I. Question Presented
Whether D~ (the claimant) is C~’s (the NH) widow for purposes of determining the claimant’s
entitlement to benefits under Title II of the Social Security Act (the Act).
II. Short Answer
Yes. We believe the claimant has satisfied the requirements to form a valid, common-law
marriage in the State of Rhode Island. For that reason, the agency should consider
the claimant to be the NH’s widow.
III. Background
The NH was originally married to A~ on April XX, 1972. After the initiation of divorce
proceedings, the NH began living with the claimant in 1995. The NH’s divorce was finalized
on December XX, 1997. According to the claimant, the couple entered into a common-law
marriage on January XX, 1998.
The claimant reported that the NH began experiencing symptoms of Alzheimer’s disease
in 2009. She alleged that she and the NH had intended to marry when ceremonial marriage
became available to same-sex couples in Rhode Island, but by the time the State legalized
same-sex marriage on August XX, 2013, the NH’s Alzheimer’s disease was too far advanced.
The NH died on November XX, 2014, while living in Rhode Island.
On April XX, 2015, the claimant applied for widow’s benefits based on her alleged
common-law marriage to the NH. In support of her application, the claimant provided
the following evidence:
The claimant’s Statement of Marriage (SSA-754);
The claimant’s Supplemental Statement (SSA-795);
Statements Regarding Marriage (SSA-753) provided by long-time friends and family:
M~, A2~, and L~;
A mortgage deed, dated December XX, 1998, identifying the claimant and the NH as joint
tenants of real property;
A document, dated December XX, 2014, showing that the claimant was the beneficiary
of the NH’s death benefit from the Employees Retirement System of Rhode Island;
Evidence showing that the claimant and the NH shared a joint bank account at Citizens
Bank;
The divorce decree between the NH and A~, dated December XX, 1997;
A tax bill from the City of Providence addressed jointly to the claimant and the NH;
Health coverage certification of residency for same-sex partners;
Financial account documents identifying the claimant and the NH as joint owners;
A notice, addressed to the claimant, from Providence Schools concerning medical insurance
coverage for domestic partners; and
An invoice from S~ S Memorial Chapel showing that the claimant paid for the NH’s funeral
services.
IV. Applicable Law
A. Federal Law
To be entitled to widow’s insurance benefits under the Act, a claimant must show,
among other things, that she is the widow of the insured. See Act § 202(e)(1), 42 U.S.C. § 402(e)(1). As pertinent here, the Act defines “widow”
as “the surviving wife of an individual…” 42 U.S.C. § 416(c)(1). Under the Act:
An applicant is the . . . widow . . . of a fully or currently insured individual for
purposes of this title if such insured individual is dead, the courts of the State
in which [s]he was domiciled at the time of death . . . would find that such applicant
and such insured individual were validly married at the time . . . [s]he died . .
.
42 U.S.C. § 416(h)(1)(A)(i); see also 20 C.F.R. § 404.345. The relationship requirement will also be met if under State
law the claimant would be able to inherit a wife’s share of the insured’s personal
property if she were to die without leaving a will. 42 U.S.C. § 416(h)(1)(A)(ii);
20 C.F.R. § 404.345.
Additionally, to be considered a “widow,” a claimant must show that “she … was married
to [her spouse] for a period of not less than nine months immediately prior to the
day on which [her spouse] died…” 42 U.S.C.A. § 416(c)(1).
Here, the NH resided in Rhode Island at the time of her death. Therefore, the agency
must determine whether the courts of Rhode Island would consider the claimant and
the NH to be validly married at the time the NH died.
With respect to the agency’s application of State marriage laws, we note that in Obergefell v. Hodges, 135 S. Ct. 2584, 2604-05 (2015), the Supreme Court held State laws invalid to the
extent they exclude same-sex couples from marriage on the same terms and conditions
as opposite-sex couples. Pursuant to Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 94-98 (1993), SSA should give Obergefell full retroactive effect in all cases still open on direct review and as to all events,
regardless of whether such events predate or postdate Obergefell. As a result, SSA will consider all State-law, same-sex-marriage bans, whether based
on State constitutional provisions, statutory provisions, or case law, void and ineffective.
