QUESTION PRESENTED
In light of evidence regarding the deceased number holder J~ (NH’s) marriages to both
L~ and T~, you asked whether the Claimant or T~ validly married to the NH under Texas
law at the time of his death in September 2002 for purposes of determining the Claimant’s
entitlement to widow’s insurance benefits on the NH’s record as his widow[1] under
Title II of the Social Security Act (Act).
ANSWER
We believe that a Texas court would find that the Claimant and the NH entered into
a common-law marriage in September 1980 and were validly married at the time of the
NH’s death in September 2002. Therefore, we believe there is legal support for the
Social Security Administration (SSA or agency) to find that the Claimant is the NH’s
widow for purposes of her application for widow’s insurance benefits on the NH’s record.
BACKGROUND
The NH died on September XX, 2002, while domiciled in Texas. On October XX, 2018,
the Claimant filed an application for widow’s insurance benefits alleging that she
and the NH entered into a common-law marriage on September xx, 1980, in Houston, Texas
that continued until the NH’s death. There is evidence indicating that the NH had
a prior marriage with T~ in 1975 before his marriage to the Claimant in 1980. Below,
we identify the evidence related to their purported marriages to the NH.
Evidence from the NH Before his Death in September
2002
In his December XX 1996 application for Social Security retirement benefits, the NH
stated that he married the Claimant in 1980 in Houston, Texas and had six children.[2]
The agency awarded the NH benefits. In 1997, five of the NH’s children applied for
child’s insurance benefits on the NH’s record. In November 1998, the NH’s sixth child
filed for child’s benefits on his record. The agency awarded benefits to all six children
as the natural, legitimate children of the NH. The Claimant, as their mother, served
as representative payee for all six children.[3]
The NH’s Purported Marriage to the Claimant in
1980
Following the NH’s death, you advised that on September XX, 2002, the Claimant filed
an application for mother’s benefits as the NH’s widow with the NH’s children in her
care who were entitled to benefits on his record. In the application, the Claimant
stated she and the NH had a common-law marriage beginning September XX, 1980. The
Claimant requested to withdraw this application because additional benefits were not
payable due to the family maximum, and the agency denied this application.
Years later, as noted, on October XX, 2018, the Claimant filed an application for
widow’s benefits on the NH’s record as his widow again alleging that she and the NH
entered into a common-law marriage on September XX, 1980, in Houston, Texas, which
lasted until his death in September 2002.
In support of her recent application, in November 2018, the agency obtained a statement
from the Claimant in the Form SSA-754, Statement of Marital Relationship, as follows:
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•
The Claimant alleged that she and the NH started living as husband and wife in September
1980 in Houston, Texas. The Claimant stated that they lived together continuously
since September 1980 until the NH’s death in 2002. The Claimant stated that they lived
in Houston, Texas, from September 1980 to March 1981; in Tyler, Texas, from March
1981 to November 1989; and in Woodbridge, Virginia, from 1989 until 2002. The Claimant
stated that she and the NH had an understanding when they began living together that
they were “married under God till death do us part.” She said this understanding changed
when the NH got sick in 2002 and he moved back to Texas by himself to be cared for
by his daughter. The Claimant stated that she and the NH did not have an agreement
that a ceremonial marriage would be performed in the future. She stated that she believed
that living together with the NH made them legally married. The Claimant and the NH
had six children together. They had four children born while they were living in Texas:
G~ in 1981, B~ in 1984, P~ in 1987, and J~ in 1988. The NH and the Claimant had two
more children born while they were living in Virginia: D~ in 1991 and J~ in 1995.
The Claimant stated that after she and the NH started living together, she was known
as L~ . She also stated that she and the NH introduced each other as husband and wife
to relatives, friends, neighbors, and business acquaintances. The Claimant alleged
that she and the NH were listed as husband and wife in an IRS document from 1980 and
a home loan document from 1995, but that these documents were destroyed in a fire.
The Claimant stated that mail was sent to her with the name of Mrs. L~.
The agency obtained two statements from the Claimant in the Form SSA-795, Statement
of Claimant or Other Person. The Claimant provided her first statement in the Form
SSA-795 dated April X, 2019, in response to the agency’s questions regarding where
the NH was living at the time of his death, as follows:
-
•
The Claimant stated she was the NH’s wife, and that the NH was living with his daughter,
K~, and was in hospice at the time of his death. The Claimant stated that the NH moved
to Tyler, Texas to be his permanent home. The Claimant stated she believed that the
NH’s death certificate listed the NH’s marital status as divorced with no surviving
spouse because Ms. W~, the NH’s daughter and the informant for the death certificate,
was not happy that the Claimant could not care for the NH in Virginia when he became
sick.
The Claimant provided a second statement in the Form SSA-795 (which is undated, but
the agency received it on April XX, 2020), as follows:
-
•
In response to statements by the NH’s daughter K~ about a marriage between the NH
and T~ (detailed below), the Claimant was asked questions about this possible marriage.
The Claimant stated she was not aware of the NH’s marriage to T~, and left blank the
portions of the form asking her to provide information about the marriage of T~ and
the NH. She stated that she met the NH in June 1980 and that they began dating and
went to church together. She stated that on September XX, 1980, she and the NH were
married in a common-law marriage with a small group of friends present. She stated
that she and the NH lived in Houston, Texas, and T~, Texas, until 1989. In September
1989, the NH moved to Virginia for a job. In October 1989, the Claimant and the children
joined the NH in and lived in Woodbridge, Virginia, where the Claimant and the NH
later bought a house using the NH’s VA loan. The Claimant stated that the NH retired
in 1997 because he was sick with emphysema. The Claimant stated that the NH became
very mean and was moved out of their house by the police, and the NH lived by himself
in an apartment in Woodbridge, Virginia. The NH later moved back to Tyler, Texas,
to live with his oldest daughter, K~. The Claimant stated that their children called
and wrote to the NH on a daily basis. The Claimant stated that on September XX, 2001,
she took her children down to Texas to see the NH. The NH continued to live with Ms.
W~ for about a year until he was placed back in hospice. The Claimant stated that
Ms. W~ did not tell her that the NH was back in hospice or that the NH had died in
2002. The Claimant believed that Ms. W~ did not tell her because she was mad at her
for not caring the NH when he became ill in Virginia.
The agency also obtained three additional witness statements on the Form SSA-753 Statement
Regarding Marriage from the Claimant’s brother and from two of the Claimant’s and
the NH’s children:
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•
On November XX, 2018, T~, the Claimant’s brother, completed the SSA Form 753 Statement
Regarding Marriage. Mr. S~ identified the NH as his brother-in-law and stated that
he considered the Claimant and the NH to be husband and wife. Mr. S~ stated that he
knew the NH for 28 years and that he would see the NH at family gatherings at least
once a year. Mr. S~ stated that the NH and the Claimant were generally known as husband
and wife. In addition, Mr. S~ stated that the Claimant and the NH were married, had
six children, and lived together since 1980. He stated that the Claimant and the NH
came to family gatherings together and “were always very open about being married.”
