You have requested an opinion regarding whether a 1999 Georgia State Court Order finding
that Margo R. V~ (Margo) is the biological and legitimate child of Ronald W. V~ (Mr.
V~) establishes paternity for the purpose of awarding Social Security surviving child's
benefits. / In our opinion, the Social Security Administration (SSA) should not accept
the Order as establishing the paternity of Margo because the proceedings were not
genuinely contested and the Order is not consistent with the law enunciated by the
highest court of the State.
Mr. V~'s death certificate indicates that he was 20 years old when he died in Oklahoma
on March 24, 1982. His death was deemed a suicide by the medical examiner. His father,
Max V~ (the senior Mr. V~), informed the medical examiner that his son was never married
and was a resident of Oklahoma. Margo's birth certificate was completed by her mother,
Tracey L. P~ (Ms. P~), a resident of Oklahoma, who signed her name as "Tracey V~."
The birth certificate indicates that Margo was born in Oklahoma on November 30, 1982,
and that her father was Ronald W. V~.
Ronald V~'s father, mother (Mrs. Martha V~), and brother, Raymond V~, were recently
contacted by the undersigned. The senior Mr. V~ said that Ronald V~ never resided
in Georgia, and in fact had never visited Georgia with Ms. P~. He noted that his son
lived at home with him in Lawton, Oklahoma until his son turned 18 and got a job with
Haliburton in Davis, Oklahoma. Ronald V~ then lived in Davis until he died. Raymond
V~ said that his brother and Ms. P~ lived together for a short time, and that his
brother never indicated to him that Ms. P~ and he considered themselves married. Raymond
V~ did not believe that Margo was his brother's child because Ms. P~ had sexual relations
with other men at that time. Ronald V~'s mother and father both reported that they
were not notified that Ms. P~ and Margo had filed a Petition To Establish Paternity
In May 1983, Ms. P~ filed applications for surviving child's benefits on behalf of
Margo, and surviving widow's benefits on behalf of herself, alleging that she and
Mr. V~ had a common law marriage. Both applications were denied in December 1983,
on the basis that Ms. P~ could not establish that a marriage existed under the deemed
marriage provisions or under the laws of Oklahoma, and that Margo was not a deemed
child and could not inherit under Oklahoma law.
Another application for surviving child's benefits was filed in May 1991, when Ms.
P~ and Margo were residents of Florida. The SSA obtained information from the prior
file, which contained statements from Ms. P~ that she had not used Mr. V~'s surname
because they were not married. There were also statements from a friend who noted
that Ms. P~ did not want to marry Mr. V~. The friend also noted that Mr. V~ and Ms.
P~ had an argument and Mr. V~ had kicked Ms. P~ out of the house a few days before
he committed suicide. Ms. P~ also informed the SSA that Mr. V~ did not acknowledge
that Margo was his child because he did not know Ms. P~ was pregnant at the time of
his death. In the 1991 application, Ms. P~ acknowledged that Margo does not meet the
requirements to be entitled on Mr. V~'s record, but was advised by an attorney to
file again nevertheless. This application was denied by the SSA in June 1991, as there
was no new and/or material evidence to show that the previous denial was incorrect.
In September 1999, Ms. P~ filed a Petition to Establish Paternity and Legitimization
(Petition) in the Superior Court of Charlton County, Georgia. Ms. P~ states that she
is a resident of Charlton County, Georgia. The Petition incorrectly states that Mr.
V~ was killed on April 24, 1982. The Petition further states that Ms. P~ and Mr. V~
"were common law married under the laws of the States of Oklahoma and Georgia, which
they has (sic) resided in both." On this basis alone, it was requested that Margo
be found the child of Mr. V~ and Ms. P~. The undersigned contacted Ms. P~'s attorney,
Kenneth F~. According to Mr. F~, only Ms. P~ and Margo testified at the hearing, and
the Guardian Ad Litem for Margo gave a report. On November 15, 1999, Stephen L. J~,
Judge, Superior Court of Charlton County, Georgia, signed an Order Establishing Paternity
and Legitimization, prepared by Mr. F~. This Order states that Margo was born as issue
of a common law marriage established under the States of Oklahoma and Georgia, and
was therefore the biological and legitimate child of Mr. V~.
On December 13, 1999, Ms. P~ filed the current application for surviving child's benefits
on behalf of Margo. In that application, Ms. P~ incorrectly states that "no previous
application has been filed with the Social Security Administration for whom this application
is being filed." Ms. P~ also noted that only her parents show an active interest in
Margo. Mr. V~'s parents are not listed.
On June 27, 2000, Ms. P~ wrote a letter to a United States Representative from Jacksonville,
Florida. Ms. P~ indicated that she was now living in Yulee, Florida. She states in
this letter, "When I was twenty years old, I was engaged to be married and pregnant.
Six months pregnant my fiancé was killed in an automobile accident...."
The Social Security Act provides that in determining whether an applicant is the child
of a fully insured individual, the Commissioner of Social Security shall apply such
law as would be applied in determining the devolution of intestate personal property
by the courts of the state in which the insured was domiciled at the time of his death.
