The number holder (NH) died domiciled in Florida. Therefore, we look to Florida law to determine whether Claimant 1 was validly married to NH and, if so, what consequences that may have for Claimant 2’s claim that she was also validly married to NH until their divorce. Although NH died domiciled in Florida, Claimant 1 reported she entered into a common-law marriage with NH in Texas. The general rule in Florida is that the law of the jurisdiction in which a marriage was entered determines the validity of a marriage. Claimant 1’s marriage to NH is valid under Florida law. Because Claimant 1’s marriage to NH is valid and did not end prior to NH’s death, Claimant 2’s subsequent purported marriage to NH is not valid under Florida law and does not meet the requirements to be deemed a marriage under the Act. For the foregoing reasons, Claimant 1’s marriage to NH is valid for WIB purposes and Claimant 2’s marriage to NH is not valid and cannot be deemed valid for WIB purposes.

QUESTIONS

Whether a claimant (Claimant 1) is entitled to widow’s insurance benefits (WIB) based on a purported common-law marriage to the number holder (NH) that began in Texas, which they never dissolved, where NH died domiciled in Florida. , If so, whether that has any consequences regarding another claimant (Claimant 2) already receiving WIB based on a subsequent purported marriage to NH, and requires the agency to provide a hearing to Claimant 2 or identify Claimant 2 as a party to a hearing on Claimant 1’s application and reopen the determination on Claimant 2’s application for benefits.

ANSWER

Claimant 1’s marriage to NH is valid under Florida law. Because Claimant 1’s marriage to NH is valid and did not end prior to NH’s death, Claimant 2’s subsequent purported marriage to NH is not valid under Florida law and does not meet the requirements to be deemed a marriage under 42 U.S.C. § 416(h)(1)(B). Additionally, Claimant 2 may request a hearing and the agency may identify Claimant 2 as a party to a hearing on Claimant 1’s application, and the agency may reopen the determination on Claimant 2’s application for benefits.

BACKGROUND

According to the information provided, S~ (Claimant 1) filed an application for WIB in October 2019, based on a marriage to number holder G~ (NH). In support of her application, Claimant 1 submitted an Order Determining Homestead Status and Beneficiaries that a Circuit Court in the Probate Division in Sarasota County, Florida, issued in October 2019. In this Order, the Circuit Court found that Claimant 1 and NH lived together in Austin, Texas prior to moving to Florida in 1986. The Circuit Court found Claimant 1 and NH did not execute a formal marriage when they lived in Texas but had a common-law marriage under Texas law that they entered into in or around 1986, after holding themselves out as a married couple by having a child together and purchasing property together as husband and wife. Claimant 1 gave birth to a child in 1983 in Texas, and NH was identified as the child’s father on the birth certificate. Claimant 1 and NH bought property together in Florida in 1986, which identified the property as “Block 176” in the South Venezia Park Section of Venice, Florida (Block 176 property). Claimant 1 and NH additionally took out a mortgage together in Florida in 1988. Both the Block 176 property deed and the mortgage identified them as “husband and wife.”

The Circuit Court Order concluded that after moving to Florida, Claimant 1 and NH separated but did not obtain a divorce.  In an affidavit, a staff member for the law firm managing NH’s estate confirmed that the firm found no divorce judgment between Claimant 1 and NH.  The Circuit Court additionally found that, following NH’s separation from Claimant 1, NH purportedly married D~ (Claimant 2) in a ceremonial marriage in Florida in July 1999.  As also reflected in the Order, NH and Claimant 2 divorced in 2011, and NH purportedly married Ms. P~ in December 2015, to whom he purportedly remained married until his death in January 2018.

The Circuit Court found that NH died domiciled in Florida in the Block 176 property. Following NH’s death, Ms. P~ filed a notice taking half interest in the Block 176 property. After hearing arguments made on the issue of spousal rights to this property, the Circuit Court held that the Block 176 property was NH’s homestead property. The Circuit Court additionally held that any interest Ms. P~ had in this property was void, and that the transfer of this property instead went to Claimant 1 as NH’s surviving spouse.

In August 2018, Claimant 2 applied for Title II benefits on NH’s earnings record. Claimant 2 stated in her application that she married NH in July 1999 in a ceremonial marriage in Florida that ended by divorce in December 2011 and provided a marriage certificate and divorce decree in support of her application. Also in August 2018, the agency found Claimant 2 entitled to WIB on NH’s earnings record as a divorced wife of NH.

DISCUSSION

An individual may be entitled to WIB if she is the widow or the divorced wife of an individual who died fully insured. See Social Security Act (Act) § 202(e)(1); 20 C.F.R. §§ 404.331, 404.335(a) (2021). An individual may qualify as the widow of an insured individual if the courts of the State in which the insured individual was domiciled at the time of death would find they were validly married when the insured individual died. See Act § 216(h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345. An individual may qualify as the divorced wife of an insured individual if the courts of the State in which the insured individual was domiciled at the time of death would find the divorced wife had been validly married to the insured individual for at least ten years immediately before the divorce became final. See Act § 216(d)(1), (h)(1)(A)(i); 20 C.F.R. §§ 404.331(a), 404.345.

If a claimant was not validly married under State law, the agency can deem the marriage valid if it is established that “such applicant in good faith went through a marriage ceremony with such individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage. Act § 216(h)(1)(B)(i); see 20 C.F.R §§ 404.331(a)(1), 404.346(a). However, the agency will not deem it a valid marriage unless the applicant and the insured individual were living in the same household at the time of the death of the insured individual. See Act § 216(h)(1)(B)(i); 20 C.F.R § 404.346(b). To be considered living in the same household, the claimant and insured must have lived together “as husband and wife in the same residence.” 20 C.F.R. § 404.347.

NH died domiciled in Florida. Therefore, we look to Florida law to determine whether Claimant 1 was validly married to NH and, if so, what consequences that may have for Claimant 2’s claim that she was also validly married to NH from 1999 until their divorce in 2011.

Claimant 1 Entitlement to WIB

Although NH died domiciled in Florida, Claimant 1 reported she entered into a common-law marriage with NH in Texas. The general rule in Florida is that the law of the jurisdiction in which a marriage was entered determines the validity of a marriage. See Anderson v. Anderson, 577 So. 2d 658, 660 (Fla. Dist. Ct. App. 1991). For example, even though Florida does not recognize common-law marriages after 1968, Florida recognizes out-of-state common-law marriages if such marriages are sanctioned in the State in which they were formed. See, e.g., Smith v. Anderson, 821 So. 2d 323, 325 (Fla. Dist. Ct. App. 2002) (citing Anderson, 577 So. 2d at 660).

Thus, in considering Claimant 1’s claim that she and NH had entered into a common-law marriage in Texas, the Circuit Court applied Texas law to determine the validity of their marriage. The Circuit Court found Claimant 1 and NH had a valid common-law marriage under Texas law.^[1]

The agency generally is not bound by a State court’s decision if it involves a proceeding to which the agency was not a party. See Social Security Ruling (SSR) 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973) as national policy); see also POMS GN 00305.001A.3, GN 00305.065B.4. However, State court determinations of domestic relations matters are entitled to deference and bind the agency if the following four factors are satisfied (Gray factors): (1) an issue in a claim for Social Security benefits was previously adjudicated by a State court of competent jurisdiction; (2) the issue was genuinely contested before the State court by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the State trial court is consistent with the law enunciated by the highest court in the State. SSR 83-37c. These four Gray factors indicate the Circuit Court’s October 2019 Order Determining Homestead Status and Beneficiaries is entitled to deference and binds the agency with regard to the findings made therein regarding the validity of Claimant 1’s marriage to NH and her status as NH’s surviving spouse.

