I. QUESTION PRESENTED
By transmittal dated May 2, 1983, you have asked our opinion regarding the existence
of a common law marriage between the claimant Ruth and the deceased wage earner Ervin
In our opinion, Ruth K~ is entitled to widow's benefits.
The wage-earner's sons told SSA in September 1982 that no common-law marriage ever
existed between the wage earner and the claimant. However, you also presented an Ohio
Probate Court opinion dated August 24, 1982 which found that there had been a common-law
marriage and that the claimant was the surviving spouse of Ervin K~. We have subsequently
discovered that the position of the wage earner's sons was fully represented in the
Ohio Probate Court proceeding. Further, the wage earner's estate and his sons appealed
the Probate Court opinion to the appropriate appellate court, which affirmed the opinion
on June 15, 1983. Although the estate has filed a Notice of Appeal to the Ohio Supreme
Court, dated July 13, 1983, a motion to stay the execution of the appellate court's
judgment was denied on or about July 15, 1983.
This is a case which meets SSA and case-law criteria for SSA to honor a pre-existing
state court judgment. We are available to give additional advice about a possible
overpayment should the Ohio Supreme Court agree to further review this matter and
reverse the appellate court.
The claimant and the wage earner lived together in Columbus, Ohio beginning in late
1972. In early 1980, they both moved to Jacksonville, Florida. Mr. K~ died while traveling
in Ohio on November 22, 1951, and Ruth K~ has filed a claim with SSA for widow's benefits.
There is conflicting evidence on the question of whether they cohabited as man and
wife, or whether the wage earner merely boarded in homes owned by the claimant.
Evidence against finding a common-law marriage includes the facts that Ruth P~ maintained
her own name for most purposes; owned the Ohio and Florida properties in her own name;
and maintained accounts in the name of P~. The claimant has only given SSA envelopes
addressed to her as Mrs. K~ which post-date Mr. K~ 's death. When Ruth P~ applied
for Social Security Disability Benefits on June 27, 1974, at a time when she now claims
to have been married under common law to Mr. K~ , she identified herself as a single
(previously married) person. Mr. K~ also owned property in his own name and filed
individual income tax returns. His two sons (from a previous marriage) and former
brother-in-law have advised SSA that Ervin K~ told them at various times that he was
not married to Ruth P~ and had no intention of marrying her, 1/ and there is evidence
that the sons have acted consistently with that belief.
Evidence in favor of finding a common law marriage includes a statement to SSA from
Ruth P~'s grown daughter; the pursuit of a claim arising from a 1976 automobile accident
as husband and wife, during which Ervin K~ and Ruth P~ K~ were represented by an attorney
and executed a release as husband and wife in 1978; and an August 1982 Ohio Probate
Court Judgment which found that the K~s were married under common law since at least
1978 and that Ruth K~ was therefore the surviving spouse of Ervin K~. The court appears
to have been aware of the conflicts in the evidence, but refers to certain additional
evidence which SSA has not independently corroborated or disproved, such as introductions
to friends over the years as husband and wife; correspondence (of unknown dates) addressed
to Ruth K~; the presence of a wedding ring given by K~ to Ruth; and the existence
of some credit cards in the name of Ruth K~ (although the dates the accounts were
established is unclear). Further, the trial court's judgment was affirmed by the Pickaway
County 4th District Court of Appeals on June 15, 1983. Although further review by
the Ohio Supreme Court has been requested, a motion to stay execution of the appellate
court's judgment was denied on or about July 15, 1983.
Under the Social Security Act, whether the claimant in this case can claim widow's
benefits is determined by looking first to the law the courts of Florida would apply
in deciding whether the claimant was the wage earner's widow or whether she would
be able to inherit a widow's share of the wage earner's personal property if he had
died without a will. Florida law applies because the wage earner had his permanent
home there when he died, even though he died while traveling in Ohio. 42 U.S.C. 416(h)(1)(A);
20 C.F.R. 404.345.
Although the Florida courts have not addressed this case, the Probate Court of Pickaway
County, Ohio and the appellate court have ruled that the K~s did have a common law
marriage and that Ruth ~ K~ was therefore the wage earner's surviving spouse. It therefore
becomes necessary to evaluate what effect a Florida court would give to the Ohio appellate
court' s judgment.
It appears that Florida courts would honor the Ohio appellate court's judgment. It
therefore also becomes necessary to determine whether SSA is free to ignore the anticipated
ruling of the Florida courts.
The statements by K~'s sons that no common-law marriage existed is relevant, because
under 20 C.F.R. 404.726(b)(2), signed statements by two of the deceased's blood relatives
and the surviving spouse are the preferred evidence of a common-law marriage. However,
20 C.F.R. 404.726(c) recognizes that other evidence may direct the outcome. Here,
the preferred evidence supporting the relationship is not available because the wage
earner's sons challenge the relationship. This alone does not defeat the claimant's
claim, however; SSA is still bound by statute to resolve the question under applicable
State law. 42 U.S.C. 416(h)(1)(A).
