You asked whether, D~ (Claimant) was validly married to S~, the number holder (NH),
for purposes of determining Claimant’s entitlement to widow’s insurance benefits; where the parties did not have a state-registered marriage, but publicly celebrated
a gypsy marriage in California and thereafter lived in Nevada.
No. Claimant and NH were never validly married. Despite engaging in a public wedding
celebration in California, Claimant and the NH did not obtain, authenticate, and return
a marriage license as required by California law, and the record reflects no good
faith effort to do so or belief that they had. Further, Nevada does not recognize
common law marriage. Therefore, Claimant is not entitled to widow’s benefits on the
NH’s account because she is not NH’s legal, putative or deemed spouse.
In his February 1, 2010 application for Disability Insurance Benefits (DIB), the NH
stated that he married the Claimant on October 10, 1972. However, in his Supplemental
Security Income (SSI) application filed on the same date, the NH clarified his belief
that he was married to Claimant because they had “lived together so long that [they
were] considered to be legally married . . . .”
In her December 23, 2014 application for widow’s insurance benefits, Claimant stated
that she was married “by a clergyman or public official” on October 10, 1972 in California.
However, according to her January 2, 2015 SSA-795 declaration, she stated that during
the public ceremony which took place in an Elks Lodge in Anaheim, California, the
uncle and aunt of the groom (not specifically identified as the NH) took her hand
and walked her across the dancefloor to her new in-laws, which purportedly “made the
marriage official in our gypsy culture.” Claimant also provided a news clipping from
the Los Angeles Times, which was originally published on October 10, 1972, that described
the arranged “gypsy wedding” of “D~” to “S~”. According to the article, after exchanging
money, an unidentified man led the bride “running away from the crowd”, which constituted
the marriage rite. The parties were above the age of consent to marry at the time
of this ceremony.
The Orange County Clerk-Recorder (California) has no record of a public marriage between
Claimant and the NH from August 1, 1889 through the time of the NH’s death.
Claimant submitted evidence that she and the NH filed their 2006 and 2009 U.S. Income
Tax Returns jointly, purporting to be married. Claimant also provided a letter dated
September 21, 1988, which was apparently sent by the NH to an unknown party in which
the NH referred to Claimant as his wife, and asserted that the name on Claimant’s
birth certificate was a “joke name” (identified as L~) and that they could not afford
a legal name change.
The NH’s Certificate of Death issued by Nevada’s Department of Human Resources states
that the NH died on November XX, 2010, in Las Vegas, and lists Claimant as his spouse.
Claimant provided an additional Form SSA-795 declaration dated February XX, 2015,
in which she affirmed that she and the NH were domiciled in Nevada at the time of
the NH’s death.
To be entitled to widow’s insurance benefits under Title II of the Social Security
Act (Act), a claimant must establish that he or she is the widow or widower of an
individual who died fully insured. See Social Security Act §§ 202(e), 216(c); 42 U.S.C. §§ 402(e), 416(c); 20 C.F.R. § 404.335.
Under Section 216(h) of the Act, the agency will find a claimant to be the widow or
widower of an insured individual if the courts of the State in which the insured individual
resided at the time of his death would find that the claimant was validly married
to the insured individual when the death occurred. Social Security Act § 216(h)(1)(A)(i);
42 U.S.C. § 416(h)(1)(A)(i). However, even if the claimant was not married to the
insured individual, the agency will deem the claimant to be the insured individual’s
widow or widower if, under the laws of the State where the insured individual was
domiciled at the time of his death, the claimant would inherit the surviving spouse’s
share of the insured individual’s personal property if he or she died intestate (without
leaving a will). Social Security Act § 216(h)(1)(A)(ii); 42 U.S.C. § 416(h)(1)(A)(ii);
20 C.F.R. § 404.345 (“The relationship requirement will also be met if under State
law you would be able to 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.”);
Program Operations Manual System (POMS) GN 00305.085 (guidelines for entitlement based upon “putative marriage”); POMS RS 00207.001 (“The claimant is the widow(er) of a deceased NH if he or she was related to the
NH as the NH’s legal spouse, putative spouse, or deemed spouse.”). Further, the agency
will find the claimant to be the insured’s widow(er) if “it is established to the
satisfaction of the Commissioner of Social Security that such [claimant] in good faith
went through a marriage ceremony with such 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.” Social Security Act § 216(h)(1)(B)(i);
42 U.S.C § 416(h)(1)(B)(i); 20 C.F.R. § 404.346; POMS GN 00305.055 (guidelines for entitlement based upon “deemed marriage”).
The NH was domiciled in Nevada at the time of his death, so the agency looks to Nevada
law to determine whether Claimant was the NH’s legal, putative or deemed spouse. Nevada
considers marriage a civil contract to which the parties, who are capable in law of
contracting, must consent. Nev. Rev. Stat. § 122.010(1). However, consent alone will
not constitute marriage; it must be followed by solemnization. Id. Nevada does not recognize common law marriages (except those in effect prior to March
29, 1943). Nev. Rev. Stat. § 122.010(2); see also POMS GN 00305.075.
