TN 47 (01-20)

PR 05605.006 California

A. PR 19-203 Texas State Law – Marital Status for Alleged Common-Law Marriage

Date: September 30, 2019

1. Syllabus

The number holder (NH) died while domiciled in California; therefore, look to California law to determine whether the Claimant is the NH’s widow. We believe that Texas courts would find that the Claimant has proven that she was in a valid common-law marriage with the NH under the Texas law and that California courts would recognize this valid Texas common-law marriage. Also, the marriage meets the Act’s nine-month marriage duration requirement. Accordingly, we believe there is support for the agency to find that the Claimant is the NH’s widow for purposes of determining her entitlement to widow’s insurance benefits and the LSDP.

2. Opinion

Question

J~ (Claimant) filed applications for widow’s benefits and the lump sum death payment (LSDP) on the record of the deceased number holder (NH) T~. The Claimant alleges a common-law marriage to the NH beginning in March 1986 in Texas and ending with the NH’s death in May 2018 in California. You asked whether a valid common-law marriage existed between the NH and the Claimant under Texas law such that the Claimant is the NH’s surviving spouse, or widow(er), under Title II of the Social Security Act (Act).[1] If so, you also asked when the common-law marriage was effective.

Answer

We believe that Texas courts would find that the Claimant has proven that she was in a valid common-law marriage with the NH under Texas law from March XX, 1986 until the NH’s death on May XX, 2018, and that California courts would recognize this valid Texas common-law marriage. This marriage meets the Act’s nine-month marriage duration requirement. In addition, the evidence shows that the Claimant was living in the same household with the NH at the time of his death. Accordingly, we believe there is support for the agency to find that the Claimant is the NH’s widow for purposes of determining her entitlement to widow’s insurance benefits and the LSDP.

Background

On June XX, 2018, the Claimant filed applications with the Social Security Administration (SSA or agency) for widow’s insurance benefits and the LSDP on the NH’s record. On her applications, the Claimant stated that she and the NH entered into a common-law marriage on March XX, 1986 in Houston, Texas and that the marriage ended when the NH died on May XX, 2018 in Ojai, California.[2] His obituary lists the Claimant as his wife.[3]

Agency records related to prior applications for both the Claimant and the NH provide some documentation of their relationship. You advised that on June XX, 1993, the Claimant filed an application with the agency for Supplemental Security Income (SSI) benefits and listed the NH as her holding out spouse. On December XX, 1993, the agency added the NH to the Claimant’s SSI record as her spouse. You also advised that on January XX, 2011, the NH filed for retirement benefits, but did not list a marriage to the Claimant. However, the NH reported he was living with the Claimant at the time he applied for retirement benefits and the agency’s remarks concerning his application indicate that his “spouse” contacted the agency to reschedule his appointment.

In support of her current applications for widow’s benefits and the LSDP, the Claimant provided a written statement describing her 32-year relationship with the NH (the first five years of which were spent in Texas) in the Form SSA-754, Claimant’s Statement of Marital Relationship, which she completed on July XX, 2018. In this written statement, the Claimant said that she and the NH began living together in Houston, Texas in March 1986. It appears that they lived in Texas until moving to California in late 1991 as she reported that they lived together in different cities in California starting in September 1991 where they remained until the NH’s death on May XX, 2018.[4] The Claimant explained that she and the NH never divorced because they could not afford it.

The Claimant checked the box on the Form SSA-754 representing that she and the NH had an understanding as to their relationship when they began living together, explaining that they had two daughters together and “said we were common law married.” This understanding never changed. In addition, the Claimant and the NH did not have an understanding as to how long they would live together, nor did they have an understanding as to how their relationship could be ended. She believed that living together made them legally married because a California welfare office told them that if they filed taxes together, they were married. The Claimant and the NH also had an agreement that a ceremonial marriage would be performed in the future, but it was never performed because too many traumatic events occurred in their lives

The Claimant reported that they introduced themselves as husband and wife and that tax returns and bank accounts show them as husband and wife. She reported that she began using the NH’s last name N~ after the birth of their daughters and that mail was addressed to them as “Mr. and Mrs. N.” The Claimant listed the names of four relatives, two of her sisters and two of the NH’s sisters, who knew of their relationship.