Mr. S~also stated that he heard the Claimant and the NH refer to each other as husband
and wife every time he saw them, which was at least once a year. He also stated that
the Claimant and the NH maintained a home and lived together as husband and wife in
Tyler, Texas, from 1980 to 1990, and in Prince William County, Virginia, from 1990
to 1997. Mr. S~ stated that the Claimant and the NH lived together continuously from
1980 to 1997.
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•
On November X, 2018, P~, the Claimant’s and the NH’s daughter, completed SSA Form-753
Statement Regarding Marriage. P~ stated that the Claimant and the NH were her parents
and that they lived together until her father’s death in 2002. She also stated that
he heard the Claimant and the NH refer to each other as husband and wife. She believed
them to be husband and wife, and they were generally known as husband and wife. She
also stated that the Claimant and the NH maintained a home and lived together as husband
and wife in Tyler, Texas, from 1980 to 1990, and in Prince William County, Virginia,
from 1990 to 1997. P~ further stated that the Claimant and the NH lived together from
1980 to 2002, but that the last six months of the NH’s life, they did not live together
because the NH returned to Texas.
-
•
On November XX, 2018, B~, the Claimant’s and the NH’s daughter, completed SSA Form
753 Statement Regarding Marriage. She stated that the Claimant and the NH were generally
known as husband and wife. Ms. D~ said she believed the NH and the Claimant to be
husband and wife, and that they referred to each other as husband and wife all the
time. She also stated that the Claimant and the NH maintained a home and lived together
continuously as husband and wife in Tyler, Texas, from 1980 to 1990, and in Prince
William County, Virginia, from 1990 to 2002.
The agency also obtained two statements from the NH’s daughter, K~ (also referred
to as K~) W~, in Form SSA-795 Statement of Claimant or Other Person, as follows:
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•
On April XX, 2019, Ms. W~ completed the Form SSA-795 Statement of Claimant or Other
Person. She stated the NH was living in Tyler, Texas, at the time of his death, and
that the NH considered Tyler, Texas, to be his permanent home. Ms. W~ stated that
at the time of the NH’s death, he was married to the Claimant, who was living with
in Virginia with her and the NH’s children. Ms. W~ stated that the NH’s most recent
marriage was to the Claimant, but she said the NH and the Claimant did not have a
formal marriage. Ms. W~ stated that the NH and the Claimant lived together from 1980
to 1997, first in Texas and then in Virginia. Ms. W~also stated, “I never was sure
his divorce from his 3rd wife T~ was finalized.”
-
•
On April XX, 2020, K~ completed a second Form SSA-795 Statement of Claimant or Other
Person in response to the agency’s specific questions about the possible marriage
and divorce between the NH and T~. She stated that the NH and T~ were married about
1975 in Houston, Texas, in front of a justice of the peace. Ms. W~ said she did not
know about a divorce between the NH and T~ Ms. W~ stated she thought that the NH got
divorce paperwork from T~, but Ms. W~ did not know what happened with it. Contrary
to her earlier statement, Ms. W~ now stated that as far as she knew, there was no
marriage between the NH and the Claimant, but the NH and the Claimant lived together
for 17 years. Ms. W~said the NH and the Claimant separated around 1996 to 1997. Ms.
W~ stated she did not know if there was a divorce between the NH and the Claimant.
The NH’s Texas death certificate reflects that the NH was divorced with no surviving
spouse, but it does not specify from whom the NH was divorced. Ms. W~, his daughter,
was the informant for the death certificate information.
The NH’s Purported Marriage to
T~
in 1975
You advised that on April XX, 2006 (after the NH’s 2002 death), T~ filed for disability
insurance benefits and stated on her application that she was currently married to
the NH and that they had been married June X, 1975 in Houston, Texas. You provided
information from a query of the State of Texas Marriage License Application Index
showing that T~ and the NH entered into a ceremonial marriage on June XX, 1975 in
Harris County, Texas. Terry died on March X, 2017.
As described above, Ms. W~, the NH’s daughter, stated that the NH had a prior marriage
to T~, but Ms. W~ had no clear information about a divorce.
ANALYSIS
A. Federal Law: Widow under the Act for Widow(er)’s Insurance
Benefits[4]
Under Title II of the Act, a claimant may be entitled to widow(er)’s insurance benefits
on a deceased insured individual’s account if, among other things, the claimant is
the widow(er) of the insured individual and their marriage lasted nine months before
the insured individual died.[5] See 42 U.S.C. §§ 402(e)(1), (f)(1), 416(a)(2), (c),
(g); 20 C.F.R. § 404.335. [5] The marriage must have lasted for at least nine months
immediately before the day the insured individual died. See 20 C.F.R. § 404.335(a);
POMS GN 00305.100.
The agency will find that a claimant is an insured individual’s widow(er) if the courts
of the State in which the insured individual resided at the time of death “would find
that such applicant and such insured individual were validly married” at the time
such insured individual died, or if, under application of that State’s intestate succession
laws, the applicant would be able to inherit a spouse’s share of the insured’s personal
property. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. Here, the evidence
shows that the NH resided in Texas at the time of his death in 2002. We therefore
look to Texas law to determine whether the Claimant is the NH’s widow. As the Claimant
has alleged a common-law marriage to the NH that began in 1980, we first consider
whether she has proven a common-law marriage under Texas law.
B. State Law: Validly Married under Texas Law at the Time of the
NH’s Death
1. Texas Law and the Claimant’s Common-Law Marriage to the NH
a. Overview of the Elements of a Common-Law Marriage
Texas law authorizes ceremonial and common-law marriage. See Tex. Fam. Code Ann. §§
2.001 – 2.602; Russell v. Russell, 865 S.W.2d 929, 931-33 (Tex. 1993) (“[c]ommon law
marriages have been recognized in Texas since 1847”); Whaley v. Peat, 377 S.W.2d 855,
857 (Tex. Civ. App. - Houston 1964, writ ref’d n.r.e.) (a Texas common-law marriage
produces the same legal consequences as a ceremonial marriage). The elements of a
valid common-law, or informal, marriage under Texas law are:
Texas law authorizes ceremonial and common-law marriage. See Tex. Fam. Code Ann. §§
2.001 – 2.602; Russell v. Russell, 865 S.W.2d 929, 931-33 (Tex. 1993) (“[c]ommon law
marriages have been recognized in Texas since 1847”); Whaley v. Peat, 377 S.W.2d 855,
857 (Tex. Civ. App. - Houston 1964, writ ref’d n.r.e.) (a Texas common-law marriage
produces the same legal consequences as a ceremonial marriage). The elements of a
valid common-law, or informal, marriage under Texas law are:
(1) an agreement to be married,
(2) cohabitation in Texas as spouses, and
(3) representation, or holding out to others that they are married.
