The Claimant and the number holder (NH) entered into a civil union in Hawaii in 2012. The NH passed away while domiciled in Hawaii. Accordingly, to determine Claimant’s entitlement to widow’s benefits, the agency will look to the Hawaii law. Effective January 2012, Hawaii law began providing for State recognition of civil unions. Under the Hawaii law, partners to a civil union receive the same rights as a married couple, including the right to inherit intestate from each other to the same extent as a surviving spouse. Because the Claimant would inherit intestate from the NH to the same extent as a surviving spouse, the agency deems the Claimant to be the NH’s widow for purposes of entitlement to widow’s insurance benefits under the Act. The Claimant is also entitled to the Lump Sum Death Payment (LSDP) because she is eligible for widow’s benefits.

QUESTION

You asked whether H~ (Claimant) qualifies for surviving spouse’s benefits and the Lump Sum Death Payment (LSDP) on the record of number holder G~ (NH). Claimant and NH entered into a civil union in Hawaii on February, 2012. NH passed away in Hawaii on May XX, 2017, domiciled in Hawaii, residing in a separate household from Claimant. The death certificate named Claimant as the surviving spouse, and Claimant filed for widow’s benefits and the LSDP on NH’s record on July XX, 2017.

SHORT ANSWER

Yes. The agency deems Claimant to be the NH’s widow for purposes of entitlement to widow’s insurance benefits under the Act. Claimant qualifies for widow’s benefits, but only if the amount of the old-age benefits she receives is less than NH’s primary insurance amount. If she qualifies for widow’s benefits, Claimant also qualifies for the LSDP.

SUMMARY OF EVIDENCE

On October XX, 1990, NH filed for retirement benefits on his own earnings record, and SSA awarded benefits as of April 1990. On May XX, 2009, Claimant filed for retirement benefits on her own earnings record, and SSA awarded benefits as of August 2009.

On February XX, 2012, NH and Claimant entered a civil union in W~, Hawaii. At the time of their union, NH was 86 years old and Claimant was 67 years old. On May XX, 2017, NH passed away in H~, Hawaii. He was domiciled in Hawaii and living in a separate household from Claimant. The death certificate named Claimant as the surviving spouse. On July XX, 2017, Claimant filed for widow’s insurance benefits and the Lump Sum Death Payment on NH’s record.

APPLICABLE LAW

Federal Law

To qualify for widow’s insurance benefits under Title II of the Social Security Act, a claimant must establish that she is the widow (or surviving divorced wife) of an individual who died fully insured. Social Security Act § 202(e), 20 C.F.R. § 404.335. Under section 216(c) of the Act, the agency will find a claimant to be the widow of an insured if she is the surviving wife of the insured and was married to the insured for at least nine months immediately prior to the insured’s death. Social Security Act § 216(c)(1)(E). A claimant is the widow of the insured if the courts of the State in which the insured was domiciled at the time of death would find that claimant and the insured were validly married at the time of death. Social Security Act § 216(h)(1)(A)(i); 20 C.F.R. § 404.345.

However, even if the claimant was not married to the insured individual, the agency will deem the claimant to be the insured individual’s widow if, under the laws of the State where the insured individual had a permanent home, the claimant would be able to inherit a surviving spouse’s share of the insured individual’s personal property if she or he died without leaving a will. Social Security Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.

A widow qualifies for surviving spouse’s benefits if she is not married, has attained age 60, has filed an application for widow’s insurance benefits, and is not entitled to old-age insurance benefits or is entitled to old-age insurance benefits in an amount less than the deceased’s primary insurance amount. See Social Security Act § 202(e)(1); 20 C.F.R. § 404.335.

A surviving spouse who was living with the insured when the insured died can receive the LSDP. See Social Security Act § 202(i). A surviving spouse who was living apart from the insured when the insured died, can receive the LSDP if she is entitled to benefits as the widow of the insured under section 216(e) for the month the insured died.

Hawaii Law

Effective January 1, 2012, Hawaii law began providing for State recognition of civil unions. Haw. Rev. Stat. ch. 572B. To be eligible, the partners to a civil union must (1) not already be a partner in another civil union or a spouse in a marriage; (2) be at least eighteen years old; and (3) not be related by blood to the other partner. Haw. Rev. Stat. § 572B-2. Partners to a civil union in Hawaii receive the same rights, benefits, protections and responsibilities as married spouses under Hawaii law. Haw. Rev. Stat. § 572B-9. A partner to a civil union is included in the definition or use of the term “spouse” and “other terms that denote the spousal relationship, as those terms are used throughout the laws of the State.” Haw. Rev. Stat. § 572B-11. Thus, civil union partners inherit intestate to the same extent as spouses. See Haw. Rev. Stat. § 560:2-102 (providing for the inheritance rights of a decedent’s “spouse”).

ANALYSIS

The NH died while domiciled in Hawaii. Accordingly, to determine Claimant’s entitlement to widow’s benefits, the agency will look to Hawaii law. Because, under the laws of Hawaii, Claimant would inherit intestate from the NH to the same extent as a surviving spouse, the agency deems Claimant to be the NH’s widow. See Social Security Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.

Claimant and the NH entered into a Hawaii Civil Union on February XX, 2012. We have no information suggesting that they did not meet the eligibility requirements for entering a civil union. See Haw. Rev. Stat. § 572B-2 (1) (requiring that each member in a civil union (1) is not already a partner in another civil union or a spouse in a marriage, (2) is at least eighteen years old; and (3) is not be related by blood to the other partner).^[1]

Under Hawaii law, partners to a civil union receive the same rights as a married couple, including the right to inherit intestate from each other to the same extent as a surviving spouse. Haw. Rev. Stat. §§ 572B-9, 572B-11; see also POMS GN 00210.004 (noting Hawaii civil unions provide for spousal inheritance rights). Thus, under Hawaii law, Claimant would inherit intestate from the NH to the same extent as a surviving spouse, and the agency deems Claimant the widow of NH. See Social Security Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345. In addition, the civil union endured for well over nine months, meeting the duration requirement under section 216(c) of the Act. See POMS GN 00210.004.E (duration requirement applies to civil unions).

A widow qualifies for surviving spouse’s benefits if she is not married, has attained age 60, has filed an application for widow’s insurance benefits, and is not entitled to old-age insurance benefits or is entitled to old-age insurance benefits in an amount less than the deceased’s primary insurance amount. See Social Security Act § 202(e)(1); 20 C.F.R. § 404.335. We have no information suggesting that Claimant does not meet the first two requirements (unmarried and over the age of 60). However, Claimant receives old age insurance benefits, and to qualify for widow’s benefits, the amount of her old-age benefits must be less than NH’s primary insurance amount. See Social Security Act § 202(e)(1)(D); 20 C.F.R. § 404.335.

Claimant is also entitled to the LSDP because, although she was not living with the insured when he died, she became entitled to widow’s benefits upon his death. See Social Security Act § 202(i).

CONCLUSION

The agency deems Claimant to be the NH’s spouse for purposes of entitlement to widow’s benefits. She qualifies for widow’s benefits if the amount of her old-age benefits is less than NH’s primary insurance amount. If Claimant qualifies for widow’s benefits, she also qualifies for the LSDP.