The number holder (NH) died while domiciled in Washington. The agency thus looks to Washington law to determine if the claimant and the NH could be considered married for purposes of the claimant’s entitlement to survivor benefits. Washington law authorizes any two individuals, regardless of sex, to enter a state-registered domestic partnership provided they meet requirements for a domestic partnership. The claimant and the NH were registered as domestic partners in Washington and Washington registered domestic partners have the same rights and benefits as spouses under state law and have the same intestate inheritance rights as married spouses. Accordingly, the agency would recognize the claimant as the NH’s widow for purposes of entitlement to survivor benefits. The claimant currently receives divorced spouses benefits based on her prior marriage, but because the claimant and the NH are considered spouses under the Social Security Act (Act), the claimant was ineligible to receive divorced spouse’s benefits from a prior marriage after she entered into the Washington domestic partnership with the NH.

QUESTIONS PRESENTED

Issue 1: Whether E~, a claimant for survivor benefits (the claimant), and C~, the deceased number holder (NH), an opposite-sex couple in a Washington State registered domestic partnership, should be considered spouses for purposes of determining the claimant’s eligibility for survivor benefits when the claimant is currently receiving divorced spouse benefits from a prior opposite-sex marriage.

Issue 2: If the claimant and the NH are considered spouses, whether the claimant’s status as a registered domestic partner disqualified her from receiving divorced spouse benefits and may have resulted in an overpayment.

BRIEF ANSWER

Brief Answer 1: Yes. For entitlement to survivor benefits, the Social Security Administration (agency) considers an individual to be a spouse if he or she has the same rights as a husband or wife to share in the distribution of the other’s personal property under the laws of the State of domicile. Under Washington law, the claimant and the NH were domestic partners who would inherit intestate from each other the same as a surviving spouse in a state-recognized marriage. Accordingly, they are considered spouses for purposes of eligibility for survivor benefits.^[1] The claimant’s current receipt of divorced spouse benefits from a prior opposite-sex marriage does not affect her status as a “spouse” for survivor benefits.

Brief Answer 2: Yes. Because the claimant and the NH are considered spouses under the Social Security Act (Act), the claimant was ineligible to receive divorced spouse’s benefits from a prior marriage after she entered into the Washington domestic partnership with the NH.

SUMMARY OF FACTS

The claimant and the NH, an opposite-sex couple, registered for a Washington domestic partnership with an effective date of October XX, 2012. Both individuals were at least age 62 at the time. On April XX, 2016, the claimant applied for divorced spouse benefits based on the record of her ex-husband, K~, with an effective date of March 2016. In her application for divorced spouse benefits, the claimant reported she was not married and did not mention her domestic partnership with the NH. The agency approved the application and the claimant began receiving divorced spouse benefits.

In February 2017, the NH died. At the time of his death, the NH only received retirement benefits from his own work record. In April 2017, the claimant applied for surviving spouse benefits on the record of the NH. The claimant continues to receive divorced spouse benefits based on her prior marriage to K~, who is not deceased.

DISCUSSION

I. Applicable Federal and State Law

Federal Law

Under certain circumstances, the Act entitles the widow of an insured individual to survivor benefits. 42 U.S.C. §§ 402(e), 402(f); 20 C.F.R. § 404.335. To be entitled to survivor benefits, the claimant must meet several requirements, including the requirement that she was the insured individual’s spouse for at least 9 months before the death of the insured individual. 42 U.S.C. §§ 402(e), 402(f); 20 C.F.R. §§ 404.335, 404.345. Generally, the Act considers a claimant to be the spouse of the insured individual if the claimant would “have the same status with respect to the taking of [intestate personal] property as a wife, husband, widow, or widower” of the insured individual. 42 U.S.C. § 416(h). Accordingly, in considering whether two individuals were spouses for the purposes of entitlement to survivor benefits, the agency looks to the laws of the state where the insured individual was domiciled when he or she died. 20 C.F.R. § 404.335(a) (referencing 20 C.F.R. § 404.345). If the individuals were in a non-marital legal relationship that conveys spousal inheritance rights under the laws of the state of domicile, the agency can treat it as a spousal relationship. 20 C.F.R. § 404.345.