See Tex. Fam. Code Ann. § 2.401(a); Estate of Claveria v. Claveria, 615 S.W.2d 164,
166 (Tex. 1981); Ex parte Threet, 333 S.W.2d 361, 364 (Tex. 1960); see also Van Hooff
v. Anderson, 2016 WL 193172, at *3 (Tex. App. – Amarillo Jan. 14, 2016, no pet.) (“Other
than terminology used, the common law marriage requirements and the statutory requirements
for an informal marriage are the same.”). A common-law marriage does not exist until
a party meets all three elements, which courts determine on a case-by-case basis and
on the specific facts presented. Estate of Claveria, 615 S.W.2d at 166; Nguyen v.
Nguyen, 355 S.W.3d 82, 88-89 (Tex. App. – Houston [1st Dist.] 2011, pet. denied).
b. Rebuttable Presumption of No Agreement to be Married
As noted above, one of the elements of a common-law marriage is an agreement to be
married. Tex. Fam. Code Ann. § 2.401(a). Texas law provides that if a party does not
bring a proceeding to prove a common-law marriage within two years from the date the
parties “separated and ceased living together,” then “it is rebuttably presumed that
the parties did not enter into an agreement to be married.” Tex. Fam. Code Ann. §
2.401(b).[6] Section 2.401(b) is not a statute of limitations that requires a person
to prove a common-law marriage within two years of the end of the relationship; rather,
it creates only a rebuttable presumption that no common-law marriage existed, and
an individual may rebut such presumption with evidence showing that a common-law marriage
did in fact exist. See Wilson ex rel. C.M.W. v. Estate of Williams, 99 S.W.3d 640,
644-45 (Tex. App. - Waco 2003, no pet.). The Texas Supreme Court has explained that
a rebuttable presumption has “no effect on the burden of persuasion,” that the effect
of a rebuttable presumption “is to shift the burden of producing evidence to the party
against whom it operates,” and that “[o]nce that burden is discharged and evidence
contradicting the presumption has been offered, the presumption disappears” and “[t]he
evidence on the issue is then evaluated as it would be in any case.” General Motors
Corp. v. Saenz o/b/o Saenz, 873 S.W.2d 353, 359 (Tex. 1993); see alsoJoplin v. Borusheski,
244 S.W.3d 607, 611 (Tex. App. – Dallas 2008, no pet.) (noting that “[t]he effect
of a presumption [under Tex. Fam. Code Ann. § 2.401(b)] is to force the party against
whom it operates to produce evidence to negate the presumption”).
The Claimant reported that the NH moved back to Texas sometime in either 1999 or 2002,
while she and their children stayed in Virginia. Additionally, the NH died in September
2002. There is no evidence in this case that the Claimant commenced a proceeding to
prove a common-law marriage to the NH within two years of their separation. Because
she did not commence a proceeding to prove a common-law marriage to the NH within
two years of their separation, there is a rebuttable presumption that she and the
NH had no agreement to be married, and thus, that she was not common-law married to
the NH. See Tex. Fam. Code Ann. § 2.401(b); Wilson ex rel. C.M.W., 99 S.W.3d at 644-45.
If the Claimant provides sufficient contradicting evidence to rebut the presumption
of no agreement to be married, the presumption goes away, and she must then prove
the three elements of a valid common-law marriage by a preponderance of the evidence,
as addressed next. See General Motors Corp., 873 S.W.2d at 359; Joplin, 244.S.W.3d
at 611-612. We address below whether the Claimant has rebutted the presumption and
proven a valid common-law marriage under Texas law.
c. Burden of Proof: Preponderance of the Evidence
Unlike some other States, which impose a higher burden of proof on claimants who seek
to prove the existence of a common-law marriage, in Texas the party seeking to prove
the existence of a common-law marriage holds the burden of proof by a preponderance
of the evidence.[7] SeeTompkins v. State, 774 S.W.2d 195, 208 (Tex. Crim. App. 1987);
Farrell v. Farrell, 459 S.W.3d 114, 117 (Tex. App. – El Paso 2015, no pet.); Nguyen,
355 S.W.3d at 88-89. Texas law defines that standard as the greater weight and degree
of credible evidence that would create a reasonable belief in the truth of the claim.
See Herrera v. Stahl, 441 S.W.3d 739, 741 (Tex. App. – San Antonio 2014, no pet.).[8]
Thus, the Claimant must prove by a preponderance of evidence that she and the NH agreed
to be married, lived together in Texas as spouses, and represented to others that
they were married.
In terms of the type of evidence offered to meet this burden, the Claimant provided
her own statements and statements from three relatives, including two of her children
with the NH, to support her claim of a valid common-law marriage with the NH.[9] Although
she did not submit any documentary evidence, under Texas law, even statements alone
can be sufficient to meet the preponderance of the evidence burden. See Small v. McMaster,
352 S.W.3d 280, 283-284 (Tex. App. – Houston [14th Dist.] 2011, pet. denied) (the
wife’s testimony and the testimony of other witnesses was sufficient evidence of an
agreement to be married). Indeed, a spouse’s statements can constitute direct evidence
of the elements of a common-law marriage. See Martinez v. Lopez, 2011 WL 2112806,
at *5-6 (Tex. App. – Houston [14th Dist.] 2011, no pet.) (finding that the wife’s
uncontroverted testimony that they represented themselves as married to others supported
the element of holding out to others, and the fact that the wife was not mentioned
in financial documents was not direct proof that the couple did not represent themselves
as husband and wife;); Omodele v. Adams, 2003 WL 133602, at *2 (Tex. App. – Houston
[14th Dist.] 2003, no pet.) (the wife’s uncontroverted testimony that she and the
husband had an agreement to be married was alone sufficient to show an agreement to
be married; testimony established that the parties lived together for almost two years
and that they purchased a home and insurance together as husband and wife); Winfield
v. Renfro, 821 S.W.2d 640, 645 (Tex. App. – Houston [1st Dist.] 1991, writ denied)
(finding that the wife’s testimony was direct evidence of their agreement to be married).
In addition, circumstantial evidence can prove the requisite elements of common-law
marriage. Russell, 865 S.W.2d at 933. “A fact is established by circumstantial evidence
when the fact may be fairly and reasonably inferred from other facts proved in the
case.” Id. (quoting Dallas Co. Flood Control v. Cross, 815 S.W.2d 271, 279-80 (Tex.
App. – Dallas 1991, writ denied)). The Texas Supreme Court has provided examples of
circumstantial evidence, explaining that “proof of common-law marriage may be shown
by the conduct of the parties, or by such circumstances as their addressing each other
as husband and wife, acknowledging their children as legitimate, joining in conveyances
as spouses, and occupying the same dwelling place.” Estate of Claveria, 615 S.W.2d
at 166. “[T]he circumstances of each case [as to the elements of a common-law marriage]
must be determined based upon its own facts.” Id.
