TN 13 (07-18)

A. PR 18-074 Evaluation of Washington Domestic Partnership Entered into Prior to State Recognition of Domestic Partnerships

Date: April 11, 2018

1. Syllabus

The number holder (NH) died while domiciled in the State of Washington; therefore, we look to the Washington state law to determine the marital status of the NH and Claimant.The couple’s city-registered domestic partnership did not qualify as a state-registered domestic partnership. Moreover, it is impossible for the claimant and the NH to have entered into a state-registered domestic partnership because the NH died two years prior to the state’s recognition of such relationships. Accordingly, we do not believe the Washington courts would find that the claimant could inherit as the NH’s widower under state intestate succession. Therefore, we do not believe there is support for the agency to deem the couple married for purposes of Title II widower’s benefits based on the Washington state domestic partnership.

2. Opinion

Question Presented

Can the agency deem a same-sex couple to be married for the purposes of Title II widower’s benefits based on a domestic partnership registered with the city of O~, Washington?

Brief Answer

No. Under Washington intestacy law, a couple must be in a state-registered domestic partnership in order to receive spousal inheritance rights. A city-registered domestic partnership does not qualify. As a result, the agency cannot deem this couple married for purposes of Title II widower’s benefits.

Summary of the Facts

G~ (the NH) and H~ (the claimant) registered their domestic partnership with the city of O~, Washington, on March XX, 2001. The NH died on June XX, 2005, while residing in the State of Washington. On December XX, 2016, the claimant applied for Title II widower’s benefits on the NH’s account. The claimant still lives in Washington.

Analysis

Generally, an individual is entitled to widow’s or widower’s benefits if the individual (1) is the insured’s widow or widower and the marital relationship lasted at least nine months before the insured died; (2) files an application; (3) is at least 60 years old; (4) is not entitled to an old-age benefit that is equal to or larger than the insured person’s primary insurance amount; and (5) is not currently married. 42 U.S.C. §§ 402(e), 402(f); 20 C.F.R. § 404.335. The laws of the domiciliary state will determine whether the agency considers a couple married for the purposes of these benefits. The agency will consider the insured and the claimant married if the courts of the state of domicile would find the insured and the widower validly married at the time of the insured’s death. 42 U.S.C. § 416(h)(1)(A)(i). Alternatively, the agency will deem the couple to be married if, under application of that state’s intestate succession laws, the claimant would be able to inherit a spouse’s share of the insured’s personal property. 42 U.S.C. § 416(h)(1)(A)(ii).

Since the NH died while residing in Washington, we consider Washington his state of domicile. To begin, we note, the claimant does not allege to have been validly married to the NH. Thus, we must examine if the agency can deem the couple married based on Washington intestate succession laws.

Beginning in July 2007, Washington state permitted same-sex couples to enter into state-registered domestic partnerships. Wash. Rev. Code § 26.60.030 (2007). Members of state-registered domestic partnerships had the same inheritance rights under intestacy as spouses in a traditional marriage. Wash. Rev. Code § 11.04.015(1). Thus, the agency will deem Washington state-registered domestic partners married for the purposes of Title II benefits. See POMS GN 00210.004.

Washington’s legislation creating state-registered domestic partnerships expressly excluded city-registered domestic partnerships from its provisions: “A domestic partnership created by a subdivision of the state is not a state registered domestic partnership for the purposes of a state registered domestic partnership under this chapter.” Wash. Rev. Code § 26.60.060(1)(a). A couple that entered into a city- or county-registered domestic partnership needed to go through the process created by the state domestic partnership legislation in order to enjoy the rights afforded therein. Id. (citing Wash. Rev. Code § 26.60.040(2)).

Here, because the legislation expressly excluded domestic partnerships created by a state subdivision, the couple’s city-registered domestic partnership did not qualify as a state-registered domestic partnership. Moreover, it is impossible for the claimant and the NH to have entered into a state-registered domestic partnership because the NH died two years prior to the state’s recognition of such relationships. Accordingly, we do not believe the Washington courts would find that the claimant could inherit as the NH’s widower under state intestate succession laws.

