The number holder (NH) died while domiciled in Georgia.  Therefore, we look to the Georgia law to determine if the Claimant and NH had a valid common-law marriage. Georgia recognizes valid common-law marriages beginning before January 1, 1997. For a common-law marriage to have been valid, the parties must have had a contract to marry, agreed to live together as husband and wife, and consummated the agreement. The Claimant cannot show that her relationship with NH met all three requirements of common-law marriage necessary for a valid common-law marriage under the Georgia law. In determining the Claimant’s eligibility for WIB on the NH’s earnings record, the Claimant and the NH did not have a valid common-law marriage under the Georgia law.

QUESTION

You asked whether, in light of a cohabitation agreement with the number holder, a claimant established the existence of a valid Georgia common-law marriage for determining her eligibility for widow’s insurance benefits (WIB) on the number holder’s earnings record.

OPINION

The claimant has not established the existence of a valid Georgia common-law marriage with the number holder for determining her eligibility for WIB on the number holder’s earnings record.

BACKGROUND

According to the information provided, J~, the number-holder (NH), died on September XX, 2015, while domiciled in Georgia. On September XX, 2015, M~ (Claimant),^[1] applied for WIB on NH’s earning record. Claimant alleges a common-law marriage with NH that began in September 1996.

In Claimant’s undated Statement of Marital Relationship, she indicated the following: She and NH lived together continuously from September XX, 1996, until his death on September XX, 2015. They had a written understanding as to their relationship when they began living together, and the understanding remained unchanged. She believed living together made them legally married because she “felt married and so did he.” They discussed holding a ceremonial marriage at some point in the future; however, “[h]is two bad marriages kept him from having a ceremonial marriage.” She did not use his last name even after they began living together, because, in her own words, they “were not legally married.” Nevertheless, a number of people referred to her as M5~. She referred to NH as her husband, and he introduced her as his bride. Mail was addressed to her individually as M~ or L~ and to them as a couple as Mr. and Mrs.

Social Security Administration (SSA) notes indicate Claimant and NH did not file joint tax returns, have any charge accounts, or own any property as husband and wife. However, on her undated Statement of Marital Relationship, Claimant marked both yes and no to a question regarding whether they had any joint financial dealings after they began living together. Furthermore, although she listed “House Deed” as a financial dealing that took place after they began living together, she did not indicate when the deed was executed or whether they were shown as husband and wife on the deed. The record does not contain any copies of a deed, although as discussed below, they may have agreed to a joint tenancy with right of survivorship in their residency upon one or the other’s death.

The record contains a “Co-habitation Agreement” (Agreement) that Claimant and NH signed on September XX, 1996. The Agreement states as follows: At the time of the Agreement, they were cohabiting and had developed a caring and loving relationship for one another. They desired and anticipated a relationship of long duration that “may at some time in the future result in a more formal relationship.” Despite their relationship, they desired to keep separate all real and personal property owned by either party at the formation of the Agreement, except for his residence and any future jointly owned property. Both parties waived all rights to alimony which may attach to their separate property “[i]n the event of a future marriage, and then an annulment, legal separation or divorce.” As noted, the Agreement also appears to contemplate the creation of a joint tenancy with right of survivorship between them in the property upon which they reside at one or the other’s death.

In December 2015, Claimant’s brother completed a Statement Regarding Marriage, in which he indicated that he had known NH for twenty years and Claimant for eighty-seven years and saw them three-to-four times a year for family visits. To his knowledge, Claimant and NH were generally known as husband and wife, and he considered them husband and wife. Claimant’s brother left blank a question asking whether he ever heard Claimant and NH refer to each other as husband and wife. In his opinion, Claimant and NH maintained a home and lived together continuously as husband and wife until NH’s death: however, he did not know when they began living together as husband and wife.

In a March 2016 Statement Regarding Marriage, NH’s grandson indicated that he considered Claimant to be his grandmother. He had known NH all his life and Claimant for around twenty-five years. While NH was still alive, NH’s grandson visited Claimant and NH every couple of weeks. To his knowledge, Claimant and NH were generally known as husband and wife. NH’s grandson indicated NH had told him that NH and Claimant “got married and they lived together.” NH’s grandson heard them refer to each other as husband and wife. In the opinion of NH’s grandson, Claimant and NH retained a home and continuously lived together as husband and wife, although NH’s grandson left blank boxes asking the specific dates Claimant and NH lived together as husband and wife.

In lieu of obtaining a Statement Regarding Marriage from a second blood relative of NH, Claimant reported that NH had no living relatives besides his grandson who were able to provide information. Contrary to her report, an online obituary shows that NH was survived by a number of blood relatives, including a brother, son, daughter, grandson (mentioned above), two granddaughters, and five great grandchildren. See Obituary for J~, (last visited April 4, 2016).

The record contains a copy of NH’s September 2015 death certificate, which lists NH’s residence as Georgia. Claimant acted as informant and identified herself as his spouse.

Regarding NH’s previous marriages, SSA was not able to verify he was finally divorced from his first wife, L2~. SSA records indicate both NH and L2~ had previously alleged in separate Social Security claims that they were divorced in Sparta, GA. However, in an October 2015 letter, the Clerk of the Superior & Juvenile Court of Hancock County indicated she was unable to provide Claimant with a copy of NH’s divorce decree due to a fire in August 2014. As for NH’s second marriage, the record contains a separation agreement and Superior Court of Laurens County, Georgia, divorce decree indicating NH was divorced from his second wife, B~, in 1989.