Therefore, we next consider whether the greater weight and degree of credible evidence
provided in the Claimant’s statements and their relatives’ statements supports a reasonable
belief in the truth of the Claimant’s assertion that they agreed to be married, lived
together as spouses, and represented to others that they were married. See Herrera,
441 S.W.3d at 741. In other words, we consider whether the Claimant has proven that
it was more probable than not that she and the NH had a common-law marriage. See Upjohn
Co. v. Freeman, 847 S.W.2d 589, 591 (Tex. App. – Dallas 1992, no writ) (“Preponderance
of the evidence means the greater weight and degree of credible evidence” and the
court of appeals considers whether the “trier of fact could reasonably conclude that
the existence of a fact is more probable than not”). As addressed below, we believe
that she has.
d. Application of the Elements of a Common-Law Marriage to the
Claim
i. Elements
a. Agreement to Marry
The first element for a valid common-law marriage is an agreement to marry. See Tex.
Fam. Code Ann. § 2.401(a)(2). The parties must prove by a preponderance of the evidence
that they had a “present, immediate, and permanent marital relationship and that they
did in fact agree to be husband and wife.” Eris v. Phares, 39 S.W.3d 708, 714 (Tex.
App. – Houston [1st Dist.] 2001, pet. denied). The parties show an agreement to be
married with proof that they intended to create an immediate and permanent marital
relationship, not merely a cohabitation or temporary association that either party
may end at any time and not an agreement to marry in the future. See Van Hooff, 2016
WL 193172, at *3; Gary v. Gary, 490 S.W.2d 929, 932 (Tex. Civ. App. – Tyler 1973,
writ ref’d n.r.e.); Perales v. Flores, 147 S.W.2d 974, 976 (Tex. Civ. App – San Antonio
1941, writ ref’d). However, the parties’ intent to marry ceremonially in the future
does not necessarily negate an inference that the parties believe that they are already
informally or common-law married. Aguilar v. State, 715 S.W.2d 645, 648 (Tex. Crim.
App. 1986). As explained above, direct or circumstantial evidence may establish an
agreement to be married. Russell, 865 S.W.2d at 931. Testimony of one of the parties
to the marriage as to their agreement to be married constitutes some direct evidence
of the parties’ agreement to be married. Small, 352 S.W.3d at 283-284. Evidence of
cohabitation and representations to others that the parties are married may show circumstantial
evidence of an agreement to be married. See Lee v. Lee , 981 S.W.2d 903, 906 (Tex.
App. – Houston [1st Dist.] 1998, pet. denied).
As explained above, there is a rebuttable presumption under Texas law that the Claimant
and the NH did not agree to be married. See Tex. Fam. Code Ann. § 2.401(b); Wilson
ex rel. C.M.W., 99 S.W.3d at 644-45. However, we believe that Texas courts would find
that the Claimant has provided evidence in both her statements and witness statements,
as detailed below, showing an agreement to be married starting in approximately September
1980 that is sufficient to rebut this presumption. See General Motors Corp., 873 S.W.2d
at 359; In the Matter of Marriage of Farjardo, 2016 WL 4206009, at *2-4 (Tex. App.
– Houston [14th Dist.] Aug. 9, 2016, no pet.) (noting that the party with the burden
of rebutting the presumption must come forward with more than a scintilla of evidence,
and finding that the petitioner successfully rebutted the statutory presumption with
her testimony that she believed respondent agreed to be married, that she lived with
him for 12 years, and that he introduced her as his wife on several occasions, and
with evidence of showing that they filed their tax returns jointly as spouses); Interest
of J.J.F.R., 2016 WL 3944823, at *3-6 (Tex. App. – San Antonio July 20, 2016, no pet.)
(noting that the party with the burden of rebutting the presumption must come forward
with sufficient evidence of an agreement to be married, and finding that the petitioner
successfully rebutted the statutory presumption with her testimony that she and respondent
agreed to be married and began living together as husband and wife when they were
expecting their first child). Thus, we next consider whether Texas courts would find
that the Claimant has met her burden of establishing an agreement to marry by a preponderance
of the evidence.
Here, the Claimant’s statements provide evidence that she and the NH had an agreement
for a permanent marital relationship, as opposed to a cohabitation or temporary association
that either party could end at any time. The Claimant reported in the SSA-795 that
she and the NH were married on September XX, 1980 with a small group of friends present.
The Claimant reported in the SSA-754 that she had an understanding when she began
living with the NH that “we were married under God till death do us part.” The Claimant
stated that she and the NH lived together in Houston, Texas from September 1980 to
March 1981 and in Tyler, Texas from March 1981 to October 1989, before they moved
to Virginia in 1989, where they continued to live together for more than ten years.
The Claimant also stated she believed that living together made them legally married.
Thus, her statements support this element.
Their conduct in their approximately 22 years together (the first nine years in Texas),
as explained in statements, also supports an agreement for a permanent marital relationship.
Significantly, in his 1996 application for Social Security retirement benefits, consistent
with the Claimant’s claim, the NH also stated that he married the Claimant in 1980
in Houston, Texas. The NH reported that he had six children, and the Claimant was
the representative payee for the children when they received child’s benefits on his
record even before the NH’s death. The Claimant stated she was known as L~, and thus,
was known by the NH’s last name. The Claimant also reported that she and the NH had
six children together, four of whom were born during their nine years living in Texas
and two more born after they all moved to Virginia together. Their approximately 22
years living together, using the same last name, and having six children together
support this element of an agreement for a permanent marital relationship. See Lewis
v. Anderson, 173 S.W.3d 556, 562 (Tex. App. – Dallas 2005, rehearing of pet. denied)
(the couple’s long cohabitation and adoption of children was evidence supportive of
an agreement to be married); In re Marriage of Hallgarth, 2001 WL 574833, at *2 (Tex.
App. – Amarillo 2001, no pet.) (the decision to have children together, among other
things, including use of the same last name, supported the element of an agreement
to be married); Estate of Claveria, 615 S.W.2d at 166 (conduct of the parties, such
as acknowledging their children as legitimate, can support a common-law marriage);
Flores Gonzales v. Viuda de Gonzales, 466 S.W.2d 839, 841 (Tex. Civ. App. – Dallas
1971, writ refused n.r.e.)(the couple’s recognition and support of their child, among
other evidence, was sufficient and relevant evidence to raise the issue of an agreement
to be married).
Additionally, their relatives’ statements as to their cohabitation and representation
to others provide circumstantial evidence to support this element. Two of the Claimant’s
and the NH’s daughters, P~ and B~, believed the Claimant and the NH to be married
and reported that the Claimant and the NH were generally known as husband and wife.
