
of mutual caring;
(7) both persons are at least 18 years of age;
(8) both persons jointly file an Affidavit of Domestic Partnership; and
(9) neither person has been in a domestic partnership that was terminated less than
180 days prior to the filing of the current Affidavit (except in the case in which
one of the partners died); and, in all cases in which a person registered a prior
domestic partnership, the partnership was terminated in accordance with New Jersey
law. N.J. Stat. Ann. § 26:8A-4(b)(1)-(9) (West 2016).
However, effective February 19, 2007, New Jersey began recognizing civil unions, when
the New Jersey Civil Union Act went into effect. L. 2006, c. 103, N.J. Stat. Ann.
§ 37:1-28 to -36 (West 2016).[4] As of that date, couples could no longer enter into domestic partnerships unless
both parties were each 62 years of age or older. N.J. Stat. Ann. § 26:8A-4.1 (West
2016). This provision did not “alter the rights and responsibilities of domestic partnerships
existing before the effective date of this act, except that eligible domestic partners
shall be given notice and opportunity to enter into a civil union pursuant to the
provisions of this act.” Id. Significantly, New Jersey statute permits a domestic partner to inherit an intestate
share of a decedent’s estate in the manner of a surviving spouse. N.J. Stat. Ann.
§ 3B:5-3 (West 2016); see also POMS GN 00210.004(D) (indicating that a NJ domestic partnership entered into during
the requisite period confers inheritance rights).
We have no reason to doubt the validity of the domestic partnership between the claimant
and the NH. Based on the information provided, the couple entered into a domestic
partnership in New Jersey on February XX, 2007, during the period when domestic partnerships
were available prior to the effective date of the Civil Union Act. Moreover, the claimant
provided a signed Certificate of Domestic Partnership, which strongly suggests that
the couple satisfied the other requirements of N.J. Stat. Ann. § 26:8A-4 (West 2016).[5] In addition, there is no evidence to suggest that: the parties were not of age; the
parties were related by blood or affinity; either member was a party to a marriage
recognized by New Jersey law or a member of another domestic partnership; or that
either person had been in a domestic partnership that was terminated less than 180
days prior to the filing of the current Affidavit for Domestic Partnership. N.J. Stat.
Ann. § 26:8A-4 (West 2016). Therefore, their domestic partnership appears valid under
New Jersey law.[6]
3. Pennsylvania Courts Would Likely Recognize the Couple’s New Jersey Domestic Partnership
Background
Given that the domestic partnership between the NH and the claimant was valid in New
Jersey, we consider whether Pennsylvania would recognize the domestic partnership
as a relationship conveying the same inheritance rights as a spouse under its intestacy
law. We believe that a Pennsylvania court would likely recognize the New Jersey domestic
partnership because the Pennsylvania statutes that prohibited such recognition have
been found to be unconstitutional. Whitewood v. Wolf, 992 F. Supp. 2d 410 (M.D. Pa. 2014).
The agency will consider “the claimant to be the number holder (NH)’s spouse for benefit
purposes if the state of the NH’s domicile would allow the claimant to inherit a spouse’s
share of the NH’s personal property if the NH died without leaving a will.” POMS GN 00210.004(A). In those circumstances, the agency “will treat the couple’s relationship as a
marital relationship.” Id. Pennsylvania intestacy law governs how to distribute a decedent’s estate to his or
her “surviving spouse.” 20 Pa. Cons. Stat. Ann. § 2102 (West 2016). However, neither
the intestacy statute nor the case law defines the term “surviving spouse,” see 20 Pa. Cons. Stat. Ann. § 102 (West 2016)(definitions), nor have we located any case
where a domestic partner seeks to collect benefits from his or her deceased partner
under the Pennsylvania intestacy law. The intestacy law makes no mention of domestic
partnerships between same-sex couples.
Significantly, a Pennsylvania statute defined marriage as between a man and woman.
See 23 Pa. Cons. Stat. Ann. § 1102 (West 1996) (“marriage” is a “civil contract by which
one man and one woman take each other for husband and wife”). Thus, by banning marriage
between same-sex couples, 23 Pa. Cons. Stat. Ann. § 1102 effectively defined the term
“spouse” in the intestacy law as one of the partners in a marriage between a man and
woman. In addition to defining the term “marriage,” the Legislature also made clear
that Pennsylvania would not recognize same-sex marriages from other jurisdictions.
Under 23 Pa. Cons. Stat. Ann. § 1704, entitled “Marriage between persons of the same
sex,” the law stated:
It is hereby declared to be the strong and longstanding public policy of this Commonwealth
that marriage shall be between one man and one woman. A marriage between persons of
the same sex which was entered into in another state or foreign jurisdiction, even
if valid where entered into, shall be void in this Commonwealth.
The statute was silent with respect to civil unions and domestic partnerships between
same-sex couples.