Regarding Claimant’s prior marriages, SSA records verify that both her prior spouses are deceased.

DISCUSSION

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), 216(c); 20 C.F.R. § 404.335(a) (2015).^[2] A claimant 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 the claimant and insured individual were validly married when the insured individual died. See Act § 216(h)(1)(A)(i); 20 C.F.R. §§ 404.335(a), 404.345; Program Operations Manual System (POMS) GN 00305.001(A)(2)(a).

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); POMS GN 00305.060.A. NH’s death certificate indicates he was a resident of Georgia when he died. Therefore, we look to Georgia law to determine if Claimant and NH had a valid common-law marriage.

No Valid Common-Law Marriage Under Georgia Law

Georgia recognizes valid common-law marriages beginning before January 1, 1997. Ga. Code Ann. § 19-3-1.1 (West 2015).^[3] For a common-law marriage to have been valid (pre-1997), the parties must have been able to contract, agreed to live together as husband and wife, and consummated the agreement. See Ga. Code Ann. § 19-3-1; Wright v. Goss, 494 S.E.2d 23, 25 (Ga. Ct. App. 1997) (citing Ga. Osteopathic Hosp. v. O’Neal, 403 S.E.2d 235, 243 (Ga. Ct. App. 1991)). A common-law marriage cannot be partial or periodic, and all three requirements of common-law marriage must coexist. See Wright, 494 S.E.2d at 25.

The evidence must show an express present intention to be husband and wife. See In re Wilson, 512 S.E.2d 383, 385 (Ga. Ct. App. 1999); Edwards v. Edwards, 222 S.E.2d 169, 170-71 (Ga. Ct. App. 1975). An agreement to marry in the future is insufficient to establish a common-law marriage. See Wilson, 512 S.E.2d at 385. A determination of whether a couple agreed to live together as man and wife “may be inferred from proof of cohabitation and that the parties held themselves out to the world as husband and wife, and such proof may be made by general repute among neighbors and others in a position to know the facts.” Id. (internal quotation marks omitted).

“The existence of a common-law marriage is a question for the trier of fact.” Id. at 386. Georgia appellate courts have upheld findings of no common-law marriage, even when there is conflicting evidence, so long as there is evidence to support a finding of no marriage. See Wilson, 512 S.E.2d at 386 n.7 (listing cases where Georgia appellate courts have upheld findings of no common-law marriages based on conflicting evidence).

In Claimant’s undated Statement of Marital Relationship, she stated she and NH began living together on September XX, 1996, the same day they signed the Agreement. She also stated that, at the time they began living together, they had a written understanding as to their relationship. Claimant did not explicitly indicate the Agreement and the written understanding were the same, but the record contains no documentary evidence of a written understanding other than the contemporaneous Agreement. Thus, the Agreement is presumably the written understanding to which she refers.

Although the Agreement establishes Claimant and NH agreed to cohabit as of September XX, 1996, it stops short of establishing an agreement to live as husband and wife. Rather, the Agreement states that both parties desired a relationship of long duration that “may at some time in the future result in a more formal relationship.” Furthermore, the Agreement provides that both parties waived all rights to alimony “[i]n the event of a future marriage.” However, an agreement to marry in the future is insufficient to establish a common-law marriage. See Wilson, 512 S.E.2d at 385.

The Agreement’s language indicates Claimant and NH were merely contemplating the possibility of a future marriage when they agreed to cohabit. Indeed, Claimant’s Statement of Marital Relationship indicated she and NH discussed holding a ceremonial marriage in the future, but ultimately “his two bad marriages kept him from having a ceremonial marriage.” Additionally, she did not use his last name because, in her own words, they “were not legally married.” Moreover, she affirmatively stated that their understanding of their relationship never changed after they began living together.

In other words, the Agreement shows that while Claimant and NH agreed to live together, they did not agree to live together as husband and wife. Thus, they did not have an actual contract to marry. See Ga. Code Ann. § 19-3-1; Wright, 494 S.E.2d at 25. Accordingly, Claimant cannot show that her relationship with NH met all three requirements of common-law marriage necessary for a valid common-law marriage under Georgia law.

Insufficient Evidence of Common-Law Marriage Under the Regulations and POMS

Moreover, Claimant has not provided sufficient evidence to establish that she and NH had a common-law marriage under the regulations and the POMS. To prove a common-law marriage when either the husband or wife is dead, a claimant generally must provide “preferred evidence” of a common-law marriage, consisting of a signed statement from the surviving spouse, a signed statement from a blood relative of the surviving spouse, and signed statements from two blood relatives of the deceased spouse. See 20 C.F.R. § 404.726(b)(2); POMS GN 00305.065.B.3. These signed statements should show why the declarer believes there was a marriage between the two individuals. See 20 C.F.R. § 404.726(b).

Claimant did not provide “preferred evidence” of a common-law marriage under the regulations and POMS. See 20 C.F.R. § 404.726(b)(2); POMS GN 00305.065.B.3. She submitted signed statements from: (1) herself (the alleged surviving spouse), (2) her brother (a blood relative of the surviving spouse), and (3) NH’s grandson (a blood relative of the deceased spouse). See 20 C.F.R. § 404.726(b)(2); POMS GN 00305.065.B.3. However, the record does not contain a statement from a second blood relative of NH. See 20 C.F.R. § 404.726(b)(2); POMS GN 00305.065.B.3.

