Whether D~, the number holder (NH), and Claimant L~, who purportedly entered into
a same-sex, common-law marriage in Alabama in 2002, were validly married under Alabama
law at any time before Alabama began recognizing same-sex marriages in February 2015
for purposes of meeting the duration of marriage requirement for widow’s insurance
We believe that the Alabama Supreme Court would recognize the 2002 common-law marriage
between Claimant and NH as valid and, as a result, the agency could find Claimant
and NH satisfied the duration of marriage requirement for WIB.
According to the information provided, Claimant alleges she and NH, both women, entered
into a common-law marriage in Alabama in August 2002, when they began cohabiting and
holding themselves out as a married couple. At that time, both women were divorced
and both were 46 years old. The couple purchased together a home in November 2003
and a lake house in December 2012. They maintained a joint checking account, established
joint loans in July 2006 and January 2007, and registered a boat together in May 2015.
According to an agency Report of Contact taken in October 2015, the couple also participated
in a Ceremony of Holy Union on April XX, 2010, at a church located in Birmingham,
Alabama, and Claimant provided a certificate of this ceremony signed by the minister
of that church. On February XX, 2015, Claimant and NH participated in a formal wedding
ceremony in Alabama. NH died a resident of Alabama on May XX, 2015. Claimant applied
for WIB and the Lump Sum Death Payment (LSDP) on NH’s earnings record on June XX,
Claimant completed a Statement of Marital Relationship, stating she and NH began living
together in a marital relationship in August 2002. She said they understood they would
always stay together and love each other and, while they understood their marriage
was not allowed in the State, she believed they were married because “that was what
[she and NH] wanted.” Claimant’s granddaughter and two of NH’s nephews each provided
a Statement Regarding Marriage. Each said they had known the couple for thirteen years
and either lived with them or visited frequently. Each said she or he considered Claimant
and NH to be married and that the couple were generally known as a married couple,
noting the couple lived together continuously, presented themselves to others as a
married couple, and each referred to the other as her spouse.
In another Report of Contact dated October 13, 2015, an agency supervisor determined
that Claimant had provided enough proof that [Claimant and NH] were in-fact common
law spouses with the only exception being that the State of Alabama did not allow
for same sex individuals to be married or common-law married at the time they allege
the common law marriage in 04.XX.201. The Claimant has provided proof that they
had the capacity to marry, they presented an agreement to enter marriage, [and] they
had public recognition of the marriage and lived together.
A claimant may be eligible for WIB if the claimant is the widow of an individual who
died fully insured. See Social Security Act (Act) § 202(c)(1); 20 C.F.R. § 404.335(a) (2017). A claimant may qualify as 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
the claimant and insured individual were validly married when the insured individual
died. See Act § 216(h)(1)(A)(i); 20 C.F.R. §§ 404.335(a)(1), 404.345; Program Operations Manual
System (POMS) GN 00305.001A.2.a, RS 00207.001A.1.a.1. When a couple was childless and the claimant was not entitled to benefits before
the marriage began, a widow can qualify for WIB if she had been married to the insured
individual for at least nine months immediately before the insured individual died. See Act § 216(c)(1)(E); 20 C.F.R. § 404.335(a)(1); POMS GN 00305.100A.1; POMS RS 00207.001A.1.a.2. According to her death certificate, NH was a resident of Alabama when she died.
Therefore, we look to Alabama law to determine if Claimant and NH were validly married.
Same-Sex Marriage in Alabama
Before February 9, 2015, Alabama did not recognize marriages contracted between individuals
of the same sex and prohibited the issuance of a marriage license to parties of the
same sex. Both the State constitution and the Alabama Code restricted the definition
of marriage to a union between a man and a woman. See Ala. Const. art. I, § 36.03; Ala. Code § 30-1-19(d) (2012). However, on January 23,
2015, a Federal district court in the Southern District of Alabama held that Alabama’s
same-sex marriage ban was unconstitutional and enjoined the State’s attorney general
from enforcing the State’s ban. See Searcy v. Strange, 81 F. Supp. 3d 1285, 1287-90 (S.D. Ala. 2015). After the Eleventh Circuit Court
of Appeals and United States Supreme Court denied requests to extend any stay on the
Searcy injunction, that injunction in took effect on February 9, 2015. See Strange v. Searcy, 574 U.S. ---, 135 S. Ct. 940 (Mem.) (2015); Order, Searcy v. Attorney Gen., State of Ala., No. 15-10295 (11th Cir. Feb. 9, 2015). Based on the injunction, Alabama began recognizing
same-sex marriages performed in the State as of February 9, 2015. See POMS GN 00210.003A.1.