However, despite the statutory gap in § 1704, Pennsylvania courts equated same-sex
civil unions in New Jersey with same-sex marriage and relied on §1704 in refusing
to recognize civil unions. See Himmelberger v. PA Dep’t of Revenue, No. 610-286, 2011 Pa. Dist. & Cnty. Dec. LEXIS 565, *13, *17 (Pa. Ct. of Com. Pl.,
Berks County, Orphans’ Court Div. Sept. 28, 2011) (finding a NJ civil union to be
the equivalent of marriage and applying 23 Pa. Cons. Stat. Ann. § 1704 to void the
marriage qualities of the civil union and to prohibit the spousal tax rate from being
applied to the surviving partner of a NJ civil union); see also Himmelberger v. Commw. of PA Dep’t of Revenue, 47 A.3d 160, 161-62 (Pa. Commw. Ct. 2012) (adopting the analysis of the Court of
the lower court and affirming for the reasons in that opinion). Id. at 161-62. Accordingly, the two Himmelberger opinions filled in the gap left by the statute. Although Section 1704 makes no mention
of civil unions, the Court of Common Pleas and the Commonwealth Court equated a New
Jersey civil union with marriage — essentially reading the concept of civil unions
into Section 1704 — and then relied on that provision to bar recognition of the civil
union for inheritance tax purposes.
Current Law
On May 20, 2014, in Whitewood v. Wolf, 992 F. Supp. 2d 410 (M.D. Pa. 2014), the U.S. District Court for the Middle District
of Pennsylvania held that 23 Pa. Cons. Stat. Ann. §§ 1102 and 1704 violated the Due
Process and Equal Protection Clauses of the U.S. Constitution. The District Court
entered an order permanently enjoining the enforcement of these marriage laws. Id. at 431. “By virtue of this ruling,” the District Court explained, “same-sex couples
who seek to marry in Pennsylvania may do so, and already married same-sex couples
will be recognized as such in the Commonwealth.” Id.
The Commonwealth chose not to appeal that decision to the U.S. Court of Appeals for
the Third Circuit.
Current Application
Under Section 216 of the Social Security Act, an applicant may be “deemed to be the
wife, husband, widow, or widower” of an insured individual if, “under the laws applied
by such courts in determining the devolution of intestate personal property,” the
applicant would “have the same status with respect to the taking of such property
as a wife, husband, widow, or widower of such insured individual.” 42 U.S.C. § 416(h)(1)(A)(i).
As discussed, Pennsylvania intestacy law governs how to distribute a decedent’s estate
to his or her “surviving spouse.” 20 Pa. Cons. Stat. Ann. § 2102 (West 2016). However,
neither the intestacy statute nor the case law defines the term “surviving spouse,”
see 20 Pa. Cons. Stat. Ann. § 102 (West 2016)(definitions), nor have we located any case
where a domestic partner seeks to collect benefits from his or her deceased partner
under the Pennsylvania intestacy law. The intestacy law makes no mention of domestic
partnerships between same-sex couples.
Nevertheless, as discussed, there is precedent in Pennsylvania case law recognizing
a civil union as the equivalent of marriage. See Himmelberger v. PA Dep’t of Revenue, No. 610-286, 2011 Pa. Dist. & Cnty. Dec. LEXIS 565, *13, *17 (Pa. Ct. of Com. Pl.,
Berks County, Orphans’ Court Div. Sept. 28, 2011) (finding a NJ civil union to be
the equivalent of marriage and applying 23 Pa. Cons. Stat. Ann. § 1704 to void the
marriage qualities of the civil union and to prohibit the spousal tax rate from being
applied to the surviving partner of a NJ civil union). Furthermore, although in the
Himmelberger case, 23 Pa. Cons. Stat. Ann. § 1704 was applied to bar a surviving partner in a
NJ civil union from receiving the tax benefit of a spouse, this statute was subsequently
found to be unconstitutional in Whitewood v. Wolf, 992 F. Supp. 2d 410, 431 (M.D. Pa. 2014). In Whitewood, the Middle District of Pennsylvania held, “By virtue of this ruling, same-sex couples
who seek to marry in Pennsylvania may do so, and already married same-sex couples
will be recognized as such in the Commonwealth.” Id.
Here, the domestic partnership between the NH and the claimant was valid when it was
entered into and remains valid under New Jersey law. Although there is clearly a distinction
between New Jersey domestic partnerships and New Jersey civil unions with the latter
providing “the same benefits and protections and . . . same responsibilities as spouses
in a marriage,” N.J. Stat. Ann. § 37:1-29 (West 2016), nevertheless New Jersey intestacy
law confers inheritance rights to the surviving partner in a domestic partnership.
N.J. Stat. Ann. § 3B:5-3 (West 2016); see also POMS GN
00210.004(D) (indicating that a NJ domestic partnership entered into during the requisite period
confers inheritance rights). In absence of any case law in Pennsylvania addressing
the inheritance rights of domestic partners, we believe that a Pennsylvania court
would find the Himmelberger case instructive and find that the domestic partnership relationship between the
claimant and the NH, which is still in effect, is analogous to a New Jersey civil
union, particularly since the relationship also confers inheritance rights under New
Jersey law.[7]
Furthermore, given the fact that Pennsylvania’s statutory bar to recognizing same-sex
marriages in other jurisdictions was found unconstitutional as of May 20, 2014, it
is unlikely that a Pennsylvania court would apply the reasoning used in the Himmelberger case to prohibit recognition of the valid New Jersey domestic partnership in this
case. Therefore, following the principles in Whitewood, we believe it likely that, a Pennsylvania court would recognize the valid New Jersey
domestic partnership as a relationship conveying the same inheritance rights as a
spouse under the Pennsylvania intestacy statutes.
CONCLUSION
Accordingly, as explained above, we believe that Pennsylvania courts would likely
recognize the New Jersey domestic partnership to permit the claimant to inherit from
the NH under the Pennsylvania intestacy statutes.[8]
Respectfully,
Nora R. Koch
Regional Chief Counsel, Region III
Tara A. Czekaj
Assistant Regional Counsel