Both of their daughters reported that their parents maintained a home and lived together
as husband and wife in Texas from 1980 until around 1990 when they moved to Virginia
and continued living together after they moved. Similarly, T~, the Claimant’s brother,
stated that the NH and the Claimant were married, lived together, and had six children.
He stated that the NH and the Claimant would come together to family gatherings at
least once a year and they “were always very open about being married.” Mr. S~ stated
that when he saw the NH and the Claimant they would refer to each other as husband
and wife. Thus, all three relatives relayed that the NH and Claimant referred to each
other as husband and wife, were generally known as husband and wife, and they believed
them to be husband and wife. This evidence of cohabitation and representation to others
provides circumstantial evidence to support this element of an agreement for a permanent
marital relationship. SeeIn re Marriage of Hallgarth, 2001 WL 574833, at *2 (finding
that 15 years of cohabitation, use of the same last name, and representations to third
parties that they were married constituted sufficient evidence of an agreement to
be married); Gonzalez, 466 S.W.2d at 841 (finding an agreement to be married where
the couple lived together, held themselves out as husband and wife, and recognized
and supported their children); Lee, 981 S.W.2d at 906 (representations to others can
constitute circumstantial evidence of an agreement to be married).
Considering this uncontroverted evidence, we believe Texas courts would find that
the greater weight and degree of credible evidence supports a reasonable belief that
they had an agreement for a permanent marital relationship, as opposed to a temporary
cohabitation or association that could be ended at any time. See Omodele , 2003 WL
133602, at *2 (the wife’s uncontroverted testimony that she and the husband had an
agreement to be married was alone sufficient to show an agreement to be married; testimony
established that the parties lived together for almost two years and that they purchased
a home and insurance together as husband and wife); Small, 352 S.W.3d at 283-284 (the
wife’s testimony and the testimony of other witnesses was sufficient evidence of an
agreement to be married); Eris, 39 S.W.3d at 714 (the court found that the following
evidence was sufficient to support the element of an agreement to be married: the
husband presented evidence that the wife moved into his home shortly after they began
dating; that she kept a few items of furniture, clothing, and personal items there;
that she slept at his home every night; and that they two lived as if they were married;
in addition, several of their friends and employees testified that they considered
the couple to be married).
Thus, we believe that Texas courts would find that the Claimant has proven by a preponderance
of the evidence that she and the NH had an agreement to create an immediate and permanent
marital relationship that indeed lasted approximately 22 years from 1980 until the
NH’s death in 2002, with the first nine years of their marriage in Texas before moving
to Virginia. As such, we believe the agency could reasonably conclude that the Claimant
has proven the first element for a valid common-law marriage under Texas law.
b. Cohabitation as Spouses
The second element for a valid common-law marriage requires that the couple live together
in Texas as spouses, but the cohabitation need not be continuous for a couple to prove
a common-law marriage. See Tex. Fam. Code Ann. § 2.401(a)(2); Small, 352 S.W.3d at
284. Additionally, as relevant here where the couple lived in both Texas and Virginia,
under Texas law, the Claimant must prove the elements of a common-law marriage while
living in Texas. See Williams v. Home Indem. Co., 722 S.W.2d 786, 788 (Tex. App. –
Houston [14th Dist.] 1987, no writ) (living together and holding out in another State
does not satisfy the requirements for common-law in Texas); Tex. Fam. Code Ann. §
2.401(a)(2) (“they lived together in this state as husband and wife and there represented
to others that they were married”) (emphasis added).
The statements from the Claimant, her brother, and the Claimant’s and the NH’s daughters
support this element of cohabitation in Texas. The Claimant stated in her application
that they were common-law married and lived together in Houston, Texas from September
1980 to March 1981 and in Tyler, Texas from March 1981 to October 1989, before they
moved to Virginia. Four of their six children were born during their years living
together in Tyler, Texas. Although the Claimant and the NH moved to Virginia in 1989,
as shown, there is evidence that the Claimant and the NH lived together in Texas for
approximately nine years before they moved. Therefore, this evidence is legally sufficient
to support a finding that the Claimant and the NH lived together as husband and wife
in Texas. As also relevant here where the NH and the Claimant separated in the final
year or so of their relationship, even if a couple is not living together at the time
of the death, they can still meet the element of cohabitation. Martinez v. Furmanite
America, Inc., 2018 WL 4469973, at *6 (Tex. App. – San Antonio 2018, pet. denied).
Furthermore, once a common-law marriage exists, it, like a ceremonial marriage, may
be terminated only by death or a court decree of divorce or annulment. SeeEstate of
Claveria, 615 S.W.2d at 167. Thus, separating and moving to another State do not terminate
a valid Texas common-law marriage. Considering the nine years the Claimant and the
NH lived in Texas where four of their children were born, we believe Texas courts
would find that the greater weight and degree of credible evidence supports a reasonable
belief that the Claimant and the NH cohabited in Texas as spouses.
c. Representation to Others as Married
The third element for a valid common-law marriage requires that the couple held out
to the public, or represented to others while living in Texas, that they were married.
See Tex. Fam. Code Ann. § 2.401(a)(2). Representation of the marriage to others, or
holding out to the public as being married, can be shown through the “conduct and
actions of the parties.” Eris, 39 S.W.3d at 715. Spoken words are not necessary to
prove this element; rather, the focus is upon whether the couple had a reputation
for being married. Id. Occasional introductions as husband and wife are not enough
to satisfy the holding out requirement, and there is no such thing as a secret common-law
marriage. Threet, 333 S.W.2d at 364; Winfield, 821 S.W.2d at 648-51. Instead, Texas
law requires that the couple “consistently [conduct] themselves as husband and wife
in the public eye or that the community [view] them as married.” Van Hooff, 2016 WL
193172, at *5. “[T]he jurisprudence in Texas strictly construes the holding out element
and has held that marriage is more than a contract; it is a ‘status’ in the community,
a general reputation, a public and open holding out that the parties are man and wife.”
Id. at *6.
The evidence provided establishes that the Claimant’s relationship with the NH was
not secret or known to only a few, but rather shows that their approximately 22-year
relationship was well known. In the Form SSA-754, the Claimant stated that in introducing
themselves to others, she and the NH referred to one another as husband and wife.
The Claimant and their six children used the NH’s last name. The Claimant listed numerous
relatives and others who knew of their relationship . Two of the NH’s daughters and
the Claimant’s brother stated that the couple referred to each other as husband and
wife, the couple was generally known as husband and wife, and they believed them to
be husband and wife. Their statements all support this element.
Additionally, the NH’s daughter, K~, wrote in her April 2019 statement that at the
time of the NH’s death, he was married to the Claimant. She stated that the NH and
the Claimant lived together in Texas and Virginia from 1980 to 1997. We note that
one year later in April 2020, Ms. W~ changed her statement and wrote that as far as
she knew, there was no marriage between the NH and the Claimant, though she acknowledged
that they lived together for 17 years. She stated that she was uncertain if the NH’s
prior marriage to T~ had ended by divorce before his relationship with the Claimant.
