TN 2 (02-18)

A. PR. 18-018 Would Massachusetts Recognize a Common-law Marriage or a Non-Marital Legal Relationship (NMLR), Allegedly Contracted within Massachusetts by a Same-Sex Couple, for Entitlement to Widow’s Insurance Benefits

Date: November 15, 2017

1. Syllabus

The number holder (NH) resided in Massachusetts at the time of her death; therefore, we look to the Massachusetts law to determine if the claimant and the NH marriage can meet the nine-month durational requirement set forth in order for the claimant to qualify for widow’s benefits. The claimant alleges that she and the NH entered into a common-law marriage prior to the legalization of same-sex marriage. Massachusetts has never recognized common-law marriage, nor did it ever permit Non-Marital Legal Relationships (NMLRs), such as civil unions or domestic partnerships. The claimant and the NH were validly married at the time of the NH’s death in December 2004, but the claimant cannot be considered the NH’s widow for purposes of entitlement to title II benefits because the couple was legally married for less than nine months, no exception to the statutory duration requirement applies, and Massachusetts would not recognize their prior relationship as a common-law marriage or an NMLR.

2. Opinion

I. Question Presented

S~ (claimant) applied for widow’s benefits on the record of M~, the deceased number-holder (NH). The couple was married in Massachusetts in November 2004, and the NH died in December 2004; therefore, they do not meet the statutory requirement that a marriage must last at least nine months before a claimant can qualify for widow’s benefits. Same-sex marriage was not legalized in Massachusetts until May 2004, only seven months prior to the NH’s death. However, the claimant alleges that she and the NH entered into a common-law marriage prior to the legalization of same-sex marriage. In the alternative, she argues that the agency should treat their relationship as an NMLR. The question presented is whether the agency should recognize the relationship as either a common law marriage or an NMLR, so that the marriage could meet the statutory durational requirement for purposes of entitlement to widow’s benefits under title II of the Social Security Act (the Act).

II. Short Answer

No. Massachusetts has never recognized common-law marriage, nor did it ever permit NMLRs, such as civil unions or domestic partnerships. Therefore, the agency cannot recognize any prior legal relationship that allegedly was established in Massachusetts, and the marriage cannot meet the nine-month durational requirement.

III. Background

The NH, M~, and the claimant, S~, were married in Massachusetts on November XX, 2004. The NH died on December XX, 2004. She was domiciled in Massachusetts at the time.

In October 2016, the claimant applied for widow’s insurance benefits on the NH’s account. She alleged in her application that she and the NH were in a common-law marriage prior to the November 2004 marriage ceremony. She explained that she and the NH began their relationship in 1998, and began living together in 2001. At the time, the claimant was still married to, but separated from, K~; their divorce became final on February XX, 2003.

In support of her application, the claimant provided the following evidence:

The claimant’s Statement of Marital Relationship (SSA-754);

Statements Regarding Marriage (SSA-753) provided by family members: B~ (the claimant’s sister), K2~ (the claimant’s niece), M2~ (the NH’s sister);

The claimant’s and K~’s divorce decree;

Several Designation of Beneficiary forms (FERS, FEGLI, and TSP), completed by the claimant on July XX, 2002, naming the NH as her beneficiary;

The NH’s will, leaving all her property to the claimant; and

A supplemental statement from the claimant, arguing that her relationship should be considered an NMLR under POMS GN 00210.004. In support, she cited the evidence summarized above, and also described other actions she and the NH had taken to formalize their relationship in 2003, prior to their marriage (e.g., both prepared health care proxies giving each other authority to make medical decisions on behalf of the other; both prepared durable powers of attorney giving each other unlimited authority over the assets of the other; and the claimant named the NH as the primary beneficiary on her IRAs).

IV. Applicable Law

Federal Law

To be entitled to widow’s insurance benefits under the Act, a claimant must show, among other things, that she is the widow of the insured. See 42 U.S.C. § 402(e)(1). As pertinent here, the Act defines “widow” as “the surviving wife of an individual…” 42 U.S.C. § 416(c)(1). Under the Act:

An applicant is the . . . wife . . . of a fully or currently insured individual for purposes of this title if the courts of the State in which such insured individual is domiciled at the time such applicant files an application, or, if such insured individual is dead, the courts of the State in which [s]he was domiciled at the time of death . . . would find that such applicant and such insured individual were validly married at the time such applicant files such application or, if such insured individual is dead, at the time [s]he died . . . .