SSA will apply the relevant law to the facts as usual to evaluate marital status.
B. Common-Law Marriage in Rhode Island
Common law marriage has long been recognized in Rhode Island. Holgate v. United Electric Railways Co., 47 R.I. 337, 339, 133 A. 243, 244 (1926). Such unions can be established by clear
and convincing evidence that the parties seriously intended to enter into the spousal
relationship, Ibello v. Sweet, 47 R.I. 480, 482, 133 A. 801, 801-02 (1926), and that their conduct was of such
a character as to lead to a belief in the community that they were married, Williams v. Herrick, 21 R.I. 401, 402, 43 A. 1036, 1037 (1899).
The serious intent requirement has also been construed as a “present intent” requirement.
For example, in Zharkova v. Gaudreau, the Supreme Court of Rhode Island stated that, “[i]n order to establish a common-law
marriage . . . , plaintiff was first required to provide clear and convincing evidence
of each party’s mutual present intent to be [married].” 45 A.3d 1282, 1291 (R.I. 2012).
See also Smith v. Smith, 966 A.2d 109, 114 (R.I. 2009) (“the parties must mutually and presently intend to
be husband and wife rather than merely become engaged to be husband and wife at some
point in the future”).
The requisite intent and belief may be inferred from cohabitation, declarations, reputation
among kindred and friends, and other competent circumstantial evidence. Sardonis v. Sardonis, 106 R.I. 469, 472, 261 A.2d 22, 24 (1970). However, “cohabitation alone is not conclusive
of intent to be husband and wife, and such evidence may be rebutted by counter-proof.”
Smith, 966 A.2d at 114 (citing Peck v. Peck, 12 R.I. 485, 488 (1880)).
Intent may also be demonstrated by the actions of the couple while a legal impediment
exists. In Fravala v. City of Cranston ex rel. Baron, the Supreme Court of Rhode Island held that “[b]ecause intent of the parties is
crucial in determining whether a common-law marriage exists, the conduct of the parties,
even at a time when an impediment precludes the lawful existence of a common-law marriage, could be probative of the parties’ intent after the impediment is removed.” 996
A.2d 696, 703 (R.I. 2010) (emphasis supplied).
Courts also consider whether the relationship began when one or both of the parties
was married to another person. In that circumstance, the law presumes that what was
meretricious in its origins continues thus in the absence of “clear proof to the contrary.”
Ibello, 47 R.I. at 482, 133 A. at 801-02. In other words, if a couple enters a relationship
when at least one of them is still married to another, Rhode Island courts will presume
that no common-law marriage is established even after the original marriage ends,
unless that presumption is rebutted.
V. Analysis
The NH had a permanent residence in Rhode Island at the time of her death in 2014.
Thus, the agency looks to Rhode Island law to determine whether the claimant is entitled
to widow’s benefits. 42 U.S.C. § 416(h)(1)(A)(i); see also 20 C.F.R. § 404.345.
The claimant alleges that she and the NH entered a common-law marriage in Rhode Island
on January XX, 1998, but acknowledges that same-sex marriages could not be legally
formed in the State until August 1, 2013. See R.I. Gen. Laws Ann. § 15-1-1 (West 2015). The claimant stated that she did not originally
believe that living together made the couple legally married because “no one recognized
same sex couples”; however, once same-sex marriages were recognized in Rhode Island,
the claimant stated that she and the NH “were definitely common law.” See Statement of Marital Relationship at 2. The State began recognizing same-sex marriages
formed in Massachusetts beginning in 2007.[4] Without addressing the merits of Plaintiff’s assertion, we note that, pursuant to
Obergefell and Harper, SSA will consider State-law same-sex-marriage bans, whether based on State constitutional
or statutory provisions or case law void and ineffective. Instead, SSA will apply
the relevant law to the facts as usual to evaluate marital status.
As discussed above, Rhode Island will find that a common-law marriage has been established
if clear and convincing evidence shows the following: (1) that the parties seriously
intended to enter into the husband-wife relationship, Ibello, 47 R.I. at 482, 133 A. at 801; and (2) that their conduct was of such a character
as to lead to a belief in the community that they were married, Williams, 21 R.I. at 402, 43 A. at 1036.