The Claimant told the agency that she believed Ms. W~ was mad at her for not caring
for the NH when he became ill. The Claimant also stated that Ms. W~ did not tell her
that the NH had been placed in hospice or even that the NH had died. Thus, Ms. W~
provides inconsistent statements that on the one hand support this element, but also
raise questions about the validity of a marriage between the NH and the Claimant.
A Texas court, as the fact finder, resolves conflicts in the evidence and is free
to disbelieve one party’s evidence and credit the testimony of the other party’s witnesses.
Estate of Whetstone, 2019 WL 698090, at *4 (Tex. App. – Dallas Feb. 20, 2010, pet.
denied).Given Ms. W~ own inconsistent statements to the agency and possible motivation
to provide statements against the Claimant, and considering the three consistent witness
statements provided to support the Claimant’s common-law marriage claim, as well as
the NH’s own statement in his 1996 application that he was married to the Claimant,
we believe that Texas courts would find that the greater weight and degree of credible
evidence supports a reasonable belief that over the course of their approximately
22-year relationship, including living together continuously in Texas for nine years
and having six children together (four during their time in Texas), the Claimant and
the NH held themselves out to others as being in a committed and dedicated marital
relationship. See Martinez, 2011 WL 2112806, at *5-6 (finding that the wife’s uncontroverted
testimony that they represented themselves as married to others supported the element
of holding out to others); Estate of Claveria, 615 S.W.2d at 166 (proof of common-law
marriage shown by such circumstances as occupying the same dwelling, acknowledging
their children as legitimate, and addressing each other as husband and wife); In re
Estate of Giessel, 734 S.W.2d 27, 30-31 (Tex. App. – Houston [1st Dist.] 1987, writ
ref’d n.r.e.) (the following evidence supported the holding out element: the couple
had lived together as husband and wife for 20 years, the husband represented to many
people in the community that the woman was his wife, and the couple had a reputation
in the community for being married).
Thus, we believe that Texas courts would find that the Claimant has proven by a preponderance
of the evidence that they represented to others that they were in a committed marital
relationship. Accordingly, we believe the agency could reasonably conclude that the
Claimant has proven the third element for a valid common-law marriage under Texas
law.
ii. The Totality of Evidence
In summary, despite the conflicting statements from the NH’s daughter, viewing the
totality of the evidence, we believe that Texas courts would find that the statements
from the Claimant, the Claimant’s brother, and the Claimant’s and the NH’s two daughters
establish that the Claimant and the NH agreed to be married, lived together, and represented
to others that they were married. In addition, it is significant that in 1996, the
NH reported to the agency that he was married to the Claimant. Furthermore, during
the course of their approximately 22-year marriage with the first nine years spent
in Texas, the NH and the Claimant had six children together, four born in Texas and
two in Virginia. SSA previously awarded the children benefits on the NH’s record as
his children. The Claimant and his children used the NH’s last name. In light of these
uncontroverted facts, we believe that the agency could reasonably conclude that Texas
courts would find that the Claimant and the NH established a common-law marriage under
Texas law at the time of the NH’s death in 2002.
2. The NH’s Multiple Marriages, the Presumption of the Validity of the
Claimant’s Most Recent Marriage to the NH, and Rebutting the
Presumption
As detailed above, there is evidence of the NH’s common-law marriage to the Claimant
beginning in 1980 in Texas. However, there is also some evidence of the NH’s prior
marriage to T~ in Texas in 1975. When two or more marriages of a person to different
spouses are alleged, Texas law presumes the validity of the most recent marriage until
the validity of the prior marriage is proven. Tex. Fam. Code Ann. § 1.102. The presumption
of the validity of the most recent marriage is one of the strongest presumptions under
Texas law. See Texas Employer’s Ins. Ass’n. v. Elder, 282 S.W.2d 371, 373 (Tex. 1955).
“The presumption’s strength increases with the lapse of time, acknowledgements by
the parties to the marriage, and the birth of children.” In re Estate of Loveless,
64 S.W.3d 564, 574 (Tex. App. – Texarkana 2001, no pet.). Texas law presumes that
the Claimant is the NH’s legal widow because her 1980 marriage to the NH in Texas
was his last, or most recent marriage. See Tex. Fam. Code Ann. § 1.102.The burden
is on the party attacking the validity of the most recent marriage, who must establish
both the existence of the prior marriage and its continuing validity at the time of
the later alleged marriage and must introduce sufficient evidence, standing alone,
to negate the dissolution of the prior marriage. See Estate of Claveria, 615 S.W.2d
at 165; In re Estate of Loveless, 64 S.W.3d at 574. As presented above, the evidence
indicates that the NH may still have been married to T~, whom he purportedly married
in 1975, at the time of the NH’s common-law marriage to the Claimant in 1980. Under
Texas law, a marriage is void if entered into when either party has an existing marriage
to another person that has not been dissolved by legal action or terminated by the
other spouse’s death. Tex. Fam. Code Ann. § 6.202(a); see also Romano v. Newell Recycling
of San Antonio, L.P., 2008 WL 227974 at *3 (Tex. App.-San Antonio January 30, 2008,
no pet.) (mem. op.) (“This rule rendering the subsequent marriage void applies whether
the marriage is ceremonial or common law.”); Phillips v. The Dow Chemical Company,
186 S.W.3d 121, 127 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (“Thus, a marriage
entered into while one party is married to another person is void from the outset
as a matter of law.”).
Therefore, we consider whether a Texas court would find that the T~ and the NH were:
(1) validly married in 1975, and (2) remained married at the time the NH entered into
his common-law marriage with the Claimant in 1980 and until his death in 2002, such
that the NH’s common-law marriage to the Claimant was void.
a. Texas Courts Would Likely Recognize the 1975 Marriage Between the NH and
the
T~
as Valid
As noted above, we must first consider whether Texas courts would find that T~ and
the NH were validly married. The evidence provided indicates that T~ and the NH had
a ceremonial marriage. A ceremonial marriage requires a couple to obtain a marriage
license from a county clerk, participate in a marriage ceremony by an authorized person,
and return the marriage license after the ceremony to the county clerk, who then records
the marriage license and mails the certified copy to the married couple. See Tex.
Fam. Code Ann. §§ 2.2002, 2.203(a), 2.206(a), 2.208(a). The recorded marriage license
with the completed marriage certificate is proof of a valid marriage. See Black v.
Shell Oil Co. , 397 S.W.2d 877, 881 (Tex. Civ. App. - Texarkana 1965, writ ref’d n.r.e.);
Jones v. State , 17 S.W.2d 1053, 1056 (Tex. Crim. App. 1928); see also Simpson v.