Conclusion

Based on the foregoing analysis, we do not believe there is support for the agency to deem the couple married for purposes of Title II widower’s benefits based on the O~, Washington domestic partnership.

B. PR 16-104 Evaluation of WA Domestic Partnership and Washington State Civil Marriage Ceremony

Date: March 22, 2016

1. Syllabus

The number holder (NH) and claimant entered into a domestic partnership in Washington state in September 2007 and subsequently married in Washington in July 2015. The NH died in August 2015 while domiciled in Washington and the claimant filed for widow’s benefits on the NH’s record. Beginning in July 2007, Washington permitted same-sex couples to enter into domestic partnerships. Since December 6, 2012, Washington state has permitted same-sex marriage. Pursuant to the December 2012 revisions to the statute, “for purposes of determining the legal rights and responsibilities,” people who previously had a state registered domestic partnership, and have either been deemed married, or have been issued a marriage license, “the date of the original state registered domestic partnership is the legal date of the marriage.” Given that the date of the original September 2007 state-registered domestic partnership is the legal date of the marriage, the NH and claimant were married for more than nine months prior to the NH’s death. Therefore, the claimant and the NH were legally married under state law for the minimum amount of time necessary for entitlement to benefits.

2. Opinion

QUESTION PRESENTED

You asked whether D~ (the NH) and S~ (the claimant), a same-sex couple, were validly married under Washington state law at the time of the NH’s death for purposes of determining entitlement to widow’s benefits under Title II of the Social Security Act.

BRIEF ANSWER

Yes. The NH and the claimant were validly married under Washington law for at least nine months prior to the death of the NH, the minimum amount of time required for the claimant to be entitled to widow’s benefits.

SUMMARY OF FACTS

The NH and the claimant entered into a domestic partnership in Washington state on September XX, 2007. They subsequently married in Washington on July XX, 2015.

On December 6, 2012, Washington state began to permit same-sex marriage and set out a series of criteria under which previously celebrated same-sex relationships could be recognized as marriages. 2012 Wash. Sess. Laws 199-205.

The NH died on August XX, 2015, at the age of seventy-two. The claimant filed for widow’s benefits on the NH’s record.

ANALYSIS

Generally, an individual is entitled to widow’s or widower’s benefits if the individual (1) is the insured’s widow or widower and the marital relationship lasted at least nine months before the insured died; (2) files an application; (3) is at least 60 years old; (4) is not entitled to an old-age benefit that is equal to or larger than the insured person’s primary insurance amount; and (5) is not currently married. 42 U.S.C. §§ 402(e), 402(f); 20 C.F.R. § 404.335.

The Agency will determine whether a claimant is the insured’s widow or widower by looking to the laws of the state where the insured was domiciled when he or she died. 42 U.S.C. § 416(h)(1)(A)(i) of the Act; 20 C.F.R. § 404.345. In this case, at the time of death, the NH was domiciled in Washington state.

Beginning in July 2007, Washington state permitted same-sex couples to enter into domestic partnerships. Wash. Rev. Code § 26.60.030 (2007). Since December 6, 2012, Washington state has permitted same-sex marriage. See Wash. Rev. Code § 26.60.100 (credits noting Referendum Measure No. 74 was approved on November 6, 2012); WA Const. Art. 2, § 1(d) (providing that “Any measure initiated by the people or referred to the people as herein provided shall take effect and become the law if it is approved by a majority of the votes cast thereon . . . on and after the thirtieth day after the election at which it is approved.”).

Pursuant to the December 2012 revisions to the statute, domestic partners “may apply and receive a marriage license and may have such marriage solemnized . . . so long as the parties are otherwise eligible to marry, and the parties to the marriage are the same as the parties to the state registered domestic partnership.” Wash. Rev. Code § 26.60.100(1). Once domestic partners have married, the domestic partnership is dissolved by operation of law. Wash. Rev. Code § 26.60.100(2). In addition, “for purposes of determining the legal rights and responsibilities,” people who previously had a state registered domestic partnership, and have either been deemed married, or have been issued a marriage license, “the date of the original state registered domestic partnership is the legal date of the marriage.” Wash. Rev. Code § 26.60.100(4).