A. Evidence of Serious Intent to Enter into Spousal Relationship
The claimant alleges that she entered a common-law marriage with the NH on January
XX, 1998, after the NH’s divorce was finalized. In the alternative, the claimant asserts
that she meets Rhode Island’s common-law marriage requirements—specifically the “belief
in the community” requirement—as of February 2007, when the State began recognizing
same-sex marriages formed in Massachusetts. We believe that, for determining intent,
the earlier date should apply.
As the Supreme Court of Rhode Island held in Fravala, the conduct of the parties, even at a time when an impediment precludes the lawful
existence of a common-law marriage, could be probative of the parties’ intent after
the impediment is removed.” 996 A.2d 696, 703 (R.I. 2010). By extension, the claimant’s
and the NH’s conduct, prior to Rhode Island’s 2007 recognition of same-sex marriages
formed in Massachusetts, could be probative of the couple’s intent. Thus, we have
considered all evidence dating back to January XX, 1998—the date the claimant alleges
she entered a common-law marriage.
A review of Rhode Island case law suggests that “clear and convincing evidence” of
serious (and present) intent to enter a common-law marriage largely turns on the consistency
of the evidence presented. The Supreme Court of Rhode Island has found requisite intent
to be lacking where, despite cohabitation, the parties present contradictory narratives
about their intentions. In such cases, the court also considers the financial affairs
of the couple, e.g., whether they own property jointly, beneficiary designations for
life insurance policies and retirement plans, and their representations as being either
“single” or “married” on official documents.
For example, in a recent case, the court held that the plaintiff had not provided
clear and convincing evidence of mutual, present intent where the parties presented
conflicting evidence. Zharkova v. Gaudreau, 45 A.3d 1282 (R.I. 2012). Specifically, the plaintiff testified that the defendant
proposed marriage in 2000 or 2001, to which she replied, “What’s the point?” Zharkova, 45 A.3d at 1291. The defendant testified that he did not recall proposing to the
plaintiff and that, had he intended to do so, he would have purchased a ring. Id. The court characterized the plaintiff’s testimony about when she believed the common-law
marriage came into existence as “vague and inconsistent.” Id. Although the plaintiff and the defendant filed joint tax returns, the defendant testified
that this action based on a friend’s advice that they would save money that way. Id. at 1292. The couple also owned property as tenants by the entirety; however, the
defendant testified that he did not understand the distinction in property ownership
and “knew that two people could own properties together when they were not married.”
Id. at 1288. The defendant also testified that he moved in with the plaintiff so they
“could help each other out,” that there was never an “official arrangement of how
any finances would be handled,” and that he and the plaintiff never shared bank accounts.
Id. at 1287-88. Additionally, the defendant’s daughter—not the plaintiff—was the beneficiary
of both his 401(k) plan and his life insurance policy. Id. at 1288.
In another case, Smith, the court described the evidence of intent as, “[a]t best, . . . conflicting.” 966
A.2d at 115. The plaintiff testified that the defendant proposed marriage in 1989,
which she allegedly accepted. Id. at 111. She testified that she believed the marriage began in 1991 and that the defendant
gave her a ring in 1998. Id. The court found, however, that “[t]he ring was not a clear indication of [the defendant’s]
intent because it was given on Christmas and may have been intended as a Christmas
gift.” Id. at 115. Additionally, the defendant “gave her the ring about nine years after his
proposal and about seven years after [the plaintiff] contended that they already were
living as husband and wife.” Id. The court concluded that “the timing of these circumstances negates any inference
that [the defendant] believed he had been married from 1991 to 1998.” Id. The court also noted that the plaintiff declared herself, under penalty of perjury,
to be a single person on her income tax returns and on her bankruptcy petition, and
that the defendant listed himself as single on his tax returns and on a mortgage application.
Id. at 109.