The Act also entitles divorced spouse’s benefits to the divorced spouse of an insured individual who is entitled to old-age or disability benefits. 42 U.S.C. §§ 402(b), 402(c); 20 C.F.R. § 404.331. Entitlement to divorced spouse’s benefits is subject to several requirements, including that the claimant is not currently married. 20 C.F.R. § 404.331; see 20 C.F.R. § 404.332(b)(3) (noting that entitlement ends if the divorced spouse marries someone other than the insured individual, unless that other person is someone entitled to benefits as a wife, husband, widow, widower, father, mother, parent or disabled child). To determine whether a claimant is married, the agency looks to state law. 20 C.F.R. § 404.331(a)(1) (referencing 20 C.F.R. § 404.345). If the individuals are in a non-marital legal relationship that conveys spousal inheritance rights under the laws of the state of domicile, the individuals are considered to be married under the Act. 20 C.F.R. § 404.345.

Washington State Law

Washington law authorizes any two individuals, regardless of sex, to enter a state-registered domestic partnership provided they meet certain requirements. Wash. Rev. Code 26.60.030. To register as domestic partners, the two individuals must share a common residence, be both at least 18 years old with at least one at or over age 62, not be married or in a state-registered domestic partnership with another person, and not be nearer of kin to each other than second cousins. Id. The eligibility requirements for registered domestic partnership apply equally to same-sex and opposite-sex couples. See Wash. Rev. Code 26.60.020 (“‘State registered domestic partners’ means two adults who meet the requirements for a valid state registered domestic partnership as established by RCW 26.60.030 and who have been issued a certificate of state registered domestic partnership by the secretary.”); see also POMS PR 05005.053.A n2 (discussing Washington domestic partnership legislation).

Washington registered domestic partners have the same rights and benefits as spouses under state law. Wash. Rev. Code 26.60.015 (“Any privilege, immunity, right, benefit, or responsibility granted or imposed by statute, administrative or court rule, policy, common law or any other law to an individual because the individual is or was a spouse . . . shall be granted on equivalent terms . . . to an individual [who] is in a state registered domestic partnership[.]”). Registered domestic partners in Washington therefore have the same intestate inheritance rights as married spouses. See Wash. Rev. Code 11.04.015 (describing similar intestate inheritance rights for surviving spouses and registered domestic partners).

II. Analysis

The claimant and the NH, who registered as domestic partners in Washington in October 2012, were domiciled in Washington when the NH died in February 2017. The agency thus looks to Washington law to determine if the claimant and the NH could be considered married for purposes of assessing the claimant’s entitlement to survivor benefits. 20 C.F.R. §§ 404.335(a), 404.345. The agency considers a couple in a non-marital relationship to be married if they can inherit intestate as a married couple. See 20 C.F.R. § 404.345. In Washington, registered domestic partners share the same rights and benefits as married spouses, including the right for the surviving partner to inherit intestate the same as a surviving spouse. Wash. Rev. Code 11.04.015. As registered domestic partners in Washington have the same intestate rights as married spouses, Wash. Rev. Code 11.04.015, the agency considers the claimant and the NH to have been “married” for purposes of assessing the claimant’s entitlement to divorced spouse benefits. 20 C.F.R. §§ 404.331, 404.345. Accordingly, the agency considers the claimant to be a spouse for survivor benefits eligibility purposes. 20 C.F.R. §§ 404.335(a), 404.345.

The fact that the claimant currently receives divorced spouse’s benefits from her ex-husband, who is not deceased, does not affect the analysis of whether she is the NH’s spouse for determining her entitlement to survivor benefits. Agency regulations setting out the requirements for survivor benefits, as well as the regulations defining spousal relationships, contain no exclusionary provisions for individuals who receive divorced spouse’s benefits. See 20 C.F.R. §§ 404.335(a), 404.345.