The Claimant also reported on the Form SSA-754 that she and the NH had two daughters together while living in Texas, K~ born in December 1988 and K2~ born in August 1990. The agency obtained the children’s birth certificates, confirming their daughters were both born in Houston, Texas during those years. Both birth certificates identify the Claimant and the NH as the parents and list the children with the NH’s last name (N~). The birth certificates require that the Claimant list her maiden name, but a portion of K~’s December 1988 birth certificate lists the Claimant as the informant and shows that she was using the NH’s last name (N~). K~’s December 1988 birth certificate also shows the Claimant’s address as E in Cypress, Texas,[5] and K3~’s 1990 birth certificate shows the Claimant’s address as R in Houston, Texas. Neither birth certificate lists the NH’s address because the form did not provide a space to do so.

In addition to the Claimant’s statements on the Form SSA-754, the NH’s sisters (A~ and C~) and the NH’s and the Claimant’s daughter (K2~) provided statements as to their marital relationship in the Form SSA-753, Statement Regarding Marriage, as follows:

  • Their daughter K2~, who completed the form in July 2018, wrote that the Claimant and the NH lived together as husband and wife from 1986 to 1991 in Houston, Texas and from 1991 to 2018 in Ojai, Ventura, and Oxnard, California. She said that they separated for a short time, but never divorced. To her knowledge, the NH and the Claimant were generally known as husband and wife and she believed they were husband and wife. She wrote: “My parents have lived together my whole life, raised my sister and I together and ran a household together since before I was born.” She also reported that they referred to one another as husband and wife, stating: “All of my life they’ve always referred to each other as husband and wife.”

  • The NH’s sister, A~, wrote that the Claimant and the NH lived together continuously as husband and wife in Oxnard/Ventura, California beginning in approximately 1991. She did not provide dates as to when they lived together in Texas, though she did report that they moved to California from Texas. A~ wrote that she met the Claimant when the Claimant and the NH moved from Texas to California (in 1991) and she described the Claimant as her sister in law by common-law marriage. A~ said that she saw the NH on holidays and several times per month for dinner until he got sick. She saw the Claimant several times per year and on birthdays and holidays. To her knowledge, the NH and the Claimant were generally known as husband and wife, and she considered them to be husband and wife. She wrote: “I have always thought of [the Claimant] as his wife because he has always taken care of her and his children. He performed the everyday duties in their household. They have lived together as husband and wife in the same household for many many years.” She heard them refer to each other as husband and wife “often throughout the years.”

  • The NH’s sister, C~, who completed the form in July 2018, said that the Claimant and the NH lived together as husband and wife in Houston, Texas from 1986 to 1991 and in Ojai, California from 1991 to the present. C~ wrote that she had known the Claimant for 30 years; she described the Claimant as her sister-in-law; and she said that she saw the Claimant and the NH on a yearly basis and on holidays. To her knowledge, the NH and the Claimant were generally known as husband and wife, and she considered them to be husband and wife. C~ believed they were married because the NH “has been with [the Claimant] and raised 2 beautiful daughters.” She also reported hearing them refer to one another as husband and wife “always.”

Analysis

A. Federal Law: Widow(er) under the Act for Widow(er)’s Insurance Benefits and the LSDP

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.[6] See Act § 202(e)(1), (f)(1), 42 U.S.C. § 402(e)(1), (f)(1); Act § 216(a)(2), (c), (g), 42 U.S.C. § 416(a)(2), (c), (g); 20 C.F.R. § 404.335. To be entitled to the LSDP under Title II of the Act, a claimant must establish that he or she is the widow(er) of an individual who died fully or currently insured, and he or she was living in the same household as the insured at the time of his or her death.[7] See Act § 202(i), 42 U.S.C. § 402(i); 20 C.F.R. §§ 404.390, 404.391.

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 Act § 216(h)(1)(A), 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 California at the time of his death. We therefore look to California law to determine whether the Claimant is the NH’s widow(er).[8]

B. California State Law: Recognition of Common-Law Marriages Validity Created In Other States[9]

The Claimant does not allege a ceremonial marriage, rather, she alleges that she and the NH had a common-law marriage that began in Texas in March 1986. She reported that they moved to California in September 1991, and that their marriage ended with the NH’s death in California in 2018. In California, only ceremonial marriages may be contracted. See Cal. Fam. Code § 300(a); POMS GN 00305.075(B). However, California recognizes common-law marriages validly created in states such as Texas that allow such marriages. The California Family Code provides that “[a] marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in California.” Cal. Fam. Code § 308; see People v. Badgett, 895 P.2d 877, 897 (Cal. 1995) (discussing and applying Family Code § 308 to determine validity of purported common law marriage in Texas); Etienne v. DKM Enterprises, Inc., 136 Cal. App. 3d 487, 489 (Cal. Ct. App. 1982) (similar). Thus, in order to determine whether a California court would accept the Claimant’s and the NH’s non-ceremonial marriage as valid, we must determine whether the Claimant and the NH had a valid common-law marriage under Texas law while living in Texas from 1986 to 1991.