Regarding whether this was an issue previously adjudicated by a State court of competent jurisdiction, the Circuit Court Order shows the validity of Claimant 1’s marriage to NH was adjudicated in this probate proceeding in determining who receives the homestead property in NH’s estate. The Circuit Court was a court of competent jurisdiction to adjudicate this matter. Florida statutes define the jurisdiction of the State’s circuit courts and recognize that Florida’s circuit courts have original jurisdiction over proceedings relating to the settlement of estates of decedents and any other jurisdiction “usually pertaining to courts of probate.” Fla. Stat. Ann. § 26.012(2)(b). The issue of whether Claimant 1 was married to NH directly related to settling NH’s estate.

This issue was genuinely contested before the Circuit Court by parties of opposing interests. Ms. P~ and Claimant 1 had opposing interests in the Block 176 property as NH’s homestead property and genuinely contested the validity of Claimant 1’s marriage to NH as it was the basis for Claimant 1’s claim to this property. The Circuit Court Order noting arguments were heard on this matter further shows the issue was genuinely contested.

This issue on the validity of Claimant 1’s marriage to NH also falls within the general category of domestic relations law. Florida statutes are organized by title, and Title XLIII covers domestic relations, which includes a chapter on marriage. See Fla. Stat. Ann. tit. XLIII, ch. 741.

Lastly the Circuit Court’s resolution of the validity of Claimant 1’s marriage to NH appears consistent with the law enunciated by the highest court in the State. The Florida Supreme Court has applied the law of the state where a marriage was entered to determine the validity of that marriage. See Whittington v. McCaskill, 61 So. 236, 236-37 (Fla. 1913). The Florida Supreme Court has additionally affirmed the validity of a common-law marriage if the couple eventually moved to a state that recognized common-law marriage and met the elements to establish a common-law marriage while residing in that state. See Navarro, Inc. v. Baker, 54 So.2d 59, 59-60 (Fla. 1951).

The Circuit Court Order that Claimant 1 provided is thus entitled to deference and is binding on the agency, as it meets all four Gray factors detailed in SSR 83-37c. Based on this Circuit Court Order and the deference owed to it under SSR 83-37c, Claimant 1’s marriage to NH was valid under Florida law.

Claimant 2 as a Party to Claimant 1’s Hearing

The Circuit Court’s October 2019 Order and findings regarding the validity of Claimant 1’s marriage to NH likely also affects Claimant 2’s entitlement to WIB on NH’s earnings record. This Order finding that Claimant 1 and NH entered into a common-law marriage starting in or around 1986 and that Claimant 1 was NH’s surviving spouse when NH died in 2018 calls into question the validity of Claimant 2’s marriage to NH, which they allegedly entered into in 1999.

A hearing decision on Claimant 1’s application for benefits, which will likely consider the Circuit Court Order, may adversely affect Claimant 2’s entitlement to WIB. The regulations provide that an individual “who shows in writing that his or her rights may be adversely affected by the decision may request a hearing.” 20 C.F.R. § 404.932(a). An individual also “may be made a party” to a hearing if the individual’s rights may be adversely affected by an administrative law judge’s (ALJ’s) decision and the agency notifies the individual to appear at the hearing or present evidence supporting her interest. 20 C.F.R. § 404.932(b). The agency’s Hearings, Appeals, and Litigation Law Manual (HALLEX), § I-2-1-45A also states that an individual “is a party to a hearing if” the individual’s rights may be adversely affected by an ALJ’s decision. However, the U.S. Supreme Court has held that a Social Security claims manual has no legal force and is not binding on the Commissioner because the manual was not a regulation. See Schweiker v. Hansen, 450 U.S. 785, 789-90 (1981); see also Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000) (holding agency interpretations in manuals “lack the force of law”).

Accordingly, Claimant 2 may request a hearing regarding the decision on Claimant 1’s application for benefits but must show in writing how the decision on Claimant 1’s application for benefits may adversely affect her rights. An ALJ also may notify Claimant 2 about Claimant 1’s hearing to appear or present evidence but is not required to include Claimant 2 as a party to Claimant 1’s hearing, as the relevant regulation uses discretionary language and the HALLEX is not binding on the Commissioner.

Claimant 2 Entitlement to WIB

Regarding how a decision on Claimant 1’s application that relies on the Circuit Court Order may adversely affect Claimant 2’s rights, Claimant 2 alleged in her application for benefits that she married NH in 1999 in Florida in a ceremonial marriage, but the Circuit Court Order indicates NH was still in a common-law marriage with Claimant 1 in 1999 and had not divorced Claimant 1. A marriage involving an individual who was previously married but had not ended that previous marriage is bigamous and void. See Groover v. Groover, 383 So.2d 280, 282 (Fla. Dist. Ct. App. 1980). According to the Circuit Court Order, NH was still married to Claimant 1 in 1999, making NH’s purported marriage to Claimant 2 in 1999 bigamous and void under Florida law.

If an individual is not the wife of the insured individual under state law, the Act provides an alternative means for finding the individuals married. Under § 216(h)(1)(B)(i) of the Act, if it is established to the satisfaction of the Commissioner that an applicant “in good faith went through a marriage ceremony with such individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage” then the agency may deem such purported marriage a valid marriage. The agency cannot deem a marriage valid unless the applicant and insured were living in the same household at the time of death of the insured individual. See Act § 216(h)(1)(B)(i); 20 C.F.R. § 404.346(b).

Claimant 2 does not appear to meet the requirements for the agency to deem her marriage to NH valid under § 216(h)(1)(B)(i) of the Act. Regardless of whether Claimant 2 went through the marriage ceremony with NH in good faith, Claimant 2 and NH were not living in the same household at the time of NH’s death in 2018. Claimant 2 and NH would have had to have lived together “as husband and wife in the same residence” at the time of NH’s death to meet this requirement. 20 C.F.R. § 404.347. Claimant 2’s application for benefits and the Circuit Court Order indicated Claimant 2 and NH were not living as husband and wife in the same residence at the time of his death, as Claimant 2 and NH had divorced in 2011 and NH had purportedly married Ms. P~ in 2015, with whom NH remained a couple until NH’s death in 2018. As such, the agency cannot deem Claimant 2’s marriage to NH to be valid. See Act § 216(h)(1)(B)(i); 20 C.F.R. § 404.346(b).

Given the new and material information received regarding the validity of Claimant 2’s marriage to NH, and the fact that both Claimant 1 and Claimant 2 filed applications for benefits on NH’s earnings record and an allowance of Claimant 1’s claim may adversely affect Claimant 2’s claim, the agency may reopen its August 2018 determination on Claimant 2’s Title II application. An agency determination may be reopened within four years of the date of the notice of the initial determination if good cause is found, which may be found if new and material evidence is furnished. See 20 C.F.R. §§ 404.988(b), 404.989(a)(1). A determination may also be reopened at any time if another person files a claim on the same earnings record and allowance of the claim adversely affects the claim addressed in the determination that needs to be reopened. See 20 C.F.R. § 404.988(c)(2). Both circumstances for reopening within four years and at any time are met here. The Circuit Court Order constitutes new and material evidence, and Claimant 1 has filed a claim for WIB on NH’s earnings record, which, if approved, could adversely affect Claimant 2’s claim.

