PR 04805.032 New Hampshire
A. PR 09-167 Common Law Marriage in New Hampshire-Gary P~ SSN: ~
DATE: September 2, 2009
Under New Hampshire law a marriage is absolutely void where either party to the marriage has a former spouse still living and knows that the former marriage has not been legally dissolved. Under Gray v. Richardson the agency is only required to follow a judgment that is “fair and consistent with the law enunciated by the highest court in the State”. The New Hampshire Probate Court did not mention the NH’s previous marriage nor did it address the court’s prohibition against entering into another valid marriage until after the dissolution of an existing prior marriage. Thus, the court’s decision is not binding upon the agency. The claimant and NH did not meet the three year requirement and could not be considered married under New Hampshire law. .
This memorandum is in response to your request for an opinion concerning whether a common law marriage existed between Gary P~, the deceased number holder, and Kathy A. Y~, who has applied for widow’s benefits on his account. For the reasons discussed below, Ms. Y~ cannot be found to have been the common law wife of the number holder because at the time of the number holder’s death, Ms. Y~ and the number holder had not met the three year minimum required to establish a common law marriage.
The materials you submitted indicate that Gary P~ formally married Angela E~ on December 30, 1974. Mr. P~ and Ms. Y~ began residing together in New Hampshire in July 1, 1994, until Mr. P~ death on March 6, 2009. Mr. P~ marriage to Ms. E~ was legally dissolved on August 10, 2006. Although they were never formally married, Mr. P~ and Ms. Y~ considered themselves to be husband and wife during the time they lived together in New Hampshire. The question of whether Mr. P~ and Ms. Y~ met the requirements for common law marriage was presented to the New Hampshire Probate Court in April 2009. The Probate Court determined that Ms. Y~ and Mr. P~ had entered into a common law marriage.
New Hampshire law provides that persons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for a period of three years and until the death of one of them, shall thereafter be deemed to have been legally married. N.H. Rev. Stat. Ann. § 457:39. However, this provision applies only to persons who are competent to contract marriage together. Hilliard v. Baldwin, 80 A. 129 (1911). Relevant here, under New Hampshire law, a marriage is absolutely void where either party to the marriage has a former spouse still living and knows that the former marriage has not been legally dissolved. N.H. Rev. Stat. Ann. § 458:1. Consequently, since Mr. P~ marriage to Ms. E~ was only legally dissolved on August 10, 2006, Mr. P~ and Ms. Y~ were only competent to contract marriage together from August 10, 2006, to March 6, 2009, which is a period less than three years. Thus, the provisions of section 437:39 to this case are inapplicable, and Ms. Y~ cannot be found to have been the common law wife of the number holder. See generally Fowler v. Fowler, 79 A.2d 24 (1951).
The New Hampshire Probate Court decision you submitted, which held that Ms. Y~ and the number holder met the conditions of section 437:39 pertaining to common law marriage, is not binding upon the Social Security Administration. While the Social Security Administration is “not free to ignore an adjudication of a state trial court,” the agency is only required to follow a judgment that “is fair and consistent with the law enunciated by the highest court in the State.” SSR 83-37c, 1983 WL 31272, at *3 (1983) (adopting Gray v. Richardson, 424 F.2d 1370 (6th Cir 1973)). Here, the Supreme Court of New Hampshire has determined that in order to enter into a common law marriage, neither party may be married to someone else. Fowler 79A.2d at 27. The New Hampshire Probate Court did not mention Mr. P~ previous marriage to Ms. E~, nor did it address the highest New Hampshire state court’s prohibition against entering into another valid marriage until after the dissolution of an existing prior marriage. In Re: Estate of Gary Edward P~, (May 7, 2009). Because the New Hampshire State Probate Court’s decision is inconsistent with the law enunciated by the highest court in the state, the Probate Court’s decision is not binding upon the Social Security Administration.
We believe that Ms. Y~ and the number holder were not legally competent to enter into a marriage contract until August 10, 2006, and that, due to Mr. P~ death in March 2009, they did not meet the three year requirement of N.H. Rev. Stat. Ann. section 457:39, and thus could not be considered married. The New Hampshire Probate Court’s failure to address the number holder’s marriage to Ms. E~ through August 2006 renders that decision not binding upon the Social Security Administration.
