SB

M e m o r a n d u m

U n it e d St a t e s Go v e r n m e n t FORM 0-11M (142)

Ra il r o a d Re t ir e m e n t B o a r d

L-2002-08

April 29,2002

TO : Thomas W. Sadler

Director of Hearings and Appeals

FROM Steven A. Bartholow 

General CounseJ*G<

SUBJECT : Relationship Determinations under Intestate Succession 

(Foreign Domiciles)

This is in response to your March 13, 2002 inquiry as to whether the Board 

should apply provincial law governing intestate succession or the law of 

the District of Columbia for purposes of making a relationship 

determination under section 216(h) of the Social Security Act (42 U.S.C.

§ 416(h)) (hereinafter, sometimes referred to as the Act), where an 

employee dies while domiciled in Ontario, Canada. Section 216(h) of the 

Social Security Act is incorporated by reference into section 2(d)(4) of the 

Railroad Retirement Act (45 U.S.C. § 231a(d)(4)). For the reasons outlined 

below, it is my opinion that the Board should apply the intestate law of the 

District of Columbia. The conclusion in this opinion applies not merely to 

cases where the employee dies while domiciled in Ontario, but applies to 

all cases where the employee dies while domiciled outside of the United 

States.1

1 For purposes of this opinion, an individual dies while domiciled outside of the United

States if his permanent home was not in one of the 50 States, the District of Columbia, the

Commonwealth of Puerto Rico, the Virgin Islands, Guam or American Samoa.
There are two methods under section 216(h) of the Act by which an 

applicant can establish the relationship of a legal widow to an insured 

individual.2 The provisions governing such a determination are outlined in 

section 216(h)(1)(A) of the Act (42 U.S.C. § 416(h)(1)(A)), which provides 

as follows:

(i) An applicant is the wife, husband, widow or 

widower of a fully or currently insured individual for purposes 

of this subchapter 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 he was domiciled at the time of 

death, or, if such insured individual is or was not so domiciled 

in any State, the courts of the District of Columbia, 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 he died.

(ii) If such courts 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.

As indicated above, to determine whether an applicant would qualify as 

a legal widow of an insured individual under section 216(h)(1)(A)(ii) of the 

Act, where the insured dies domiciled outside of the States, a 

determination must be made as to whether the applicant would have the 

same status with respect to the taking of intestate personal property as 

that of a widow of the employee, under the laws applied by the District of 

Columbia courts. In making such a determination, the question arises as 

to what is meant by the phrase "under the laws applied by such courts" 

as that phrase is used in section 216(h)(1)(A)(ii), where the insured dies

2 Section 216(h) also includes provisions whereby an individual may establish the

relationship of a “deemed widow" if she went through a marriage ceremony in good

faith, but because of a legal impediment unknown to her at the time of the ceremony,

the marriage was invalid. (See 42 U.S.C. § 416(h)(1)(B)).
while domiciled outside of the States. That is, does the phrase refer to the 

intestate succession laws of the District of Columbia, or does the phrase 

require a choice of law analysis, taking into consideration not only the 

intestate succession laws of the District of Columbia, but also the intestate 

succession laws of the place of domicile at the time of death.

When attempting to discern the legislative intent of a statutory provision, 

the first question is whether Congress has directly spoken to the question 

at issue. If the intent of Congress is clear, the statutory provision must be 

interpreted so as to achieve the unambiguous intent of Congress. 

Chevron U.S.A. v. Natural Resources Defense Council, Inc.. 467 U.S. 837, 

842-843,104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

Our efforts to identify congressional intent have included a review of the 

history of the statutory provision at issue. Prior to the 1950 Amendments, 

language similar to that found today in section 216(h) (1 )(A)(ii) of the Act 

(42 U.S.C. § 416(h)(1 )(A)(ii)) was found in section 209(m) of the Act, which 

provided as follows:

In determining whether an applicant is the wife, widow, 

child, or parent of a fully insured or currently insured 

individual for purposes of this title, the Board shall apply such 

law as would be applied in determining the devolution of 

intestate personal property * * * by the courts of the State in 

which [the insured] was domiciled at the time of his death, or 

if such insured individual * * * was not so domiciled in any 

State, by the courts of the District of Columbia. Applicants 

who according to such law would have the same status 

relative to taking intestate personal property as a wife, 

widow, child, or parent shall be deemed such.

