Under which provision of the Social Security Act (Act) is Sierra (the child), born
to Meshele (the mother or Meshele) in Mexico, entitled to survivor’s benefits on the
account of Jacob (NH) who died while domiciled in Mexico?
Is Meshele a spouse of the NH for purposes of entitlement to mother’s benefits?
The child could be deemed the child of the NH and entitled to survivor’s benefits
on the NH’s account under section 216(h)(2)(A) of the Act because she could inherit
from the NH under District of Columbia law, which looks to Mexican law.
Based on our review of the facts of this case, our research, and the Law Library of
Congress’ research of the relevant Mexican laws, it is our opinion that the NH’s and
the mother’s relationship is a concubinage under Mexican law, and would not be recognized
as a common law relationship by the courts of the District of Columbia. However,
under the law of concubinage in Mexico, the mother would have the inheritance rights
of a spouse, provided that neither party was legally married to another person. The
Act provides that a mother can meet the spousal requirement if she would be able to
inherit a spouse’s share of the NH’s personal property if he were to die intestate. Therefore,
we believe that the mother would satisfy the requirements for mother’s benefits and
the lump sum payment.
You provided us with a Notice of Award letter from the Mid-America Program Service
Center indicating that the child was entitled to monthly child’s benefits on the record
of the NH beginning in February of 2012, when the NH died in Mexico. You indicated
that the field office had “erroneously adjudicated C1’s application with the incorrect
relationship—natural/legitimate” under section 216(h)(3) of the Act. You requested
a legal opinion so that the type of relationship could be corrected. We note that
Meshele stated on her application for mother’s benefits that she and the NH were married
on October 15, 2005 in Mexico. Apparently that information is erroneous even though
submitted under penalty of perjury. Although this statement is erroneous, there is
no indication that the mother intended to submit a fraudulent application as the handwritten
documents that you provided indicated that she believed that the couple had a common
There is no documentation of marriage in the documents that you provided.
You provided a birth certificate dated June 28, 2007 from the civil register’s office
in the state of Baja California Sur, Mexico, listing the NH and Meshele as the parents
of Sierra. You also provided a United States of America, Department of State, Consular
Report of Birth Abroad. Generally, a birth certificate showing the child’s surname
as the same as the parent’s name is sufficient proof of a natural parent-child relationship,
but the POMS urges offices developing claims for children born outside the United
States, including in Mexico, to be cautious.
POMS GN00307.240, .669, .671, .673 (Baja California Sur is not listed as a source
from which documents cannot be accepted on their face).
The Consular Report of Birth Abroad states that the child “Sierra ” was born on June,
in the state of Baja California Sur, Mexico, and acquired United States citizenship
at birth as established by documentary evidence presented on March 15, 2012. The Consular
Report of Birth Abroad lists the NH as the father of the child, and Mesheleas the
mother of the child.
Based on the information you provided, the NH and Meshele were United States citizens,
who lived together as a couple in Mexico from October 2005 until the NH died in Mexico
on February 29, 2012. Meshele was previously ceremonially married to Willard in British
Columbia and purportedly was divorced in 1995 in California. It would be advisable
to obtain documentation to confirm the divorce, because, as explained below, if Meshele
is still married she would not be entitled to benefits. It does not appear that the
NH was previously married.
According to statements signed under penalty of perjury from Meshele and the NH’s
parents, Gerald and Sandra , the NH and Meshele lived together in Mexico between October
2005 – February 2012 and they conceived a child together, Sierra, who was born on
June . The couple lived in Cancun, Mexico (state of Quintana Roo) from October 15,
2005 – October 30, 2005, in San Jose del Cabo (state of Baja California Sur) from
November 1, 2005 – December 2010, and in Puerto Vallerta (state of Jalisco) from December
2010 - February 29, 2012.
In Meshele’s Statement of Marital Relationship, she explained that the couple lived
together as husband and wife; they had an understanding that “they were having a baby
together, would raise her together, grow old together and no stronger bond could anyone
have.” Meshele stated that she intended to live with the NH forever. Meshele also
stated that they held themselves out to the public, including friends and family,
as “Jacob and Meshele .” In the NH’s father’s Statement Regarding Marriage, he indicated
that the NH and Meshele “loved each other and had a child together and lived together
and [his] son was crazy about her.” The NH’s mother similarly stated in her Statement
Regarding Marriage that the couple “lived as husband and wife,” “had a baby together,”
and “would still be together if my son was still alive.” The NH’s mother also explained
that they lived next door to the NH and Meshele in Mexico between December 2010 and
March 2011 and saw them every day during that period, and afterwards saw the family
on her granddaughter’s birthday.
