TN 33 (11-16)

PR 05005.012 Georgia

A. PR 17-005 Evaluation for Payment of Benefits - Marital Relationship Duration when Marriage and Common-Law Marriage both Involved

Date: October 6, 2016

1. Syllabus

The number holder (NH) and the Claimant were in a common-law marriage in Idaho which later converted to a formal marriage, but the couple divorced in March of 1999. The NH passed away while residing in Georgia; therefore, we apply the Georgia law. The testimonial and circumstantial evidence shows the existence of a common-law marriage between the NH and the claimant which later converted to a formal marriage and lasted from at least 1986 through 1999. Accordingly, under Idaho law, and by extension Georgia law, the NH and the claimant were validly married for over ten consecutive years immediately preceding the divorce. It is in our opinion that the claimant has satisfied the marriage duration requirement relating to her application for divorced widow’s benefits.

2. Opinion

QUESTION PRESENTED

Whether F~, the deceased number holder (NH), and M~, the applicant divorced widow (the claimant), were validly married for at least ten years immediately preceding the date of dissolution under Idaho law.

BRIEF ANSWER

Yes. The NH and the claimant were in a common-law marriage that later converted to a formal marriage, with a total duration of over ten years. Thus, the claimant has established the marriage duration requirement for entitlement to divorced widow’s benefits.

SUMMARY OF EVIDENCE

According to the claimant, she and the NH began living together in a husband and wife relationship in Idaho in July 1983. On August XX, 1983, the NH and the claimant jointly purchased residential property. They filed joint state and Federal tax returns in tax year 1984.

In addition, the parties’ siblings submitted “Statement[s] Regarding Marriage.” The claimant’s sister stated the couple had maintained a home and lived together as husband and wife since 1982. The NH’s sister indicated the couple had been together since 1986.

On November XX, 1989, the NH and the claimant participated in a ceremonial marriage in Idaho. On March XX, 1999, however, the couple got divorced.

On January XX, 2010, the NH passed away while residing in Georgia. On May XX, 2016, the claimant applied for widow’s benefits on the NH’s record.

ANALYSIS

Relevant Federal Law

An applicant may be entitled to widow’s benefits as the surviving divorced wife of a person who died fully insured if the applicant had a valid marriage with the fully insured individual that lasted at least ten years immediately before the divorce became final. 42 U.S.C. § 402(e); 20 C.F.R. §§ 404.331, 404.336. In order to determine whether the applicant and insured individual were validly married, the Agency looks to the State law where the NH was domiciled at the time of his death. 20 C.F.R. §§ 404.344, 404.345.

Here, the NH resided in Georgia when he died. Absent evidence to the contrary, we take this as his permanent home and apply Georgia law. District of Columbia v. Murphy, 314 U.S. 441, 455 (1941).

Relevant State Law

When determining the validity of out-of-state marriages, Georgia views the marriage as a civil contract and applies the law of the forum in which it was made. Norman v. Ault, 695 S.E.2d 633, 636 (Ga. 2010). Since both the ceremonial marriage and the purported common-law marriage at issue here occurred in Idaho, Georgia law directs us to Idaho law.

Idaho recognizes two forms of marriage: one is a marriage that is solemnized by a person authorized to do so, with issuance of a license, as provided by statute; the other is a common-law marriage. Idaho Code §§ 32-201, 32-301 (2016); Freiburghaus v. Freiburghaus, 651 P.2d 944, 946 (Idaho 1982). While common-law marriage is no longer legal in the state, this does not apply to any marriages in effect prior to January 1, 1996, which is the period at issue here. Idaho Code § 32-301(2). In contrast with other jurisdictions, Idaho has never viewed common law marriage with disfavor. Freiburghaus, 651 P.2d at 946

To establish a common-law marriage in Idaho, the evidence must show the parties consented, as well as assumed the rights, duties, and obligations of marriage. Wilkins v. Wilkins, 48 P.3d 644, 649 (Idaho 2002). Consent may be either express or implied by conduct. Id. If consent is implied, the best and most common, although not exclusive, method of proof is to show cohabitation, general reputation in the community as husband and wife, and holding oneself out as married; from such evidence, a court may infer that, at the outset, mutual consent was present. Id. Testimony from one surviving party is sufficient to prove a common-law marriage. Id.