In 1950, the Act was amended and the provisions previously found in 

section 209(m) were transferred to section 216(h). However, rather than 

address children and parents in the same subsection, section 216(h) was 

subdivided into paragraphs (1) and (2), with paragraph (1) addressing the 

status of wife, husband, widow and widower, and paragraph (2) 

addressing the status of child and parent. In 1957, paragraph (1) was 

amended to add provisions to require a finding as to the existence of a 

valid marriage, before taking into consideration the intestate succession 

provision. In 1960, paragraph (1) was relabeled paragraph (1)(A).3 Thirty

8 Provisions governing “good faith" marriages were added as paragraph (1)(B).
years later, paragraph 1 (A) was divided into subparagraphs (i) and (ii), 

arriving at the present statutory construction, with subparagraph (i) 

containing the valid marriage language and subparagraph (ii) containing 

the intestate succession language.

Extensive research of reports related to all of the above-noted 

amendments has failed to shed any light on whether Congress envisioned 

merely the application of the intestate succession rules of the District of 

Columbia when an individual died while domiciled outside of the States, 

or instead, intended for a choice of law analysis to take place. Where, as 

in the case at hand, Congress has not directly addressed the precise 

question at issue, the question then becomes whether there is an 

administrative interpretation by the agency responsible for administering 

the statute. Chevron, at 843. If so, such interpretation is given deference 

if such interpretation is reasonable. Id., at 845. Where the agency's 

interpretation is long-standing, even greater deference is due it.

To determine the Social Security Administration's interpretation of section 

216(h)(1)(A)(ii), we have reviewed that agency’s regulations. As the 

language at issue is not new to the Act, we have looked to the regulatory 

language in effect when family relationship determinations were 

governed solely by the intestate succession provision. That is, we have 

looked to the regulations in effect prior to the 1957 Amendments. The 

regulations provided as follows:

403.829 Applicable State law and status - (a) Applicable

State law defined. "Applicable State law" is the law which 

the courts of the domicile of the wage earner * * * would 

apply in deciding who is a wife, widow or widower, child, or 

parent, when determining the devolution of intestate 

personal property. A living wage earner’s domicile is 

determined as of the time the applicant filed his claim for 

benefits or a lump sum. A deceased wage earner's domicile 

is determined as of the time of such wage earner's death. If

the wage earner was not domiciled In any State, applicable

State law is the law which the courts of the District of

Columbia would apply when determining the devolution of

such property. [Emphasis added.] [20 CFR 403.829 (1947)]
The above regulatory provision remained in effect until 1962. At that time, 

the intestate succession provision quoted above was moved to section 

404.1101 (a) of the regulations. In addition, the regulations were revised to 

incorporate the 1957 Amendments by adding the following provision:

404.1101 Determination of relationship. * * * (b)(2) The 

claimant bears the relationship of wife, husband, widow, or 

widower of such insured individual if the courts of the State in 

which such insured individual is domiciled, * * * (or, if not 

domiciled in any State at the appropriate date, the courts of 

the District of Columbia), would find that the claimant and 

such insured individual were validly married at the time of 

filing such application, or if such insured individual is dead, at 

the time he died. If such courts would not find the claimant 

and such insured individual validly married at such time, the 

claimant nevertheless is deemed to bear the relationship of 

wife, husband, widow, or widower, as the case may be, of 

such insured individual, if the claimant has the status of such 

relative as determined in accordance with paragraph (a) of 

this section.

(As previously noted, paragraph (a) referenced above contained the 

intestate succession provisions.)

The regulations of the Social Security Administration regarding relationship 

determinations were most recently revised in 1979, relocating the relevant 

relationship provisions to section 404.345, where they are found today. 