Meshele’s parents, Dianna and Gary , also submitted a notarized letter stating that
Meshele called to tell them that she was going to have a baby, and that they went
to Mexico to visit the couple in July 2007 after the child was born. When the Roses
saw the couple and the child in Mexico, they saw a “loving relationship with Jacob,
Meshele, and new baby.” The Roses planned to return in 2010 “to marry them” as Gary
is a minister, but due to the death of Dianna’s father and job demands, they were
not able to return to Mexico.
The NH was murdered in Mexico on February 29, 2012. According to a United States of
America, Department of State, Report of Death of an American Citizen Abroad, the NH
died as a result of severe cranio-encephalic trauma. The “traveling/residing abroad
with relatives or friends” section of the report is blank. In the remarks, the consular
associate noted “[S]ubject was a wanted fugitive at the time of his death. Due to
the advanced state of decomposition in which his remains were found, identification
of subject was based on secondary evidence rather than direct biological evidence. Subject’s
common law wife made the official identification based on the clothes subject was
wearing and a handwritten note found among his effects.” A subsequent Report of Contact
from the American Consulate General stated that no one had been found responsible
for the murder of the NH and that Meshele was not mentioned as a suspect.
On the date of his death, the NH was domiciled in the state of Jalisco, Mexico. In
April 2012, Meshele applied for mother’s benefits, The claimant, age 44 at the time
of application, is too young to qualify for widow’s insurance benefits under the Act. 20
C.F.R. § 404.335(c). a lump-sum death benefit, and for child’s survivor benefits,
on the NH’s account. In support of the applications, Meshele alleged a common law
marriage in Mexico with the NH and stated that the child was living with the deceased
at the time of his death. Meshele further stated that the child was in her care subsequent
to the NH’s death.
The Child is Deemed the NH’s Child Because She Could Inherit the NH’s Property Under
the Intestacy Law in Mexico.
The Act provides survivor’s benefits for children of a deceased NH who is fully insured,
if, among other requirements, the child is the NH’s child and dependent on the deceased
NH at the time of death. Act, § 202(d); 20 C.F.R. §§ 404.350(a)(1), .355(b)(1). In
determining whether an applicant is the natural child of a fully insured individual,
the Commissioner looks to the law that would be applied in determining the devolution
of intestate personal property by the courts of the state in which the insured individual
is domiciled at the time of death. If an insured individual is not domiciled in any
state, then the Commissioner looks to the law that the courts of the District of Columbia
would apply. Act, § 216(h)(2)(A), 20 C.F.R. § 404.355(b)(4). If a child would be
considered a child under the applicable state or D.C. intestacy law, then the child
is deemed the child of the NH for purposes of entitlement to benefits. Id.
At the time of his death, the NH was domiciled in Jalisco, Mexico. Therefore, we look
to D.C. for guidance in whether the child could inherit from the NH under D.C. law.
The United States District Court for the District of Columbia has held that the law
of the domicile of the decedent governs the distribution of personal property. In Re Estate of G~, 168 F. Supp. 124, 126 (D.D.C. 1958). More recently, relying upon In Re Estate of G~, the United States Court of Appeals for the District of Columbia Circuit held that
the law of the Philippines applied in determining a child’s entitlement to benefits
on the wage earner’s record. Javier v. Commissioner of Social Security, 407 F.3d 1244, 1247 (D.C. Cir. 2005).
Therefore, in order to determine whether the child could inherit the NH’s intestate
property, we asked the Law Library of Congress whether a child born out of wedlock
in Mexico would be able to inherit from the deceased father. The law librarian informed
us that a child, whose birth was registered with a Civil Registrar, would have the
right to inherit the NH’s personal property. Therefore, because such a registration
certificate is in the child’s file, we believe that the child would be deemed to be
the dependent child of the NH and entitled to benefits on the NH’s account under section
216(h)(2)(A) of the Act.
The Mother’s Entitlement to Benefits on the NH’s Account
After we determined that the child is entitled to benefits, we next looked at whether
the mother is also entitled to benefits on the NH’s account. The Act provides mother’s
survivor’s benefits to the spouse of a deceased NH who is fully insured, subject to
five conditions. Act, § 202(g);
20 C.F.R. § 404.339; POMS RS 00208.001. As the Commissioner’s regulations explain, to be eligible: (a) she must be the widow
of the insured and meet the conditions described in 404.335(a); (b) she must apply
for benefits; (c) she must be unmarried; (d) she must not be
entitled to widow’s benefits; and (e) she must have in her “care” the insured’s child
(under 16) who is entitled to child’s benefits. 20 C.F.R. § 404.339; POMS RS 00208.001, .005. Similarly, to be entitled to a lump-sum death benefit, the claimant must
be the spouse of the NH. Act, § 202(i); 20 C.F.R. § 404.391(a).
