TN 36 (05-18)

PR 05605.001 Alabama

A. PR 18-065 Validity of Purported Common-Law, Same-sex Marriage, for Satisfying Nine-Month Duration of Marriage Requirement for Widows’ Insurance Benefits

Date: March 6, 2018

1. Syllabus

The number holder (NH) died while domiciled in Alabama; therefore, we look to the Alabama law to determine the marital relationship between the NH and the Claimant. The Claimant and NH participated in a valid ceremonial marriage in February 2015. However, because NH died in May 2015, the Claimant cannot satisfy the nine-month duration of marriage requirement, based solely on the couple’s February 2015 wedding. The Claimant also alleged a common-law marriage with the NH beginning in 2002. Alabama abolished common-law marriage on January 1, 2017, but a valid common-law marriage entered into before January 1, 2017, shall continue to be valid in Alabama. We have determined that the Claimant has presented sufficient proof that she and NH established a common-law marriage in Alabama in 2002. Thus, we conclude that the Claimant and the NH satisfied the duration of marriage requirement for widow’s insurance benefits (WIB).

2. Opinion

QUESTION

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 benefits (WIB).

OPINION

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.

BACKGROUND

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, 2015.

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[0]. 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.

DISCUSSION

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).[1] 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.[2] 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,[3] 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.[4] 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 marriages.

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,[5] 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.[6]

CONCLUSION

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 for WIB.

B. PR 17-035 Validity of Claimant's Alleged Common-law Marriage to the NH and Possible Reopening of Award of Widow's Insurance Benefits

Date: January 20, 2017

1. Syllabus

The number holder (NH) died while domiciled in Alabama; therefore, we look to the Alabama State law to determine if the NH and Claimant had a valid common-law marriage. The determination of whether a relationship between a man and a woman 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. Nothing in the information provided suggests that either Claimant or NH lacked the capacity to marry. The evidence the Claimant provided, standing alone, do not clearly establish that the Claimant and NH had agreed or consented to permanently enter into a marriage relationship. The statements also do not provide clear and convincing evidence of public recognition of the existence of a marriage between Claimant and NH or that they openly assumed marital duties and obligations. The information provided is insufficient to establish that Claimant and NH had a common-law marriage under Alabama law for determining Claimant's eligibility for WIB on NH's earnings record.

2. Opinion

QUESTION

You have asked whether the claimant and the number holder had a valid common-law marriage for determining the claimant's eligibility for widow's insurance benefits (WIB) on the number holder's earnings record, and if the marriage was not valid or of sufficient duration, whether the Social Security Administration (SSA) can reopen its August 2016 award of WIB to Claimant.

OPINION

The claimant and the number holder did not have a valid common-law marriage for determining the claimant's eligibility for WIB on the number holder's earnings record. SSA may reopen its August 2016 award of WIB to Claimant at any time within 12 months of the initial determination awarding Claimant WIB.

BACKGROUND

SSA records show that A~, the number holder (NH), died on March XX, 2006, while domiciled in Alabama. A2~ (Claimant) initially applied for WIB on NH's earnings record on July XX 2015, alleging she had a common-law marriage with NH. SSA denied Claimant's July 2015 application initially August XX, 2015, and on reconsideration on October XX, 2015. Claimant did not appeal SSA's reconsideration denial.

Claimant filed a second application for WIB on NH's earnings record on June XX, 2016, again alleging she had a common-law marriage with NH. In support of her claim, Claimant submitted a Statement of Marital Relationship; Statements Regarding Marriage from her sister, NH's brother, and NH's friend; and an order from the Probate Court of Baldwin County, Alabama, dated February XX, 2008. Claimant's attorney also requested that SSA reopen its denial of Claimant's prior application for WIB on NH's earning record.

In her undated Statement of Marital Relationship, Claimant alleged that she and NH began living together as husband and wife in Alabama in June of 2000 or 2001, and continued to live together as husband and wife until NH's death in 2006. Claimant indicated that she and NH had an understanding about their relationship and stated that they lived together as husband and wife and presented themselves that way to others. Claimant also indicated that their understanding did not change and she and NH intended to stay together forever. Claimant stated that she and NH supported each other, shared the bills and shopping, gathered with family and friends, and slept in the same bed every night. Claimant indicated that she and NH did not have an understanding as to how their relationship could be ended or an agreement or promise that a ceremonial marriage would also be performed in the future. Claimant stated that she "never really thought about" changing her last name after she and NH began living together. Claimant reported that no tax returns, deeds, contracts, insurance policies, bank accounts, or other documents indicated they were husband and wife, nor did they have any joint business dealings or joint charge accounts as husband and wife. Claimant stated that she and NH introduced each other to relatives, friends, neighbors, and others as husband and wife.