B. PR 09-017 Relationship of Applicants to Deceased Number Holder, James E~
DATE: November 5, 2008
The State court order was not contested and the facts do not support a finding that the claimant met New Hampshire's statutory requirements to be deemed a common-law spouse. There is no documetary evidence that a religious or any other type of marriage ceremony occurred in New Hampshire. Under SSR 83-37c the court order is not binding on the Agency. Furthermore, there is no evidence that the claimant and NH went through a valid ceremonial marriage in Massachusetts, the State of the deceased's permanent home, when he died. There was no good faith attempt to enter into a valid and State-sanctioned marriage.
You have requested our opinion on whether the New Hampshire Probate Court document decreeing a common law marriage between the deceased, James E~, and the applicant, Renee K~ is legal, whether the 1987 ceremonial marriage between the deceased and applicant meets the regulatory definition to constitute a marriage for entitlement to widow's benefits, and whether the child of the applicant can be considered a step-child of the deceased for the purpose of receiving surviving child benefits. For the following reasons, we believe that the Probate Court's finding is not binding on the Agency. We also believe that the 1987 ceremonial marriage does not meet the regulatory requirements to constitute a valid marriage to establish entitlement to widow's benefits or step-child's benefits.
On April 8, 2008, Ms. K~ petitioned for surviving spouse's benefits for herself, and surviving child's benefits for her adopted son, Daniel K~. Ms. K~ claims that she married the deceased number holder as of May 1, 1987, by common law in New Hampshire, which has been affirmed by the Probate Court of New Hampshire.
1. Legality of Probate Court Order
Your first question is whether the Probate Court Order, issued on August 9, 2000, finding that Ms. K~ is the common-law spouse of the decreased number holder, Mr. E~, is legal and binding on the Agency. Pursuant to Social Security Ruling (SSR) 83-37c, the Agency need not always accept a state court order in a proceeding in which the Agency was not a party. Rather, the Agency will accept the state court order only if the issue before the court was genuinely contested by parties with opposing interests, and the court's order is consistent with the law enunciated by the state's highest court.
Here, the issue of the existence of a common-law marriage was not contested in the Probate Court. Further, the facts do not support a finding that Ms. K~ met New Hampshire's statutory requirements to be deemed a common-law spouse.
First, while Ms. K~ claims that she and Mr. E~ shared a religious ceremony in 1982, she was not officially divorced from her husband, Mr. K~, until June 7, 1983. We would also note that we have no information to validate the claim that a religious ceremony took place in 1982, since Ms. K~ failed to provide a specific date, location, or any other corroborating evidence.
Ms. K~ also claimed in her Petition to the Court that she and Mr. E~ shared a family life, and raised two children, Yuri K~ and Daniel K~. Mr. E~, however, is not listed on Daniel K~'s adoption decree, dated June 28, 1989.
Ms. K~ further asserted in her Petition that she and Mr. E~ owned property together in Danbury, New Hampshire as joint tenants with right of survivorship. Ms. K~, however, has failed to present any documentary evidence demonstrating that she and/or Mr. E~ owned property in New Hampshire.
Lastly, Ms. K~ did not meet the requirements to be deemed legally married in New Hampshire. New Hampshire does not recognize common-law marriage but the state will, after the death of one of them, deem a couple to have been legally married if they were competent to contract marriage, cohabitated and acknowledged each other as husband and wife, and stayed in the relationship for three years. All of these events must have occurred while they were domiciled in New Hampshire. GN 00305.075 and N.H. Rev. Stat. 457:39. Pursuant to N.H. Rev. Stat. 21.6-a, domicile is a location that is designated by an individual as his principal place of physical presence for the indefinite future to the exclusion of others.
Here, there is no evidence that either Mr. E~ or Ms. K~ intended to make New Hampshire their principal place of residence. This is evidenced by the fact that while Ms. K~ reported to the Social Security Administration that she may have resided in New Hampshire for an extended period between 1988 and 1990, she lists her residence as Cambridge, MA on the June 1989 adoption decree for Daniel K~. Mr. E~'s 1999 Death Certificate also lists both his residence and Ms. K~'s as Cambridge, MA. Further, Mr. E~ did not hold Ms. K~ out as his wife, as on his death certificate he is listed as "never married."