If preferred evidence is not available, the claimant must explain why it is not available and provide “other convincing evidence of the marriage.” 20 C.F.R. § 404.726(c); see POMS GN 00305.065.B.4. Although the regulations do not specify what constitutes “other convincing evidence,” the POMS indicates that for each signed statement not obtained from a blood relative, SSA should obtain either a statement “from a person who knows the facts” or other evidence. POMS GN 00305.065.B.4.

We found no Eleventh Circuit case addressing the evidentiary burden imposed by the Commissioner’s regulations, but at least two circuit courts have addressed a claimant’s failure to establish a common-law marriage through “preferred evidence.” The Sixth Circuit cited 20 C.F.R. § 404.726 as setting out “the evidence which will usually be accepted as sufficient by the [Commissioner] to establish a [common-law] marriage.” Smith-Wilkins v. Sec’y of Health & Human Servs., 880 F.2d 864, 866 (6th Cir. 1989). In applying this regulation, the court considered signed statements from an insured individual’s father and grandmother that the individual and claimant were not married. The court determined that “[t]he ALJ could have reasonably determined from this evidence that Claimant failed to meet the regulatory standard of common-law marriage.” Id. Similarly, the Tenth Circuit in Brougham v. Apfel, No. 98-6034, 1998 WL 894951 (10th Cir. Dec. 24, 1998) (unpublished), concluded that substantial evidence supported an ALJ’s finding that a claimant did not establish a common-law marriage and was not entitled to WIB. Specifically, the court focused on “preferred evidence” and noted that the insured individual’s mother denied the existence of a common-law relationship. Brougham, 1998 WL 894951, at *1-2.

These courts also identified other evidence that could be “convincing” or “conclusive” evidence. The Sixth Circuit looked to federal income tax returns, which identified the insured individual and the claimant as single, and the insured individual’s death certificate, on which the claimant failed to list herself as the widow even though she was the informant on the death certificate, and deemed this evidence weighed against a common-law marriage. See Smith-Wilkins, 880 F.2d at 866. The Tenth Circuit looked at whether the claimant professed the relationship to various individuals, including statements made by a welfare worker that the insured individual was introduced as “just a friend.” Brougham, 1998 WL 894951, at *2.

Claimant attempted to explain why “preferred evidence” was not available by claiming that a second blood relative’s statement was unavailable because NH has no living relatives who are able to provide information other than NH’s grandson. See 20 C.F.R. § 404.726(c); POMS GN 00305.065.B.4. However, an online obituary indicates NH was survived by a number of blood relatives other than NH’s grandson. Claimant did not explain why none of NH’s other surviving relatives could provide a statement regarding her and NH’s marriage. Unless Claimant reasonably believed NH had no surviving blood relatives other than his grandson, she has not sufficiently explained why she failed to provide preferred evidence. See 20 C.F.R. § 404.726(c); POMS GN 00305.065.B.4.

Moreover, the other evidence she submitted does not convincingly establish the existence of a common-law marriage. See 20 C.F.R. § 404.726(c); POMS GN 00305.065.B.4. As discussed, the Agreement and her statements about it show that she and NH did not have an express present intention to be husband and wife. See Ga. Code Ann. § 19-3-1; Wilson, 512 S.E.2d at 385; Edwards, 222 S.E.2d at 170-71. Additionally, while Claimant’s brother and NH’s grandson stated they believed she and NH were married, neither Claimant’s brother nor NH’s grandson indicated when she and NH agreed to marry. Similarly, Claimant stated other people referred to her as “Mrs. M~” yet she admitted she did not actually use NH’s last name, because they were not legally married. See Brougham, 1998 WL 894951, at *2 (holding claimant’s failure to hold herself out as insured individual’s spouse showed no common law marriage existed). In addition, although she identified herself to the funeral director as NH’s spouse for purposes of filling out his death certificate, her self-identification only shows her belief about their marital status, not his. Cf. In re Estate of LeGrand, 576 S.E.2d 54, 55-56 (Ga. Ct. App. 2002) (upholding finding of no common-law marriage where there was evidence that agreement to marry was not mutual).

Claimant also provided contradictory and incomplete information about whether she and NH had any joint financial dealings after they began living together. While they may have created a joint tenancy with right of survivorship in their residency via the Agreement, she fails to show they filed joint tax returns or shared any charge accounts. See Smith-Wilkins, 880 F.2d at 866 (holding that claimant and insured individual’s separate tax returns identifying themselves as single showed no common law marriage existed).

In light of the foregoing, the evidence does not show a valid common-law marriage between Claimant and NH under Georgia law.

CONCLUSION

Claimant and NH did not have a valid common-law marriage under Georgia law for determining Claimant’s eligibility for WIB on NH’s earnings record.

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By: Owen Keegan

Assistant Regional Counsel

Claimant and NH participated in a spiritual ceremony. Under Georgia law, marriage is a civil contract and its validity is judged by the law of the forum in which it was entered. However, Georgia would not recognize a marriage on this ceremony alone. Prior to January 1, 1997 Georgia recognized common-law marriages if one could establish the three requirements were met. The Georgia courts would find the claimant's common-law marriage valid, thus she could inherit from NH and qualify as the NH's widow.