42 U.S.C. § 416(h)(2)(A). Thus, eligibility for Social Security benefits depends on
whether the individual would inherit under the law of intestate succession in the
state where decedent was domiciled. In this case, Oklahoma law controls because Mr.
V~ was domiciled in Oklahoma at the time of his death. Id.
An issue of a valid marriage is entitled to inherit under the law of intestate succession
in Oklahoma. 84 Okl. St. Ann § 213. The Oklahoma statutes further provide that a child
conceived during a valid marriage, but not born at the time of the father's death,
is deemed an existing person for inheritance purposes if subsequently born alive within
ten (10) months after the death of the father. 15 Okla. St. Ann. § 15; 10 Okla. St.
Ann. § 2. Likewise, Georgia statutes provide that all children, including issue of
a common law marriage, are legitimate if born in wedlock or within the usual period
of gestation thereafter. Ga. St. Ann. 19-7-20; 1958-1959 Op. Att'y Gen. p. 89.
To establish entitlement to surviving child's benefits as a dependent child, Margo
must meet one of four provisions found at § 216(h) of the Social Security Act, 42
U.S.C. § 416(h). In the present case, Ms. P~ asserts that because Margo is the child
of a valid common law marriage established under the laws of Oklahoma and Georgia,
Margo is entitled to Social Security surviving child's benefits based on the first
statutory alternative, found at 42 U.S.C. §§402(d)(3) and 416(h)(2)(B). These sections
provide that the child of a valid or putative marriage is deemed to be dependent for
support on the deceased wage earner and is thus eligible for surviving child's insurance
benefits without the necessity of proving actual dependence. 42 U.S.C. §§402(d)(3)
and 416(h)(2)(B). The alleged existence of a common law marriage was the only proof
of paternity submitted to the Georgia State Court. Thus, Margo's claim for surviving
child's benefits is dependent on the validity of the Georgia State Court's finding
that a common law marriage was established in either Georgia or Oklahoma.
In Social Security Ruling 83-37c, which adopts the decision in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), the Social Security Administration explains when it
is bound by state court decisions on family law issues. Although the Commissioner
is not bound by a state court's decision in a proceeding to which he was not a party,
the Social Security Administration must accept state court decisions where:
an issue in a claim for Social Security benefits previously has been determined by
a state court of competent jurisdiction;
this issue was genuinely contested before the state court by parties with opposing
the issue falls within the general category of domestic relations law; and
the resolution by the state court is consistent with the law enunciated by the highest
court of the State.
See Social Security Ruling 83-37c; Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973).
Whether or not the Georgia State Court was a court of competent jurisdiction is not
entirely clear. The superior courts of Georgia have "subject matter" jurisdiction
in all proceedings for the determination of paternity of children who are residents
of the state. Ga. St. Ann. 19-7-40. However, it is unclear whether the superior court
had "jurisdiction over the person" ("personal jurisdiction") of all the necessary
parties in the present case. The Code of Georgia provides that a court may order service
upon a person outside the state upon a finding that there is a constitutionally permissible
basis for jurisdiction over the person, including those enumerated in Article 3, Chapter
11 of Title 19. Ga. St. Ann. 19-7-41. The relevant statute in Article 3, Chapter 11,
is the State of Georgia's version of the Uniform Interstate Family Support Act, which
lists eight methods a state court may exercise "personal jurisdiction" over a nonresident
individual in a proceeding to establish or determine parentage. Ga-St-Ann. 19-11-110.
However, this statute assumes that the putative father is alive and is silent as to
the process for deceased putative fathers. It is important to note that the Court
of Appeals of Georgia has held that the administrator of a deceased putative father's
estate was a necessary party regardless of whether the proceeding was one to establish
legitimization of a child or one to have a new birth certificate issued, or both.
Ward v. Ward, 115 Ga. App. 778, 779, 782, 156 S.E.2d 210, 211, 213 (1967). Under Oklahoma law,
when a person dies intestate with no known wife or children, the father or mother
of the decedent is the administrator of the estate. 58 Okl. St. Ann. § 122. Both of
Mr. V~'s parents reported to the undersigned that they were not informed that Ms.
P~ and Margo had filed the Petition to Establish Paternity and Legitimization.
Thus, although it is unclear whether the Georgia State Court had obtained "personal
jurisdiction" over all the necessary parties to issue the Order in the present case,
this need not be conclusively resolved in light of the fact that the SSA need not
accept the state court Order where the issue was not genuinely contested by parties
with opposing interests, nor where resolution by the state court is consistent with
the law enunciated by the highest court of the State. See Social Security Ruling 83-37c; Gray v. Richardson, supra.
Clearly, the issue of Mr. V~'s paternity was not genuinely contested by parties with
opposing interests. As noted above, only Ms. P~, Margo and the Guardian Ad Litem for
Margo presented evidence in the state court proceeding which found that a common law
marriage existed in Georgia and Oklahoma, and that Margo was an issue of that marriage.
Furthermore, as shown below, the findings of the Georgia State Court that a valid
common law marriage existed in Georgia and Oklahoma are contrary to the evidence as
a whole and not binding on the SSA because they are not consistent with the law enunciated
by the highest court of the State.