In a January 2016 Statement Regarding Marriage, NH's friend stated that he saw NH and Claimant almost every weekend and would "double date" with them. NH's friend also stated that he lived next door and saw NH and Claimant almost every day together. NH's friend indicated that, to his knowledge, NH and Claimant were generally known as husband and wife, and he considered them husband and wife. NH's friend stated that NH and Claimant lived next door and "acted just as any other husband and wife would." NH's friend indicated that he heard NH and Claimant refer to each other as husband and wife "just about daily," and in his opinion, NH and Claimant maintained a home and lived together as husband and wife. NH's friend also indicated that to his knowledge, NH and Claimant lived together continuously.

In a February 2016 Statement Regarding Marriage, Claimant's sister stated that she saw Claimant and NH several times a year and stayed with them for vacation or holidays. Claimant's sister indicated that, to her knowledge, NH and Claimant were generally known as husband and wife, and she considered them husband and wife. Claimant's sister stated that Claimant and NH "lived together and did everything together, just as husband and wife," and [w]hen [NH] worked out of town, he would send for [Claimant] so they could spend more time together." Claimant's sister also indicated that she heard NH and Claimant refer to each other as husband and wife and stated NH "would always introduce [Claimant] as his wife to everyone they met." Claimant's sister also opined that NH and Claimant maintained a home and lived together as husband and wife.

In an undated Statement Regarding Marriage, NH's brother stated that he saw NH and Claimant on holidays and vacations a few times a year. NH's brother indicated that to his knowledge, NH and Claimant were generally known as husband and wife, and he considered them husband and wife. NH's brother stated that NH and Claimant "lived together and took care of each other as any husband and wife would." NH's friend indicated that he heard NH and Claimant refer to each other as husband and wife whenever he would visit them or they would visit him. NH's brother opined that NH and Claimant maintained a home and lived together as husband and wife, and to his knowledge, they lived together continuously.

In the order from the Probate Court of B~ County, Alabama, dated February XX, 2008, the court granted Claimant's application for judicial determination of NH's heirs at law. The court ordered that NH was common-law married to Claimant when he died and Claimant is an heir at law and surviving spouse of NH. The court indicated that it granted Claimant's application based on "testimony given and evidence presented," but the court did not describe any testimony or evidence in its order.

Based on this evidence, SSA granted Claimant's June 17, 2016 application in an initial determination dated August 15, 2016, finding her entitled to WIB on NH's earnings record beginning August 2016.

DISCUSSION

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(e)(1); 20 C.F.R. § 404.335(a) (2016).[7] A claimant may qualify as the widower 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; POMS RS 00207.001A.1.a.1. A claimant may qualify as a widow for purposes of WIB if the claimant was married to the insured individual for a period of not less than nine months immediately prior to the day on which the insured individual died.[8] See Act § 216(g)(1)(E); 20 C.F.R. § 404.335(a)(1); POMS GN 00305.100A.1; POMS RS 00207.001A.1.a.2. SSA records show that NH was a resident of Alabama when he died. Therefore, we look to Alabama law to determine if Claimant and NH were validly married.

Alabama recently abolished common-law marriage as of January 1, 2017. See Ala. Code § 30-1-20(a) (2016)[9] ; 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. The elements of a valid Alabama common-law marriage are: (1) the capacity to marry; (2) a present agreement or mutual consent to enter into the marriage relationship; (3) public recognition of the existence of the marriage; and (4) cohabitation or mutual assumption openly of marital duties and obligations. See Adams v. Boan, 559 So. 2d 1084, 1086 (Ala. 1990); POMS GN 00305.075B. These elements may be "either explicitly expressed or implicitly inferred from the circumstances." Boswell v. Boswell, 497 So. 2d 479, 480 (Ala. 1986). 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). "The determination of whether a relationship between a man and a woman 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.