Application of Idaho Law to Current Case

The NH and the claimant were formally married from November 1989 to March 1999, a period lasting nine years and five months. Thus, the relevant question is whether a common-law marriage existed for at least seven months immediately preceding the date of formal marriage.

There is no evidence of express consent to a common-law marriage between the NH and the claimant. Nevertheless, under Idaho law, the claimant’s testimony, as well as other circumstantial evidence, sufficiently establishes implied consent.

The claimant stated she and the NH began cohabitating in a “husband and wife relationship” in July 1983 and continued to do so until March 1999, the date of divorce. In addition, the couple jointly purchased real estate in August 1983 and jointly filed taxes the following year, indicating a general reputation in the community as husband and wife. Moreover, both the claimant’s sister and the NH’s sister agreed the parties presented as a couple since at least 1986, well before the relevant date of March 1989.

Thus, the testimonial and circumstantial evidence shows the existence of a common-law marriage between the NH and the claimant, which later converted to a formal marriage and lasted from at least 1986 through 1999. Accordingly, under Idaho law, and by extension Georgia law, the NH and the claimant were validly married for over ten consecutive years immediately preceding the divorce.

CONCLUSION

It is our opinion that the NH and the claimant were validly married under Idaho law, and therefore under Georgia law, for at least ten consecutive years immediately preceding their divorce. Thus, the claimant has satisfied the marriage duration requirement relating to her application for divorced widow’s benefits.

B. PR 08-137 Validity of an Incestuous Marriage - Georgia

DATE: June 26, 2008

1. SYLLABUS

Georgia law states that a person must not be related to the prospective spouse by blood or marriage within the prohibited degrees. Thus, the marriage would not be valid. This is not a legal impediment as defined by the regulations. In addition, claimant does not meet the good faith element required to establish a deemed marriage.

2. OPINION

QUESTION

You asked whether the state of Georgia would recognize as valid a marriage between the number holder and his niece.

OPINION

For the reasons stated below, a marriage between the number holder and his niece would not be valid in Georgia.

BACKGROUND

According to the file, Harvey G~, the number holder (NH), married Doris G~ (Claimant) on February XX, 2005. Claimant's father and NH were brothers. Claimant admitted that she married NH for the purpose of collecting survivor's benefits when he died. She further stated she married NH fully aware that he is her uncle. NH died on February XX, 2008, while domiciled in Georgia.

DISCUSSION

A claimant may be entitled to widow's benefits if she is the "widow" of an individual who died fully insured. See Social Security Act (Act) § 202(e)(1), 42 U.S.C. § 402(e)(1); 20 C.F.R. § 404.335 (2007). A claimant also may be entitled to a lump sum death payment if the claimant is the "widow" of an individual who died fully or currently insured. See Act § 202(i); 20 C.F.R. §§ 404.390, 404.391 (2007). An applicant is the widow of an insured individual if the courts of the State in which the insured individual was domiciled at the time of death would find they had a valid marriage. See Act § 216(h)(1)(A)(i), 42 U.S.C. § 416(h)(1)(A)(i); see 20 C.F.R. §§ 404.344, 404.345 (2007). The Act also allows a finding that the applicant is the widow if the courts of that state would determine the applicant could inherit a widow's share of the insured's personal property if he were to die without a will. See Act § 216(h)(1)(A)(ii); 20 C.F.R. §§ 404.344, 404.345. Finally, the Act permits the Commissioner to deem that a marriage is valid if he is satisfied that an applicant in good faith went through a marriage ceremony with the insured individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage. See Act § 216(h)(1)(B)(i); 20 C.F.R. § 404.346 (2007). Claimant cannot establish that she was married to NH and thus his widow under any of the three methods.

1. Claimant's Marriage to NH Would Not Be Recognized as Valid in Georgia.

The essentials of a valid marriage in Georgia are: (1) parties able to contract; (2) an actual contract; and (3) consummation according to law. See Ga. Code Ann. § 19-3-1 (2007). With respect to parties being able to contract, Georgia law states that a person must not be related to the prospective spouse by blood or marriage within the prohibited degrees. See Ga. Code. Ann. § 19-3-2(a) (2007). Georgia law specifically prohibits a marriage between an uncle and his niece. See Ga. Code Ann. § 19-3-3(a)(6) (2007). Moreover, a marriage between an uncle and his niece is void from inception. See Ga. Code Ann. § 19-3-3(b) (2007); see also Ga. Code Ann. § 19-3-5(a) (2007) (marriages of persons unable to contract are void). Consequently, Georgia would not recognize the marriage between Claimant and NH as valid.