Georgia recognizes a strong presumption of the validity of the most recent marriage. The presumption of the validity of a more recent marriage continues until evidence is presented that the earlier spouse is living; only then must the party contending that the later marriage is valid affirmatively demonstrate that the earlier marriage was dissolved by divorce.

QUESTION

In considering this claim for spousal benefits, you asked whether a woman, joined with a man in a "spiritual marriage" by a Muslim minister, could qualify as that man's widow under Georgia law.

ANSWER

For the reasons stated below, the woman, here, can qualify as the man's widow under Georgia law.

BACKGROUND

According to the file, number holder, F~ (NH), and C~ (Claimant) participated in a ceremony characterized as a "spiritual marriage," and a friend or relative of NH, reportedly a Muslim clergyman, performed the ceremony. There is no legal or religious documentation of this marriage; however, the couple lived together as husband and wife for many years and shared a home and bank accounts and filed joint tax returns. Claimant was previously married and divorced and presented evidence of her marriage and divorce. Claimant and NH's relatives state that NH was previously married and divorced in Egypt. None, however, presented documentation of this marriage or divorce.

DISCUSSION

The Social Security Act (Act) provides, "an applicant is the wife, husband, widow, or widower" of an insured individual if "the courts of the State in which such insured individual is domiciled at the time such applicant files an application . . . would find that such applicant and such insured individual were validly married at the time such applicant files such application . . . ." Act § 216(h)(1)(A)(i), 42 U.S.C. § 416(h)(1)(A)(i); see also 20 C.F.R. §§ 404.330(a), 404.345 (2006). The Act also allows a finding that the applicant is the wife, husband, widow, or widower if the courts of that state would determine the applicant could 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. See Act § 216(h)(1)(A)(ii). Finally, the Act permits the Commissioner to deem that a marriage is valid if she is satisfied that an applicant in good faith went through a marriage ceremony with the insured 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. See Act § 216(h)(1)(B)(i), 20 C.F.R. §§ 404.330(a), 404.346 (2006). Claimant can establish entitlement under the first two of the above methods.

1. Georgia Would Recognize Claimant's Marriage To NH As Valid.

Initially, we considered whether Claimant and NH were validly married under Georgia law. According to Georgia law, marriage is a civil contract and its validity is judged by the law of the forum in which it was entered. See Fisher v. Toombs County Nursing Home, 479 S.E.2d 180, 182-83 (Ga. App. 1996). In this case, Claimant and NH participated in a ceremony in Georgia. However, because Claimant presents marriage license or other legal or religious record of the "spiritual marriage," Georgia would not recognize a marriage on this ceremony alone. See Ga. Code Ann. Sec. 19-3-30.OCGA Sec. 19-3-30. However, it appears that Georgia would recognize a common law marriage between Claimant and NH.

In Georgia, before January 1, 1997, one could establish a common law marriage by demonstrating: 1) the parties were able to contract; 2) an actual contract of marriage; and 3) consummation by cohabitation. Ga. Code Ann. Sec. 19-3-1; Brown v. Carr, 402 S.E.2d 296 (1991); Kersey v. Gardner, 264 F. Supp. 887 (M.D. Ga. 1967). Here, the parties began cohabitating in 1976, jointly owned a house and bank accounts, filed joint tax returns, and were regarded by friends and relatives as husband and wife. This evidence would be sufficient under Georgia law to establish a common law marriage. Murray v. Clayton, 261 S.E.2d 455 (1979); Simeonides v. Zervis, 194 S.E. 2d 324 (1972). Where there is proof of continuous cohabitation, along with affirmative proof that a couple held themselves out as husband and wife, the presumption of marriage is one of the strongest known by law, and is to be rebutted only by clear evidence. Id.

There is some evidence that NH was previously married and divorced, although no documentation was presented to establish either the prior marriage or divorce. As other states do, Georgia recognizes a strong presumption of the validity of the most recent marriage. Jones v. Transamerica Ins. Co., 268 S.E.2d 444 (1980). A person attacking the validity of the more recent marriage must overcome the presumption of validity by clear, distinct, positive, and satisfactory proof. Id. The presumption oif the validity of a more recent marriage is continues until evidence is adduced that the earlier spouse is living; only then must the party contending that the later marriage is valid affirmatively demonstrate that the earlier marriage was dissolved by divorce. American Mut. Liab. Ins. Co. v. Copeland, 149 S.E.2d 402 (1966). Here, no one has presented clear evidence that the first spouse is living or asserted that the prior divorce was not valid. Accordingly, there would be a presumption of the validity of the common law marriage between Claimant and NH in Georgia. There is insufficient evidence to rebut the presumption.

2. Claimant Could Inherit a Widow's Share of NH's Personal Property.

Claimant could also establish widow status upon a finding that Georgia courts would determine that she could inherit a widow's share of NH's personal property if he were to die without leaving a will. See Act § 216(h)(1)(A)(ii). Georgia law provides a surviving spouse is entitled to a share of an intestate spouse's personal property. See Ga. Code Ann. Sec. OCGA Sec. 53-2-1. Because Claimant's common law marriage to NH appears valid, she could inherit from NH under Georgia law.