The evidence provided by Claimant is insufficient to establish that she and NH had a common-law marriage under Alabama law.[10] Claimant’s Statement of Marital Relationship and the Statements Regarding Marriage from her sister, NH's brother, and NH's friend allege that Claimant and NH considered themselves married, but the statements do not provide clear and convincing proof that the relationship between Claimant and NH satisfied the elements of a valid Alabama common-law marriage. See Lofton, 611 So. 2d at 336; Adams, 559 So. 2d at 1086; POMS GN 00305.075B. Nothing in the information provided suggests that either Claimant or NH lacked the capacity to marry. See Adams, 559 So. 2d at 1086-87. However, the statements, standing alone, do not clearly establish that Claimant, and particularly NH, had agreed or consented to permanently enter into a marriage relationship. See Lofton, 611 So. 2d at 336; Adams, 559 So. 2d at 1086. The statements also do not provide clear and convincing evidence of public recognition of the existence of a marriage between Claimant and NH or that they openly assumed marital duties and obligations. See Lofton, 611 So. 2d at 336; Adams, 559 So. 2d at 1086; see also, e.g., Melton v. Jenkins, 92 So. 3d 105, 110 (Ala. Civ. App. 2012) (holding purported husband of decedent failed to meet heavy burden of proving that he and decedent had gained public recognition of their purported common-law marriage); Reese v. Holston, 67 So. 3d 109, 113 (Ala. Civ. App. 2011) (holding statements by purported wife and her family members and funeral programs were insufficient to establish public recognition of the parties' alleged common-law marriage). Moreover, Claimant did not provide any corroborating evidence to support her allegations or the allegations of her sister, NH's brother, or NH's friend. Claimant admitted that no documents, such as tax returns or bank accounts, indicated that she and NH were husband and wife. See, e.g., Melton, 92 So. 3d at 110 (holding "the lack of jointly owned property and integrated finances also militate against a determination of the existence of a common-law marriage"); Reese, 67 So. 3d at 113 (holding "the evidence shows that the parties did not handle their finances in a way that would be consistent with the existence of a marital relationship").

The February 2008 order of the Probate Court of Baldwin County, Alabama, also does not provide clear and convincing proof that Claimant and NH were in a common-law marriage under Alabama law. SSA is not bound by the decision of a state court in a proceeding to which SSA was not a party. See Baker o/b/o Baker v. Sullivan, 880 F.2d 319, 322 (11th Cir. 1989) (stating that "[a]s a legal matter, the Appeals Council could determine that the state court judgment is not binding on the [Commissioner] on the issue of paternity of the children . . . , particularly when the [Commissioner] was not a party to the state court action, and no opposing interests were presented in the case"). However, SSA cannot ignore an adjudication of a state court where the following prerequisites exist: (1) an issue in a claim for Social Security benefits previously has been determined by a state court of competent jurisdiction; (2) the issue was genuinely contested before the state court by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. See Social Security Ruling (SSR) 83-37c (adopting as national policy Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973)); POMS GN 00305.065B.4.

The Probate Court’s order does address an issue that falls within the general category of domestic relations law (i.e., marriage). In addition, the Probate Court was a court of competent jurisdiction to decide whether NH was common-law married to Claimant to the time of his death, at least in the context of administering NH's estate. The Alabama Code grants Alabama probate courts original and general jurisdiction over "[a]ll controversies in relation to the right of executorship or of administration" of estates. Ala. Code § 12-13-1(b)(3). Thus, "the probate court has 'original and general jurisdiction in practically all matters having to do with probate and administration of decedents' estates.'" In Re Estate of Creel, 719 So. 2d 783, 785 (Ala. 1998) (quoting Opinion of the Justices, 197 So. 2d 456, 460 (1967)). In interpreting section 12-13-1(b)(3) of the Alabama Code, the Alabama Supreme Court has specifically held that "the probate courts of Alabama are vested with the authority to determine the existence vel non [or not] of a common law marriage as a 'controversy' that relates 'to the right of executorship or of administration' of a decedent's estate." Id. at 786. Claimant filed her application with the Probate Court to determine NH's heirs at law, which falls within matters having to do with the administration of NH's estate. Therefore, the Probate Court had jurisdiction to decide whether Claimant and NH were in a common-law marriage.