The State of Georgia no longer allows individuals to enter into common law marriages;
however, otherwise valid common law marriages entered into prior to January 1, 1997
are continued to be recognized. Ga. St. Ann. 19-3-1.1. To have established a valid
common law marriage in Georgia prior to January 1, 1997, there must be (1) parties
able to contract, (2) an actual contract of marriage where the husband and wife agree
to live together as man and wife and they hold themselves out to the world as married,
and (3) consummation by cohabitation in Georgia. Ga. St. Ann. 19-3-1 (1999); Georgia Osteopathic Hosp. V. O'Neal, 198 Ga. App. 770, 777-78, 403 S.E.2d 235, 243-44 (1991); Kersey v. Gardner, 264 F. Supp. 887, 889 (M.D. Ga. 1967). There is no credible evidence demonstrating
that Mr. V~ and Ms. P~ ever held themselves out as married, and cohabitated in the
State of Georgia. Thus, Mr. V~ and Ms. P~ did not establish a common law marriage
When a common law marriage is alleged to have been established in another state, the
State of Georgia will apply the law of that other state in determining whether a valid
common law marriage exists. Ga. St. Ann. 24-7-24(a)(2). In the present case, it was
alleged that a common law marriage was established in Oklahoma. Under Oklahoma Law,
a party asserting a common law marriage must prove the following elements with clear
and convincing evidence: (1) an actual and mutual agreement between the spouses to
be husband and wife, (2) a permanent relationship, (3) an exclusive relationship proved
by cohabitation as man and wife, and (4) the parties to the marriage must hold themselves
out publicly as husband and wife. Estate of Stinchcomb v. Stinchcomb, 674 P.2d 26, 28-29 (Okla.1983) (citing Matter of Phifer's Estate, 629 P.2d 808 (Okla. Ct. App. 1981)).
There is no credible evidence that Mr. V~ and Ms. P~ had an actual and mutual agreement
to be husband and wife, or that they held themselves out publicly as husband and wife.
The senior Mr. V~ reported on his son's death certificate that his son was never married
and was a resident of Oklahoma. The senior Mr. V~ further noted that his son always
lived in Oklahoma and did not live in Georgia with Ms. P~.
Ms. P~'s prior admissions further show that when she filed Margo's second application
for surviving child's benefits, she knew that she did not meet the requirements to
be entitled on Mr. V~'s record. Ms. P~ also admitted that she did not use Mr. V~'s
surname because she did not consider herself married to him, and there was evidence
from a friend showing that Ms. P~ did not want to marry Mr. V~. Even as late as the
June 27, 2000, letter to her United States Representative, Ms. P~ states that she
was only engaged to be married. No common law marriage exists when a couple refers
to themselves as engaged to be married; an agreement to marry in the future is not
sufficient. In re Estate of Wilson, 236 Ga. App. 496, 496, 512 S.E.2d 383, 385 (1999); In re Gray's Estate, 119 Okla. 219, ____, 250 P. 422, 425 (1926). "A mere promise of future marriage,
followed by illicit relations, is not a common law marriage." Wheaton v. State, 185 P.2d 931, 937, 85 Okla. Crim. 132, 143-44 (Okl. Cr. App. 1947). Finally, there
is no evidence Mr. V~ ever indicated to his family that he considered himself married
to Ms. P~.
Mr. V~ and Ms. P~ also did not have a permanent relationship, and it is questionable
whether they had an exclusive relationship. The evidence shows that Mr. V~'s brother,
Raymond V~, reported that Mr. V~ and Ms. P~ only lived together for a short period
of time in Oklahoma and that Ms. P~ may have had sexual relationships with other men.
Evidence from the prior applications also show that Mr. V~ had kicked Ms. P~ out of
his house a few days before he died.
The overwhelming evidence shows a common law marriage could not have been entered
in Georgia because Mr. V~ never resided there, nor in Oklahoma because Ms. P~ believed,
at the most, to be engaged to Mr. V~ at the time of his death, and they did not hold
themselves out as husband and wife to family and friends. Therefore, it is unlikely
the highest court of Georgia would have found a valid common law marriage existed
in either Georgia or Oklahoma based on these facts. In re Estate of Wilson, 236 Ga. App. 496, 496, 512 S.E.2d 383, 385 (1999) (No common law marriage exists
when a couple does not hold themselves out as husband and wife and refer to themselves
as engaged to be married). The SSA therefore, need not accept the Georgia State Court
Order finding that Margo was an issue of a valid common law marriage between Ms. P~
and Mr. V~. The Georgia State Court Order would only be considered along with the
other evidence before the Administration. Kersey v. Gardner, 264 F. Supp. 887, 890 (M.D. Ga. 1967).
Based on the foregoing discussion, it is our conclusion that the SSA is not bound
by the Order because it was not genuinely contested before the state court by parties
with opposing interests, and the state court's Order is not consistent with the law
enunciated by the highest court of the State.
Tina M. W~
Regional Chief Counsel
Assistant Regional Counsel