In this case, the NH and the claimant entered their state-registered domestic partnership on September XX, 2007. They later married each other in Washington on July XX, 2015. This marriage was considered valid in Washington. Wash. Rev. Code § 26.60.100(1). Given that the date of the original, September XX, 2007 state-registered domestic partnership is the legal date of the marriage, Wash. Rev. Code § 26.60.100(4), the NH and the claimant were married for more than nine months prior to the NH’s death on August XX, 2015. Therefore, the claimant and the NH were legally married under state law for the minimum amount of time necessary for entitlement to benefits.

CONCLUSION

It is our opinion that, pursuant to the law of Washington state, the NH and the claimant were legally married for at least nine months prior to the death of the NH on August XX, 2015.

C. PR 16-083 Evaluation of Washington Domestic Partnership and Canadian Marriage

Date: February 11, 2016

1. Syllabus

The number holder (NH) and the claimant entered a same-sex marriage in British Columbia, Canada in April 2005 and also entered into a domestic partnership in Washington in August 2007. The claimant filed for spouse’s benefits on the NH’s record in June 2015 and requested that the benefits start when she attained age 66 in October 2015. We look to the laws of Washington since the NH was domiciled here at the time of the claimant’s application. Beginning in July 2007, Washington permitted same-sex couples to enter into domestic partnerships and on December 6, 2012, began to permit same-sex marriage. Pursuant to the December 2012 change in law, for people who previously had a state registered domestic partnership and have either been deemed married or have been issued a marriage license, “the date of the original state registered domestic partnership is the legal date of the marriage.” Even though the NH and claimant’s married each other in Canada in April 2005, this marriage was considered valid in Washington and the couple were legally married under state law as of December 6, 2012, which is greater than one year prior to the claimant’s application for spousal benefits in June 2015. The couple is married for the purpose of spousal benefits under the Act and married for at least one year prior to the claimant’s filing of benefits.

2. Opinion

QUESTION PRESENTED

Whether M~ (the claimant) and J~ (the NH), a same-sex couple, were validly married under Washington state law for the purpose of determining entitlement to spousal benefits under title II of the Social Security Act.

BRIEF ANSWER

Yes. The claimant and the NH were validly married under Washington law for at least the minimum amount of time required for the claimant to be entitled to spousal benefits.

SUMMARY OF FACTS

The claimant and the NH entered a same-sex marriage in British Columbia, Canada, on April XX, 2005. They also entered into a domestic partnership in Washington on August XX, 2007.

On June XX, 2015, the claimant filed for spousal benefits on the NH’s record. The NH currently receives Retirement Insurance Benefits (RIB) on her own record. The claimant requested that the benefits start when she attained age 66 — in October 2015.

ANALYSIS

1. Applicable Federal Law

Generally, an individual is entitled to spousal benefits if the individual (1) is the insured’s wife or husband, and the marital relationship has lasted at least one year at the time the application is filed; (2) files an application; (3) is at least 62 years old; and (4) is not entitled to an old-age or disability benefit based on a primary insurance amount that is equal to or larger than the insured’s full benefit. 42 U.S.C. § 402(b)-(c); 20 C.F.R. § 404.330.

The agency will determine whether a claimant is the insured’s spouse by looking to the laws of the state where the insured was domiciled at the time the claimant filed his or her application. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. In this case, at the time the claimant filed her application, the NH was domiciled in Washington.

2. Washington State Law

As of December 6, 2012, Washington recognizes same-sex marriages from other jurisdictions. Washington state law provides, “a marriage between two persons that is recognized as valid in another jurisdiction is valid in this state only if the marriage is not prohibited or made unlawful under subsection (1)(a) or (2) of this section.” Wash. Rev. Code § 26.04.020 (2013). Subsection (1)(a) prohibits marriage “[w]hen either party thereto has a spouse or registered domestic partner living at the time of such marriage, unless the registered domestic partner is the other party to the marriage.” Wash. Rev. Code § 26.04.020(1)(a). Subsection (2) makes it unlawful “for any person to marry his or her sibling, child, grandchild, aunt, uncle, niece, or nephew.” Wash. Rev. Code § 26.04.020(2). Thus, with the exception of a few types of marriages that are prohibited, Washington looks to the law of the jurisdiction certifying the marriage to determine the marriage’s validity.