However, nothing in the Probate Court's order suggests that parties with opposing interests genuinely contested the issue of Claimant's alleged common-law marriage to NH. The order states that the court considered testimony and evidence, but the order does indicate who testified or what evidence it considered. Thus, the order does not show that any party genuinely contested Claimant's application and her allegation that she was NH's common-law wife. The Probate Court's order also lacks information indicating that the court complied with Alabama law in determining that Claimant was NH's common-law wife and an heir at law and surviving spouse of NH. The Probate Court's order does not address whether Claimant and NH had the capacity to marry, whether they had a present agreement or mutual consent to enter into the marriage relationship, whether there was public recognition of the existence of the marriage, or whether Claimant and NH cohabitated or mutually and openly assumed marital duties and obligations. See Adams, 559 So. 2d at 1086. Therefore, the Probate Court's order is not entitled to any special significance. See Baker, 880 F.2d at 322.

Moreover, even if a party with opposing interests genuinely contested the issue of Claimant's alleged common-law marriage to NH and the Probate Court decision was consistent with Alabama law, the order does not establish that the purported common-law marriage lasted the requisite nine months prior to the day of NH's death. See Act § 216(g)(1)(E); 20 C.F.R. § 404.335(a)(1); POMS GN 00305.100A.1; POMS RS 00207.001A.1.a.2. The Probate Court issued its order on February 5, 2008, nearly two years after NH's death, and the court stated that NH was common-law married to Claimant at the time of his death, with no finding as to when their common-law marriage began or how long the marriage may have lasted. In any event, even if the Probate Court's order related back at least nine months before NH's death, the Probate Court's order and the statements from Claimant, her sister, NH's brother, and NH's friend do not provide clear and convincing evidence that Claimant and NH were in a common-law marriage under Alabama law.

Finally, SSA may reopen a determination for any reason if it does so within twelve months of the date of the notice of the initial determination. See 20 C.F.R. § 404.988(a); POMS GN 01010.480A. Based on the above, SSA may reopen its August 2016 initial determination awarding Claimant WIB on NH's earnings record if SSA does so by August 15, 2017. If SSA reopens its August 2016 initial determination and determines that Claimant is not entitled to WIB on NH's earnings record because they did not have a common-law marriage, Claimant's request to reopen SSA's August 2015 initial denial of her July 2015 application is moot.

CONCLUSION

The information provided is insufficient to establish that Claimant and NH had a common-law marriage under Alabama law for determining Claimant's eligibility for WIB on NH's earnings record. SSA may reopen its August 2016 initial determination granting Claimant WIB on NH's earnings record if it does so within twelve months of the initial determination.

C. PR 08-055 Validity of Common-Law Marriage in Alabama (Claimant – Carolyn and Number Holder – Joseph)

Date: January 28, 2008

1. Syllabus

The resumption of cohabitation between former spouses after their divorce does not, in itself, establish a common-law marriage, because the parties must also manifest a mutual intent to be man and wife. Under Gray v. Richardson the Agency would not be free to ignore the court's order finding there was no common-law marriage given that both NH and claimant appeared and were represented in the State court civil action.

2. Opinion

As discussed in greater detail below, we believe the claimant failed to present sufficient evidence to show that she is the number holder's spouse through a valid common-law marriage.

Background

The facts as presented are that Carolyn S~ (Claimant) filed an application for auxiliary benefits in April 2007 as the wife of Joseph S. S~, the number holder (NH). NH was domiciled in Alabama when Claimant filed her application. Although Claimant previously filed a claim for retirement benefits on her own record, she claims she had not sought benefits on NH's record because she did not want the Agency to contact him given the abusive nature of their relationship. Claimant admitted during her interview that a judge had previously ruled she and NH did not have a common-law marriage; however, she claims they resumed living together after the court order, this time as husband and wife. As evidence of a common-law marriage, Claimant presented a copy of a marriage license dated March 28, 1987; a 1991 insurance policy listing NH and Claimant as "Steve S~ & Carolyn S~"; a March 1992 deed listing them as a married couple; tax assessor records from 1995 and 1996; a SSA-754 form completed by Claimant; and a SSA-753 form completed by her sister. Although the Agency sent 753 and 754 forms to NH on two occasions, he returned these forms without completing them. The Agency was also unable to contact NH by phone. Based on the evidence supplied by Claimant, the Agency found that she was entitled to benefits on NH's account as his wife in a decision dated August 22, 2007.