In DeMelo v. Zompa, 844 A.2d 174, 177-78 (R.I. 2004), the court held that the plaintiff had not presented
clear and convincing evidence of serious intent because she had “merely testified
that [the couple] had discussions about spending their lives together, not necessarily
as a married couple,” and that “[a]lthough plaintiff testified that she always wore
a diamond ring on her left hand, which plaintiff says defendant gave her to signify
that they were married, a picture was admitted in evidence clearly showing plaintiff
wearing the ring on her right hand.” DeMelo, 844 A.2d at 177. The Court also discussed documents that listed the plaintiff as
“single,” such as tax returns, a mortgage application, and insurance applications.
Id. at 178. Additionally, the court considered the fact that the plaintiff did not designate
the defendant as a beneficiary on her pension or 401(k), that their condominium was
owned as tenants in common (not as tenants by the entirety or joint tenants), and
that they kept separate bank accounts. Id. See also Lovegrove v. McCutcheon, 712 A.2d 874, 874 (R.I. 1998) (mem.) (holding parties cohabitating for fifteen years
were not in common-law marriage because evidence revealed that the plaintiff designated
herself as single on employment applications, the home was purchased under the defendant’s
name alone, and they did not pool their assets).
Unlike the plaintiffs in those cases, the claimant provided documentary evidence showing,
among other things, that she and the NH were joint owners of a condominium, the couple
kept a joint bank account and shared financial accounts, the claimant was the beneficiary
of the NH’s retirement account, the couple received tax bills jointly, they shared
health coverage for same-sex partners, and the claimant planned and paid for the NH’s
funeral. The claimant also reported that she and the NH were reciprocal beneficiaries
for their life insurance policies, wills, and the couple’s investment holdings.
The claimant’s relationship with the NH has more in common with relationships recognized
as common-law marriages. For example, in Fravala, the Supreme Court of Rhode Island affirmed the Superior Court’s finding that an
alleged widow had demonstrated the requisite intent to enter a common-law marriage
based on evidence that the couple had lived together for thirty-five years, pooled
their finances, held joint shares in a credit union, were joint borrowers on a loan,
lived in a home that was jointly leased for no specified term, listed each other as
emergency contacts on important documents, and that the plaintiff was designated as
the primary beneficiary of the deceased’s life insurance policy. 996 A.2d at 705-06.
The plaintiff also testified that she paid for the deceased’s funeral expenses. Id. at 700. Although there was no marriage ceremony, the Superior Court found that the
couple “were as committed to one another for over thirty-five years as they would
have been were they formally married[,]” noting that their relationship was arguably
“a stronger relationship than many married couples today or over the course of time.”
Id. at 705.
The court also found the requisite intent in another case where a widow sought a declaration
of common-law marriage. Ibello v. Sweet, 47 R.I. 480, 133 A. 801 (1926). In Ibello, the court held that a couple’s intent was “evidenced . . . by a celebration and
a feast, at which such intention was announced with particularity, and with some measure
of formality, in the presence of the company then assembled,” as well as by “their
subsequent conduct, and by their statements made to others in the presence of both,
and by cohabitation.” 47 R.I. 480, 133 A. 801, 802 (1926). The plaintiff told the
court that once her partner received news that his legal wife had died, he told the
plaintiff, “Now you are my wife.” Id. at 801.
As in Fravala, the claimant and the NH did not have a formal ceremony but lived together as a couple
for many years (since 1995), pooled their investments, held a joint checking account,
were reciprocally named as life insurance beneficiaries, and named each other as important
contacts. Additionally, like the plaintiff in Fravala, the claimant planned the NH’s funeral and paid for the expenses. Further, the claimant
and the NH jointly owned real property, named each other as primary will beneficiaries,
ensured that they would be buried together, and created a trust for their joint investments.
Like the plaintiff in Ibello, after the NH’s divorce was finalized, the claimant reportedly told the NH, “Now
we can officially be a couple with no past.” Statement of Marital Relationship at
4. Although no formal ceremony was performed, close friends and relatives of the claimant
and the NH submitted signed statements that they considered the couple to be married
and that the couple maintained a home as spouses for nearly twenty years. See Statement Regarding Marriage (M~), Statement Regarding Marriage (A2~), Statement
Regarding Marriage (L~). The claimant also reported that when the couple began living
together, they “did all and said all of what a married person would say. Love, devotion,
take care of each other until death [do] us part.” Statement of Marital Relationship
at 1. In fact, the claimant cared for the NH for six years until her death from Alzheimer’s
disease in 2014. See e.g., Statement Regarding Marriage (M~).