On June 26, 2015, United States Supreme Court held that same-sex couples may exercise
the fundamental right to marry under the United States Constitution. See Obergefell v. Hodges, 576 U.S. ---, 135 S. Ct. 2584, 2604-05 (2015). The Court held State laws invalid
to the extent they exclude same-sex couples from civil marriage on the same terms
and conditions as opposite-sex couples. Id., 135 S. Ct. at 2605. Pursuant to Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 94-98 (1993), SSA should give Obergefell full retroactive effect in all cases still open on direct review and as to all events,
regardless of whether such events predate or postdate Obergefell. As a result, SSA considers State-law same-sex-marriage bans, whether based on State
constitutional or statutory provisions or on case law, void and ineffective.
Because Claimant and NH participated in a ceremonial marriage on February XX, 2015,
we understand that you consider them validly married, at least as of February XX,
2015. However, because NH died May XX, 2015, Claimant cannot satisfy the nine-month
duration of marriage requirement, based solely on the couple’s February 2015 wedding.
Because Claimant also alleges a common-law marriage with NH beginning in 2002, we must determine whether Alabama courts would recognize as valid the couple’s purported
same-sex, common-law marriage, entered into before September 2014, nine months before
NH died. Therefore, we consider whether Alabama courts would recognize Claimant and NH to
have been married based on a common-law marriage beginning in 2002 or beginning with
the couple’s April 2010 Ceremony of Holy Union.
Common-law marriage in Alabama
Alabama abolished common-law marriage on January 1, 2017. See Ala. Code § 30-1-20(a) (2016); POMS GN 00305.075B. However, “[a]n otherwise valid common-law marriage entered into before January 1,
2017, shall continue to be valid in” Alabama. Ala. Code § 30-1-20(b); see POMS GN 00305.075B. Alabama considers common-law marriage an “alternate method of validating the connubial
union of two people,” that is “co-equal” to ceremonial marriage. Scott v. Bd. of Trs. of Mobile S.S. Ass’n-Int’l Longshoremen’s Ass’n Pension, Welfare
& Vacation Plans, 540 So. 2d 657, 659 (Ala. 1988) (internal citations omitted). The elements of a valid
Alabama common-law marriage are:
(1) the capacity to marry;
(2) present, mutual agreement to permanently enter the marriage relationship to the
exclusion of all other relationships; and
(3) public recognition of the relationship as a marriage and public assumption of
marital duties and cohabitation.
See Boswell v. Boswell, 497 So. 2d 479, 480 (Ala. 1986). These elements may be “either explicitly expressed
or implicitly inferred from the circumstances.” Id. Alabama courts “closely scrutinize claims of common-law marriage and require clear
and convincing proof thereof.” Lofton v. Estate of Weaver, 611 So. 2d 335, 336 (Ala. 1992) (internal quotation marks omitted). “Clear and convincing
evidence” is defined as:
Evidence that, when weighed against evidence in opposition, will produce in the mind
of the trier of fact a firm conviction as to each essential element of the claim and
a high probability as to the correctness of the conclusion. Proof by clear and convincing
evidence requires a level of proof greater than a preponderance of the evidence or
the substantial weight of the evidence, but less than beyond a reasonable doubt.
Ala. Code § 6-11-20(b)(4), quoted in Dyess v. Dyess, 94 So. 3d 384, 386-87 (Ala. Civ. App. 2012). On the other hand, once a party demonstrates
the requisites of a common-law marriage, Alabama generally presumes a common-law marriage
is valid, even one that may be flawed, and places the burden of overcoming that presumption
on a party who challenges the marriage. See Cross v. Rudder, 380 So. 2d 766, 773-74 (Ala. 1979). “The determination of whether a relationship. . .
was intended as a common-law marriage is made on the facts of a particular case, with
regard to the situation and circumstances of the individuals involved.” Boswell, 497 So. 2d at 480.
To demonstrate the first Alabama requirement of a common-law marriage -- the capacity
to marry -- an individual must be unmarried, of sound mind, and over the age of 18
(or over 16 with the consent of a parent or guardian). See Moore v. Metro. Life Ins. Co., 949 F. Supp. 2d 1201, 1206 (M.D. Ala. 2013); see also Ala. Code § 30-1-4, 30-1-5. When Claimant alleged that she entered into a common-law
marriage with NH in 2002, both women were divorced and both were 46 years old. During
the purported marriage, Claimant and NH engaged in activities suggesting neither had
an unsound mind, such as entering into legal contracts and purchasing property. Because
there is no suggestion in the material provided that either Claimant or NH was of
unsound mind, we believe an SSA adjudicator could reasonably conclude both parties
had the capacity to marry in 2002.
The second element of an Alabama common-law marriage requires proof of a present,
mutual agreement to permanently enter the marriage relationship to the exclusion of
all other relationships. See Boswell, 497 So. 2d at 480. However, Alabama does not require any particular words of consent.