CONCLUSION

For the foregoing reasons, Claimant 1’s marriage to NH is valid for WIB purposes and Claimant 2’s marriage to NH is not valid and cannot be deemed valid for WIB purposes. Claimant 2 may request a hearing and may be included as a party to a hearing on Claimant 1’s application for benefits. The August 2018 determination on Claimant 2’s Title II application may also be reopened.

The number holder (NH) resided in the state of Florida at the time of his death. Therefore, the agency must determine whether the Florida courts would consider the Claimant and the NH validly married at the time of the NH’s death or whether Claimant would be deemed the NH’s widow for intestate succession. The Claimant alleged she and the NH were married via common law marriage in the state of Kansas, but they did not legally or ceremonially marry in Florida. Based on the evidence supplied by the Claimant, we do not believe the Claimant has established she is the NH’s widow. However, if the Claimant supplies additional evidentiary support, we believe the Florida courts would recognize that the Claimant is the NH’s widow based on their common-law marriage entered into in the state of Kansas, which is relevant for determining the Claimant’s eligibility for WIB.

QUESTION

Whether D~ (Claimant) is the widow of L~, the number holder (NH), under Florida law, based on their alleged common-law marriage in the state of Kansas, for purposes of determining Claimant’s entitlement to WIB on NH’s earnings record.

ANSWER

Based on the evidence supplied by Claimant, we do not believe Claimant has established is NH’s widow. However, if Claimant supplies additional evidentiary support, we believe the Florida courts would recognize that Claimant is the NH’s widow based on their common-law marriage entered into in the state of Kansas, which is relevant for determining Claimant’s eligibility for WIB.

BACKGROUND

On April x, 2019, Social Security Administration (SSA or the agency) denied Claimant’s application for WIB and a lump-sum death payment on NH’s account. On May xx, 2019, Claimant made a request for redetermination of the decision. In a letter accompanying her request for reconsideration, Claimant stated that she was “legally married” to the NH, as she and the NH were married “via [c]ommon-law marriage” on June xx, 1978 in the state of Kansas. Claimant reported that she and the NH were living together in the state of Florida at the time of his death, in October of 2018.

As proof of her common-law marriage to the NH, Claimant provided the agency with the birth certificates of four of their children, which Claimant signed using either the name “D~” or “D~.” She also provided a May xx, 1998 residential rental agreement from Tampa, Florida that listed occupants “L~” and “D~” and signed by NH and “D~.” Claimant also provided correspondence dated between 1993 and 1996 from Hillsborough County, Florida school district related to the education of their children addressed to Mr. and Mrs. L~. In addition, Claimant submitted a statement from a joint bank account, which Claimant and NH opened when they moved to Tampa, Florida in 1992. However, the statement lists Claimant as a joint account holder, not NH’s spouse.

In addition, three of Claimant and NH’s children submitted SSA-753 Forms, Statements Regarding Marriage. Ms. R~indicated that Claimant and NH, her parents, lived as husband and wife continuously as long as she had known them. She stated that Claimant and NH shared a bed in the same room, had conceived six children together, and had not spent more than twenty-four hours apart, “unless for work,” for as long as she had known them. Ms. H~ reported that Claimant and NH referred to each other as husband and wife and introduced themselves to others as husband and wife. In Ms. H~ opinion, Claimant and NH maintained a home and lived together as husband and wife in Topeka, Kansas, from June of 1978 through July of 1985, and in Gulfport, Mississippi, from July of 1985 through August of 1987. Ms. H~ stated that the couple also lived together in Acworth, Georgia from August of 1987 through September of 1991; in Lamont, Florida from October of 1991 through April of 1992; in Tampa, Florida from April of 1992 through December of 2015; and in Center Hill, Florida from January of 2016 through October of 2018. Finally, Ms. H~ stated that NH was previously married to D~ and they reportedly divorced on November x, 1975 in Kane County, Illinois.

In her SSA-753 Form, J~stated that Claimant and NH were generally known as husband and wife and that she considered them husband and wife. She stated that the couple always referred to themselves as husband and wife to others and celebrated anniversaries annually. Ms. J~ confirmed some of the locations where the couple had resided together, and the time periods, set out by Ms. H~. She also noted the NH’s divorce from D~ in 1975. In his SSA-753 Form, J~ stated that Claimant and NH were generally known as husband and wife. He considered them husband and wife, as they lived together, they introduced each other as husband and wife, and they “were faithful to each other.” Mr. T~ also confirmed some of the locations Claimant and NH had resided, and the time periods, set out by Ms. H~, as well as the NH’s divorce from D~ in 1975. Finally, Claimant completed an SSA-754 Form, a Statement of Marital Relationship. Claimant reported that she began living together in a husband and wife relationship with NH in June of 1978 in Topeka, Kansas. Claimant and NH had lived together continuously since that time, in various locations, set out in her form and listed above in Ms. H~ SSA-753 Form. Claimant stated that she had an understanding when she and the NH began living together that they would live together as husband and wife until “death do us part.” She said that she had an understanding that their relationship could only be ended by death. Claimant wrote that she believed that living together made her and the NH legally married because the state of Kansas recognized common-law marriage and that the state of Florida would “honor[] it.”

In the form, Claimant said that she and the NH chose to use their birth names as their legal names, even after their marriage, but she did use the name D~ or D~ on occasion. Claimant stated that she and the NH introduced themselves to relatives, friends, neighbors, and business acquaintances as husband and wife. Claimant listed the following individuals as the closest relatives, other than her children, who knew of her relationship with NH: R, Claimant’s brother; V~, Claimant’s sister; G, NH’s brother; and E~, NH’s sister. Claimant indicated that NH was married D~ in an August 1968 ceremonial marriage and they divorced in November 1975.

DISCUSSION

A. Federal Law

A claimant may be eligible for WIB if she is the widow of an individual who died fully insured. See Social Security Act (Act) § 202(e)(1); 20 C.F.R. § 404.335(a) (2021);^[2] Program Operations Manual System (POMS) RS 00207.001A.1.b.1. A claimant may qualify as the widow of an insured individual if the courts of the state where the insured was domiciled when he died would find: (1) the claimant and insured were validly married when the insured died; or (2) the claimant had the same status as a widow with respect to taking the insured individual’s personal property through intestacy. See Act § 216(h)(1)(A); 20 C.F.R. §§ 404.335(a), 404.345; POMS GN 00305.001A.2.a; POMS RS 00207.001A.1.a.1.

SSA defines a common-law marriage as “one considered valid under certain State laws even though there was no formal ceremony. It is a marriage between two persons free to marry, who consider themselves married, live together as man and wife, and, in some States, meet certain other requirements.” 20 C.F.R. § 404.726(a); see POMS GN 00305.060.A. Here, NH resided in the state of Florida at the time of his death. Therefore, the agency must determine whether Florida courts would consider Claimant and NH validly married at the time of NH’s death or whether Claimant would be deemed the NH’s widow for intestate succession, despite the fact that the couple did not legally or ceremonially marry in Florida.