Nonetheless, that the claimant is considered married to the NH is relevant in assessing whether the claimant was entitled to receive divorced spouse’s benefits on her ex-husband’s record. Here, the claimant applied for divorced spouse benefits, based on a prior marriage, after she registered for a domestic partnership with the NH. In her application, the claimant stated she was not married and did not report her domestic relationship with the NH. Under the regulations, however, an individual who is married is not entitled to divorced spouse benefits. 20 C.F.R. § 404.331(c). The only exception to the general rule occurs if the divorced spouse marries someone other than the insured individual and that other person is someone entitled to benefits as a wife, husband, widow, widower, father, mother, parent or disabled child. 20 C.F.R. § 404.332(b)(3). But this exception does not apply because the NH only received retirement benefits on his own work record and was not entitled to any other benefits. Because the claimant is deemed married to the NH under agency regulations, she was ineligible to receive divorced spouse’s benefits on her ex-husband’s record after she entered the domestic partnership with the NH. 20 C.F.R. § 404.331(c); 20 C.F.R. § 404.332(b)(3). As a result, the claimant may be overpaid.^[2]

III. Conclusion

The claimant and the NH, opposite-sex registered domestic partners in Washington and domiciled in Washington when the NH died, would inherit intestate from each other the same as a surviving spouse in a state-recognized marriage. Accordingly, the agency would recognize the claimant as the NH’s widow for purposes of entitlement to survivor benefits. However, as the claimant and the NH were “married” for purposes of eligibility for divorced spouse benefits, the claimant was not entitled to receive divorced spouse benefits based on her ex-husband’s record after she entered a domestic partnership with the NH.

The number holder (NH) and claimant were domiciled in the state of Washington at the time of filing. Washington State law authorizes any two individuals to enter a state-registered domestic partnership provided that the two individuals must share a common residence, be both at least 18 years old with at least one at (or over) age 62, not be married or in a state-registered domestic partnership with another person, and not be nearer of kin to each other than second cousins. The claimant and NH met the requirements under the Washington state law for a domestic partnership; therefore, they are in a valid domestic partnership under the Washington law. The claimant and NH are domestic partners who would inherit intestate from each other the same as a surviving spouse in a State-recognized marriage. For Special Enrollment Period (SEP) eligibility purposes, the Agency deems an individual to be a spouse if he or she is a spouse for eligibility purposes under the Act. Accordingly, the NH and claimant are spouses for purposes of determining eligibility for a Medicare Part B SEP.

QUESTION PRESENTED

Whether W~ and T~, an opposite-sex couple in a Washington State domestic partnership, should be considered spouses for purposes of determining W~’s eligibility for a Medicare Part B Special Enrollment Period (SEP).

BRIEF ANSWER

Yes. For SEP eligibility purposes, the Social Security Administration (agency) deems an individual to be a spouse if he or she is a spouse for eligibility purposes under Title II of the Social Security Act (Act). In turn, the Act defines a spouse for Title II eligibility purposes as an individual who has the same rights as a husband or wife to share in the distribution of the other’s personal property under the laws of the State of domicile. Under Washington State law, W~ and T~ are domestic partners who would inherit intestate from each other the same as a surviving spouse in a State-recognized marriage. Accordingly, they are spouses for purposes of eligibility for a Medicare Part B SEP.^[3]

SUMMARY OF FACTS

On January XX, 2011, W~ and T~ registered for a Washington State domestic partnership in accordance with state law. W~, with a date of birth of February XX, 1948, was age 62 at the time.

In February 2013, W~ reached age 65 and became eligible for Medicare. He enrolled in Part A coverage, but declined Part B because he was covered by T~’s employer-provided medical insurance. W~ subsequently filed for enrollment in Part B Medicare coverage, and, to avoid paying a late enrollment penalty, submitted an L-564 form in October 2016 that cited T~’s employer-provided medical insurance as a basis for a Medicare SEP. T~ remains employed but plans to stop work in December 2016.

DISCUSSION

I. Applicable Federal and State Law

Federal Law

Medicare is a federally subsidized health insurance program for individuals age 65 or older, and certain qualified individuals under age 65. 42 U.S.C. § 1395 et seq. An individual who becomes eligible for Medicare may elect Part A (Hospital Insurance) and Part B (Medical Insurance) coverage, or may choose to turn down Part B coverage because it requires a premium. An individual may still choose to enroll in Part B after turning it down during his initial enrollment period, but must pay a late enrollment penalty, unless he qualifies for an SEP. 42 U.S.C. § 1395q(e); 42 C.F.R. § 407.20.