2. Claimant's Marriage To NH Would Not Qualify as A Deemed Marriage.

the Act permits the Commissioner to deem that a marriage is valid if she is satisfied that an applicant in good faith went through a marriage ceremony with the insured 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. See § 216(h)(1)(B)(i) of the Act; 20 C.F.R. Sec. 404.346. To qualify, Claimant must have acted in "good faith" when she married NH. See POMS GN 00305.055(B)(2). Good faith requires "ignorance at the time of ceremony of any legal impediment and the claimant's belief at the time of the ceremony that the marriage was valid." Id. The POMS further state that a legal impediment would exist if the marriage was invalid due to a procedural defect such as having a religious ceremony in a country that requires a civil ceremony. See POMS GN 00305.055(b)(3).

In this case, Claimant essentially admits that her ceremonial marriage was not legally or religiously valid, but states instead that the basis for her belief that she was legally married was that "we gave ourself's (sic) to each other as husband and wife." This is not a procedural defect. Moreover, Claimant would not be able to meet the "good faith" element required to establish a deemed marriage. As noted, she essentially admits that the ceremony lacked legal validity. Therefore, Claimant's marriage to NH would not qualify as a deemed marriage. Because Claimant could otherwise establish her marriage to NH, it is immaterial that she could not establish a deemed marriage.

CONCLUSION

Thus, Claimant can qualify as NH's widow under Georgia law.

Mary Ann S~

Regional Chief Counsel

By: Laurie G. R~

Assistant Regional Counsel

Georgia recognizes valid common-law marriages beginning before January 1, 1997. Under Georgia law for a common-law marriage to be valid (pre 1997), the parties must have been able to contract, agreed to live together as man and wife and consummated the agreement. All three requirements had to coexist. If preferred evidence for proving a common-law marriage is not presented, claimant has the burden of explaining why and providing other convincing evidence.

In this widow's benefits claim, Gala B~ (Claimant) asserts widow's status based on an alleged common-law marriage with the deceased Maurice B~ (WE). Although Claimant had sex reassignment surgery during the alleged common-law marriage, the marital status of the Claimant can be determined without consideration of the sex reassignment surgery. Therefore, we have examined the evidence to determine whether the elements necessary to establish a common-law marriage under Georgia law have been satisfied and whether Claimant has produced the "preferred evidence" necessary to establish a common-law marriage under 20 C.F.R. § 404.726(b)(2). It is our opinion that the evidence of record does not establish a common-law marriage between Claimant and WE.

FACTS

On August XX, 1996, WE died while domiciled in Georgia. Claimant applied for widow's insurance benefits as WE's widow on December XX, 2004. Claimant alleges a common-law marriage with WE that began on March XX, 1985. In Claimant's statement of marital relationship, Claimant explained that March XX, 1985 was the date they began living together and that they lived together continuously since that date. Claimant believed that living together made them legally married, because "they loved each other dearly." However, Claimant was a male on March XX, 1985, and on June XX, 1986, Claimant underwent complete sex reassignment surgery, male-to-female. Claimant's physician, Dr. R~, indicated in his August XX, 1986, letter that Claimant "is both mentally and physically a female and should be considered a female for all practical purposes." Claimant acknowledged that, before the sex-reassignment surgery, "the law would not allow us to get married."

The record also includes signed statements from both WE's brother and sister, stating that (1) Claimant and WE were not husband and wife, and (2) Claimant and WE did not maintain a home and live together as husband and wife. Both siblings also stated that Claimant and WE did not live together continuously.

The case file also shows that WE's mother and father both refused to provide the Agency with a statement concerning WE's relationship to Claimant. The record does not include any signed statements from any other relative of WE.

The only evidence in the case file suggesting a common-law marriage existed, other than Claimant's own statements, are two handwritten statements from neighbors who indicated that Claimant and WE lived together as husband and wife. The record does not include any other conclusive evidence that proves a common-law marriage existed between Claimant and WE. Claimant admitted to the Agency that, after the couple began living together, there were no joint tax returns filed, no deeds or contracts executed jointly, and no joint bank accounts opened. Claimant also admitted that there were no joint business dealings or joint charge accounts.

Claimant alleges a divorce from WE on August XX, 1995; however, there is no record of divorce between them. When an Agency employee went to the B~ County Superior Court to find a divorce on file, she learned that a civil action between Claimant and WE was dismissed without prejudice on September XX, 1996, shortly after WE died. There is a B~ County Superior Court temporary order dated August XX, 1995, showing Claimant as the plaintiff and WE as the defendant, and ordering WE to pay Claimant alimony. The temporary order also restrained WE from harassing, threatening, molesting, or going around or about Claimant or Claimant's premises.

STATUTORY AND REGULATORY PROVISIONS

In determining entitlement to widow's insurance benefits, the Commissioner must first determine whether an applicant meets the criteria of a "widow" as defined in section 216(c) of the Social Security Act (Act), 42 U.S.C. § 416(c). See § 202(e)(1) of the Act, 42 U.S.C. § 402(e)(1). The Act further provides that an applicant is a "widow" of an insured individual if that individual is dead and the courts in the state in which he was domiciled would find the applicant and insured individual were validly married at the time the insured died or that the applicant was able to inherit a wife/widow's share of the insured's personal property if he died without a leaving will. See § 216(h)(1)(A)(i) of the Act; 20 C.F.R. §§ 404.336(a), 404.345 (2005). An applicant must show that the alleged marriage was recognized under the laws of the state where the insured wage-earner lived. See 20 C.F.R. §§ 404.344, 404.345.

