QUESTION PRESENTED
On August 30, 2005, you asked for our advice as to whether there was a valid common
law marriage between Raymond O. W~ (claimant), a claimant for survivor's benefits,
and Madeline A. R~ (number holder), the deceased number holder.
SUMMARY
Based on our review of the information you have provided, it is our opinion that the
claimant did not present sufficient evidence to demonstrate a common law marriage
with the number holder under the laws in the District of Columbia. We would recommend
further development of the record to determine whether a common law marriage existed.
BACKGROUND
On April 18, 2005, the claimant filed an application for survivor's benefits as the
common law spouse of the deceased number holder. In his application, the claimant
indicated that he and the number holder had a common law marriage since January 1977
and that the marriage ended by the number holder's death on February 10, 2001. In
January 1977, the claimant and number holder started a business in the District of
Columbia. The claimant and number holder lived together in the District of Columbia
until December 1978 when they relocated to New York, where they lived together until
the number holder's death. Until 1986, the claimant and number holder continued to
travel to the District of Columbia to run their business.
In support of this application, the claimant submitted affidavits signed in 2002 by
Shirley (Wright) C~, the claimant's sister, and George D~, a friend of the claimant
and number holder. Ms. C~ and Mr. D~ stated that they knew the claimant and number
holder since at least 1977 and that the claimant and number holder lived together
in the District of Columbia in 1977 and later in New York. Although the claimant and
number holder purportedly represented themselves as a married couple, Ms. C~ and Mr.
D~ never identified when the claimant and number holder first represented that they
were married.
The claimant also submitted several financial records, including a life insurance
policy, two joint bank accounts, and a W-2 form. These records showed that the claimant
and number holder resided together in New York and that the claimant was the beneficiary
of the number holder. These records were relatively recent (since 1998) and did not
indicate when the life insurance policy or bank accounts were opened. The number holder
used her own last name in all of these records.
As noted in a print out from a SSA database, when the number holder applied for retirement
benefits in March 1998, she indicated that she had never married.
The number holder's death certificate identified the claimant's "relationship to deceased"
as "companion." The claimant obtained a copy of the autopsy report which is only available
for inspection by a relative, next of kin, or heir of the decedent. The claimant's
request for the autopsy was not provided. It is unknown under which classification
the claimant was provided the autopsy report. The death certificate showed that the
number holder resided with the claimant.
APPLICABLE LAW
To determine a claimant's relationship as a deceased number holder's spouse, the Agency
looks to the law of the number holder's permanent home at the time of her death, which,
in the instant case, is New York. 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.345. Although
a common law marriage cannot be formed within New York, the state will recognize valid
common law marriages from other jurisdictions. Mott v. Duncan Petroleum Trans., 51 N.Y.2d 289, 292 (1980). In making this determination, New York will apply the
common law marriage requirements of the other jurisdiction. Id.
The District of Columbia does recognize common law marriages. Johnson v. Young, 372 A.2d 992, 994 (D.C. 1977). To establish a valid common law marriage in the District
of Columbia, the parties must "express [a] mutual present intent to be husband and
wife, followed by good faith cohabitation."
Id. Although recognized, claims of common law marriages should be closely scrutinized,
especially when the surviving spouse has asserted "such a claim to promote [a] financial
interest." Coates v. Watts, 622 A.2d 25, 27 (D.C. 1993); see also Mesa v. United States, 875 A.2d 79, 83 (D.C. 2005). claimant has the burden of proving the existence of
a common law marriage by a preponderance of the evidence. East
v. East, 536 A.2d 1103, 1106 (D.C. 1988). This burden is satisfied when the claimant's evidence
is of greater weight, or is more convincing, than the evidence offered in opposition.
In re E.D.R., 772 A.2d 1156, 1160 (D.C. 2001).
When evaluating an alleged common law marriage, the preferred evidence is a completed
Form 754-F4 (Statement of Marital Relationship) from the claimant and a completed
Form 753 (Statement Regarding Marriage) from one blood relative of the claimant and
two blood relatives of the deceased number holder. POMS GN 00305.065(2)(a). If a Form 753 cannot be completed by the necessary individuals, the Agency
should obtain a written explanation from the claimant, and the form should instead
be completed by an individual who knows all of the facts. Id. The Agency can also use other direct evidence, such as property deeds or tax returns,
to evaluate an alleged common marriage. Mesa, 875 A.2d at 83.
RELEVANT TIME PERIOD
The claimant asserted that he and the number holder had a valid common law marriage
while living in the District of Columbia. In December 1978, the claimant and number
holder moved from the District of Columbia and relocated to New York where they lived
together until the number holder's death in 2001. Because New York does not independently
recognize a common law marriage, the claimant must prove that he and the number holder
had a valid common law marriage in the District of Columbia prior to December 1978.
DISCUSSION
In the instant case, there is insufficient evidence in the record to show that a valid
common law marriage existed prior to December 1978. As noted above, claims of a common
law marriage are closely scrutinized in the District of Columbia, especially when
one party has a financial interest.
Coates, 622 A.2d at 27; see also Mesa, 875 A.2d at 83. The record, at this time, does not show a "mutual present intent
to be husband and wife." Johnson, 372 A.2d at 994. The death certificate identified
the claimant as a "companion" and the number holder's application for retirement benefits
indicated that she had never married. Both of these documents, created long after
the relevant time period, suggest that the claimant and number holder never expressed
a "present mutual intent" to marry prior to December 1978.
Although the record currently does not demonstrate a common law marriage, it is conceivable
that additional development would demonstrate such a marriage. The Agency recognizes
several standardized forms as the preferred evidence to establish a common law marriage.
POMS GN 00305.065(2)(a). The current record contains neither a completed Form 753 from two blood relatives
of the number holder nor a written explanation from the claimant for the inability
to obtain such completed forms. We recommend that the Agency obtain, if possible,
a completed Form 753 from two blood relatives of the number holder.
Apart from these standardized forms, we also recommend further development of other
direct evidence that courts have given significant weight, such as tax returns and
property documents. Mesa, 875 A.2d at 83. The direct evidence currently in the record (i.e., several financial
records) is recent and sheds no light on the existence of a common law marriage during
the relevant time period. We recommend that the Agency request, if possible, additional
direct evidence during or soon after the relevant time period supporting the claimant's
application. Given the passage of time, we understand that such evidence may be difficult
to obtain. The Agency,however, should not ignore recent direct evidence. Although
recent evidence may not prove a common law marriage during the relevant time period,
it may disprove it. For example, the claimant and number holder may have claimed to
be single on recent tax returns.
If the Agency obtains cumulative or no additional evidence, then we believe that the
claimant has failed to demonstrate a common law marriage prior to December 1978 by
a preponderance of the evidence. If additional evidence is obtained, the Agency must
determine whether this additional evidence satisfied the claimant's burden of showing
a common law marriage. Although completed Forms 753 are the preferred evidence, they
are not irrefutable.
The Agency must weigh all of the evidence to determine whether a common law marriage
existed. If the totality of the evidence suggests that it is more likely than not
that a common law marriage existed, then the claimant should be awarded benefits.
If it is more likely than not that a common law marriage did not exist or if the existence
and non-existence of a common law marriage is equally likely, then the claimant has
failed to meet his burden and his application should be denied.
CONCLUSION
For the reasons discussed above, we believe that the claimant presently lacks sufficient
evidence to demonstrate a common law marriage with the number holder in the District
of Columbia. We would recommend further development of the record to determine whether
a common law marriage was created prior to December 1978.
Sincerely,
Donna L. C~
Regional Chief Counsel
By:______________________
Craig B. O~
Assistant Regional Counsel