2. Claimant Could Not Inherit a Widow's Share of NH's Personal Property.

If NH died without a will, Georgia law states that a surviving spouse is entitled to a share of a spouse's personal property. See Ga. Code Ann. § 53-2-1 (2007). Because Claimant's marriage to NH is prohibited by law and would not be valid in Georgia, she could not inherit from NH as his spouse under Georgia law.

3. Claimant's Marriage to NH Would Not Meet the Definition of a Deemed Marriage.

As stated above, the Act also permits the Commissioner to find that a marriage is valid if he is satisfied that an applicant in good faith went through a marriage ceremony with the insured individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of the ceremony, would have been a valid marriage. See § 216(h)(1)(B)(i) of the Act. Examples of a legal impediment include a previous marriage that had not ended at the time of the ceremony or a procedural defect in the intended wedding. See 20 C.F.R. § 404.346(a). Moreover, a claimant must have acted in "good faith" when she married the insured individual. See 20 C.F.R. § 404.346; Program Operations Manual System (POMS) GN 00305.055(B)(2). Good faith requires "ignorance at the time of ceremony of any legal impediment and the claimant's belief at the time of the ceremony that the marriage was valid." POMS GN 00305.055(B)(2).

In this case, Claimant's marriage to NH is prohibited by law. This is not a legal impediment as defined by the regulations. Moreover, Claimant would not be able to meet the "good faith" element required to establish a deemed marriage. She fully admits that she knew at the time of her marriage ceremony that she was marrying her uncle. She also stated that marrying NH was the only way to get his benefits. Therefore, Claimant's marriage to NH would not meet the requirements to establish a deemed marriage.

CONCLUSION

Thus, Claimant is not entitled to surviving spouse benefits, because her marriage to NH was not valid under Georgia law.

Mary A. S~
Regional Chief Counsel

By: Jennifer P~
Assistant Regional Counsel

C. PR 07-046 Validity of A "Spiritual" Marriage - Georgia

DATE: January 9, 2007

1. SYLLABUS

Claimant and NH participated in a spiritual ceremony. Under Georgia law, marriage is a civil contract and its validity is judged by the law of the forum in which it was entered. However, Georgia would not recognize a marriage on this ceremony alone. Prior to January 1, 1997 Georgia recognized common-law marriages if one could establish the three requirements were met. The Georgia courts would find the claimant's common-law marriage valid, thus she could inherit from NH and qualify as the NH's widow.

Georgia recognizes a strong presumption of the validity of the most recent marriage. The presumption of the validity of a more recent marriage continues until evidence is presented that the earlier spouse is living; only then must the party contending that the later marriage is valid affirmatively demonstrate that the earlier marriage was dissolved by divorce.

2. OPINION

QUESTION

In considering this claim for spousal benefits, you asked whether a woman, joined with a man in a "spiritual marriage" by a Muslim minister, could qualify as that man's widow under Georgia law.

ANSWER

For the reasons stated below, the woman, here, can qualify as the man's widow under Georgia law.

BACKGROUND

According to the file, number holder, Farouk E~ (NH), and Carrie E~ (Claimant) participated in a ceremony characterized as a "spiritual marriage," and a friend or relative of NH, reportedly a Muslim clergyman, performed the ceremony. There is no legal or religious documentation of this marriage; however, the couple lived together as husband and wife for many years and shared a home and bank accounts and filed joint tax returns. Claimant was previously married and divorced and presented evidence of her marriage and divorce. Claimant and NH's relatives state that NH was previously married and divorced in Egypt. None, however, presented documentation of this marriage or divorce.

DISCUSSION

The Social Security Act (Act) provides, "an applicant is the wife, husband, widow, or widower" of an insured individual if "the courts of the State in which such insured individual is domiciled at the time such applicant files an application . . . would find that such applicant and such insured individual were validly married at the time such applicant files such application . . . ." Act § 216(h)(1)(A)(i), 42 U.S.C. § 416(h)(1)(A)(i); see also 20 C.F.R. §§ 404.330(a), 404.345 (2006). The Act also allows a finding that the applicant is the wife, husband, widow, or widower if the courts of that state would determine the applicant could inherit a wife's, husband's, widow's, or widower's share of the insured's personal property if he or she were to die without leaving a will. See Act § 216(h)(1)(A)(ii). Finally, the Act permits the Commissioner to deem that a marriage is valid if she is satisfied that an applicant in good faith went through a marriage ceremony with the insured individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage. See Act § 216(h)(1)(B)(i), 20 C.F.R. §§ 404.330(a), 404.346 (2006). Claimant can establish entitlement under the first two of the above methods.