Section 404.345 states, in relevant part, as follows:

404.345. Your relationship as wife, husband, widow, or

widower understate law. To decide your relationship as the 

insured's wife, or husband, we look to the laws of the State 

where the insured had a permanent home when you 

applied for wife's or husband's benefits. To decide your 

relationship as the insured's widow or widower, we look to 

the laws of the State where the insured had a permanent 

home when he or she died. If the insured's permanent home 

is not or was not in one of the 50 States, the Commonwealth 

of Puerto Rico, the Virgin Islands, Guam, or American Samoa, 

we look to the laws of the District of Columbia. * * * If you 

and the insured were validly married under State law at the 

time you apply for wife's or husband's benefits or at the time
the insured died if you apply for widow's, widower's, 

mother's or father's benefits, the relationship requirement will 

be met. The relationship requirement will also be met if 

under State law you would be able to inherit a wife's, 

husband's, widow's, or widower's share of the insured's 

personal property if he or she were to die without leaving a 

will. [20 CFR 404.345]

The above-quoted regulations of the Social Security Administration 

suggest that, where an individual dies while domiciled outside of the 

States, the Act calls for the application of the intestate succession laws of 

the District of Columbia only and does not require consideration of the 

intestate succession laws of the place of domicile at the time of death.

We were unable to locate any preamble language to the regulatory 

changes which clearly stated such interpretation. However, a social 

security ruling issued in 1969 illustrates the Social Security Administration's 

interpretation of the phrase “under the laws applied by such courts," 

where the individual dies while domiciled outside of the States.

In SSR-69-21a, the Administration was presented with the question of 

whether an individual was the widow of an insured worker who died 

domiciled in Mexico, where the individual had not ceremonially married 

the insured. The ruling indicates that the alleged widow could acquire the 

status of widow of the worker for benefit purposes if one of the following 

two conditions was satisfied: (1) the courts of the District of Columbia 

would find that the worker and the applicant were validly married, or (2) 

the applicant would have the same status as the worker's widow in 

determining the devolution of his intestate personal property under the 

law of intestate succession of the District of Columbia. After noting that 

the courts of the District would not find that the applicant was validly 

married to the insured, because the parties would not be validly married 

under the law of Guanajuato, Mexico, the ruling continues with the 

following: "Moreover, since under the law of the District only a valid 

marriage gives rise to status as a spouse for inheritance purposes, the 

applicant would not have the same status as a widow to take [the 

insured's] intestate personal property. Accordingly, [the applicant] does 

not have the status as [the insured's] widow for benefit purposes."

This ruling clearly demonstrates that, since at least as early as 1969, the 

Social Security Administration has interpreted the phrase “under the laws 

applied by the [District of Columbia] courts" when making relationship 

determinations under the Act, to require the application of the intestate
law of the District of Columbia, without any choice of law analysis. Case 

law also establishes the above administrative interpretation. In Gonzalez 

v. Hobbv. 110 F. Supp. 893 (D.C.R.R. 1953), at issue was the entitlement of 

illegitimate children of an insured individual domiciled in Puerto Rico at 

the time of his death. When the administrative decision was made as to 

the entitlement of the children, Puerto Rico was not yet included within 

the term “State." The court summarized the processing of the case at the 

lower level as follows:

[The] Administrator * * * concluded that plaintiffs' status as 

legitimate or illegitimate children had to be ascertained as 

provided for in Section 216(h)(1) of the Act, Title 42 U.S.C.A.

§ 416(h) (1 )4 and that, inasmuch as the insured individual at 

the date of his death, was domiciled in Puerto Rico and that 

Puerto Rico did not figure in the term “State”, as defined in 

Section 210(h) of the Act, Title 42 U.S.C.A. § 410(h), plaintiff's 

rights under the Act had to be determined by applying such 

law as would be applied in determining the devolution of

intestate personal property [emphasis supplied] by the courts 

of the District of Columbia.