Based on our analysis, we believe a Rhode Island court would consider the documents
submitted to be clear and convincing evidence of a serious and present intent to enter
a common-law marriage. Although same-sex marriages were not recognized in 1998, the
Supreme Court of Rhode Island has held that “Because intent of the parties is crucial
in determining whether a common-law marriage exists, the conduct of the parties, even
at a time when an impediment precludes the lawful existence of a common-law marriage,
could be probative of the parties’ intent after the impediment is removed.” 996 A.2d
at 703. The impediment in this case was removed in February 2007 when Rhode Island
began recognizing same-sex marriages performed in Massachusetts, thus allowing same-sex
couples to provide evidence of belief in the community that the couple was married—the
second requirement to establish a common-law marriage in the State.
B. Evidence of a Belief in the Community
To establish a common-law marriage, an individual must also provide clear and convincing
evidence of a belief in the community that the couple were married. See Smith, 966 A.2d at 116-17 (citing Sardonis v. Sardonis, 106 R.I. 469, 472, 261 A.2d 22, 24 (1970)). Such a belief may be inferred from cohabitation,
declarations, and reputation among friends and family. Id. The reputation, however, must be general and uniform. Smith, 966 A.2d at 116-17 (citing Williams, 21 R.I. at 403, 43 A. at 1037).
In Smith, the court found that this requirement had not been satisfied because the parties
presented conflicting evidence. Id. at 115. For example, while the plaintiff testified that she often introduced the
defendant as her husband to various people, including her doctor, her son’s substance-abuse
counselor, her business associates, and her home decorator, the defendant testified
that the people who knew the parties were aware that they were not married. Id. at 116. The court wrote,
The record is simply devoid of any testimony that any member of Todd’s family believed
that the couple was married. Indeed, Todd’s sister testified that in 1999 she made
a family tree and displayed it at a family party, but she did not list Paulette or
her children on the family tree. She also testified that the family occasionally would
ask the couple why they would not get married, and they would respond that they did
not want to “ruin a good thing.”
Id. In another case, DeMelo, the court noted that the plaintiff’s only evidence was the testimony of her brother,
who said the defendant referred to him as his brother-in-law. 844 A.2d at 177-78.
In contrast, long-time friends of both the plaintiff and the defendant testified that
they never planned to get married, nor did they refer to each other as husband and
wife. Id.
This case does not lend itself to a direct comparison because the couple, based on
their same-sex status, could not establish belief of their marriage in the community
prior to Rhode Island’s recognition of same-sex marriages formed in Massachusetts
in 2007 or the State’s legalization of such marriages in 2013–a prohibition the Supreme
Court has since held to be unconstitutional.[5] Thus, others could not have considered them to be married until such marriages were
recognized in the State. However, when asked if she believed that living together
made them married, the claimant replied, “not originally because no one recognized
same sex couples but now that they do we were definitely common law.” Statement of
Marital Relationship at 2.
Others corroborated the claimant’s characterization of her relationship with the NH.
For example, when asked whether the claimant and the NH maintained a home together
and lived together as husband and wife, M~ (a friend), replied “absolutely!” She also
wrote that the way the couple lived together and treated one another “was all one
could hope for in a marriage.” She continued, “in the twenty years they spent together,
they made a home, worked in the community, and were known as partners everywhere.”
A second friend, A2~, wrote that she considered the couple to be married because they
were “as perfect as any married couple could be” and “they were soulmates.” When asked
if she had heard them refer to each other as spouses, she replied “yes” and “everywhere
referred to each other as ‘partner’ and ‘my love.’” L~, the claimant’s niece, also
provided a similar statement. She wrote, “they lived together and portrayed themselves
as a married couple for 20 years.” Although no one from the NH’s family provided a
statement about the couple’s relationship, the claimant explained that the NH’s “immediate
family all predeceased her.” Statement of Claimant of Other Person. Instead, statements
were provided by the NH’s close friends. In fact, M~ stated that she had known the
NH for 43 years, but had only known the claimant for 22 years. See Statement Regarding Marriage (M~) at 1.