B. Florida Law on Common-law marriage

Florida does not recognize the validity of common-law marriages contracted in the state after 1968. Fla. Stat. § 741.211 (1969); see also Anderson v. Anderson, 577 So.2d 658, 660 (Fla. Dist. Ct. App. 1991) (reversing trial court decision where the trial court did not consider the validity of a common-law marriage established in the state of Georgia). However, “Florida will respect a common[-]law marriage when entered into in a state which recognizes common[-]law marriages.” Anderson, 577 So.2d at 660 (citing Johnson v. Lincoln Square Properties, 571 So.2d 541 (Fla. Dist. Ct. App. 1991)). Florida has always determined the validity of a marriage in accordance with the laws of the place where the marriage occurred. Johnson, 571 So.2d at 542 (citing Goldman v. Dithrich, 179 So. 715 (Fla. 1938)). In Johnson, the court noted that the Attorney General opined that section 741.211 of the Florida Statutes did not change the state’s established principle that the validity of a marriage is determined by the place where the marriage occurred. Id. at 543 (holding, as a matter of first impression, that section 741.211 was limited to marriages occurring in Florida and was never intended to affect persons lawfully married outside of Florida).

C. Kansas Law on Common-law marriage

Kansas recognizes common-law marriage. In re Estate of Antonopoulos, 268 Kan. 178, 192, 993 P.2d 637, 647 (Kan. 1999); see also POMS PR 05605.019A (discussing whether Massachusetts would recognize an opposite-sex, common-law marriage contracted in Kansas in awarding spousal benefits). “The essential elements of a common-law marriage are: (1) capacity of the parties to marry; (2) a present marriage agreement between the parties; and (3) a holding out of each other as husband and wife to the public.” Estate of Antonopoulos, 993 P.2d at 647. The party asserting common-law marriage bears the burden of proof. Furthermore, substantial evidence must support a district court’s finding the existence of a common-law marriage. See id. at 647-48. In addition, each element must co-exist to establish a common-law marriage. See Thompson v. Barnhart, Case No. 04-2080, 2005 WL 23347, at *2 (D. Kan. Jan. 5, 2005) (internal citation omitted).

Essential to proving a valid Kansas common-law marriage is the existence of a mutual present agreement to the marriage. See Schrader v. Schrader, 207 Kan. 349, 484 P.2d 1007, 1009 (1971), disapproved on other grounds by Eaton v. Johnston, 235 Kan. 323, 329, 681 P.2d 606, 611 (1984); Cain v. Cain, 160 Kan. 672, 165 P.2d 221, 223 (1946). Since Kansas does not require a particular form to satisfy this element, the acts and conduct of the parties may evidence the present agreement. In re Estate of Keimig, 215 Kan. 869, 872-73, 528 P.2d 1228, 1230-31 (1974); Cain, 165 P.2d at 223. For instance, the Kansas Supreme Court held that a common-law marriage was established—despite the statement that “we have not got [sic] married, not because we don’t want to.” The Court determined this statement meant that no formal ceremony had occurred—because the same individual also testified that she had been living with the man she considered her common-law husband for fourteen years and they called each other husband and wife. In re Adoption of X.J.A., 284 Kan. 853, 878, 166 P.3d 396, 411 (2007).

Holding out as husband and wife can include cohabitation, otherwise living together as husband and wife, publicly acknowledging each other as husband and wife, assuming the rights, duties, and obligations of marriage, and a general reputation as husband and wife in the community. See Schuchart v. Schuchart, 61 Kan. 597, 60 P. 311, 312 (1900). There is no durational requirement to establish a common-law marriage in Kansas. Once the parties meet the requirements for a common-law marriage, a legally recognizable marriage contract exists. Cain, 165 P.2d at 223.

D. Analysis

Applying Kansas law to the common-law marriage allegedly entered into by Claimant and NH in 1978, we believe a Florida court could conclude Claimant has not yet established a valid common-law marriage. However, we believe Claimant may prove a common-law marriage if she supplies additional evidence as required by Kansas’ three-prong standard, discussed above. Because there is no indication that the couple lacked the legal capacity to marry in 1978, we turn to the second and third elements needed to establish a common-law marriage in Kansas.

Claimant provided some evidence of a present marriage agreement between the parties but not enough to meet the second element under Kansas law. Specifically, Claimant’s SSA-754 statements regarding her understanding of her relationship with NH provide evidence of a present agreement between the parties to marry while living in Kansas.

To meet the second prong of the standard, Claimant needs to submit additional corroborative statements from two of NH’s blood relatives. See 20 C.F.R. §404.726(b)(2) (stating that the preferred evidence of a common-law marriage when one of the parties is deceased is the signed statement of the living spouse and signed statements from two blood relatives of the deceased person); POMS GN 00305.065. The additional statements should corroborate specifically that Claimant and NH made a present agreement to marry while living in the state of Kansas. The statements should not be generic statements that the couple intended to be married throughout the course of their lives, as they lived in various states during their lives together, not all of which recognize common-law marriage.

The third element of establishing a common-law marriage in Kansas is a holding out of each other as husband and wife to the public. As noted above, this can include living together as husband and wife; publicly acknowledging each other as husband and wife; assuming the rights, duties, and obligations of marriage; and generally being reputed as husband and wife in the community. See Schuchart, 61 Kan. at 597, 60 P. at 312. There is significant evidence that the couple continuously satisfied this element at least since they begin living in Florida. Specifically, Claimant at times used NH’s surname; the couple had 6 children together; and the couple lived together and shared a marital bed for their entire alleged common-law marriage. In addition, the couple rented property jointly; the couple shared a joint bank account since at least 1992; the couple consistently referred to themselves as husband and wife; and Claimant and NH introduced themselves to others as husband and wife. However, none of the evidentiary statements produced show that the couple held themselves out as husband and wife during the time they lived in Kansas. While we view the couple’s subsequent actions as providing ample support for this third element, we still believe it is necessary that Claimant provide statements that she and the NH held out as husband and wife while in living in Kansas. See 20 C.F.R. §404.726(b)(2); POMS GN 00305.065.

Based on the foregoing, we recommend the agency request additional evidence to show a present agreement to be married in Kansas and evidence that the couple held themselves out as a married couple during the period they lived in the state of Kansas. See 20 C.F.R. § 404.726(b)(2). If Claimant provides such evidence, there would be sufficient proof of a valid common-law marriage in Kansas, such that a Florida court would recognize the marriage, which is relevant to determining her entitlement to WIB under the Act.

Conclusion

Based on the evidence supplied by Claimant, we do not believe Claimant has established is NH’s widow. However, if Claimant submits additional evidentiary support, we believe the Florida courts would find that Claimant is the NH’s widow based on their common-law marriage entered into in the state of Kansas, which is relevant for determining Claimant’s eligibility for WIB.

A couple living in Florida, which does not recognize common-law marriages, would not be considered to have entered into a common law marriage if they vacationed or spent time in Georgia or Montana, which recognize common-law marriages.

QUESTIONS PRESENTED

You have requested an opinion on whether, for the purposes of determining eligibility for benefits under the Social Security Act (the Act), a couple living in Florida, which does not recognize common law marriages, would be considered to have entered into a common law marriage if they vacationed or spent time in the states of Georgia or Montana, which recognize common law marriage.

SUMMARY ANALYSIS

It is our opinion a couple domiciled in Florida who vacationed or spent time in Georgia and Montana cannot establish a valid common law marriage. In this case, the couple married in 1975, divorced in 1981. The couple lived together and permanently resided in Florida in 1982 and 1983. The couple married again in 1984, and divorced again in 1989. The numberholder died in Florida. The claimant lives and filed her application for benefits in Arkansas. The specific issue is whether they were common law married in 1982 and 1983 by virtue of having visited Montana and Georgia.

Under the provisions of the Act, the Commissioner and the courts are to apply the law of the state where the deceased was domiciled at the time of his death. Florida would not recognize a purported common law marriage as valid, regardless of its potential validity in Montana and Georgia. Therefore, under the Act, for the purposes of determining entitlement to benefits, the couple was not married during the relevant time period.