Therefore, as there is no documentary evidence that a religious or any other type of marriage ceremony occurred in New Hampshire, that either Mr. E~ or Ms. K~ lived or owned property in New Hampshire, or that either party was ever domiciled in New Hampshire, the Probate Court's Order finding that a common-law marriage existed is not binding on the Agency.
2. Significance of 1987 Ceremonial Marriage
Your second question is whether the ceremonial marriage in 1987 meets the criteria in the regulations to constitute a marriage for entitlement to widow's benefits. Pursuant to 20 C.F.R. § 404.345, to determine an applicant's relationship as the insured's widow, the Agency must look to the laws of the state where the insured's permanent home was when he died. The regulations define a permanent home as the true and fixed home of a person, the place to which he intends to return when absent. 20 C.F.R. § 404.303.
Under this regulatory section, Mr. E~'s permanent home when he died was in Massachusetts. There is no evidence that Mr. E~ and Ms. K~ were validly married in Massachusetts, as Rabbi Cherie K~-F~'s stated that while she performed a religious ceremony in 1987, she did not solemnize the marriage under Massachusetts law. Therefore, since Massachusetts does not recognize common-law marriage, Ms. K~ does not meet the definition for an insured widow.
The 1987 ceremonial marriage also does not meet the regulatory requirements for a deemed valid marriage. Pursuant to the regulations, an individual will be deemed to be a wife if in good faith she went through the marriage ceremony with the insured that would have resulted in a valid marriage except for a legal impediment. 20 C.F.R. § 404.346(a). In the present case, however, there is no evidence that Ms. K~ or Mr. E~ attempted to enter into a valid marriage. As was discussed above, the rabbi made no attempt to solemnize the relationship under state law, and thus there was no good faith attempt to enter into a valid and state-sanctioned marriage.
3. Status of Daniel K~
Your third question is whether Daniel K~ can be considered a step-child of the deceased number holder for the purpose of receiving surviving child's benefits. A child may be eligible for benefits if, after his birth, his natural or adoptive parent marries the insured. 20 C.F.R. § 404.357. The marriage between the natural parent and the insured must be valid under state law unless the union meets the requirements for a deemed marriage under section 346(a). Id.
Here, Ms. K~, Daniel's adoptive mother, was never married or deemed married to the insured. For this reason, Daniel K~ is not eligible for surviving child's benefits.
For the reasons discussed above, we believe that the Probate Court's finding that a common-law marriage existed is not binding on the Agency. We also believe that the 1987 ceremonial marriage does not meet the regulatory requirements to constitute a valid marriage to establish entitlement to widow's benefits or step-child's benefits.
C. PR 01-181 Termination of Child's Benefits Based on State Court Order Amending Birth Certificates Due to Paternity Blood Test Results Jon G.~ S~ SSN: ~
DATE: June 28, 2001
A New Hampshire state court determination satisfies the prerequisites of Gray v. Richardson where the court had jurisdiction over a relationship issue, both the putative father and the mother appeared before the court, and the determination is not inconsistent with any Supreme Court authority.
The New Hampshire Supreme Court has placed some limits on a husband's ability to disclaim paternity of children born to his wife during the duration of a marriage, especially when the father had previous opportunities to raise the issue of paternity and failed to do so. There appears to be no controlling case law on whether putative fathers of illegitimate children may also lose their right to disclaim paternity by undue delay in raising the issue of non-paternity.
Under Gray v. Richardson, adopted by SSA as Social Security Ruling 83-37C, SSA should follow a New Hampshire state court determination of non-paternity because the court had jurisdiction over the relationship issue; both the putative father and the mother appeared before the court, and the decision is not inconsistent with any New Hampshire Supreme Court authority. Therefore, if SSA acts diligently, it has the authority to reopen Alyssa's application for auxiliary child's benefits and find her not entitled. SSA would not have the authority to reopen Amanda's application if, as it currently appears, the initial determination on her application was issued more than four years prior to January 30, 2001 (when Mr. S~ requested reopening). There does not appear to be any basis here for reopening due to fraud or similar fault..
The wage earner, Jon G.~ S~ was awarded disability benefits as of May 1994. In his application, he named Amanda S~ as his biological child. After, he was awarded benefits and prior to 1997, Lee A.~ H~, Amanda's mother applied for auxiliary benefits on her behalf. The decision on that application was issued either at the end of December 1996 or during January 1997. Another child, Alyssa, was born to Ms. H~ in February 1997. Ms. H~ subsequently filed an application for auxiliary benefits on Alyssa's behalf, claiming Mr. S~ as the child's father, and such application was granted on June 30, 1997 (or shortly thereafter). We are advised that Ms. S~ and Ms. H~ were not married to each other at any point during the period at issue.
