QUESTION PRESENTED AND BRIEF ANSWERS
Question: Can Mary become entitled to widow's benefits under James's Social Security record?
Answer: Yes. When a surviving divorced spouse remarries, and then divorces or obtains an annulment
from her second husband, she is entitled to reinstatement of benefits on her first
Question: Did Mary and James ever have a valid common law marriage?
Answer: Based on the facts available -- no. Under Pennsylvania law, an affidavit attesting
to a common law marriage, if created solely for the purpose of obtaining health care
benefits, does not establish a common law marriage. The Lycoming County Court decree,
therefore, was not a divorce or an annulment, but rather a declaratory judgment that
Mary and James were never married and their purported marriage was void from the beginning.
As such, Mary is likely to be entitled to widow's benefits on James account as though
she had no intervening marriage to Mr. K~.
Mary married James in 1969, and they divorced on September 27, 1990. James died on
December 21, 1990. On February 11, 1995, Mary and Mr. K~ signed an affidavit stating
that they had a common law marriage. Thereafter, Mary sought widow's benefits on James'
Social Security record. When the Commissioner denied benefits because she was married
to Mr. K~, Mary and Mr. K~ provided a stipulation to the Pennsylvania Court of Common
Pleas, Lycoming County, attesting that the prior affidavit of common law marriage
was executed solely for the purpose of allowing Mary to obtain health insurance from
a plan provided by Mr. K~'s employer. The stipulation further provided that although
Mr. K~ and Mary lived together, they never spoke words in the present tense that could
be construed as vows, they did not hold themselves out as married, and they did not
Under the Social Security Act, 42 U.S.C. § 402, a widow or a surviving divorced wife
is entitled to benefits. "The widow (as defined in section 416(c) of this title) and
every surviving divorced wife (as defined in section 416(d) of this title) of an individual
who died a fully insured individual, if such widow or such surviving divorced wife
-- (A) is not married . . . shall be entitled to a widow's insurance benefit." 42
U.S.C. 402(e)(1)(A) (2009); see also 20 C.F.R. §§ 404.331(e), 404.336(e) (2009). Therefore, a surviving spouse's right
to benefits depends on whether she remarried. State law determines whether she is
married. See Legory v. Finch, 424 F.2d 406, 409-10 (3d Cir. 1970); Slessinger v. Sec'y of Health and Human Welfare, 835 F.2d 937, 939-40 (1st Cir. 1987).
A. Under Pennsylvania Law, Mary Never Remarried.
Mary and Mr. K~ never entered into a common law marriage because a common law marriage
affidavit signed for the purpose of obtaining health benefits does not establish the
requisite present intent to be married. Bell v. Ferraro, 849 A.2d 1233 (Pa. Super. 2004). A common law marriage is created by an agreement
to marry, not a wedding ceremony. Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1020 (Pa. 1998). Although Pennsylvania abolished common law marriage
in 2005, it continues to recognize lawful common law marriages created on or before
January 1, 2005. 23 Pa.C.S. § 1103 (2009).
A lawful common law marriage is established by "words in the present tense, uttered
with the view and for the purpose of establishing the relation of husband and wife."
In re G~, 284 A.2d 742, 743 (Pa. 1971). A present tense utterance is not the sole method by
which common law marriage is established. Steadman v. Turner, 516 A.2d 21, 23 (Pa. Super. 1986). Evidence of cohabitation and the parties' reputation
as a married couple can also establish a rebuttable presumption of common law marriage.
Id. This is only a presumption, however, and can be rebutted by circumstances and facts
showing that the parties did not intend to be married. Id. The key issue is whether the evidence establishes the parties' intent to enter into
a marital relationship. Id.
Here, Mary and Mr. K~ likely did not have the requisite intent to marry. B~, 849 A.2d at 1235. In B~, the parties executed an "Affidavit of Common Law Marriage." Id. The appellant claimed that she and the appellee intended to marry and they informed
their friends and relatives that they were married. Id. The appellee claimed that they were never married and testified that "the affidavit
was executed solely to enable him to add Appellant to his health insurance and that
they did not present themselves to the community as married persons." Id. Based on this testimony, the court affirmed a declaratory judgment finding that the
parties never created a valid common law marriage. Id.
Similarly, Mr. K~ and Mary have both sworn that they executed their common law marriage
affidavit solely to allow Mary to obtain health insurance. Mary and Mr. K~ expressly
stipulated that they never intended to be married; they never held themselves out
in the community as married; they were never introduced as husband and wife; and they
never had joint financial accounts. Based on this stipulation, the Lycoming County
Court confirmed that they never entered into a common law marriage. Under B~, therefore, Mr. K~ and Mary were never married and their affidavit is insufficient
evidence of intent because it was created to obtain health benefits, not to actually
create a marriage.