Beginning in July 2007, Washington state permitted same-sex couples to enter into domestic partnerships. Wash. Rev. Code § 26.60.030 (2007). On December 6, 2012, Washington began to permit same-sex marriage and set out a series of criteria under which previously celebrated same-sex partnerships could be recognized as marriages. Wash. Rev. Code § 26.04.010.

Pursuant to the December 2012 change in Washington law, for people who previously had a state registered domestic partnership and have either been deemed married or have been issued a marriage license, “the date of the original state registered domestic partnership is the legal date of the marriage.” Wash. Rev. Code § 26.60.100(4).

3. British Columbia, Canada, Provincial Law

Same-sex marriages have been valid in British Columbia, Canada, since at least July 8, 2003. Previously, on May 1, 2003, the British Columbia Court of Appeal recognized same-sex marriage but suspended its decision until “July 12, 2004, solely to give the federal and provincial governments time to review and revise legislation to accord with this decision.” Barbeau v. British Columbia (Attorney General), [2003] B.C.C.A., 251, para. 7. However, on July 8, 2003, the Court lifted the suspension, giving full effect to its decision. Barbeau v. British Columbia, [2003] B.C.C.A., 406.

4. The Claimant’s Application

The claimant and the NH married each other in British Columbia, Canada, in April 2005. As of December 2012, this marriage was considered valid in Washington. Wash. Rev. Code §§ 26.60.100(1); 26.04.010. Therefore, the claimant and the NH were legally married under state law as of December 6, 2012, which is greater than one year prior to the claimant’s application for spousal benefits on June XX, 2015.

In addition, it is possible that the couple has a valid marriage under Washington law dating back to either the 2005 marriage or the 2007 domestic partnership, depending on interpretation of the statutory language governing domestic partnerships and same-sex marriage. We need not reach this conclusion, as the couple is married for the purpose of spousal benefits under the Act, and under any interpretation as to effective date, they were married for at least one year prior to the claimant’s filing of benefits.

CONCLUSION

It is our opinion that, pursuant to the law of Washington state, the NH and the claimant were legally married for at least one year at the time the claimant filed her application for spousal benefits on June XX, 2015.

D. PR 15-100 Proposed Revision to POMS GN 00210.004 – Effective Date of Domestic Partnerships in Washington State

Date: January 23, 2015

1. Syllabus

Washington domestic partnership laws, with the right to inherit under Washington’s intestacy law, began on July 22, 2007.

2. Opinion

SUMMARY

Program Operations Manual Support (POMS) GN 00210.004.D includes a state chart on non-marital legal relationships.  The chart provides that Washington domestic partnership laws, with qualifying inheritance rights, became effective on December 3, 2009.  

We advise revision to this POMS section. Effective July 22, 2007, Washington began recognizing registered domestic partnerships and amended its intestacy laws to allow a surviving registered domestic partner to inherit intestate the deceased partner’s property in the same manner as a surviving spouse. Accordingly, POMS GN 00210.004.D should reflect that Washington domestic partnership laws, with qualifying inheritance rights, began on July 22, 2007, rather than December 3, 2009.

BACKGROUND 

Washington Domestic Partnership Legislation

The State of Washington authorized domestic partnerships effective July 22, 2007.¹ 2007 Wash. Legis. Serv. Ch. 156 (S.B. 5336). The Act provided that same-sex couples over the age of 18 and heterosexual couples in which one partner was over the age of 62 were eligible for domestic partnership if they shared a common residence, were not closely related, married, or in domestic partnership with another person. Id. at Sec. 4.  The law made domestic partners eligible for a number of the benefits of marriage, including the right to inherit property from a partner dying intestate. Id. at Sec. 27. It amended the existing law to provide, in pertinent part, that a share of the net estate of a person dying intestate would be distributed to the “surviving spouse or state registered domestic partner.” Id. (emphasis in original).² In 2008, the legislature expanded rights and responsibilities for domestic partners in various areas of law. 2008 Wash. Legis. Serv. Ch. 6 (S.S.H.B. 3104).  Those amendments generally involved dissolutions, community property, estate planning, taxes, court process, service to indigent veterans and other public assistance, conflicts of interest for public officials, and guardianships. Id.  However, the Act also further strengthened the inheritance rights of domestic partners. Id. at Sec. 901 et seq.  For the most part, these additional rights became effective June 12, 2008, although a few went into effect at later dates. Id.