Notes on Procedure for Writing this Opinion

This is a multi-region case. The claimant lives in Arkansas, which is in the Dallas region. The applicable law is Florida, where the number holder was domiciled at the time of his death and which is in the Atlanta region, as is Georgia. The opinion request was made to the Denver region, which includes Montana. Consequently, although OGC Denver wrote this opinion, we sought comments from the Atlanta_* and Dallas regions.

We have refrained from answering your initial question: how long a couple must reside in Montana or Georgia to enter a common-law marriage. That issue is not relevant to this opinion. Even if the couple had been considered married under Montana or Georgia law, they would not have been considered married under Florida law, which controls this case.

FACTS

Donald K~, the deceased numberholder and Betty K~ the claimant, were married in Florida on January 28, 1975. Their marriage was dissolved in Florida on March 5, 1981. The claimant contends that she and the numberholder lived together in Florida, beginning in 1982. During that time, she contends that they visited relatives in Montana for 2 to 3 weeks and visited Georgia on numerous occasions. The claimant also contends that, after the divorce, the couple reconciled and "just continued [their] marriage." She claims that they introduced each other as husband and wife.

The numberholder's niece, Kathleen H~, avers that the couple "presented themselves as married and slept together," the claimant used the numberholder's name, and the couple referred to each other as husband and wife.

Pat G~, a friend of the couple, state that she knew that they had divorced, but claimed that others who were not as close to the couple did not know and would not have known the couple was divorced. She averred the couple presented themselves as married while they were divorced. Ms. G~ also wrote that it was her belief that the numberholder's "intent [was] to take care and provide for [Claimant's] financial needs."

Barbara D~, a friend of the couple, wrote that she "probably knew that [the couple was] legally divorced during that period of time but [she] did not consider them in that regard. [She] considered them a couple for all intents and purposes and that's the way that they presented themselves."

Karol G~, a friend of the couple, wrote that "[e]veryone in our social circle who did not know that [the couple] was divorced during this period would have assumed they were married. They presented themselves as a couple, attended lots of functions together, and probably introduced each other as their husband or wife." She also wrote that, in April 1982, the couple was living together and "for all intents and purposes, [the couple] presented themselves as a couple, lived together as husband and wife during this period, and were considered to be a couple."

The claimant applied for Widow's Insurance Benefits on May 19, 2002, claiming she was married to the numberholder continuously from 1975 to 1989.

Applicable Law, Regulations, and Policy

Under the provisions of the Act and the Commissioner's regulations, a widow is entitled to benefits if she was married to a deceased numberholder for ten consecutive years. 42 U.S.C. § 416(d)(2); 20 C.F.R. § 404.331(a)(2) (2003). The Commissioner's policy is that, to meet this requirement, the couple need only be married one day in each of the ten consecutive years. POMS RS 00202.005 ("This requirement is met if the divorce became final on or after the 10th anniversary of the marriage. This is so even if this period was interrupted by a prior divorce, provided the remarriage took place no later than the calendar year immediately following the calendar year of the divorce.").

The Act and the Commissioner's regulations read that the law of the state where the numberholder is deceased applies to determine if there was a qualifying marriage. See 42 U.S.C. § 416(h)(1)(a)(i); 20 C.F.R. § 404.345 (2003) ("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.").

Florida does not recognize the validity of common law marriages contracted in Florida after 1968. However, Florida does recognize common law marriages that are entered into in states that do accept common law marriages. The validity of a marriage is to be determined by the law of the jurisdiction where the marriage was entered into.

Smith v. Anderson and Mulkey, 821 So.2d 323, 325 (Fla. 2d DCA, 2002) (citations and internal punctuation omitted). However, infrequent trips to a state that recognizes common law marriages do not cause an otherwise unrecognized Florida marriage to become a recognized marriage. See id. at 326.

ANALYSIS

As noted above, under the Act's choice of law provision, the applicable law is the law of the State of Florida, where the numberholder resided upon his death.

Thus, the question is whether Florida would recognize the numberholder and Claimant as married during the relevant time period. The facts here are strikingly similar to those in Smith v. Anderson. In both cases, the couples were domiciliaries of Florida who lived together and held themselves out as being married. In Smith, there was no marriage. Although the couple had a marriage ceremony, it was void due to a legal impediment. See Smith, 821 So.2d at 324. In the case of the K~, there was no marriage ceremony. Both couples resided in Florida and took relatively short trips to a state or states that recognized common law marriage; the Smiths went to Georgia, see id., and the K~ went to Georgia and Montana. The Florida courts held that the Smiths were not married under Florida law. See id. at 326. Similarly, were the Florida courts to consider the K~'s case, they would likely decide no marriage existed in 1982 and 1983.

CONCLUSION

Because the couple was not married in 1982 and 1983, they were not married for ten consecutive years. Consequently, the claimant is not entitled to benefits based upon a claim of a common law marriage.

Very truly yours,

Yvette G. K~

Regional Chief Counsel

Allan D. B~

Assistant Regional Counsel.

_*We also note that an opinion was requested from the Atlanta region regarding the existence of a "continuation of marriage" judgement. See Memorandum from Regional Chief Counsel, Atlanta to Assistant Regional Commissioner and Operations Support, Request for Leal Opinion, Number Holder - Donald K~ SSN ~(October 1, 2002).

Florida would consider these children of a purported Mexican marriage legitimate. The mother and NH reportedly entered into a marriage in Mexico, for which some documentation was provided. There is no indication that either was not free to marry. Even if the marriage were void, Florida would recognize the marriage because it was followed by the couple holding themselves out as married, holding property, and raising two children. Additionally, the children's mother and the NH may have been married under Iowa common law. Even if considered illegitimate, the children could inherit under Florida law, or qualify under section 216(h)(3) of the Act, based on court orders of support.

You have requested our opinion as to whether Dimitri and Alec M~ are children of the deceased number holder (NH) Daniel G. D~ for purposes of entitlement to child's insurance benefits.

Vivian M~ (Vivian) is the mother of Dimitri and Alec M~. On April 2, 1999, Vivian's attorney, Clarence B. M~, Jr., provided the following information in connection with Vivian's withdrawal of her request for an SSA administrative hearing. Vivian believes she married the NH in Mexico in 1968. The record contains a receipt dated July 20, 1968, from Mr. Jose L~, “in charge of Foreign Affairs,” Tijuana, Baja California, Mexico, acknowledging receipt of fifteen dollars from the NH and Vivian for service in representing and completing “Their Marriage Transactions Before the Proper authorities.” This receipt was filed with the Circuit Court for Lee County, Florida. On her October 8, 1982, Petition for Dissolution of Marriage, in the Circuit Court for Lee County, Florida, Vivian states that she and the NH married on July 27, 1968, in Tijuana, Mexico, and that Dimitri and Alec were born of the marriage.

Until 1999, no one denied the validity of their marriage or questioned the NH's paternity of her sons or of a first child who was stillborn in 1968. Mr. M~ states that when Vivian filed in 1982 for divorce in Florida, the court ordered the NH to pay temporary, and possibly permanent, child support. Mr. M~ states that according to the record, the divorce decree was set aside for jurisdictional reasons, but that the NH did not deny, by responsive pleading or otherwise, the validity of his marriage or the children's paternity. The record indicates that on September 17, 1984, the Circuit Court for Lee County, Florida, issued an Order Setting Aside Final Judgment of Dissolution, and the court ordered the NH to pay child support and medical bills on behalf of Dimitri and Alec. When a settlement agreement was reached between the parties, divorce proceedings were dismissed without a determination of the validity of their marriage or the paternity of the children. On July 15, 1985, the Circuit Court Clerk for Lee County, Florida, certified a Stipulated Settlement of Lawsuit Property and Child Custody Rights.