These statements are similar to those provided in Fravala, which the Superior Court found to be “overwhelming evidence supporting the fact
that the community recognized the parties to be in a husband-wife relationship for
over thirty-five years.” 996 A.2d at 706. The evidence in Fravala included testimony from three of the plaintiff’s children, who told the court that
the deceased was a father figure during their childhood, four friends who described
the plaintiff and the deceased as a “couple,” and the plaintiff’s grandson, who testified
that he called the plaintiff and the deceased his “grandparents.” Id. at 700-01.
Based on the evidence, we believe a Rhode Island court would conclude that the claimant
provided clear and convincing evidence of a belief in the community that the couple
were married from at least the time when same-sex marriages were recognized within
in the State.
C. Prior Marriage
As noted above, Rhode Island courts will also consider whether the original relationship
between the couple was entered into when either was married to another person. Ibello, 47 R.I. at 482, 133 A. at 801-02. In that circumstance, the law presumes that what
was meretricious in its origins continues in the absence of clear proof to the contrary.
Id. The court found that the appellee had successfully rebutted that presumption in
Ibello, writing:
After the impediment to their marriage had been removed [i.e., after Raffaele’s legal
wife died], Raffaele and Jennie then consented to be husband and wife, presently,
and at once entered into a changed relationship. They evidenced this by a celebration
and a feast, at which such intention was announced with particularity, and with some
measure of formality, in the presence of the company then assembled. The intention
of the parties was further evidenced by their subsequent conduct, and by their statements
made to others in the presence of both, and by cohabitation. We are convinced that
after the death of Margherita there was clearly a change in the relation of the parties,
and we have no difficulty in finding that the status of marriage then arose between
them, which continued until the death of Raffaele.
47 R.I. 480, 133 A. at 802. See also Fravala, 996 A.2d at 703 (holding that the parties conduct “even at a time when [one party
was still married to someone else], could be probative of the parties’ intent after
the impediment is removed.”). We believe the same is true in this case. The NH’s divorce
was finalized on December XX, 1997. Although the couple began cohabitating in 1995
(after initiation of the divorce proceedings, which were allegedly protracted due
to “monetary issues”), the claimant asserts that she and the NH did not enter into
a common-law marriage until January XX, 1998. The claimant reported that, after the
divorce was final, they said to each other “[n]ow we can officially be a couple with
no past.” See Attachment 1, Statement of Marital Relationship at 4.
As in Ibello, the claimant and the NH consented to be married after the divorce was finalized
and that intention was “further evidenced by their subsequent conduct, and by their
statements made to others in the presence of both, and by cohabitation.” Ibello, 47 R.I. at 480, 133 A. at 802. The claimant and the NH lived together continuously
since 1998. Their “subsequent conduct” also strongly supports a change in the nature
of their relationship. For example, numerous documents show that the claimant and
the NH began to jointly acquire assets after that date, including a home (a mortgage
deed is dated December 1998), a bank account, and other financial accounts. The couple
also obtained health coverage based on their status as a couple, and the NH designated
claimant as her retirement account death beneficiary. As discussed above, the claimant
provided evidence from others confirming the couple’s statements about the marital
nature of their relationship. For these reasons, and in light of this evidence, we
believe a Rhode Island court would conclude that the status of marriage arose and
continued until the NH’s death.
D. Mental Capacity
Based on the facts of this case, we believe the claimant has provided clear and convincing
evidence that a common-law marriage was established. It is unnecessary to reach the
question of the NH’s mental capacity at the time the impediment to same-sex marriage
was removed[6] because SSA now applies Obergefell retroactively when a same-sex couple meets the criteria for common-law marriage as
it was applied to opposite-sex couples during the relevant period.
VI. Conclusion
We believe that the couple’s relationship satisfies Rhode Island’s requirements to
establish a valid, common-law marriage, at least as early as 2007. For that reason,
the agency would be justified in concluding that the claimant is the NH’s widow for
the purpose of entitlement to widow’s benefits under Title II.
Michael J. Pelgro
Regional Chief Counsel
By: Candace H. Lawrence
Assistant Regional Counsel