DISCUSSION

1. Claimant cannot establish a common-law marriage under the Agency's regulations, because Claimant did not provide "preferred evidence" or "other convincing evidence of marriage."

Claimant has not met the regulatory standard for proving a common-law marriage. The regulations discuss the evidence needed to establish a common-law marriage at 20 C.F.R. §§ 404.723 and 404.726. To prove a common-law marriage where the husband or wife is dead, "preferred evidence" of a common-law marriage consists of a signed statement of the spouse who is alive and the signed statements of two blood relatives of the deceased person. 20 C.F.R. § 404.726(b)(2); see POMS GN 00305.065(2)(a). These signed statements should show why the declarer believes there was a marriage between the two individuals. See 20 C.F.R. § 404.726. However, if preferred evidence is not available, the Agency can accept the claimant's explanation of why it is not available and "other convincing evidence of the marriage." 20 C.F.R. § 404.726(c); see GN 00305.065(2)(b) .

Various circuit courts of appeal have addressed the evidentiary burdens imposed by the Commissioner's regulations. We found no Eleventh Circuit case addressing this specific issue; however, two circuit courts have addressed a claimant's failure to establish a common-law marriage through "preferred evidence." In Smith-Wilkins v. Secretary of Health and Human Services, 880 F.2d 864 (6th Cir. 1989), the court cited 20 C.F.R. § 404.726 as setting out "the evidence which will usually be accepted as sufficient by the [Commissioner] to establish a [common-law] marriage." Id. at 866. In its application of this regulation, the court considered signed statements from the wage-earner's father and grandmother that the wage-earner and claimant were not married. The court determined that "[t]he ALJ could have reasonably determined from this evidence that Claimant failed to meet the regulatory standard of common-law marriage." Id.

Like the court in Smith-Wilkins, the Tenth Circuit in Brougham v. Apfel, No. 98-6034, 1998 WL 894951 (10th Cir. Dec. 24, 1998) (unpublished), also concluded that substantial evidence supported the ALJ's conclusion that the claimant did not establish a common-law marriage and was not entitled to widow's insurance benefits. See id. Specifically, the court focused on "preferred evidence" and noted that the wage earner's mother denied the existence of a common-law relationship. See id.

In this matter, Claimant has signed a statement alleging a common-law marriage with WE. However, WE's brother and sister both signed statements indicating that (1) Claimant and WE were not husband and wife, and (2) Claimant and WE did not maintain a home and live together as husband and wife. WE's siblings also said that Claimant and WE did not live together continuously. The record does not include any signed statements from any other relative of the WE. Given these circumstances, Claimant did not provide "preferred evidence" of a common-law marriage. See 20 C.F.R. § 404.726(b).

If preferred evidence is not presented, Claimant has the burden of explaining why the preferred evidence cannot be obtained and providing other convincing evidence of the common-law marriage. See 20 C.F.R. § 404.726(c); POMS GN 00305.065(2)(b). While the regulations do not specify what constitutes "other convincing evidence," the POMS indicate that if a signed statement could not be obtained by a blood relative, such a statement would need to be obtained "from a person who knows the facts"; otherwise, the file must include evidence that "conclusively proves that a common-law relationship was established." POMS GN 00305.065. The courts have identified various pieces of evidence that could be interpreted as "convincing" or "conclusive" evidence. In Smith-Wilkins, the court looked to the federal income tax returns, which identified the wage-earner and the claimant as single, and deemed this as evidence against a common-law marriage. See Smith-Wilkins, 880 F.2d at 866. In Brougham, the court looked at the statements made by a welfare worker that the wage earner was introduced as "just a friend" and whether the claimant professed the relationship to various individuals. See Brougham, 1998 WL 894951 at **2.

The record reveals no explanation for the failure to obtain "preferred evidence," or why WE's brother and sister denied the existence of a common-law marriage. Further, Claimant has not presented the Agency with "convincing" or "conclusive" evidence that proves a common-law marriage existed. Claimant admitted to the Agency that there were no tax returns filed; no deeds, contracts, or insurance policies executed, and no bank accounts opened after Claimant and WE began living together. Claimant also admitted that there were no joint business dealings or joint charge accounts. The absence of any documentation provides additional substantial support for concluding that no common-law marriage existed.

Although Claimant provided three hand-written letters from neighbors, only two of them opined Claimant and WE were husband and wife. These statements are contrary to the two signed statements from WE's brother and sister who state that Claimant and WE were not married. WE's sister noted that Claimant and WE's relationship was "off and on again, during the years they were a couple" and that they were "broken up more than together." The record also shows that, at the time of WE's death, WE had been living with his brother the year before he died, not with Claimant. WE's sister stated that Claimant and WE broke up before the time of his death, and Claimant did not attend WE's funeral.

Finally, Claimant alleges a divorce from WE on August XX, 1995. There is no record of divorce between them. When an Agency employee went to the B~ County Superior Court to find a divorce on file, she learned a civil action between Claimant and WE was dismissed without prejudice on September XX, 1996, shortly after WE died. There is also a B~ County Superior Court temporary order dated August XX, 1995, showing Claimant as the plaintiff and WE as the defendant, and ordering WE to pay Claimant alimony. The temporary order also restrains WE from harassing, threatening, molesting, or going around or about Claimant or Claimant's premises. However, the record is devoid of a divorce judgment issued by the B~ County Superior Court. Thus, this temporary order, in and of itself, is unlikely to "prove conclusively" that a valid common-law relationship existed.