An individual may qualify for an SEP if he is covered under a group health plan based on his spouse’s current employment. 42 C.F.R. § 407.20(c); POMS HI 00805.270(A)(1). The agency considers an individual to be a spouse for SEP purposes if he or she is a spouse for benefits eligibility purposes under Title II of the Act. POMS HI 00805.266(A). Title II in turn defines a spouse as someone who (1) is married to the individual under the laws of the State of the individual’s domicile at the time he files for benefits, or (2) has the same rights as a husband or wife to share in the distribution of the individual’s intestate personal property under the laws of the State of the individual’s domicile at the time of filing. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Thus, if an individual is in a non-marital legal relationship that conveys intestate spousal inheritance rights, the relationship can be treated as a spousal relationship. POMS RS 00202.001(A)(1).

Washington State Law

Washington State law authorizes any two individuals to enter a state-registered domestic partnership provided they meet certain requirements. Wash. Rev. Code 26.60.030. To register as domestic partners, the two individuals must share a common residence, be both at least 18 years old with at least one at or over age 62, not be married or in a state-registered domestic partnership with another person, and not be nearer of kin to each other than second cousins. Id. The eligibility requirements for registered domestic partnership apply equally to same-sex and opposite-sex couples.^[4]

Registered domestic partners share the status of spouses under state law. Wash. Rev. Code 26.60.015 (providing that domestic partners “shall be treated the same as married spouses” for all purposes under state law). “Any privilege, immunity, right, benefit, or responsibility granted or imposed by statute, administrative or court rule, policy, common law or any other law to an individual because the individual is or was a spouse . . . shall be granted on equivalent terms . . . to an individual [who] is in a state registered domestic partnership[.]” Id. Registered domestic partners in Washington therefore have the same intestate inheritance rights as married spouses. See Wash. Rev. Code 11.04.015 (describing similar intestate inheritance rights for surviving spouses and registered domestic partners).

II. Analysis

W~ and T~ were in a valid domestic partnership under Washington law. W~ was 62 years of age at the effective date he registered for domestic partnership with T~, and records from the Washington Secretary of State indicate that the domestic partnership remained active as of November XX, 2016.

As state-registered domestic partners, W~ and T~ shared the same rights and benefits as a married couple, including the right for the surviving partner to inherit intestate the same as a surviving spouse. Wash. Rev. Code 11.04.015. As T~ may inherit intestate from W~ the same as a surviving spouse, the agency will deem T~ to be a spouse for Title II benefits eligibility purposes. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Accordingly, W~ and T~ can be considered spouses for Medicare Part B SEP eligibility purposes. POMS HI 00805.266(A).

III. Conclusion

W~ and T~ are registered domestic partners in Washington State who would inherit intestate from each other the same as a surviving spouse in a State-recognized marriage. Accordingly, they are spouses for purposes of determining eligibility for a Medicare Part B SEP.

Washington will recognize a marriage valid in other jurisdictions. However, the State of Washington does not recognize common-law marriages. Under Jewish law even if the marriage was properly dissolved, the marriage will be considered valid and still in effect if the couple openly resume a conjugal relationship. The evidence provided demonstrates sufficient cohabitation in Israel to establish a valid marriage relationship. Even if the divorce had been obtained in accordance with Jewish law, the period of time lived together in Israel, revalidates their marriage under Jewish law.

Factual Background

On May XX, 1990, Ms. Valentine M~ filed an application for disability insurance benefits. In her application, she stated that she married Mr. M~ in a civil ceremony in New York, New York on March XX, 1979, but that they divorced in 1979 in New York. A Certificate of Marriage confirms the Ms. M~ married Mr. M~ on March XX, 1979. The record contains no evidence of the divorce beyond the assertions of Ms. M~ and Mr. M~.

Ms. M~ also applied for retirement insurance benefits on October 30, 1990. In that application, she again stated that she had been married to Mr. M~, but they divorced in September 1979. However, as late as September 1990, Ms. M~ signed letters as “Mr. and Mrs. M~” (Tr. 72). In 1991, Ms. M~ told a Social Security Administration representative that she “lives with her spouse” (Tr. 70). She is also listed as V~ M~ on a joint account with Mr. M~ at Washington Mutual (Tr. 64).