Accordingly, we analyzed whether the mother qualifies as the NH’s “widow” and meets
the spousal relationship requirement. 20 C.F.R. §§ 404.335(a); 404.339. See also Garcia v. Sec’y of Health & Human Servs., 760 F.2d 4, 5 (1st Cir. 1985) (to qualify for mother’s benefits, mother must establish
that she is the NH’s widow).
The Mother and the NH were not Validly Married Under Mexican Law
The Act defines, in relevant part, a “widow” as the surviving wife of the deceased
wage earner who is the mother of his son/daughter. Act, § 216(c)(1)(A). Therefore,
we analyzed whether the mother met the spousal relationship requirement through a
valid marriage to the NH. Act, § 216(h)(1)(A)(i), 20 C.F.R. § 404.345. To establish
the mother’s relationship to the NH, the Commissioner looks to state laws. 20 C.F.R.
§ 404.344. See also Act, § 216(h)(1)(A)(i),(ii) (Act looks to state law to establish the status of particular
family relationships as they relate to receipt of program benefits). As explained
in section I above, because the NH was domiciled outside of the United States, D.C.
law applies. Under D.C. law, the validity of a marriage is to be determined by the
law of the jurisdiction “where the marriage occurred.” Bansda v. Wheeler, 995 A.2d 189, 198-99 (D.C. 2010). Accordingly, the Commissioner looks to Mexican
law to determine whether the mother was validly married to the NH for Social Security
Because Mexico is a civil law country, its laws do not provide for “common law” marriage.
See, e.g., Jaimez-Revolla v. Bell, 598 F.2d 243, 244 (D.C. Cir. 1979) (noting in dicta that Mexico does not recognize
common law marriages). The law librarian has advised that the states of Baja California
Sur and Jalisco have laws that cover “concubinage,” which is similar to the concept
of common law marriage. POMS GN 00307.257. The POMS recognizes the existence of concubinage in Mexico. The POMS explains
that common law marriage in Mexico has not been recognized through February 1986,
and further explains an exception that:
recognize a state of “*Concubinage” in certain death cases where the couple lived
together for 5 years prior to the date of death (without prior unresolved marriages).
Some of the Mexican states and the Mexican Federal District *Concubinage is the state
of a woman or man in an ongoing, usually matrimonially oriented, relationship with
somebody to whom they cannot be married often because of a difference in social status
or economic condition. POMS GN 00307.257.
The law librarian has advised that Baja California Sur, where the couple lived together
from November 2005 – December 2010, defines concubinage as the union of one man and
one woman, free of any impediments to marriage, who “choose to cohabit with the tacit
purpose of forming a family, offering mutual respect and protection, and preserving
humankind.” To legally establish a concubinage relationship in Baja California Sur,
the relationship must be publicly sustained for five uninterrupted years, or it may
be established by the birth of a child, even if this occurs before the five years
have elapsed. After the concubinage relationship has been established, i.e., they
had a child, the rights and obligations of the concubinage relationship may be judicially
enforced. In addition, if the concubinage relationship lasts until the death of one
of the parties, the surviving concubine has the right to inherit in the same proportion
and conditions as a spouse. Therefore, assuming that neither the NH or mother was
legally married to another person (or had another concubine), it is our opinion that
the couple meets the requirements to establish a concubinage relationship under the
laws of Baja California Sur due to the birth of the child in June 2007.
The law librarian has also advised that in Jalisco, where the couple lived together
from December 2010 until February 2012, the person with whom a deceased individual
lived in the same domicile, as if they were spouses during the three years prior to
his death, has the right to inherit from the deceased individual (provided that both
parties were unmarried during the concubinage relationship) if a child was born of
the relationship. The Jalisco Civil Code further provides that certain property of
individuals in the concubinage relationship may be judicially declared exempt from
liens (such as a home, vehicle, and household goods). Again, assuming that neither
the NH nor the mother was legally married to another person, it is our opinion that
the couple established a concubinage relationship under the law of Jalisco. The
law librarian has also advised that under the Mexican Federal Social Security Law,
in the absence of a spouse, a widow’s pension may be granted to a person who lived
with an insured individual as if they were married during the five years immediately
preceding his death or if they had children together (provided they were both unmarried
during the concubinage relationship).