B. A Void Remarriage Does Not Interrupt A Surviving Spouse's Entitlement To Widow's
Courts have consistently held that when a surviving divorced spouse obtains a divorce
or Annulment from an intervening second marriage, she is entitled to reinstatement
of benefits on her deceased first husband's Social Security account. See Legory v. Finch, 424 F.2d 406, 411 (3d Cir. 1970); Yeager v. Flemming, 282 F.2d 779, 781-82 (5th Cir. 1960); Folsom v. Pearsall, 245 F.2d 562, 565-66 (9th Cir. 1957); Starace v. Celebrezze, 233 F. Supp. 452, 453-54 (W.D. Pa. 1964). "[W]hen the remarriage is subsequently
annulled, benefits should be reinstated." Legory v. Finch, 424 F.2d 406, 411 (3d Cir. 1970). Social Security Ruling (SSR) 67-4p accepts this
rule and explains that upon receiving a divorce, benefits are reinstated as of the
date the divorce became final. "[B]eginning with the month in which the divorce became
final, the widow 'is not married' within the meaning of [the Act] . . . and accordingly,
may become reentitled to mother's insurance benefits upon proper application." SSR
67-4p, 1967 WL 2988.
If the second marriage is declared void, the surviving divorced spouse is entitled
to benefits uninterrupted as though the second marriage never existed, as opposed
to reinstatement as of the date of divorce. Starace v. Celebrezze, 233 F. Supp. 452, 453 (W.D. Pa. 1964). "A void marriage does not preclude initial
entitlement to benefits of claimants who must not be married, nor does the date of
entitlement depend on the date of the Annulment." POMS GN 00305.125(B)(1).
In Starace, a widow married another man following the death of her first husband,
but within six months brought a suit to annul her second marriage. 233 F. Supp. at
453. She claimed that upon marrying her second husband, she discovered he was an alcoholic
and she received no support from him. Id. The Pennsylvania Court of Common Pleas granted an annulment, declaring "that the
alleged marriage was and is wholly and absolutely null and void as to all intents
and purposes whatsoever." Id. Thereafter, she sought Social Security benefits, and the court ruled that she was
entitled to benefits for the entire period that she was "married" to her second husband.
Id. The court reasoned that an Annulment under Pennsylvania law does not end a marriage,
but instead decrees that it never existed in the first instance. Id. at 454 (citing Knode v. Knode, 27 A.2d 536, 538 (Pa. Super. 1942), Faivre v. Faivre, 128 A.2d 139 (Pa. 1956)). "It does not create a new status, it affirms that there
has been no change in status." Id. Therefore, the second marriage was void, and never existed for Social Security benefits
Mary's marriage to Mr. K~ was also void for Social Security purposes because the Lycoming
County Court of Common Pleas declared that no common law marriage ever existed. Under
Pennsylvania law, this ruling is neither a divorce nor an Annulment, but amounts to
a declaratory judgment that no marriage ever existed. Steadman v. Turner, 516 A.2d 21, 23-24 (Pa. Super. 1986). Accordingly, based on the current facts, Mary
was entitled to benefits as though she was never married to Mr. K~.
The Lycoming County Court of Common Pleas' declaration, while certainly highly relevant
evidence, is not binding on the Commissioner. See L~, 424 F.2d at 410 (citing Cain v. Sec'y of Health, Educ., & Welfare, 377 F.2d 55, 58 (4th Cir. 1967)). The Commissioner may disregard the declaration
if it is "demonstrably inconsistent with the general law of the state." Id. Here, however, the Lycoming Court's declaration is consistent with Pennsylvania law.
As stated in B~, an affidavit created for the purpose of obtaining health benefits does not establish
a common law marriage.
As such, the Commissioner would need to challenge the factual, not the legal, basis
for the Lycoming County decree. Given that Mary's affidavit stating she was married
directly contradicted her stipulation before the Lycoming County Court, she presented
false information in one of the documents. If the Commissioner gathers evidence that
the facts in her stipulation are false, then he would not have to recognize the Lycoming
County Court's decree. For example, the Commissioner could gather additional evidence
to determine if Mr. K~ and Mary actually held themselves out as married in the community,
or purchased property together as a married couple. However, this would require an
independent investigation involving a public records search and locating witnesses
who knew Mr. K~ and Mary. Based on the records currently available, there is insufficient
evidence to disprove the facts in Mr. K~ and Mary's stipulation. As such, it appears
that the affidavit for health insurance purposes, not the stipulation, contained false
Mary will likely be able to obtain Social Security benefits on James' account and
her eligibility was not interrupted by a marriage to Mr. K~. Mr. K~ and Mary's affidavit
attesting to a common law marriage does not establish the necessary intent to marry
because it was created to allow Mary to obtain health insurance benefits. Therefore,
the marriage was void and never existed for the purpose of Social Security benefits.
Granting benefits may appear inequitable given that Mary clearly provided false information
either on her affidavit to obtain health insurance or on the stipulation in Lycoming
County Court. However, a false affidavit to Mr. K~'s health insurer does not establish
a common law marriage, but would possibly be evidence that Mr. K~ and Mary defrauded
Mr. K~'s insurer. Alternatively, Mary and Mr. K~ may have submitted a false stipulation
to the Lycoming County Court, but an investigation into the facts asserted in the
stipulation would be necessary to attack the Lycoming County Court's decree. Regardless,
without additional evidence that the stipulation was false and that Mary and Mr. K~
were actually married, Mary's eligibility for surviving divorced spouse benefits was
Eric P. Kressman
Acting Regional Chief Counsel,
Edward C. Tompsett
Assistant Regional Counsel