On November 27, 2007, NH came to the Bessemer, Alabama field office to ask about the benefits being paid to Claimant on his account. Although NH was unwilling to provide a signed statement, he reported he did not have a common-law marriage with Claimant and presented three pieces of evidence to support his position: (1) a divorce decree dated March 11, 1988; (2) an order from the Circuit Court of Jefferson County, Alabama, dated January 14, 1992, finding that NH and Claimant had not entered into a common law marriage; and (3) an order dated September 6, 2001, in which the Circuit Court of Jefferson County, Alabama, again found that NH and Claimant were not common-law married as alleged by Claimant. Subsequently, Claimant presented a copy of a 2001 tax notice listing the couple as divorced.

Discussion

Although Claimant acknowledges she and NH divorced, she alleges that they began living together as husband and wife after the divorce. In order to qualify for wife's insurance benefits, the "wife" or "divorced wife" of an individual entitled to old-age or disability insurance benefits must file an application; have attained age 62; in the case of a divorced wife, have not remarried; and not be entitled to old-age or disability insurance benefits, or her benefit amount is less than one-half the primary insurance amount of such individual. Social Security Act (Act) § 202(b)(1), 42 U.S.C. § 402(b)(1); 20 C.F.R. § 404.331 (2007). In pertinent part, the term "wife" means the wife of an insured individual, but only if she was married to him for a period of not less than one year preceding the date she filed her application. Act § 216(b)(2); 20 C.F.R. § 404.330(a)(1) (2007). A woman is the "divorced wife" of an insured individual if she is "divorced from [the] individual, but only if she had been married to such individual for a period of 10 years immediately before the date the divorce became effective." Act § 216(d)(1); 20 C.F.R. § 404.331(a)(2). Because Claimant and NH were married less than a year prior to their March 1988 divorce, she would only be eligible for wife's insurance benefits if she establishes that she and the NH remarried after their divorce.

Claimant alleges that she and NH entered into a common-law marriage after their divorce. An applicant may qualify as the wife of an insured individual if "the courts of the State in which such insured individual is domiciled at the time such applicant files an application . . . would find that such applicant and such insured individual were validly married at the time such applicant files such application . . . ." Act § 216(h)(1)(A)(i); see 20 C.F.R. § 404.331(a)(1) (2007). Social Security regulations define common-law marriage as one considered valid under a state's laws even though there is no formal marriage ceremony. 20 C.F.R. § 404.726(a) (2007). Because Claimant was domiciled in Alabama when Claimant filed her application, we look to Alabama law to determine if they entered into a common-law marriage after their divorce.

Alabama recognizes common-law marriage and treats it as "a co-equal, alternate method of validating the connubial union of two people." Piel v. Brown, 361 So. 2d 90, 93 (Ala. 1978). The elements of a valid common-law marriage under Alabama law are: (1) the capacity to marry; (2) present agreement or mutual consent to enter into the marriage relationship; (3) public recognition of the existence of the marriage; and (4) cohabitation or mutual assumption openly of marital duties and obligations. Adams v. Boan, 559 So. 2d 1084, 1086 (Ala. 1990). The mere resumption of cohabitation between former spouses after their divorce does not, in itself, establish a common-law marriage, because the parties must also manifest a mutual intent to be man and wife. Hudson v. Hudson, 404 So. 2d 82, 83 (Ala. Civ. App. 1981). As a result, Claimant must show more than the mere fact that she and the NH resumed living together after their divorce in order to demonstrate the existence of a common-law marriage.

"Preferred evidence" of a common-law marriage includes: (1) if both the husband and wife are alive, their signed statements and those of two blood relatives; (2) if either the husband or wife is dead, the signed statements of the one who is alive and those of two blood relatives; or (3) if both the husband and wife are dead, the signed statements of one blood relative of each. 20 C.F.R. § 404.726(b). If a claimant cannot get preferred evidence, the Agency will also accept other convincing evidence such as mortgage/rent receipts, insurance policies, medical records, bank records, etc., to substantiate that the couple considered and held themselves out as husband and wife. 20 C.F.R. § 404.726(c); Program Operations Manual System (POMS) GN 00305.065(3). In this case, Claimant did not provide "preferred evidence" of a common-law marriage, as NH is alive and he did not provide a signed statement that he was Claimant's husband. Instead, Claimant presented her own statement, a statement from her sister, and certain insurance and property records listing Claimant and NH as a married couple. This evidence appears sufficient to support the Agency's original determination in August 2007 that Claimant was the common-law wife of NH.