Nevada has no explicit choice of law statute. However, in the absence of a conflicting statutory provision, it appears that Nevada
follows the “general rule;” recognizing the validity of an out-of-state marriage so
long as it is lawful and valid according to the law of the location where the marriage
was celebrated. See U.S. v. Sacco, 428 F.2d 264, 268 (9th Cir. 1970) (“The general rule is that the validity of a marriage
is determined by the law of the state where it took place”) (citing Loughran v. Loughran, 292 U.S. 216, 223 (1934) (“Marriages not polygamous or incestuous, or otherwise
declared void by statute, will, if valid by the law of the state where entered into,
be recognized as valid in every other jurisdiction”)); POMS GN 00305.005 (“The law of the place where a marriage occurred ordinarily determines the validity
of a marriage. If the marriage is valid in that jurisdiction, it is usually held valid
in other places.”). Here, Claimant alleges that her ceremonial marriage to the NH
took place in California. As such, we must look to California law.
In order to effectuate a valid marriage in California, the marriage “shall be licensed,
solemnized, and authenticated, and the authenticated marriage license shall be returned
to the county recorder of the county where the marriage license was issued . . . .”
Cal. Fam. Code § 306. California courts expressly hold that the failure to comply with statutory licensing,
certification, or solemnization requirements render a marriage invalid. In re Estate of DePasse, 97 Cal. App. 4th 92, 102-103 (Cal. App. 2002) (holding that California Family Code
requirements are mandatory, which means a marriage is invalid in the absence of a
marriage license); see also Burnham v. Cal. Pub. Employees Ret. Sys., 208 Cal. App. 4th 1576, 1584–85 (Cal. Ct. App. 2012) (failure to solemnize wedding
renders it invalid); In re Estate of Tollefsen, 2009 WL 3470401, at *6 (Cal. Ct. App. Oct. 9, 2009) (citing In re Estate of DePasse, 97 Cal. App. 4th at 92); POMS PR 05405.006.C (except under special circumstances,
“a marriage license must be procured to render a marriage valid in California”).
Even where the parties to a purported marriage fail to execute the licensing and solemnization
requirements, California may recognize a putative marriage. “A putative marriage is
one in which at least one of the parties to an invalid marriage has a good faith belief
that the marriage is valid.” Estate of Leslie, 37 Cal. 3d 186, 191 n.4 (Cal. 1984) (citing Cal. Civ. Code § 4452, now Cal. Fam.
Code § 2251); POMS GN 00305.085.B.1 (in California, “where at least one of the parties to an invalid [ceremonial]
marriage . . . entered into the marriage in good faith believing that it was valid,
the spouse had status as a putative spouse and inheritance rights as a spouse so long
as such good faith belief continued”).
Under section 216(h)(1)(A) of the Act, the agency will find that Claimant is the widow
of the NH if the courts of Nevada would find either: (1) that Claimant and the NH
were validly married at the time of the NH’s death or (2) that Claimant would have
the same status as the NH’s widow for purposes of sharing in his intestate personal
Here, Claimant cannot show that she had a valid marriage with the NH. See 20 C.F.R. §§ 404.345, 404.346. The parties did not obtain, authenticate, and return
a marriage license issued by the county clerk as required by California law. See POMS PR 05405.006.C; Cal. Fam. Code § 306.
Additionally, Claimant and the NH did not have a deemed marriage because their marriage
was not merely invalidated by a legal impediment resulting from the lack of dissolution
of a previous marriage or a defect in the procedure followed in connection with the
purported marriage. See POMS GN 00305.055. Rather, the parties never attempted to register their purported marriage with any
state. Indeed, according to the record, they sought only to make “the marriage official
in [their] gypsy culture.”
Similarly, Claimant cannot show that she held a good faith belief in the existence
of a valid marriage at its inception because she never sought to obtain, authenticate,
and return a marriage license as required by California law. See Cal. Fam. Code § 306. Indeed, as indicated by the NH’s February 1, 2010 Supplemental
Security Income application, the couple merely believed that they had “lived together
so long that [they were] considered to be legally married[.]” However, even if Claimant
held a good faith belief that Nevada permits common law marriage, her mistaken belief
cannot overcome the requirements of Nevada law. See Nev. Rev. Stat. § 122.010(2). The putative spouse doctrine is intended only to protect
parties without knowledge of factual or legal impediments to marriage. See Cal. Fam. Code § 2251; Nev. Rev. Stat. § 122.090; see also POMS GN 00305.085. Therefore, it is inapplicable here.
In sum, a Nevada court would not acknowledge Claimant’s out-of-state “gypsy marriage”
to the NH as a legally valid marriage. Further, because Nevada does not recognize
common law marriage, Nevada courts would find Claimant ineligible to inherit from
the NH’s intestate estate as his spouse.
Because Claimant failed to prove a valid ceremonial marriage, or a good faith belief
that her ceremonial marriage was valid, she is not entitled to widow’s benefits on
the NH’s record. See 20 C.F.R. §§ 404.330, 404.345, 404.346.