On January 22, 2001, the New Hampshire Superior Court issued an order granting a petition to modify the birth certificates of both Amanda and Alyssa, based on paternity blood test results that showed Mr. S~ was not the biological father of either child. This order also relieved Mr. S~ of any and all child support obligations. In a letter dated January 30, 2001, counsel for Mr. S~ requested that benefits to both children be terminated.
Social Security Ruling 83-37C adopted the Sixth Circuit's decision in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973) as national agency policy. In Gray, the Sixth Circuit held that SSA should have accepted the determination made by the state court, stating:
Such a holding is proper in the present case where the following prerequisites are found: (1) An issue in a claim for social security benefits previously has been determined by a State 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.
The January 22, 2001 order of the state court here appears to meet three of the prerequisites of SSR 83-37C on it's face. The order indicates that it was issued by a court of competent jurisdiction, that both Mr. S~ and Ms. H~ appeared before the court, and that the court's determination that Mr. S~ was not the father of either Amanda or Alyssa was supported by conclusive paternity blood testing results. We are advised that the time for an appeal of this order has passed without any appeal being filed. The only remaining prerequisite is that this state court decision be consistent with the law of the New Hampshire Supreme Court.
The New Hampshire Supreme Court has placed some limits on a husband's ability to disclaim paternity of children born to his wife during the duration of a marriage. W~ v. W~, 115 N.H. 186, 337 A.2d 350 (N.H. 1975); M~ v. M~, 115 N.H. 353, 341 A.2d 762 (N.H. 1975). In both W~ and M~, the New Hampshire Supreme Court found that putative fathers who had accepted children born during a marriage to the mother of those children for a lengthy period of time (15 years and 8 years, respectively), could not disclaim parental liability based on blood testing, especially when the father had previous opportunities to raise the issue of paternity and failed to pursue such issue. Although New Hampshire law also recognizes that fathers of children born outside wedlock may also have support obligations (see W~, supra), there is obviously no presumption of legitimacy to be overcome in such instances. Similarly, unwed fathers do not have any opportunity to disclaim parenthood during the course of divorce proceedings. There appears to be no controlling case law on the issue of whether putative fathers of illegitimate children may also lose their right to disclaim paternity by undue delay in raising the issue of non-paternity. In any event, the delay in disputing paternity here does not seem to have been so lengthy that the state court's finding of non-paternity would appear to have exceeded the authority of that court or to be clearly erroneous under New Hampshire law.
The state court's action in finding Mr. S~ was not, in fact, the father of either Amanda or Alyssa can serve as "new evidence" warranting reopening within four years of the date of the notice of the initial determination on each application. 20 C.F.R. § 404.988(b) (2000). Based on our own review of the regulations and consultation with attorneys in the Office of General Counsel at Headquarters, it does not appear that reopening would be permissible if it was not requested until more than four years after the date of the initial notice in each child's claim. Mr. S~ has made no allegation of outright fraud and has not described any special circumstances that might amount to "similar fault". Thus, the provisions that allow reopening at any time would not be available. 20 C.F.R. § 404.988(c) (2000).
In this case, Mr. S~ requested reopening on January 30, 2001. Unless, Amanda's initial notice was dated on or after January 30, 1997, the four year time period for requesting reopening would have expired by the date of such request. It appears more likely than not that the initial notice to Amanda was issued prior to January 30, 1997, but inspection of the actual notice in the claims folder will be necessary to determine the precise date of such notice.
So long as SSA acts diligently in investigating whether or not reopening is warranted in the case of Alyssa, it is not necessary that final action on such investigation be completed by June 30, 2001 (four years after the initial notice on her claim). 20 C.F.R. § 404.991a (2000). It would appear, however, that we would need to complete our investigation and make any revised determination that is unfavorable by July 30, 2001, six months after Mr. S~'s request for reopening. 20 C.F.R. § 404.991a(a) (2000). In the event that Mr. S~'s request for reopening should turn out to be timely in the case of Amanda, the same due date for final action would be applicable.