Mr. M~ said he believed that even if a Mexican marriage could not be established, Vivian and the NH were married under Iowa common law. Mr. M~ said he presented Vivian's testimony and that of Helen D~, a distant cousin of Vivian's mother, to establish Vivian's and the NH's general reputation in the Council Bluffs community and among their families as husband and wife. He indicated that had Vivian not withdrawn from the scheduled SSA hearing, he had intended to present additional testimony from the NH's sister and two other persons who knew the NH and Vivian as husband and wife in Council Bluffs.

In a letter dated March 8, 2001, George F. D~ identified himself as the NH's father and as Dimitri and Alec's grandfather. Mr. D~ stated the NH met Vivian in 1964. Thereafter the NH and Vivian moved to California. After the NH completed aviation school in California, he and Vivian moved into a house together in Council Bluffs, Iowa. The NH told his father that they were married by a Mexican Justice of the Peace. In the mid-70's, Vivian temporarily moved to Greece as she and the NH were “in constant arguments.” She returned to Iowa, and Dimitri was born in 1979. The NH moved his family to Ft. Myers, Florida, where their second son, Alec, was born in 1982. The NH and Vivian eventually separated, with Vivian returning to Iowa. Mr. D~ said he believed that Dimitri and Alec are the NH's biological children, and he submitted his Christmas 2000 newsletter referencing Dimitri and Alec as the NH's children.

In a letter dated December 11, 2001, Connie J. D~-Young (Connie), the NH's sister, reiterated her father's statements that the NH and Vivian met in 1964, and that they were together until 1973, moving together from Iowa to California in 1968. During 1968, Vivian had a stillborn baby, and the NH's father flew to California to bring the baby “back to Iowa to be buried with our family gravesites.” Connie also said the NH and Vivian married in 1968 in Tijuana, Mexico. While in Mexico, they had a bad automobile accident and were held by the Mexican government. The NH's father went to the American Embassy in Mexico to get them returned to the United States. The couple separated in 1974, and Vivian moved to Greece. Vivian later returned to the United States and became pregnant in 1979, giving birth to Dimitri on November 3, 1979. The couple again separated, and the NH moved to Florida. Vivian followed the NH to Florida, where she became pregnant, giving birth to Alec in 1982 in Ft. Myers, Florida. Vivian stayed in Florida until 1984 when she moved back to Iowa. Connie states she “can honestly say that Dimitri and Alec are the real children from my brother.”

Dimitri D~ was born on November 3, 1979, in Omaha, Nebraska, and his Nebraska birth certificate identifies the NH as his father. Alec D~ was born in Fort Myers, Florida, on September 2, 1982, and his Florida Certificate of Live Birth shows the NH as his father. Pursuant to a May 1985, Florida Final Judgment of Name Change, Dimitri and Alec changed their last name to M~. On July 12, 1985, Vivian applied for amendment of Dimitri's birth certificate, changing his father's identity to “unknown,” and reflecting the change of Dimitri's last name to M~.

The record also contains a July 26, 1994, the County Court, Lee County, Florida, Judgment Satisfaction in the case of Hospital Board of Directors of Lee County v. Daniel G. and Vivian J. D~ showing that the NH and Vivian paid a judgment which had been entered by the court on July 8, 1982. Also, an August 22, 1994, letter from the Iowa Department of Human Services to Vivian addresses the role of a child support recovery attorney and references the wage earner “D.G. D~.” A subsequent notice from the Iowa Department of Human Services notes that a support order was filed on September 17, 1984, and that the NH was $2,800.00 in arrears.

In a letter dated December 30, 1997, Joy D~ identified herself as the NH's widow and stated that Evan is the NH's son. She stated a stipulated settlement between the NH and Vivian released the NH's estate from subsequent claims. In a subsequent letter dated December 22, 1998, Ms. D~ indicated she knew nothing of Vivian except for the contract the NH and Vivian signed “almost 14 years ago.” She stated her husband died in prison in Georgia, leaving her and their son with nothing. NH lived in Florida before his imprisonment.

We believe that Dimitri and Alec are children of the NH for purposes of entitlement to child's insurance benefits.

The Social Security Act, 42 U.S.C. Sec. 416(h)(2)(A), provides that the Commissioner, in determining whether an applicant is the child of an insured individual, shall use the law governing the devolution of intestate personal property applied by the courts of the State in which the insured individual was domiciled at the time of his death. Here, NH, although in prison at the time of his death, was domiciled in Florida. One of the children was born in Florida and both lived there for several years. Accordingly, it appears that Florida courts would look to Florida laws to determine the status of these children. See Memorandum, Florida Choice of Law Issue (H~) to Sandy G~, June 25, 2001 (attached).

Under Florida law, Dimitri and Alec would likely be considered legitimate children eligible to inherit. Vivian and NH reportedly entered into a marriage in Mexico and some documentation was provided supporting this claim. There is no indication in the record that Vivian or NH was previously married or unable to contract a marriage. Even if the marriage were void, Florida would likely recognize the marriage because it was followed by the couple holding themselves out as married to family, friends and the public, holding property and raising two children. Also, no allegation apparently was made that the marriage was void until Vivian filed her dissolution proceeding. Under these circumstances, a Florida court held that annulment of a Mexican marriage was improper and that the husband was estopped to deny the validity of the marriage. See Lambertini v. Lambertini, 655 So.2d 142 (Fla. App. 1995).

Additionally, Vivian and NH may have been married under the common law of Iowa. Common law marriages cannot be entered into in Florida. Fla. Stat. Ann. Sec. 741.211 (West 2002). However, Florida also would recognize a valid common law marriage established in Iowa. See Compagnoni v. Compagnoni, 591 So.2d 1080 (Fla. App. 1991); American Airlines v. Mejla, 766 So.2d 305 (Fla. App. 2000). Iowa recognizes common law marriages. See Matter of Estate of Stodola, 519 N.W.2d 97 (Iowa App. 1994). Such a marriage may be established by clear and convincing evidence of intent and agreement to marry, cohabitation, and general and substantial public declarations that the parties are husband and wife. Id.; In re Marriage of Grother, 242 N.W.2d 1 (Iowa App. 1976). Here, evidence from NH's family members indicates that Vivian and NH viewed themselves as married, cohabited, and were viewed by the community as a married couple. They appear to have established a valid common law marriage in Iowa that would be recognized in Florida.

Even where no valid marriage results, Florida public policy does not favor penalizing children of an invalid marriage for the actions of their parents. As one Florida court noted, “Such children are the innocent victims of the situation. They should not be deprived of the right to be supported merely because the parents have created the invalidating circumstances.” Burger v. Burger, 166 So.2d 433, 436 (Fla. Sup. Ct. 1964). In that case, both parties obtained Mexican mail-order divorces before obtaining a Mexican proxy marriage. The court held that it had jurisdiction to grant a divorce and provide for support of the children despite the arguable invalidity of the marriage. Accordingly, it appears that Florida would view Dimitri and Alec as legitimate children.