Ms. M~ died on December XX, 1993. Her death certificate shows her marital status as divorced (Mr. M~ is listed as the “informant” of this fact).

Mr. M~ applied for widower's insurance benefits on January 3, 1994, at the age of seventy. In his application, he indicated that he married Ms. M~ in March 1979, but they divorced in October 1979.

Mr. M~'s application for widower's insurance benefits was denied administratively and upon judicial review. The reconsideration decision states:

Mr. M~ indicated he was divorced but not separated from Ms. M~, and they lived in New York, New Hampshire, and Washington. He was advised New York and Washington do not recognize common-law marriages, and New Hampshire would recognize such a marriage only if all events took place in that state. It should be noted that in this instance, neither party alleged that they were married after their divorce in 1979.

During the administrative hearing, Mr. M~ testified that he never remarried Ms. M~. The administrative law judge determined that Mr. M~ did not qualify for widower's benefits as a surviving divorced spouse because he could not show that he was married to Ms. M~ for ten years prior to the divorce. The Appeal's Council denied review, making the ALJ's decision the final agency decision. Mr. M~ then sought judicial review.

On August 14, 1996, the Federal district court for the Western District of Washington affirmed the ALJ's decision. The magistrate judge's report, which was adopted by the district court judge, stated:

Plaintiff contends that the divorce in 1979 was not valid because an agency of the Israeli Government (the General Security Service, or “GSS”) forced him and his wife to divorce. He claims that they attempted to remarry under Jewish law by sending correspondence to officials in Israel, but that GSS again thwarted those efforts. He also cites the fact that he and his ex-wife continued to live together after their divorce.

Plaintiff has presented no competent evidence, to the Commissioner or to this Court, to support his contention that his divorce in 1979 was invalid. His repeated letters, stating that contention, are legally insufficient to establish it. He and his ex-wife never re-married; and the fact that they continued to live together after the divorce does not satisfy the requirements [for widower's insurance benefits].

The Court of Appeals affirmed the district court's decision on April XX, 1998.

On June XX, 2000, Mr. M~ submitted a letter to the Bremerton District Office stating that, when he and Ms. M~ decided to move to Israel, they were advised to get a divorce to prevent having to pay a duty on their household items. After they divorced, they moved to Israel and lived there until 1984, when they returned to the United States. They lived together in the State of Washington until Ms. M~'s death. One of Mr. M~' friends in Israel has attested that Mr. M~ and Ms. M~ lived together as a family unit in Israel.

Marriage in Israel and the Rabbinical Courts

The State of Washington does not recognize common law marriages. However, Washington will recognize a marriage valid in other jurisdictions. See Peffley-Warner v. Bowen, 113 Wash.2d 243, 249-250 (1989).

Marriages and divorces for persons of the Jewish faith are governed by Rabbinical Courts Jurisdictional law in accordance with Jewish religious law. Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953, 7 Laws of the State of Israel 139 (1953); see also Memorandum from OGC, Division of Social Security, to Larry B~, Israeli Recognition of a Mexican Proxy Marriage and Subsequent Israeli Annulment, March 10, 1983.

One scholar has written:

Under Jewish law, since the marriage is a unilateral contract that is initiated by the husband, the husband must also be the one to initiate its dissolution. … Although the unilateral nature of the divorce makes it sound simple to achieve, there are a few qualifications within Jewish law. First, a husband must begin by giving his wife a bill of divorcement, known as a get [also spelled Ghet, and present it to her before sending her from his home. … If a marital relationship dissolves and one or both parties want a divorce, civil law requires that the moving party bring an action in a civil court of law. Assuming proper grounds exist for a divorce, the court will order a divorce and civil law will consider the marriage terminated. The Jewish community, however, will not regard the couple as divorced. A secular or civil divorce has no religious validity. In order for a divorce to be considered complete, thus severing all marital ties of a couple, a Jewish husband must issue his wife a get.