Although NH did not provide a signed statement, he supplied compelling evidence after Agency's August 2007 determination suggesting no common-law marriage ever existed with Claimant. Specifically, NH provided an order dated September 6, 2001, in which the Circuit Court of Jefferson County, Alabama, found that NH and Claimant did not have a common-law marriage. Courts in Alabama "closely scrutinize claims of common-law marriage and require clear and convincing proof thereof." Gray v. Bush, 835 So. 2d 192, 193 (Ala. Civ. App. 2001) (quoting Stringer v. Stringer, 689 So. 2d 194, 197 (Ala. Civ. App. 1997)). Although the Commissioner is not bound by the decision of a state court in a proceeding to which he was not a party, the court's order would seem to be due some deference under Social Security Ruling (SSR) 83-37c. Through this SSR, the Agency adopted as national policy the rationale from Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). In Gray, the Sixth Circuit held the Commissioner is not free to ignore a state court determination on a domestic relations issue when the state court had jurisdiction over the issue, the issue was genuinely contested by parties with opposing interests, and the decision was consistent with the law set forth by the highest court in the state. The Agency would not be free to ignore the court's order finding there was no common-law marriage given that both NH and Claimant appeared and were represented in the state court civil action. Additionally, the order appears consistent with Alabama law because the evidence suggests that there was no agreement or mutual consent between NH and Claimant to enter into the marriage relationship.

We believe that the 2001 order finding that no common-law marriage existed between Claimant and NH would provide a basis for reopening the Agency's August 2007 decision awarding wife's insurance benefits to Claimant. The Agency may reopen a determination or decision within twelve months of the date of the notice of the initial determination for any reason. 20 C.F.R. § 404.988(a) (2007). In addition, the Agency may reopen a determination or decision within four years of the date of the notice of the initial determination if new and material evidence is furnished, or at any time if the decision was obtained by fraud or similar fault. See 20 C.F.R. §§ 404.988(b), (c)(1), 404.989(a)(1) (2007). Not only does the 2001 order provide clear and convincing evidence that a valid common-law marriage did not exist, but also Claimant's failure to disclose its existence suggests she may have obtained a favorable decision by fraud or similar fault. Given these factors, the Agency should consider reopening the August 2007 decision and denying Claimant's application.

Conclusion

As submitted, the facts suggest that Claimant is not entitled to wife's insurance benefits as NH's spouse. Although Claimant presented evidence that could support a determination that a common-law marriage existed, the state court order provides clear and convincing evidence that she was never NH's common-law wife under Alabama law. As a result, the 2001 court order, coupled with Claimant's failure to disclose its existence, provides ample support for reopening the August 2007 determination and denying her application.

D. PR 82-027 Common-Law Marriage in the State of Alabama

Date: July 19, 1982

1. Syllabus

MARRIAGE -- Cohabitation and Reputation (Including Common-law Marriage) -- ALABAMA

In Alabama, the elements of a valid common-law marriage are (1) the capacity to marry, (2) the present agreement or consent to be husband and wife, and (3) consummation. Piel v. Brown, 361 So. 2d 90 (1978). (Validity of Common-law Marriage, Alabama, RA IV (M~) to RSI, Regional Representative Chicago Payment Center, 2/4/74).

(Common-law marriage in the state of Alabama, RA IV (W~) to Dir. IBP, 7/19/82)

MARRIAGE -- Cohabitation and Reputation (Including Common-Law Marriage) -- ALABAMA Under Alabama law, the continued cohabitation of the parties to an otherwise valid common-law marriage following the removal of a legal impediment to that marriage raises the presumption of a valid common-law marriage. Krug v. Krug, 296 So. 2d 715 (1974); King v. King, 114 So.2d 145 (1959).

(Common-law marriage in the state of Alabama, RA IV (Williams) to Dir. IBP, 7/19/82)

2. Opinion

In your memorandum, you asked several questions relative to the elements necessary to establish a common-law marriage in Alabama, both when there is and when there is not an existing legal impediment to such marriage. The requisites of a valid common-law marriage in Alabama have been previously discussed in the attached opinion (Mangham opinion from syllabi page).