Even if the children were considered illegitimate, they would be entitled to inherit under Florida law. Pursuant to Florida Statutes Annotated Sec. 732.108(2), which defines the inheritance rights of persons born out of wedlock, such persons can inherit from their father if: (a) The natural parents participated in a marriage ceremony before or after the birth, even though the attempted marriage is void; (b) The paternity of the father is established by an adjudication before or after the death of the father; or (c) The paternity of the father is acknowledged in writing by the father. These factors must be established by clear and convincing evidence. See Thurston v. Thurston, 777 So.2d 1001 (Fla. App. 2000). As noted above, both testimony from family members and a document indicate that Vivian and NH participated in a marriage ceremony in Mexico before the birth of the children.

Aside from Florida law, the Social Security Act, 42 U.S.C. 416(h)(3)(C), allows a “deemed child” to receive child's benefits on the account of a deceased father if before his death the father: (I) acknowledged in writing that the child was his; (II) had been decreed by a court to be the father; (III) had been ordered by a court to contribute to the support of the applicant before the death of the father. NH's name was on both of the children's birth certificates when they were born. NH also had been ordered by forums in two jurisdictions (Iowa and Florida) to pay child support. The record appears to contain clear and convincing evidence that Dimitri and Alec are the children of the NH and would be eligible to receive benefits.

Joy D~ submitted a stipulated agreement dated April 17, 1985, in which Vivian waives her right to receive child support or make any claim against NH's estate. However, Vivian could not waive the rights of her children to receive support or share in their father's estate. Florida courts have repeatedly held that a parent cannot waive a child's right to support. In Fleming v. Brown, 581 So.2d 202 (Fla. App. 1991), the court held that a mother could not waive her child's entitlement to support in exchange for the husband's waiver of parental rights; accord, Paris v. Bollon, 503 So.2d 1387 (Fla. App. 1987); see also Shinall v. Pergeorelis, 325 So.2d 431 (Fla. App. 1976) (an illegitimate child's right to support from his putative father cannot be contracted away by its mother and any release executed by her is invalid to the extent that it purports to affect rights of child). Florida courts have also held that a mother cannot waive the right of her children to receive benefits from the father or any other governmental agency. See State of Florida Dept. of Revnue for Payne v. Ortega, 682 So.2d 589, 590 (Fla. App. 1996). Accordingly, this stipulation and agreement would not prevent Dimitri and Alec from receiving child's benefits.

It is our opinion that Dimitri and Alec M~ are children of the NH for purposes of entitlement to child's insurance benefits, whether they are viewed as legitimate or illegitimate children of NH. As legitimate children, Dimitri and Alec would be entitled to benefits from at least six to twelve months before the time of their own applications. See 20 C.F.R. Sec. 404.621(a)(1(i) & (ii) (2001) (applicant for child's benefits may be entitled to benefits for up to six or 12 months before the month in which he or she applies, depending on the eligibility status of the NH). Vivian's 1997 application on the children's behalf was dismissed at her request on April 6, 1999. The dismissal of a request for a hearing is binding unless vacated within 60 days of the date of receipt of the notice. 20 C.F.R. Sec. 404.958 (2001). Determinations may be reopened within four years only if good cause is established. 20 C.F.R. Sec. 404.988 (2001). Good cause may be found by the existence of new and material evidence, clerical error, or clear error in the decision. 20 C.F.R. Sec. 989 (2001). Here, there does not appear to be good cause for re-opening the 1999 dismissal. Thus, benefits would not be payable back to the 1997 application.

Very truly yours,

Mary Ann S~

Regional Chief Counsel

Laurie G. R~

Assistant Regional Counsel.

MARRIAGE — COMMON-LAW MARRIAGE — FLORIDA

Where the evidence as to the existence of a common law marriage was conflicting, a finding by a lower Court in Ohio, subsequently affirmed by an intermediate appellate court, of the existence of such a marriage is sufficient to justify a determination by SSA that the claimant and the deceased were validly married, even though an appeal to Ohio's highest Court is still pending. This finding would be given full faith and credit by the courts of Florida, the State of the deceased's domicile at the time of his death even though Florida does not itself recognize the validity of common law marriages. (K~, Ervin, ~ — RAV (M~), to ARC, O7/19/83.)

I. QUESTION PRESENTED

By transmittal dated May 2, 1983, you have asked our opinion regarding the existence of a common law marriage between the claimant Ruth K~ and the deceased wage earner Ervin K~.

II. ANSWER

In our opinion, Ruth K~ is entitled to widow's benefits.

The wage-earner's sons told SSA in September 1982 that no common-law marriage ever existed between the wage earner and the claimant. However, you also presented an Ohio Probate Court opinion dated August 24, 1982 which found that there had been a common-law marriage and that the claimant was the surviving spouse of Ervin K~. We have subsequently discovered that the position of the wage earner's sons was fully represented in the Ohio Probate Court proceeding. Further, the wage earner's estate and his sons appealed the Probate Court opinion to the appropriate appellate court, which affirmed the opinion on June 15, 1983. Although the estate has filed a Notice of Appeal to the Ohio Supreme Court, dated July 13, 1983, a motion to stay the execution of the appellate court's judgment was denied on or about July 15, 1983.

This is a case which meets SSA and case-law criteria for SSA to honor pre-existing state court judgement. We are available to give additional advice about a possible overpayment should the Ohio Supreme Court agree to further review this matter and reverse the appellate court.

III. BACKGROUND

The claimant and the wage earner lived together in Columbus, Ohio beginning in late 1972. In early 1980, they both moved to Jacksonville, Florida. Mr. K~ died while traveling in Ohio on November 20, 1981, and Ruth K~ has filed a claim with SSA for widow's benefits. There is conflicting evidence on the question of whether they cohabited as man and wife, or whether the wage earner merely boarded in homes owned by the claimant.

Evidence against finding a common-law marriage includes the facts that Ruth P~ maintained her own name for most purposes; owned the Ohio and Florida properties in her own name; and maintained accounts in the name of P~. The claimant has only given SSA envelopes addressed to her as Mrs. K~ which post-date Mr. K~'s death. When Ruth P~ applied for Social Security Disability Benefits on June 27, 1974, at a time when she now claims to have been married under common law to Mr. K~, she identified herself as a single (previously married) person. Mr. K~ also owned property in his own name and filed individual income tax returns. His two sons (from a previous marriage) and former brother-in-law have advised SSA that Ervin K~ told them at various times that he was not married to Ruth P~ and had no intention of marrying her, 1/ and there is evidence that the sons have acted consistently with that belief.

Evidence in favor of finding a common law marriage includes a statement to SSA from Ruth P~'s grown daughter; the pursuit of a claim arising from a 1976 automobile accident as husband and wife, during which Ervin K~ and Ruth P. K~ were represented by an attorney and executed a release as husband and wife in 1978; and an August 1982 Ohio Probate Court Judgment which found that the K~s were married under common law since at least 1978 and that Ruth K~ was therefore the surviving spouse of Ervin K~. The court appears to have been aware of the conflicts in the evidence, but refers to certain additional evidence which SSA has not independently corroborated or disproved, such as introductions to friends over the years as husband and wife; correspondence (of unknown dates) addressed to Ruth K~; the presence of a wedding ring given by K~ to Ruth; and the existence of some credit cards in the name of Ruth K~ (although the dates the accounts were established is unclear). Further, the trial court's judgment was affirmed by the Pickaway County 4th District Court of Appeals on June 15, 1983. Although further review by the Ohio Supreme Court has been requested, a motion to stay execution of the appellate court's judgment was denied on or about July 15, 1983.