Even if an Agency adjudicator were to conclude that the temporary order and the statements by neighbors are "convincing" or "conclusive" evidence of a common-law marriage, such evidence does not remove Claimant's responsibility to produce preferred evidence or provide an explanation as to why no preferred evidence was presented. In Smith-Wilkins, the Court concluded that the even though the claimant produced evidence in favor of her claimed common-law marital relationship, the ALJ's decision that a common-law marriage did not exist was still supported by substantial evidence. Given the facts in this case, the Agency's regulations, and judicial precedent, an Agency adjudicator could reasonably conclude that there is substantial evidence to deny an application for widow's benefits, despite the evidence produced by Claimant.

2. A valid common-law marriage did not exist between Claimant and WE under Georgia law.

Georgia recognizes valid common-law marriages beginning before January 1, 1997. See Ga. Stat. § 19-3-1.1 (2005). For a common-law marriage to have been valid (pre-1997), the parties must have been able to contract, agreed to live together as man and wife, and consummated the agreement. See Ga. Stat. § 19-3-1; Wright v. Goss, 494 S.E.2d 23, 25 (Ga. Ct. App. 1997); Georgia Osteopathic Hospital v. O'Neal, 403 S.E.2d 235, 243-44 (Ga. Ct. App. 1991). All three requirements had to coexist. See Wright, 494 S.E.2d at 25. The existence of a common-law marriage is a question for the trier of fact. In re Wilson, 512 S.E.2d 383, 386 (Ga. Ct. App. 1999).

The record demonstrates that Claimant and WE did not have the capacity to enter into a contract of marriage, which is essential to establish a valid common-law marriage under Georgia law. There must be evidence of express present intention to be husband and wife. See Wilson, 512 S.E.2d at 385; Edwards v. Edwards, 222 S.E.2d 169, 170-71 (Ga. Ct. App. 1975). In this case, Claimant admitted to the Agency that the couple did not have a ceremonial marriage, because before Claimant "had a sex change, the law would not allow us to get married." This is an admission Claimant did not have the capacity to contract as of March 1, 1985. A common-law marriage can only be established by an express, present marriage contract, and an agreement to marry in the future is insufficient to establish a common-law marriage. See Wilson, 512 S.E.2d at 385 (an express intent to be married presently is required for a valid common-law marriage).

Even after Claimant's sex change, it is not likely that Claimant could establish a common-law marriage, because there is insufficient evidence of Claimant and WE living together as man and wife and holding themselves out as such. In Georgia, a determination of whether a couple agreed to live together as man and wife may be inferred from proof of cohabitation and that the parties' having held themselves out to the world as husband and wife, and such proof may be made by general repute among neighbors and others in a position to know the facts. Wilson, 512 S.E.2d at 385.

In this case, both WE's brother and sister signed statements, declaring that (1) Claimant and WE were not husband and wife, and (2) Claimant and WE did not maintain a home and live together as husband and wife. Both siblings also stated that Claimant and WE did not live together continuously. WE's sister noted that Claimant and WE's relationship was "off and on again, during the years they were a couple" and that they were "broken up more than together." A common-law marriage cannot be partial or periodic, and all three requirements of common-law marriage had to coexist. See Wright, 494 S.E.2d at 25.

While Claimant's own statements indicate that Claimant and WE lived together as husband and wife, Claimant acknowledged that there is no writing that demonstrates they considered themselves married when they began to live together. Claimant also admitted that there were no tax returns filed; no deeds, contracts, or insurance policies executed; no bank accounts opened after Claimant and WE began living together; and no joint business dealings or joint charge accounts. In fact, Claimant's sole basis for believing a marriage existed was that they "loved each other dearly," which is insufficient to establish a common-law marriage. The only evidence of record that supports Claimant's allegation of a common-law marriage are two handwritten notes from Claimant's neighbors, both of which indicated that Claimant and WE lived in the neighborhood and were husband and wife. However, Georgia courts have found no common-law marriage, even when there is conflicting evidence, so long as there is evidence to support the finding of no marriage. See Wilson, 512 S.E.2d at 386-87. In light of the foregoing, and without additional evidence from Claimant establishing the other requirements of a common-law marriage (capacity to contract, consummation of the agreement), an Agency adjudicator could reasonably conclude that Claimant cannot prove the existence of a valid common-law marriage under Georgia law.

CONCLUSION

we believe an Agency adjudicator could determine that Claimant is not entitled to widow's insurance benefits. Claimant produced no "preferred evidence" of a common-law marriage pursuant to the Agency's regulations. In addition, Claimant did not explain why no "preferred evidence" was produced or provide any convincing/conclusive evidence that the common-law marriage did, in fact, exist. Furthermore, Claimant cannot establish a valid common-law marriage under Georgia law, because Claimant and WE did not have the capacity to enter into a contract of marriage when they began living together, and there was insufficient evidence that Claimant and WE lived together continuously as husband and wife and held themselves out as such.

By: Brian S~

Assistant Regional Counsel

Where a wage earner had alleged a common-law marriage under Georgia law which was later found to be invalid due to an acknowledged impediment, we concluded that the marriage was void under Georgia statutes and that no stepfather-stepchild relationship was ever established with the children of his purported spouse.