The final administrative decision was that the illegitimate children were not 

entitled to children's benefits, notwithstanding the fact that the children 

had enjoyed the right to use the insured's family name since birth, had 

received support and maintenance from him, and had the right to share 

, in the devolution of the intestate personal property of the insured under 

the law of the Commonwealth of Puerto Rico.5

We have been unable to locate any cases decided after the 1957 

Amendments which are directly on point. However, a recent case in the 

Ninth Circuit is consistent with the interpretation that a choice of law 

analysis is not required by section 216(h)(1)(A)(ii). In Campbell ex 

rel.Campbell v Apfel, 177 F.3d. 890 (9th Cir. 1999), the United States Court 

of Appeals of the Ninth Circuit was presented with the question as to

* It appears the correct citation should have been 216(h)(2), rather than 216(h)(1) as

subparagraph( 1) addresses determinations regarding widows and subparagraph (2)

addresses determinations regarding children.

6 In Gonzalez, the District Court of Puerto Rico reversed the Administrator's denial of

benefits. However, such reversal was clearly predicated upon the court's deference to

the laws of Puerto Rico, rather than an analysis of the statutory intent of the language at

issue. Also see Vazauez v. Ribicoff. 196 F.Supp. 596 (D.C.P.R. 1961) and Flores v. Secretary

of Health. Education and Welfare. 228 F. Supp. 877 (D.C.P.R. 1964).
whether a choice of law analysis was involved, in applying section 

216(h)(2)(A), the parallel provision to section 216(h)(1)(A)(ii). At issue was 

the entitlement of an alleged surviving child of an insured individual who 

died while domiciled in California. The court was presented with the 

question of whether section 216(h) (2) (A) (ii) called for the application of 

the California Probate Code, or required a conflict of law analysis, taking 

into consideration Oregon intestacy laws. The conditions for intestate 

succession under California law were not satisfied, but the child would be 

entitled to inherit from the insured under Oregon intestate laws. The court 

affirmed the district court’s decision, upholding the denial of social 

security benefits. The court held that, when determining whether the 

insured is the parent of a child, section 216(h)(2)(A) does not entail a 

“complex conflict of law analysis. Rather, determining parental status is as 

simple as it appears to be on the face of the statute - we must merely 

look to the intestacy lam of the state “in which [the insured] was 

domiciled at the time of his death", 42 U.S.C. § 416(h)(2)(A), in this case, 

California." Campbell, at 892. [Emphasis supplied.] Extending the court's 

analysis to cases where an individual dies while domiciled outside of the 

States, making a relationship determination is as simple as it appears on 

the face of the statute - simply look to the intestacy laws of the District of 

Columbia.

It is my opinion that the Administration's interpretation as discussed above 

is consistent with the language of the statute. While similar in content, it is 

significant that the language in subparagraph (ii) of section 416(h)(1)(A) is 

not identical to the language in subparagraph (i). This office has 

repeatedly held that the provisions of subparagraph (i) require the 

application of the law of the place of domicile. This is because 

subparagraph (i) requires a determination of the appropriate court and 

then a determination as to the finding that court would make regarding 

the existence of a valid marriage. Such language clearly calls for a 

choice of law analysis, as it is not possible to determine what the court 

would find, without making such an analysis. While subparagraph (ii) 

refers to the tribunal determined in subparagraph (i), it does not call for a 

finding by that court. Rather, subparagraph (ii) calls for a determination 

under the laws applied by that court.

finally, the failure of Congress to revise or repeal an agency’s 

interpretation of a statute when amending that statute is persuasive 

evidence that the interpretation is the one intended by Congress. See 

Young v. Community Nutrition Institute, 476 US 974,90 L.Ed 2d 959,106 

S.Ct. 2360 (1986). On several occasions, Congress amended section
-9-

216(h), without amending the intestate succession language. To the 

contrary, Congress opted to retain the language originally found in 

section 209(m) of the Act. If Congress intended the application of the law 

of the place of domicile at the time of death, even where the insured 

died while domiciled outside of the States, the question remains as to why 

Congress directed the application of the laws of the District of Columbia.

In summary, it is my opinion that, where the insured individual's domicile at 

the time of death is not one of the 50 States, the Commonwealth of 

Puerto Rico, the Virgin Islands, Guam or American Samoa, the Board 

should apply the law of the District of Columbia governing intestate 

succession, without a choice of law analysis, for purposes of making 

relationship determinations under section 216(h)(1)(A) (ii) of the Social 

Security Act. (Also see Legal Opinions L-49-641, L-52-325 and L-76-164.)

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