In 2009, the legislature passed another law with the intent that registered domestic partners be treated the same as married spouses for all purposes under state law. 2009 Wash. Legis. Serv. Ch. 521 (E.S.S.S.B. 5688). It provided:

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, or because the individual is or was an in-law in a specified way to another individual, is granted on equivalent terms, substantive and procedural, to an individual because the individual is or was in a state registered domestic partnership or because the individual is or was, based on a state registered domestic partnership, related in a specified way to another individual.

Id. at Sec. 1. This bill was confirmed by Washington voters through Referendum 71 and was certified on December 3, 2009.

In 2012, the legislature passed a law legalizing same-sex marriages. 2012 Wash. Legis. Serv. Ch. 3 (E.S.S.B. 6239).  The law also changed the eligibility requirements of domestic partnerships and made some change to existing domestic partnerships. Id. at Sec. 9. To enter into a state-registered domestic partnership two people must both share a common residence, both must be at least 18 years old, and at least one must be at least 62 years old. Id. Further, any state-registered domestic partnership in which the parties are the same sex, and neither party is at least 62 years old, that has not been dissolved or converted into marriage by the parties by June 30, 2014, was automatically merged into a marriage as of June 30, 2014. Id. at Sec. 10. This bill was upheld by voters when Referendum 74 was accepted and certified on December 6, 2012. Washington State Secretary of State, History of Laws and Regulations pertaining to Domestic Partnerships in Washington State, available at https://www.sos.wa.gov/corps/domesticpartnerships/laws_and_regulations.aspx (visited August 15, 2014).

ANALYSIS

The section of the Social Security Act pertaining to the determination of family status provides that if the courts of the state in which an insured individual is domiciled would not find that such applicant and such insured individual were validly married at such time, such applicant shall, nevertheless be deemed to be the wife, husband, widow, or widower, as the case may be, of such insured individual if such applicant would, under the laws applied by such courts in determining the devolution of intestate personal property, 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). Thus, it is the Agency’s position that if an applicant is in a non-marital legal relationship that conveys spousal inheritance rights, the Agency can treat the relationship as a spousal relationship for purposes of determining entitlement to benefits. POMS GN 00210.004 (Non-Marital Legal Relationships (Such as Civil Unions and Domestic Partnerships)).

The Agency’s state chart on non-marital legal relationships has indicated that Washington domestic partnership laws, with qualifying inheritance rights, became effective on December 3, 2009, which was the date Referendum 71 was certified and state registered domestic partners began being treated the same as married spouses for all purposes under state law. However, surviving registered domestic partners in Washington state have had the same intestate inheritance rights as surviving spouses since July 22, 2007. Therefore, because the Agency considers whether an applicant has the same status as a spouse with respect to intestate inheritance when determining entitlement to benefits, the earlier date should be applied. Accordingly, the Agency should modify POMS GN 00210.004D to reflect that domestic partnerships in Washington state have had inheritance rights since July 22, 2007.

CONCLUSION 

We advise modifying POMS GN 00210.004D to reflect that Washington domestic partnership laws, with the right to inherit under Washington’s intestacy law, began on July 22, 2007.

Footnotes:

[1]

^{. .} The bill Governor C~ signed on April 21, 2007, states that the law was “Effective: July 22, 2007.”    

[2]

^{. .} In Washington, statutes are presumed to apply prospectively, absent contrary legislative intent. In re Estate of Haviland, 177 Wash. 2d 68, 75 (Wash. 2013). Here, none of the domestic partnership legislation includes any indication that the legislature intended the laws to apply retroactively.