1. Georgia Would Recognize Claimant's Marriage To NH As Valid.

Initially, we considered whether Claimant and NH were validly married under Georgia law. According to Georgia law, marriage is a civil contract and its validity is judged by the law of the forum in which it was entered. See Fisher v. Toombs County Nursing Home, 479 S.E.2d 180, 182-83 (Ga. App. 1996). In this case, Claimant and NH participated in a ceremony in Georgia. However, because Claimant presents marriage license or other legal or religious record of the "spiritual marriage," Georgia would not recognize a marriage on this ceremony alone. See Ga. Code Ann. Sec. 19-3-30.OCGA Sec. 19-3-30. However, it appears that Georgia would recognize a common law marriage between Claimant and NH.

In Georgia, before January 1, 1997, one could establish a common law marriage by demonstrating: 1) the parties were able to contract; 2) an actual contract of marriage; and 3) consummation by cohabitation. Ga. Code Ann. Sec. 19-3-1; Brown v. Carr, 402 S.E.2d 296 (1991); Kersey v. Gardner, 264 F. Supp. 887 (M.D. Ga. 1967). Here, the parties began cohabitating in 1976, jointly owned a house and bank accounts, filed joint tax returns, and were regarded by friends and relatives as husband and wife. This evidence would be sufficient under Georgia law to establish a common law marriage. Murray v. Clayton, 261 S.E.2d 455 (1979); Simeonides v. Zervis, 194 S.E. 2d 324 (1972). Where there is proof of continuous cohabitation, along with affirmative proof that a couple held themselves out as husband and wife, the presumption of marriage is one of the strongest known by law, and is to be rebutted only by clear evidence. Id.

There is some evidence that NH was previously married and divorced, although no documentation was presented to establish either the prior marriage or divorce. As other states do, Georgia recognizes a strong presumption of the validity of the most recent marriage. Jones v. Transamerica Ins. Co., 268 S.E.2d 444 (1980). A person attacking the validity of the more recent marriage must overcome the presumption of validity by clear, distinct, positive, and satisfactory proof. Id. The presumption oif the validity of a more recent marriage is continues until evidence is adduced that the earlier spouse is living; only then must the party contending that the later marriage is valid affirmatively demonstrate that the earlier marriage was dissolved by divorce. American Mut. Liab. Ins. Co. v. Copeland, 149 S.E.2d 402 (1966). Here, no one has presented clear evidence that the first spouse is living or asserted that the prior divorce was not valid. Accordingly, there would be a presumption of the validity of the common law marriage between Claimant and NH in Georgia. There is insufficient evidence to rebut the presumption.

2. Claimant Could Inherit a Widow's Share of NH's Personal Property.

Claimant could also establish widow status upon a finding that Georgia courts would determine that she could inherit a widow's share of NH's personal property if he were to die without leaving a will. See Act § 216(h)(1)(A)(ii). Georgia law provides a surviving spouse is entitled to a share of an intestate spouse's personal property. See Ga. Code Ann. Sec. OCGA Sec. 53-2-1. Because Claimant's common law marriage to NH appears valid, she could inherit from NH under Georgia law.

2. Claimant's Marriage To NH Would Not Qualify as A Deemed Marriage.

The Act permits the Commissioner to deem that a marriage is valid if she is satisfied that an applicant in good faith went through a marriage ceremony with the insured individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage. See § 216(h)(1)(B)(i) of the Act; 20 C.F.R. Sec. 404.346. .To qualify, Claimant must have acted in "good faith" when she married NH. See POMS GN 00305.055(B)(2). Good faith requires "ignorance at the time of ceremony of any legal impediment and the claimant's belief at the time of the ceremony that the marriage was valid." Id. The POMS further state that a legal impediment would exist if the marriage was invalid due to a procedural defect such as having a religious ceremony in a country that requires a civil ceremony. See POMS GN 00305.055(b)(3).