See Beck v. Beck, 246 So. 2d 420, 425 (Ala. 1971). An adjudicator may infer such an agreement from
the circumstances. See Moore, 949 F. Supp. 2d at 1206 (citing Moore v. Heineke, 24 So. 374, 378-79 (1898), overruled on other grounds by Alexander v. Gibson, 57 So. 760 (1912)). As the Moore court noted, “the same behavior that evinces agreement to marry may also satisfy
the third element of common-law marriage, public recognition of the relationship as
a marriage and public assumption of marital duties and cohabitation.” Moore, 949 F. Supp. 2d at 1206. The Moore court cited numerous behaviors that Alabama courts had recognized as demonstrating
present intent and public recognition and assumption of marital duties, such as sharing
of household expenses, maintaining joint accounts, and referring to each other as
spouse. See id. at 1207. However, the most crucial part of the third element is that others in the
community recognized the couple as married. See id. As noted above, Claimant and NH lived together from August 2002 until NH died in
May 2015. The couple purchased together a home, a lake house, and a boat; maintained
joint checking accounts; and took out joint loans. They also demonstrated their ongoing
commitment to each other by participating in a church Ceremony of Holy Union in April
XX, 2010, and a formal wedding ceremony only days after Alabama began permitting same-sex
Claimant asserts that, although she and NH knew that Alabama did not recognize same-sex
marriages in August 2002, she believed they were married because she and NH understood
they would always stay together and love each other and she and NH wanted a marital
relationship. Relatives of the couple signed statements attesting that they had known
Claimant and NH for thirteen years and each considered Claimant and NH to be married.
Each said Claimant and NH were generally known as a married couple, lived together
continuously, presented themselves as a married couple, and referred to each other
as a spouse. Given the facts as presented, we believe an SSA adjudicator could conclude
Claimant has demonstrated the latter two elements of a common-law marriage -- a present
agreement or mutual consent to enter into the marriage relationship, public recognition
of the marriage, and cohabitation or public assumption of marital duties and obligations.
As a final matter, we also note that an Alabama official’s amendment of a death certificate
to recognize the marriage of the deceased individual and his same-sex spouse as of
a date before Alabama began recognizing same-sex marriages was held to support the
conclusion that Alabama courts would recognize a marriage established before February
2015. In Hard v. Att’y Gen., State of Ala., 648 F. App’x 853 (11th Cir. 2016), the Eleventh Circuit Court of Appeals affirmed
a district court’s dismissal of a wrongful death claim brought by a surviving spouse
of a same-sex couple, because the plaintiff obtained all the relief he sought. The
appellant in Hard had married the decedent in Massachusetts in 2011, after which the couple returned
home to Alabama. See 648 F. App’x at 854. The decedent died in a 2012 collision with a United Parcel Service
(UPS) truck and his estate settled a wrongful death action against UPS. See id. The decedent’s Alabama death certificate indicated he was “Never Married.” See id. Through the court action, the appellant sought: amendment of the death certificate
to reflect his status as the deceased’s spouse; a spouse’s share of the wrongful death
settlement; and a declaratory judgment that Alabama's same-sex marriage ban was unconstitutional
and an injunction requiring Alabama state officials to recognize marriages of same-sex
couples. See id.
In affirming the district court’s dismissal of the case as moot, the Hard court observed that the Alabama State Registrar of Vital Statistics had already issued
an amended version of decedent’s death certificate to reflect the appellant’s status
as the decedent’s spouse, which allowed the district court to order payment of the
full spouse’s share of the wrongful death settlement to the appellant, and found that
the Supreme Court’s order in Obergefell provided the declaration that same-sex marriage bans like the ones in Alabama were
unconstitutional and an injunction against state officials seeking to enforce such
a ban. See id. at 856. The fact that the Alabama State Registrar of Vital Statistics amended the
decedent’s 2012 death certificate to reflect the appellant as the decedent’s spouse,
when Alabama did not begin recognizing same-sex marriages until 2015, suggests that
Alabama officials, and perhaps Alabama courts, post-Obergefell, are prepared to consider the facts needed to prove a marriage that predated Alabama’s
general recognition of same-sex marriage.
Thus we concur with the agency’s October 2015 analysis, above, determining that once the retroactive application of the Supreme Court’s decision
of Obergefell removed consideration of the partners’ same-sex status from the marriage equation,
Claimant has presented sufficient proof that she and NH established a common-law marriage
in Alabama in 2002.
An SSA adjudicator could conclude on the facts presented that Alabama courts would
recognize the 2002 common-law marriage between Claimant and NH as valid, and could
therefore conclude that Claimant and NH satisfied the duration of marriage requirement