Marc S. C~, The Agunah Divorce Problem in Jewish Society: Exploring the Possibility of an International Law Solution, 17 WIILJ 109, 113 (1999). Whether they were married in a religious or civil ceremony, most authorities will require that a Jewish couple obtain a Jewish divorce. See, Dr. Chaim P~, Responsa Literature on Contemporary Issues: The Status of Civil Marriage in Jewish Law, The Jewish Law Report, Dec. 1995, available at http://www.Tourolaw.edu/Publicationst/JewishLaw/dec95/jirdec95.html. To a great extent Jewish law recognizes the validity of the law of the state, based upon the principle of dina de'malchuta dina, or the law of the state is the law, and requires Jewish people follow this law. Because of the significance of marriage and divorce in the Jewish religion and the Jewish legal system, the principle of dina de'malchuta dina does not apply to these matters. Thus, a Jewish divorce must be obtained to terminate a marriage under Jewish law. See Dr. Chaim P~, Intervention by Non-Jewish Courts in Jewish Divorces, The Jewish Law Report, Aug. 1994, available at: http://www.tourolaw.edu/Publications/jewishlaw/aug94/part1.html;

see also Distr.C.T.-A,. Probate 290/45 (ruling in district court of Tel Aviv regarding whether a civil marriage of Jews is to be considered a valid marriage under Jewish Law and has accordingly to be dissolved by a Ghet before a new marriage will be solemnized).

Additionally, even if a couple obtained a proper Jewish divorce, if they resume conjugal relations and live together as husband and wife, under Jewish law they are still married. Both the Rabbinical Court and the Israeli State High Court of Justice have ruled that, under Jewish law, the marriage of a couple properly divorced through a get will be considered valid and still existing if they resume conjugal life. See H.C.46/46 (High court of Justice ruling that where a couple which after having been divorced by a get resumed conjugal life were husband and wife in all matters until they separate again by a get).

According to both an Orthodox and a Reform Rabbi from the Seattle area, under the facts of this case, Mr. M~ and Ms. M~ would clearly be considered as husband and wife under Jewish law. (Based on phone interviews with Reform Rabbi Scott S~, Temple De Hirsch Sinai, and Orthodox Rabbi K~ of Va'ad HaRabinim of Greater Seattle). According to both Rabbi S~ and Rabbi K~, with or without either a proper religious marriage or a religious divorce, once Mr. M~ and Ms. M~ lived in Israel as husband and wife, and represented their relationship as husband and wife to the Jewish community, it would be proper to state that the common practice would be to hold Mr. M~ and Ms. M~ as married under Jewish law.

Mr. M~ and Ms. M~ married in a civil ceremony in New York, New York on March XX, 1979. They divorced in 1979 in New York. There is no evidence in the record to indicating the divorce was obtained in accordance with Jewish law. Even if their divorce had been obtained in accordance with Jewish law, the period of time lived together in Israel, presenting themselves as a husband and wife, from 1979 until 1984, revalidates their marriage under Jewish law. During their time in Israel, and continually thereafter up to the death of Ms. M~, Jewish law, therefore, would legally define Mr. M~ and Ms. M~ as husband and wife, giving no recognition to their 1979 divorce, whether civil or religious. Additionally, absent any contrary direction by Ms. M~'s estate, Israeli law would recognize the inheritance rights of Mr. M~.

SUMMARY

Marriage in Israel is governed by the Rabbinical Courts (Jewish religious court) and subject to review only by the Israeli Supreme Court. The Rabbinical Courts recognize civil marriages between two Jews performed abroad, but do not recognize civil divorces, except in cases where a Jewish divorce is not possible. Accordingly, the Rabbinical Courts require that a Jewish couple obtain a Jewish divorce before the marriage will be considered legally dissolved. And even if properly dissolved, the marriage will be considered valid and still in effect if the couple openly resume a conjugal relationship.

Because Israeli law would not officially have acknowledged the civil divorce of Mr. M~ and Ms. M~, under Israeli marriage and divorce law they continued to be husband and wife. Because the State of Washington will recognize a marriage valid in other jurisdictions, Washington law will recognize Mr. M~ and Ms. M~ as being married.

Lucille Gonzales M~
Regional Chief Counsel

By: Thomas E~
Assistant Regional Counsel