In this case, Claimant essentially admits that her ceremonial marriage was not legally or religiously valid, but states instead that the basis for her belief that she was legally married was that "we gave ourself's (sic) to each other as husband and wife." This is not a procedural defect. Moreover, Claimant would not be able to meet the "good faith" element required to establish a deemed marriage. As noted, she essentially admits that the ceremony lacked legal validity. Therefore, Claimant's marriage to NH would not qualify as a deemed marriage. Because Claimant could otherwise establish her marriage to NH, it is immaterial that she could not establish a deemed marriage.

CONCLUSION

Thus, Claimant can qualify as NH's widow under Georgia law.

Mary A. S~
Regional Chief Counsel

By: Laurie G. R~
Assistant Regional Counsel

D. PR 05-239 Wage Earner: Gary D. C~, ~Potential Surviving Divorced Spouse Seeking Benefits - Georgia

DATE: September 13, 2005

1. SYLLABUS

Although W/e died while domiciled in Georgia, we first look to Michigan law to determine the effects of W/E's adoption of the claimant, because the adoption took place in Michigan, and an adoption legally decreed in another State would be recognized in Georgia. The adoption of the claimant by the W/E and the W/E's second wife establishes a parent-child relationship. A prior spousal relationship would not be severed by adoption.

2. OPINION

QUESTION

Can S~ (Claimant) be considered a surviving divorced spouse of G~, (W/E) since she was later adopted by W/E.

ANSWER

For the reasons stated below, we believe Claimant can qualify as W/E's surviving divorced spouse under Georgia law.

BACKGROUND

On June XX, 1965, Claimant and W/E were married in Marquette County, Michigan. They divorced in July 1980. Subsequently, W/E remarried in November 1983 to Malinda J. C~ (W/E's second wife). Claimant gave birth in April 1985. Claimant was then unmarried and never remarried. On November XX, 1985, W/E and his second wife adopted Claimant and her new infant. W/E died a resident of Georgia in February 1996.

DISCUSSION

Under the Social Security Act (Act), a "surviving divorced wife" may be entitled to widow's insurance benefits. See Act § 202(e), 42 U.S.C. § 402(e) (2005); 20 C.F.R. § 404.336 (2005). The Act defines a "surviving divorced wife" as a woman divorced from the individual who has died if she had been married to the individual for a period of 10 years immediately prior to the date of their divorce. See Act § 216(d)(2), 42 U.S.C. § 416(d)(2) (2005); 20 C.F.R. § 404.336 (2005).

In this case, Claimant's marriage to W/E meets the 10 year durational requirement. As such, Claimant is a "surviving divorced spouse." The troubling aspect of this case is the subsequent adoption of Claimant by W/E.

Although W/E died while domiciled in Georgia, we must first look to Michigan law to determine the effects of W/E's adoption of Claimant, because the adoption took place in Michigan, and an adoption legally decreed in another state would be recognized in Georgia. See Ga. Code Ann. § 19-8-22 (2005). In Michigan, the entire subject of adoption is governed entirely by statute. According to Michigan law, an adult may be adopted by another individual. See Mich. Comp. Laws §§ 710.22, 710.24, 710.43, 710.60 (2005). Once an adoption occurs, the legal relationship between the natural parent and child is severed. See Mich. Comp. Laws § 710.60. The adoption established new parent-child relationships between Claimant and W/E and Claimant and W/E's second wife. See Mich. Comp. Law. § 710.60. There, however, is no indication that a prior spousal relationship would be severed by the adoption.

Georgia would, therefore, recognize W/E's adoption of Claimant. In recognizing decrees of adoption, Georgia law specifically states that all legal relationships between the adopted individual and his/her relatives are terminated. See Ga. Code Ann. § 19-8-19. However, spousal relationships are specifically excluded from the effects of adoption. See id. Because the spousal relationship is not terminated by adoption, we believe Claimant would still be recognized as the divorced spouse of W/E.

CONCLUSION

For the foregoing reasons, we believe Claimant qualifies as the surviving divorced spouse of W/E.

Mary A. S~
Regional Chief Counsel

By: Jennifer P~
Assistant Regional Counsel


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1505005012
PR 05005.012 - Georgia - 11/15/2016
Batch run: 11/17/2016
Rev:11/15/2016