Alabama does recognize common-law marriages and such marriages exist in Alabama, not as an exception, but as a co-equal, alternate method of validating the connubial union of two people. Piel v. Brown, 361 So. 2d 90 (1978).

Generally, the elements of a common-law marriage in Alabama are:

(1) capacity to marry,

(2) present agreement or consent to be husband and wife, and

(3) consummation. Piel v. Brown, supra.

No ceremony and no particular words are necessary assuming capacity, requisite age and mental state (i.e., sound mind). There must have been a present agreement, that is, a mutual understanding to presently enter at that time into the marriage relationship permanent and exclusive of all other such relationships. Although Alabama law does require mutual understanding between the two people to presently enter into the marriage relationship, proof of the actual words of agreement or consent is not required. Piel v. Brown, supra. The present agreement to enter into the marriage relationship may be inferred from cohabitation and public recognition. This agreement must also be followed by public recognition of the existence of the "marriage" and cohabitation or mutual and open assumption of marital duties and obligations. Beck v. Beck, 246 So. 2d 420 (1971), Skipworth v. Skipworth, 360 So. 2d 975 (1978). The element of public recognition requires that the man and woman, following their mutual consent to live as man and wife, must so live as to gain the recognition of the public that they are living as man and wife rather than in a state of concubinage. Beck v. Beck, supra. Once these elements have been satisfied, (i.e., the present agreement followed by a public recognition of that relationship) this common-law marriage relationship cannot legally be terminated except by death or divorce. Skipworth v. Skipworth, supra.

Under Alabama law, it is further established that where parties are incompetent to marry but enter into an illicit relation, with a manifest desire and intention to live in a matrimonial union, rather than in a state of concubinage, and the obstacle to their marriage is subsequently removed, their continued cohabitation raises a presumption of an actual marriage immediately after the removal of the obstacle, and warrants a finding to that effect. Krug v. Krug, 296 So. 2d 715 (1974); Smith v. Smith, 23 So. 2d 605 (1959); Prince v. Edwards, 57 So. 714 (1912). It is also the well-settled rule that if parties in good faith purport to marry in the common-law sense when in fact a legal impediment exists to such marriage, and they continue to cohabit as man and wife after the removal of that impediment to their lawful union, the law presumes a common-law marriage. Krug v. Krug, supra.; King v. King, 114 So.2d 145 (1959).

Your specific questions involved both the presence and absence of legal impediments to a valid common-law marriage. Our opinion responses to your questions are as follows:

1. In the State of Alabama, might a valid common-law marriage arise upon removal of an impediment when only one of the parties entered into the marriage in good faith?

Under Alabama law the agreement to marry in common-law must be mutual and be made in good faith. King v. King, supra., Krug v. Krug, supra. Consequently, if one of the parties in bad faith purported to enter a common-law marriage relationship, the relationship would not be recognized. However, the party acting in bad faith may be estopped from denying the existence of a common-law marriage if such party would unfairly profit from such denial.

2. Is a new agreement necessary in order for a common-law marriage to arise after removal of the impediment?

If following the removal of the legal impediment to a valid common-law marriage, the man and woman continue to co-habit as man and wife, it is presumed a common-law marriage exists. Krug v. Krug, supra.; King v. King, supra. Consequently, a new agreement is not necessary assuming, of course, that there was a previous agreement to be husband and wife.

3. May an agreement of marriage following removal of an impediment be inferred from the parties continued cohabitation in the State of Alabama?

If prior to the removal of the impediment the parties have satisfied the criteria for a common-law marriage and the parties continue to cohabit after the removal of the impediment, it is presumed under Alabama law that a common-law marriage exists under such circumstances.

4. (a) Would cohabitation after removal of the impediment be sufficient to establish a common-law marriage when one party denies his/her intention to enter into such marriage?

Continued cohabitation following the removal of the impediment raises the presumption of a common-law marriage. A party's denial on an intention to marry would go to the issue of whether or not there was an agreement to live as man and wife. If the fact finder believes after evaluating all of the circumstances that there was no agreement, the presumption would be rebutted.

(b) Would cohabitation after removal of impediment be sufficient to establish a common-law marriage when conduct of the parties (i.e., holding themselves out as husband and wife) is lacking? Is denial of one party of the existence of such common-law marriage sufficient to determine that parties were not holding themselves out as husband and wife?