IV: DISCUSSION

A. OVERVIEW

Under the Social Security Act, whether the claimant in this case can claim widow's benefits is determined by looking first to the law the courts of Florida would apply in deciding whether the claimant was the wage earner's widow or whether she would be able to inherit a widow's share of the wage earner's personal property if he had died without a will. Florida law applies because the wage earner had his permanent home there when he died, even though he died while traveling in Ohio. 42 U.S.C. 416(h)(1)(A); 20 C.F.R. 404.345.

Although the Florida courts have not addressed this case, the Probate Court of Pickaway County, Ohio and the appellate court have ruled that the K~s did have a common law marriage and that Ruth ~ K~ was therefore the wage earner's surviving spouse. It therefore becomes necessary to evaluate what effect a Florida court would give to the Ohio appellate court' s judgment.

It appears that Florida courts would honor the Ohio appellate court's judgment. It therefore also becomes necessary to determine whether SSA is free to ignore the anticipated ruling of the Florida courts.

The statements by K~'s sons that no common-law marriage existed is relevant, because under 20 C.F.R. 404.726(b)(2), signed statements by two of the deceased's blood relatives and the surviving spouse are the preferred evidence of a common-law marriage. However, 20 C.F.R. 404.726(c) recognizes that other evidence may direct the outcome. Here, the preferred evidence supportin9 the relationship is not available because the wage earner's sons challenge the relationship. This alone does not defeat the claimant's claim, however; SSA is still bound by statute to resolve the question under applicable State law. 42 U.S.C. 416(h)(1)(A).

SSA, like the Florida courts, would honor the Ohio result because the criteria for being bound by state court decisions regarding family status, discussed more fully below, were also met.

B. FLORIDA LAW

As required by the full faith and credit clause of the United States Constitution, Article 4, Section 1, Florida courts generally presume that decrees of other State courts are valid. In re Estate of Rifkin, 359 So.2d 1197 (Fla. App. t978). Decrees of other states will be enforced in Florida unless they violate public policy, Berger v, Hollander, 391 So.2d 716 (Fla. App. 1980). Although Florida does not recognize common-law marriages entered into in Florida after January l, 1968, Fla. Star. 741.211, Florida continues to recognize common-law marriages validly entered into elsewhere after that date. Thus it would not be against public policy for a Florida court to honor and implement the Ohio appellate court decree in this case.

C. FEDERAL LAW

Because a Florida court would honor as its own the Ohio appellate court's order, we must therefore address whether SSA would be bound by the conclusion that a common-law marriage existed.

The general rule is that SSA need not afford controlling weight to State court trial decisions regarding family status if the Secretary was not a party to the State court proceeding. Unlike a Florida trial court, which is required to give full faith and credit to most Ohio trial court decrees, the Social Security Act only requires SSA to determine what the highest court in Florida would decide. See Cain v. Secretary of Health Education, and Welfare, 337 F.2d 55 (4th Cir. 1967). However, if SSA concludes that a State trial court decision is not inconsistent with State law and would therefore not be overturned by the State's highest court, SSA should honor that decision. Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). This is true even where SSA questions the correctness of the lower court decision if the State court considered the identical issue that SSA is deciding. Collins v. Celebrezze, 250 F. Supp. 37 (S.D.N.Y. 1966); Zeldman v. Celebrezze, 252 F. Supp. 167 (E.D.N.Y. 1965).

Where a State's Supreme Court has not yet ruled, it is often difficult to predict how it will evaluate a lower court's ruling. In Gray v. Richardson, supra, the Sixth Circuit enumerated four criteria which tend to ensure reliability of a lower court's decision:

1) An issue in a claim for social security benefits previously has been determined by a court of competent jurisdiction; 2) this issue was genuinely contested before the State court by parties with opposing interests; 3) the issue falls within the general category of domestic relations law; and 4) the resolution by the State trial court is consistent with the law enunciated by the highest court in the State. 474 F.2d at 1373.

Our central office has approved a draft SSA ruling incorporating the language of Gray, scheduled to be published this month (copy attached hereto). Where the four criteria are met the Secretary will be bound, although all four criteria need not necessarily be met in all cases. _2/ A potential "fifth criterion" was articulated by the Ninth Circuit in Moreno v. Richardson, 484 F.2d 899 (9th Cir. 1973). In that case involving child's survivors benefits, the court stated that if the evidence presented to the trial court "was the same as the evidence before the Secretary in support of the claim, we would be inclined to hold the Secretary to be bound" by the declaration of the trial court. 484 F.2d at 903, note 4.

In this case, the trial and appellate court records reflect that all four Gray criteria, as well as the Moreno factor, have been met. The presence of an appeal clarifies any pre-existing ambiguities concerning the existence of a genuine contest, and makes the result more likely to be consistent with the law of Ohio's highest court.

At the date of writing, we do not know whether Ohio's Supreme Court will decide to accept this case for further review. However, a motion to stay execution of the appellate court's judgment was denied on or about July 15, 1983. You are free to await further action by the State Supreme Court to conclusively resolve this benefit claim, but we have no indication of the time frames for action by that court. Because the request to stay execution was denied, there is currently in effect an Ohio court judgment which would be honored by Florida courts and which meets the criteria for being honored by SSA.

CONCLUSION

At the date of writing, Ruth P. K~ is entitled to widow's benefits. We recognize that further action by the Ohio Supreme court may change that conclusion, but that outcome is both unlikely and perhaps far in the future. Should you commence payment of widow's benefits now, we are available to give additional legal advice about any possible overpayment that might develop following action by the Ohio Supreme Court which might affect this matter.

1 / The statements of both sons to SSA also refer to income the claimant earned from a drapery business operated in her home despite receiving SSA disability benefits. This is an issue SSA may also wish to pursue. See Claims Folder

2/ See Howard P ~ Jr., A/N ~ , RA-V (M~) to ARC- Programs V (W~) , June 21, 1983; and Larry G~ , A/N ~ , RA-V (H~) to ARC-Programs-V (W~), July 8, 1982.

MARRIAGE — Cohabitation and Reputation (Including Common-Law Marriage) — State Law HUNGARY

Where a claimant seeking divorced wife's benefits alleged that she and the deceased wage earner entered into a common-law marriage in Hungary in 1947, we found that common-law marriages are not recognized in Hungary and that therefore the validity of such a marriage in the state of Florida was a moot question.

(Validity of Common-Law Marriage - Hungary - L. V~ RA IV (A~) to ARC, 8/10/82)

Recently a claim was filed by Irene N~ on SSN requesting that divorced wife's benefits be paid to her on the record of Laszlo V~. The applicant alleges that she entered into a common-law marriage with the number holder in 1947 in the country of Hungary. The applicant and the number holder separated in 1963. They were ceremonially married in Yonkers, New York in 1967 and were divorced in 1973.

In attempting to resolve this situation on the local level, several opinions were reviewed by your office, but they were generally concerned with situations arising out of the formation of Yugoslavia from parts of Hungary around 1908 and with situations arising prior to World War II. Generally, Hungary seemed to deny the validity of common-law marriages during that period. Since these opinions are so outdated, your office has requested our advice as to whether or not Hungary recognized common-law marriages after World War II. We have contacted the Library of Congress' International Law Department and discussed this matter with Soiyom' F~, a Hungarian law specialist. Mr. F~ has informed us that Hungary does not recognize common-law marriage and such a marriage would not be valid in Hungary.

Since such a marriage would not be valid in Hungary, we need not respond to your question of recognition of the Hungarian common-law marriage in the state of Florida.