Simpson , 380 S.W.2d 855, (Tex. Civ. App. – Dallas 1964, writ ref’d n.r.e) (“It has
long been the established law of Texas that a ceremonial marriage entered into in
accordance with legal forms will raise the presumption, or inference of its legality.”).
We do not have a copy of a recorded marriage license/certificate reflecting T~ marriage
to the NH, but instead, we have two statements and a record from the State’s marriage
license application index. T~ reported in her 2006 application for disability benefits
(filed after the NH’s death in 2002) that she was currently married to the NH and
that they married on June X, 1975, in Houston, Texas. In addition, Ms. W~, the NH’s
daughter, also stated that sometime approximately between 1975 and 1977, T~ and the
NH were married in Houston, Texas by a justice of the peace. Most importantly, a query
of the State of Texas Marriage License Application Indexes available online shows
a record of a marriage on June XX, 1975, between the NH (age 43) and T~ (age 20) in
Harris County, Texas. See https://dshs.texas.gov/vs/marriagedivorce/mindex.shtm (last visited June 23, 2020). The website for the Texas Department of State Health
Services, Vital Statistics unit explains that the Marriage License Application Indexes
are a compilation of the marriage license applications that are sent to the Vital
Statistics Section of the Texas Department of State Health Services from the county
clerk in which the marriage license is filed. See id.
Texas law provides that the county clerk is to file with the State’s vital statistics
unit a copy of “each completed marriage license application.” Tex. Health & Safety
Code Ann. § 194.001(a). Further, “[t]he vital statistics unit shall maintain a statewide
alphabetical index, under the names of both parties, of each marriage license application
or declaration of informal marriage.” Tex. Health & Safety Code Ann. § 194.003(a).
Thus, although there is no completed marriage license/certificate here, the State
of Texas Marriage License Application Index indicates that the marriage license was
returned to the county clerk for recordation after the marriage ceremony between the
NH and T~ was performed. See Tex. Fam. Code Ann. §§ 2.206(a) (the person who conducts
the marriage ceremony is to complete the marriage license with regard to the ceremony
information and return the license to the county clerk), 2.208(b) (upon receipt of
a returned and completed marriage license following the ceremony, the county clerk
is to record on the marriage application the date of the marriage ceremony, the county
in which the ceremony was conducted, and the name of the person who conducted the
ceremony). Thus, we believe a Texas court would find that the Marriage License Application
Index record is sufficient evidence to prove a Texas ceremonial marriage between the
NH and T~ on June XX, 1975.
In addition, Texas law provides that every marriage entered into in this State is
presumed to be valid unless expressly made void or voidable. See Tex. Fam. Code Ann.
§1.01. Under Texas law, in order to establish a valid marriage, the parties must possess
legal capacity to marry, and there must not be any legal impediment prohibiting the
marriage. Franklin v. Smallridge, 610 S.W.2d 655, 657 (Tex. Civ. App. –Corpus Christi
1981, no writ). The evidence provided does not indicate that the NH and T~ were prohibited
from marrying by age, mental capacity, or a previous existing marriage. Therefore,
we believe a Texas court would likely recognize as valid the June 1975 marriage between
T~ and the NH. We next consider whether there would be sufficient evidence, standing
alone, to show that the marriage continued at the time of the Claimant’s more recent
common law marriage to the NH.
A marriage terminates only upon death, divorce, or annulment. Estate of Claveria,
615 S.W.2d at 167; see also Garcia v. Garcia, 2012 WL 3115763, at *5 (Tex. App. –
Fort Worth 2012, no pet.) (subsequent denials do not undo a marriage).As stated above,
to rebut the presumption that the NH’s most recent marriage to the Claimant is valid,
the evidence must prove the validity of T~ previous marriage to the NH and its continuing
validity at the time the NH entered into his common-law marriage with the Claimant
in 1980. See In re Estate of Loveless, 64 S.W.3d at 574. Texas case law explains that
the party attacking the validity of the most recent marriage must present “sufficient
evidence, standing alone, to negate the dissolution of the previous marriage.” Id.
As we believe Texas courts would likely find evidence of a valid marriage between
the NH and T~ beginning in June 1975, we next consider whether there is sufficient
evidence, standing alone, to show that their marriage had not been dissolved as of
the time the NH married the Claimant in 1980 (or at any point during the course of
their nine years living together in Texas before moving to Virginia).[10]
b. Texas Courts Would Find the Evidence Does not Rebut the Presumption of
Validity of the Most Recent Marriage Between the NH and the
Claimant
The party attacking the validity of the subsequent marriage must introduce sufficient
evidence standing alone to negate the dissolution of the previous marriage. In re
Estate of Loveless, 64 S.W.3d at 574. Evidence of the absence of official divorce
or annulment records will rebut the presumption that the prior marriage was dissolved
and that the most recent marriage is valid. See Davis v. Davis , 521 S.W.2d 603, 605
(Tex. 1975); see also Nguyen v. Nguyen, 355 S.W.3d 82, 89 (Tex. App. – Houston [1st
Dist.] 2011, pet. denied) (to rebut the presumption of validity of last marriage,
proponent of earlier marriage must prove that the first spouse was alive at the time
the husband married the second wife and that neither secured a divorce or annulment).
In terms of proving the absence of a divorce or annulment, courts have held that a
search of county records where the parties had lived would provide reasonable and
sufficient evidence of a lack of a record of divorce. See Rodriguez v. Avalos, 567
S.W.2d 85, 87 (Tex. App. – El Paso 1978, no writ) (certificate from district court
clerk certifying that no divorce was ever filed demonstrated the continued existence
of first marriage and rebutted the presumption of the validity of the subsequent marriage);
Dockery v. Brown, 209 S.W.2d 801, 803 (Tex. App. – El Paso 1947, no writ) (the first
spouse “was not required to establish absolutely nor to a moral certainty that her
marriage to [the husband] had not been dissolved, but the requirements of the law
were met if she introduced sufficient evidence, standing alone, to negate such dissolution
. . . She was not required to do the unreasonable and look to every jurisdiction where
a proceeding might possibly be had, but to look only where such proceedings must reasonably
be expected to be had under the law.”).
Because T~ and the NH were married in Harris County, Texas, it would be reasonable
for either T~ or the NH to obtain a divorce in Houston, which is in Harris County,
Texas. We do not have information on where T~ subsequently lived. The Claimant reported
that she and the NH lived briefly in Houston from 1980 to 1981 and then lived for
eight years in Tyler, Texas, which is in Smith County, from 1981 to 1989. In her 2006
application for benefits, T~ reported that she was currently married to the NH, though
he had died in 2002. T~ subsequently died in 2017. We do not have evidence regarding
any search of records in Harris County or Smith County, Texas. All we have are statements
from the NH’s daughter, Ms. W~, that she was not sure if the NH’s marriage to T~ had
been dissolved prior to his relationship with the Claimant. In her April 2019 statement,
she reported: “I never was sure his divorce from his 3rd wife T~ was finalized.” In
her April 2020 statement, Ms. W~ stated she thought that the NH got divorce paperwork
from T~, but she did not know what happened with it.