Cohabitation by itself after removal of impediment would not be sufficient to establish common-law marriage as discussed in response to question 4(a) herein. There must be a mutual agreement to be presently married, followed by public recognition of the existence of the marriage. To satisfy the public recognition element, parties must live as man and wife and so live as to gain the recognition of the public that they are living as man and wife. A denial by one of the parties of the existence of a common-law relationship must be viewed in light of all of the circumstances. A denial by one of the parties is not itself conclusive. Whether the parties held themselves out as husband and wife can be determined by examinating their lifestyle including the way in which they present or represent one another to friends and acquaintances, whether they use the same last names and hold property jointly, or establish credit in the husband's name and declare their marital status in doing so. If the parties, in fact, were not recognized by the public as husband and wife, one of the requisites to a common-law marriage would be absent.

 

 

 


Footnotes:

[1]

. All references to the Code of Federal Regulations are to the 2017 edition, unless otherwise noted.

[2]

. A surviving spouse of an individual who died fully or currently insured can be eligible for the LSDP if the couple was living together when insured individual died. See Act § 202(i); 20 C.F.R. §§ 404.390, 404.391; POMS RS 00210.001. Unlike the provisions related to WIB, LSDP rules do not require a widow of an insured individual to have been married for a minimum period to qualify. See id. Your inquiry does not appear to question either the validity of the couple’s February XX, 2015, ceremonial marriage or Claimants’ eligibility for the LSDP. Therefore, we do not address LSDP issues here.

[3]

. Social Security regulations define common-law marriage as one considered valid under a state’s laws even though there is no formal marriage ceremony; “[i]t is a marriage between two persons free to marry, who consider themselves married, live together as man and wife, and, in some States, meet certain other requirements.” 20 C.F.R. § 404.726(a).

[4]

. One might argue that Alabama would consider a common-law marriage involving same-sex partners, which began before Alabama began recognizing same-sex marriages, would have become valid when Alabama began recognizing same-sex marriages, because Alabama recognizes a presumption of actual marriage after the impediment to marriage is removed. Indeed, the Alabama Supreme Court stated:

 

where parties who are competent to marry enter an illicit relation, with the manifest desire and intention to live in a marital union, rather than in a state of concubinage, and the obstacle to their marriage is subsequently removed, their continued cohabitation raises a presumption of an actual marriage immediately after the removal of the obstacle and warrants a finding to that effect.

 

Matthews v. Matthews, 67 So. 2d 22, 24 (Ala. 1953). However, since proof in this case of a valid marriage beginning February XX, 2015, when Alabama began recognizing same-sex marriages, would no more satisfy the nine-month duration requirement than a marriage beginning February XX, 2015, we do not address here whether a common-law marriage can become valid based solely upon Alabama’s change in its recognition of same-sex marriages.

[5]

. As mentioned on page 2, this was an agency supervisor’s conclusion in a Report of Contact dated October 13, 2015.

[6]

. Given this conclusion, we do not address the separate question of whether the couple’s 2010 Ceremony of Holy Union established a common-law marriage as of 2010.

[7]

. . All references to the Code of Federal Regulations are to the 2016 edition.

[8]

. . A claimant may qualify as a widow for purposes of WIB under other situations not applicable in this case. See Act § 216(g); 20 C.F.R. § 404.335(a)(2)-(4); POMS GN 00305.100(A)(2); POMS RS 00207.001(A)(1)(a)(1)-(9).

[9]

. . All references to the Alabama Code are to the 2016 edition.

[10]

. . Under SSA regulations and policy, preferred evidence of a common-law marriage is: (1) if both the husband and wife are alive, their signed statements and those of two blood relatives; (2) if either the husband or wife is dead, the signed statements of the one who is alive and those of two blood relatives of the deceased person; or (3) if both the husband and wife are dead, the signed statements of one blood relative of each. See 20 C.F.R. § 404.726(b); POMS GN 00305.065B. If a claimant cannot provide preferred evidence, the claimant must explain why and provide other convincing evidence of the marriage. See 20 C.F.R. § 404.726(c). A state administrative, judicial, or other proceeding may be used as other evidence of a common-law marriage. See POMS GN 00305.065B.4. If SSA cannot obtain a signed statement from a blood relative (or two blood relatives if either party is dead), SSA will get a statement from a person who knows the facts or obtain other evidence. See id.


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