Although the D.C. courts have not yet adjudicated the issue of whether Mexican concubinage
is the legal equivalent of a common law marriage, it is our opinion that D.C. courts
would not recognize Mexican concubinage as the legal equivalent of common law marriage. See B~, 995 A.2d at 198-99 (D.C. 2010) (upholding trial court’s ruling that woman had not
established common law marriage in the Netherlands – another civil law country). See also Jaimez-Revolla, 598 F.2d at 244 (noting in dicta that Mexico does not recognize common law marriages);
Rosales v. Battle, 113 Cal. App.4th 1178, 1183 (Cal. App. Dep’t Super. Ct. 2003) (determining that
concubinage under the law of Baja California Sur is not the equivalent of common law
marriage). At your request, we also analyzed whether the union between the NH and
the claimant was a void marriage under D.C. law – one that is legally nonexistent
from the beginning under State law with or without a judicial decree. The D.C. Code
declares the marriages void ab initio without being decreed if the parties to the marriage have certain familial relationships,
i.e., the marriage of a person with a parent’s grandparent, or spouse’s child, or
the marriage of any persons previously married and whose previous marriage has not
been terminated by death or a decree of divorce. DC Code § 46-401.01. Neither of
the situations appear to apply to the union between the NH and the insured.
The Mother Would Have the Same Status as a Spouse of the NH Under Mexican Intestacy
Because we determined that the mother and the NH were not validly married, we next
analyzed whether there is another way that she can qualify as the “widow” of the NH
and be entitled to mother’s benefits under § 404.339. Section 404.339 cites to the
conditions described in section (a) of 404.335. Section 404.335(a) provides that an
individual is an insured’s “widow” if (1) she meets one of the conditions set forth
in paragraphs (a)(1)-(4) of that section and (2) she has a relationship described
in §§ 404.345-.346 with the insured. 20 C.F.R. §§ 404.335(a). We reviewed the conditions
set forth in paragraphs (a)(1)-(4) and determined that the mother and the NH satisfied
the third condition because they were the natural parents of a child. Id. at (a)(3). As the regulations direct, we next looked at whether the NH and the mother
met requirements for a relationship described in section 404.345. In addition to
through a valid marriage, the relationship requirement will also be met if the mother
could inherit a widow’s/wife’s share from the NH under D.C. law if he were to die
intestate. 20 C.F.R. § 404.345; Act, § 216(h)(1)(A)(ii). Therefore, once again, the
Commissioner looks to the laws of the state where the insured had a permanent home
when the claimant applied for benefits, and if the insured’s permanent home was not
in one of the 50 states, the Commissioner looks to the laws of D.C. 20 C.F.R. § 404.345;
POMS GN 00307.257.
Therefore, even though the mother is not validly married to the NH, she will be entitled
to benefits under the law applied by the courts of D.C. in determining devolution
of intestate personal property, if she has the same status as a wife or a widow of
the NH with respect to the taking of such property. Act, § 216(h)(1)(A)(ii); 20 C.F.R.
§ 404.345; POMS GN 00307.257. See also Chambers v. Harris, 687 F.2d 332, 334 (10th Cir. 1982) (in mother’s benefits case, the court explained
that the requirements of 42 U.S.C. § 402(g)(1) are clear – claimant had to either
demonstrate that she was the legal widow of the insured or that she would be considered
the widow under the California laws of intestate succession). As explained above,
under D.C. law, intestate inheritance rights are determined by the law of the decedent’s
domicile. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.C. Cir. 2005) (citations omitted).
Here, the NH was domiciled in Jalisco, Mexico. Accordingly, to determine whether the
mother has the requisite status with respect to inheritance of the NH’s intestate
property, we apply Mexican law. The law librarian has advised that the state of Jalisco
would recognize and give legal effect to the right of the NH’s concubine to inherit
from the NH’s estate in the event of his death. Thus, assuming that neither the NH
nor the mother is validly married to another person, we believe that the mother should
qualify for benefits based upon her right to inherit the NH’s intestate property if
he were to die in Mexico without leaving a will.
For the reasons stated above, it is our opinion that the child qualifies for benefits
under section 216(h)(2)(A) of the Act because she can inherit the NH’s property in
Mexico. We also conclude that the mother qualifies for benefits under section 216(h)(1)(A)(ii),
because she could inherit a spouse’s share of the NH’s estate under Mexican intestacy
law, and she has the NH’s child in her care.
Eric P. Kressman
Regional Chief Counsel
Katie M. Gaughan
Assistant Regional Counsel.