We believe a Texas court would find that these vague statements from Ms. W~ that she
was not sure if the divorce between T~and the NH was finalized is not sufficient evidence
to establish a lack of a record of divorce between T~ and the NH. As stated, the party
attacking the validity of the subsequent marriage must introduce sufficient evidence,
standing alone, to negate dissolution of the previous marriage. In re Estate of Loveless,
64 S.W.3d at 574. We believe a Texas court would find that the vague statements were
insufficient to negate the dissolution of the marriage between T~ and the NH.
In addition, in weighing the totality of the evidence as to both marriages, the evidence
provided strongly supports the presumption of the validity of the most recent common-law
marriage between the Claimant and the NH. For example, the Claimant stated she and
the NH were married and lived together for nearly 20 years (with nine years together
in Texas), they referred to each other as husband and wife, they had six children
together, and they all used the NH’s last name. In his 1996 application for benefits,
the NH reported to the agency that he was married to the Claimant since 1980. Additionally,
the Claimant’s brother and two of their six children stated that the NH and the Claimant
were generally known as husband and wife, and that the Claimant and the NH were very
open about their marriage. Ms. W~, the NH’s daughter, also stated that the NH was
married to the Claimant at the time of his death in her original statement to the
agency and acknowledged that they lived together for more than 17 years. Under the
specific facts here, the evidence of T~ and the NH’s prior marriage with Ms. W~’ vague
statements that she was unclear as to whether they divorced, does not overcome the
stronger evidence of the Claimant and NH’s more recent common-law marriage of approximately
22 years with six children. The presumption’s strength increases with the lapse of
time, acknowledgment by the parties to the marriage, and the birth of children – all
of which are present here. In re Estate of Loveless, 64 S.W.3d at 574.
Therefore, for all of these reasons, we believe a Texas court would likely find that
the evidence of T~ prior marriage to the NH with the absence of evidence of a divorce
does not rebut the very strong presumption of the validity of the NH’s common-law
marriage to the Claimant in 1980. See Texas Employer’s Ins. Ass’n v. Elder, 282 S.W.2d
at 373 (affirming the court of appeals’ finding that “[t]here is no evidence that
the first marriage had been dissolved or that it had not been dissolved” and thus,
“in the absence of evidence it will be presumed that the subsequent marriage was legal,
and that the prior marriage had been dissolved.”); In re Estate of Loveless, 64 S.W.3d
at 574 (“This presumption is one of the strongest, if not the strongest, known to
law. The presumption is, in itself, evidence and may even outweigh positive evidence
to the contrary.”). As such, we believe a Texas court would find that under Texas
law, the Claimant was validly married to the NH at the time of his death in 2002.
Conclusion
We believe that a Texas court would find that the Claimant has proven that she and
the NH entered into a common-law marriage in September 1980 and that she was validly
married to the NH at the time of the NH’s death in September 2002. Therefore, we believe
that the agency may reasonably conclude that the Claimant is the NH’s widow under
the Act for Title II widow’s benefit purposes .
Footnotes:
[1]The Act defines the term surviving spouse to mean a widow or widower. See Act §
216(a)(2), (c), (g), 42 U.S.C. § 416(a)(2), (c), (g).
[2] You advised that in the SSA system, this marriage was coded as a ceremonial marriage
at that time in 1996. No documentary evidence of a ceremonial marriage has been provided
to us with this legal opinion request.
[3] You advised that the Claimant did not file for spouse’s benefits on the NH’s record
as a spouse under the age 62 who had a child in her care entitled to child’s insurance
benefits on the NH’s record. See 20 C.F.R. § 404.330(c).
[4] A claimant must satisfy other criteria for entitlement to widow(er)’s insurance
benefits that are outside the scope of this legal opinion request, which asks only
about marital status. See 42 U.S.C. §§ 402(e), (f), 416(c), (g); 20 C.F.R. § 404.335.
[5] The marriage must have lasted for at least nine months immediately before the
day the insured individual died. See 20 C.F.R. § 404.335(a); POMS GN 00305.100.
[6] Separating and ceasing living together includes the death of one of the spouses
of a purported common-law marriage. See Prince v. Foreman, 2010 WL 87334, at *1-2
(Tex. App. – Ft. Worth 2010, pet. denied); Lopez-Rodriguez v. City of Levelland ,
2004 WL 1746045, at *7 (N.D. Tex. Aug. 3, 2004).
[7] Because of the States’ differing burdens of proof, other States applying a higher
burden of proof may have an outcome different from the one in this case.
[8] Parties to a common-law marriage may execute a declaration of informal marriage
on a form prescribed by the bureau of vital statistics and provided by the county
clerk, which affirms the elements of a common-law marriage and constitutes prima facie
evidence of the marriage. Tex. Fam. Code Ann. §§ 2.402, 2.404(d); Russell, 865 S.W.2d
at 931; Rodriguez v. State, 2018 WL 3372637, at *15 (Tex. App. – El Paso July 11,
2018, no pet.); Van Hooff, 2016 WL 193172, at *3. There is no such declaration of
informal marriage in the present case, however. Therefore, the Claimant must prove
the three elements of a common-law marriage by a preponderance of the evidence.
[9] The regulations explain that a person who applies for Social Security spousal
benefits, such as widow’s benefits, on a number holder’s record, must provide evidence
of the marriage to the number holder and sets out the agency’s preferred evidence
of marriage. See 20 C.F.R. §§ 404.704, 404.709, 404.723 – 404.726. The preferred evidence
of a common-law marriage if either the husband or wife is dead is the signed statement
of the one who is alive and those of two blood relatives of the deceased person. 20
C.F.R. §404.726(b)(2). We note that the Claimant provided the agency’s preferred evidence
of their common-law marriage as she provided her own statement, and the agency obtained
two Form SSA-753s from two of the NH’s blood relatives, his daughters P` and B`. The
regulations provide that “[i]f you give us the type of evidence we have shown as preferred
in the following sections of this subpart, we will generally find it is convincing
evidence.” 20 C.F.R. § 404.709. We consider whether this preferred evidence satisfies
Texas’s preponderance of the evidence standard of proof.
[10] Under Texas law, a marriage that is void because one of the parties to the marriage
has an existing marriage may become a common-law marriage upon the dissolution of
the prior marriage. See Tex. Fam. Code Ann. § 6.202; Omodele, 2003 WL 133602, at *3-4
(the impediment to the common-law marriage was removed when the husband’s divorce
from his previous wife became final; thus, the prior marriage did not preclude the
existence of the subsequent valid common-law marriage following the divorce).