SSA, like the Florida courts, would honor the Ohio result because the criteria for
being bound by state court decisions regarding family status, discussed more fully
below, were also met.
B. FLORIDA LAW
As required by the full faith and credit clause of the United States Constitution,
Article 4, Section i, Florida courts generally presume that decrees of other State
courts are valid. In re Estate of R~, 359 So.2d 1197 (Fla. App. 1975). Decrees of
other states will be enforced in Florida unless they violate public policy Berger
v. Hollander, 391 So.2d 7t6 (Fla. App. 1980). Although Florida does not recognize common-law marriages
entered into in Florida after January 1, 1968, Fla. Stat. 741.211, Florida continues
to recognize common-law marriages validly entered into elsewhere after that date.
Thus it would not be against public policy for a Florida court to honor and implement
the Ohio appellate court decree in this case.
C. FEDERAL LAW
Because a Florida court would honor as its own the Ohio appellate court's order, we
must therefore address whether SSA would be bound by the conclusion that a common-law
The general rule is that SSA need not afford controlling weight to State court trial
decisions regarding family status if the Secretary was not a party to the State court
proceeding. Unlike a Florida trial court, which is required to give full faith and
credit to most Ohio trial court decrees, the Social Security Act only requires SSA
to determine what the highest court in Florida would decide. See
Cain v. Secretary of Health, Education, and Welfare, 337 F.2d 55 (4th Cir. 1967). However, if SSA concludes that a State trial court
decision is not inconsistent with State law and would therefore not be overturned
by the State's highest court, SSA should honor that decision. Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). This is true even where SSA questions the correctness
of the lower court decision if the State court considered the identical issue that
SSA is deciding. Collins v. Celebrezze, 250 F. Supp. 37 (S.D.N.Y. 1966); Zeldman v. Celebrezze, 252 F. Supp. 167 (E.D.N.Y. 1965).
Where a State's Supreme Court has not yet ruled, it is often difficult to predict
how it will evaluate a lower court's ruling. In Gray v. Richardson, supra, the Sixth Circuit enumerated four criteria which tend to ensure reliability
of a lower court's decision:
1) An issue 'in a claim for social security benefits previously has been determined
by a court of competent jurisdiction; 2) this issue was genuinely contested before
the State court by parties with opposing interests; 3) the issue falls within the
general category of domestic relations law; and 4) the resolution by the State trial
court is consistent with the law enunciated by the highest court in the State. 474
F.2d at 1373.
Our central office has approved a draft SSA ruling incorporating the language of Gray, scheduled to be published this month (copy attached hereto). Where the four criteria
are met the Secretary will be bound, although all four criteria need not necessarily
be met in all cases. _2/ A potential "fifth criterion" was articulated by the Ninth Circuit in Moreno v. Richardson, 484 F.2d 899 (9th Cir. 1973). In that case involving child's survivors benefits,
the court stated that if the evidence presented to the trial court "was the same as
the evidence before the Secretary in support of the claim, we would be inclined to
hold the Secretary to be bound" by the declaration of the trial court. 484 F.2d at
903, note 4.
In this case, the trial and appellate court records reflect that all four Gray criteria, as well as the Moreno
factor, have been met. The presence of an appeal clarifies any pre-existing ambiguities
concerning the existence of a genuine contest, and makes the result more likely to
be consistent with the law of Ohio's highest court.
At the date of writing, we do not know whether Ohio's Supreme Court will decide to
accept this case for further review. However, a motion to stay execution of the appellate
court's judgment was denied on or about July 15, 1983. You are free to await further
action by the State Supreme Court to conclusively resolve this benefit claim, but
we have no indication of the time frames for action by that court. Because the request
to stay execution was denied, there is currently in effect an Ohio court judgment
which would be honored by Florida courts and which meets the criteria for being honored
At the date of writing, Ruth P~ K~ is entitled to widow's benefits. We recognize that
further action by the Ohio Supreme court may change that conclusion, but that outcome
is both unlikely and perhaps far in the future. Should you commence payment of widow's
benefits now, we are available to give additional legal advice about any possible
overpayment that might develop following action by the Ohio Supreme Court which might
affect this matter.
1/ The statements of both sons to SSA also refer to income the claimant earned from
a drapery business operated in her home despite receiving SSA disability benefits.
This is an issue SSA may also wish to pursue. See Claims Folder ~.
2/ See Howard P~ Jr., A/N ~, RA-V (M~) to ARC- Programs V (W~), June 21, 1983; and
Larry G~,A/N ~, RA-V (H~) to ARC-Programs-V (W~), July 8, 1982.