(W~,- AN ~ - CCIV [Adams] - to ARC, Progs., Atl., 04/10/89)

Your office has requested our assistance in determining how the discovery that an alleged common-law marriage is invalid would affect the prior entitlement of children as stepchildren of the purported husband. The specific facts are that both W~ and D~ had alleged they were involved in a valid common-law relationship under Georgia law. D~ and her two children were awarded benefits effective September 1976 on the earnings record of W~. The entitlement was based solely on the existence of a valid common-law marriage.

Evidence recently obtained by the Social Security Administration established the termination of D~ 's prior marriages by deaths of her spouses in 1962 and 1969. However, W~ admitted that he had misinformed the Administration when he indicated that he was divorced his prior spouse in 1946 stating that he knew that a divorce had never been obtained. Given this acknowledged impediment to a valid common-law marriage, a determination was made that D~ 's entitlement to spouse's benefits was erroneous. Nonetheless, your office has been unable to resolve the question of how the invalid common-law marriage affects the entitlement of D~'s two children as stepchildren of W~.

We note that Section 53-104 of the Code of Georgia Annotated provides that:

Marriages of persons unable to contract, or unwilling to contract, or fraudulently induced to contract, shall be void . . .

Georgia courts have further found that no decree is necessary to void a subsequent marriage. It may be treated as an absolute nullity "by all the world". See, Gearllach v. 37 S.E.2d 184 (Ga. 1946 and Smith v. State, 19 S.E.2d 168 (Ga. 1942).

Since the marriage between D~ and W~ was void, no "stepchild" relationship ever existed with respect to D~'s two children and W~. Moreover, this position is consistent with your analysis of POMS GN00306.390 which defines a stepchild as a child whose relationship was created by the wage earner's marriage to the child's parent. (Georgia statutes do not define the term "stepchild".) Implicit in this POMS section is the validity of the marriage and since the marriage between D~ and W~ was void pursuant to Georgia law, no stepchild relationship was created.

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

Where a couple began living together and the woman was under the age necessary to enter into a marriage contract under Georgia law but such law provided that no age limitation would exist where a child was born out of wedlock, we held that the marriage became valid after the birth of a child where there was continued cohabitation.

(I~, Tina B., -- RAIV, (Adams) to ARC, 5/11/82).

Your office has requested our advice in the following situation. Tina B~, whose date of birth is January XX, 1965, became entitled to child's insurance benefits beginning April 1965, based on an application filed April 13, 1966. When her father died in May, 1965, these benefits were converted to survivor's benefits and she continued to receive these benefits with her mother as representative payee until September 1981. When her mother died, an application for a change in payee was filed by an attorney, Ray B~. At the time this application was filed, it was learned that the child, Tina B~ had been married. An investigation was undertaken and it was determined that a common-law marriage had existed as of June 1977 and benefits were terminated as of that month.

On September 18, 1981, Tina B~ was notified of this determination and her attorney requested reconsideration on October 2, 1981, stating that the marriage had never been valid because Tina was only twelve years old at the time she began living with Terry L. I~. In researching this matter you found that the only precedent opinion was one dated May 20, 1941, which stated that an underage marriage was void at its inception but became valid if there was continued cohabitation after the parties reached the age of consent. At the time the opinion was rendered the age of consent for females in Georgia was 14. As a result, you advised the office in Toccoa, Georgia that the determination could be revised to the extent that the marriage came into existence in January, 1979, the month Tina attained the age of 14. Subsequent thereto, Mr. B~ submitted a copy of the revised Georgia Code, Section 53-102 showing the minimum legal age for females as 16. In addition, the record shows that the parties filed for a divorce and the divorce was granted in June 1981. The divorce complaint states that the parties began living together in June 1978, at which time Tina B~ I~ was age 13, under the minimum legal age. The first child of this union was born April 26, 1979. Although there was no ceremonial marriage, both parties agreed in the petition that they had cohabitated continuously since June 1978, and held themselves out to the public as husband and wife. You are requesting our opinion as to whether or not the marriage is a terminating event for your purposes, and if so, at what point it became valid.

We initially note that section 53-102 of the GA. CODE ANN. provides in part that:

"To be able to contract marriage, a person must be of sound mind; if a male, at least 18 years of age, and if a female, at least 16 years of age, and laboring under none of the following disabilities...

Provided further, however, that the age limitations contained herein should not apply where both applicants are the parents of a living child born out of wedlock, in which case the parents may contract marriage regardless of age."

Based on the foregoing statutory provisions, it is clear that in June 1978, when Tina and Terry began living together, Tina was under the minimum legal age. Therefore, they were unable to enter into a valid common-law marriage at that time. In order for there to be a valid common-law marriage, the parties must have the capacity to enter into a contract of marriage. See, e.g., Evans v. Marbut, 231 S.E.2d 94 (Ga. 1976). See also, B~, Jim, -- ~, RA V (C~) to AO, Chicago, 1/31/58. Here, it is clear that the parties were not able to enter into a common-law marriage until after the birth of the first child. We feel that the evidence of record shows definitively that Tina and Terry held themselves out as husband and wife subsequent to the birth of their child on April 26, 1979 and lived as husband and wife thereafter. Not only did the two live together, but other children were born of that union. Therefore, it is our opinion that Social Security Administration could appropriately find that a common-law marriage came into existence in May 1979 and that benefit eligibility terminated at that time.