42 U.S.C. § 416(h)(1)(A)(i); see also 20 C.F.R. § 404.345. The relationship requirement will also be met if under State law the claimant would be able to inherit a wife’s share of the insured’s personal property if she were to die without leaving a will. 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

Additionally, to be considered a “widow,” a claimant must show that “she … was married to [her spouse] for a period of not less than nine months immediately prior to the day on which [her spouse] died…” 42 U.S.C. § 416(c)(1)(E).¹

Here, the NH resided in Massachusetts at the time of her death. Therefore, the relevant inquiry is whether, and for how long, Massachusetts courts would consider the claimant and the NH to have been validly married.

Massachusetts Law

Same-sex marriages have been valid in Massachusetts since May 17, 2004, as a result of the Supreme Judicial Court’s decision in Goodridge v. Dep’t of Public Health, 440 Mass. 309 (2003). Prior to Goodridge, Massachusetts did not provide for civil unions, domestic partnerships, or other formal legal recognition of same-sex couples. There is no Massachusetts case law addressing common-law same-sex marriage, presumably because Massachusetts has never recognized common-law marriage for opposite-sex couples. Sutton v. Valois, 66 Mass. App. Ct. 258, 262 (2006); Collins v. Guggenheim, 417 Mass. 615, 617 (1994).

Analysis

The only disputed issue is whether the couple’s marriage can meet the nine-month durational requirement set forth in 42 U.S.C. § 416(c)(1)(E), in order for the claimant to qualify for widow’s benefits. There is no dispute that the claimant and the NH were validly married at the time of the NH’s death on December XX, 2004, see 42 U.S.C. § 416(h)(1)(A)(i), given their November XX, 2004, Massachusetts marriage. But because this marriage lasted less than two months, they can only meet the durational requirement if the agency can recognize a pre-existing legal relationship.

In the alternative, the claimant alleges that she and the NH had a common law marriage. While the claimant began living with the NH in 2001, SSA could only consider the alleged common-law marriage (or other legal relationship) to have begun after February XX, 2003, when the claimant’s divorce from her prior husband was finalized. See Mass. Gen. Laws ch. 207, § 4 (providing, with limited exceptions not present here, that a marriage is void if one spouse still has another spouse living and has not divorced). We do not question that the claimant and the NH were in a committed, exclusive relationship since at least 2003. However, under title II of the Act, the agency could only consider the parties’ relationship to be a common-law marriage if Massachusetts would do so, see POMS GN 00305.065(A) (the agency makes common-law marriage determinations in accordance with state law), and as we noted above, Massachusetts has never recognized common-law marriages – for either same- or opposite-sex couples, see Collins, 417 Mass. at 617. Therefore, the agency cannot recognize the parties’ relationship as a common-law marriage in this case.

The claimant also asserts that her relationship to the NH should be considered an NMLR under POMS GN 00210.004. See “To Whom It May Concern” Statement dated October XX, 2016. In particular, she notes that the POMS includes designated beneficiaries and reciprocal beneficiaries in its list of examples of such relationships. She points to evidence that she designated the NH as her beneficiary on various Federal forms, and that she and the NH each named the other as beneficiaries in their wills to justify her assertion on this point. Id. However, these designations do not satisfy the POMS requirements for recognition of an NMLR. An NMLR can only be recognized for benefit purposes if the relationship: (1) was valid in the State where it was established, and (2) qualifies as a marital relationship using the laws of the State of the NH’s domicile or would allow the claimant to inherit a spouse’s share of the NH’s personal property should the NH have died without leaving a will. POMS GN 00210.004(C). The POMS lists designated beneficiaries and reciprocal beneficiaries as types of relationships that might be permitted by some States and might be recognized by the agency. See POMS GN 00210.004(D)(2). As the claimant acknowledged in her October XX, 2016 Statement, Massachusetts never permitted civil unions, domestic partnerships, designated beneficiary status, or any other kind of NMLRs before legalizing same-sex marriage. Because Massachusetts law does not recognize an NMLR, the agency also cannot recognize an NMLR in this case.

Conclusion

The claimant cannot be considered the NH’s widow for purposes of entitlement to title II benefits because the couple was legally married for less than nine months, no exception to the statutory duration requirement applies, and Massachusetts would not recognize their prior relationship as a common-law marriage or an NMLR. Therefore, the agency cannot recognize a marriage of sufficient duration to establish entitlement for benefits in this case.

Michael J. Pelgro

Regional Chief Counsel

By: Natasha Oeltjen

Assistant Regional Counsel

Footnotes:

[1]

^. There are limited exceptions, not relevant here, for situations where the marriage could not meet the durational requirement. See 20 C.F.R. §335(a)(2)(i)-(iv).