C. Texas State Law: Common-Law Marriage

1. Overview of the Elements of Common-Law 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).

2. Burden of Proof: Preponderance of the Evidence [10]

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.[11] See Tompkins 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.)[12] 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 statement, a statement from her biological daughter with the NH, and statements from two of the NH’s sisters to support her claim of a valid common-law marriage. In addition, she provided the Texas birth certificates of their two daughters born during their time in Texas. 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); see also Ranolls v. Dewling, 223 F.Supp.3d 613, 624-25 (E.D. Tex. 2016) (in rejecting defendant’s claim that the same-sex partner could not demonstrate that she and the deceased were informally married under Texas law, the court found that affidavits describing the same-sex relationship raised a genuine issue of material fact as to the couple’s marital status under Texas law).[13] 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 [14] together for almost 2 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, their relatives’ statements, and their daughters’ Texas birth certificates 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 during their time in Texas from 1986 until 1991. 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.

3. Application of 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).

Here, the Claimant’s statements provide direct evidence that she and the NH had an agreement for a permanent marital relationship that began in March 1986 in Texas and continued for approximately five years in Texas and a total of 32 years before the NH died in May 2018. In her Form SSA-754, the Claimant provided that they lived together as husband and wife in Texas from March 1986 to September 1991, when they moved to Oxnard, California. The Claimant also said that she and the NH had an understanding as to their relationship when they began living together in Texas, explaining that two daughters were born of their relationship in Texas (in 1988 and 1990) and they told others they were “common law married.” This understanding was not later changed.

In her Form SSA-754, the Claimant checked a box indicating that she and the NH had an agreement or promise that a ceremonial marriage would be performed in the future. However, as noted, the parties’ intent to marry ceremonially in the future does not necessarily negate an inference that the parties believed that they already had a common-law marriage. SeeAguilar, 715 S.W.2d at 648; McIlveen v. McIlveen, 332 S.W.2d 113, 117 (Tex. Civ. App. – Houston 1960, no writ) (holding no inconsistency in testimony regarding desire to marry in Catholic ceremony and existence of common-law marriage); Trammell v. Trammell, 196 S.W.2d 209, 210 (Tex. Civ. App. – San Antonio 1946, no writ)(“The fact that the parties were to live together as husband and wife in accordance with their agreement to do so, and at some time in the future, when their affairs made it feasible or practical they would solemnize their relation by engaging in a lawful ceremony, cannot be construed into a modification of the marriage agreement, rendering it void and condemning them to a life of unlicensed sin.”). As noted above, the Claimant and the NH told others they were “common law married” after they began living together in Texas in 1986. Thus, despite her claim that they intended to marry ceremonially in the future, the Claimant also asserts that she and the NH believed they already had a common-law marriage in Texas beginning in 1986.

In addition to her statements, their conduct in having two children together while in Texas in 1988 and 1990 – as corroborated by the children’s Texas birth certificates - provides some circumstantial evidence supportive of this element of an agreement for a permanent marital relationship. Their children’s Texas birth certificates identify the Claimant and the NH as the parents and list the children with the NH’s last name (N~). K~’s 1988 birth certificate also identifies the Claimant using her maiden name and the NH’s last name (N~). Their conduct in having two children together during their time in Texas supports 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, No. 07-01-0013-CV, 2001 WL 574833, at *2 (Tex. App. – Amarillo 2001, no pet.) (the decision to have children together, among other things, supported the element of an agreement to be married); 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); see also Estate of Claveria v. Claveria, 615 S.W.2d 164, 166 (Tex. 1981) (conduct of the parties, such as acknowledging their children as legitimate, can support a common-law marriage).

Their relatives’ statements corroborate the Claimant’s statements as to a common-law marriage and provide circumstantial evidence to support this element of an agreement to be married. For example, the Claimant’s sister C~ stated that the Claimant and the NH lived together continuously as husband and wife in Texas from 1986 to 1991.[14] C~ wrote that she had known the Claimant for 30 years (since approximately 1988, when the Claimant and the NH were living in Texas), and she described the Claimant as her sister-in-law. C~ said that the Claimant and the NH had always referred to each other as husband and wife and she believed that they were husband and wife because they raised two daughters (born in Texas) together.

In addition, the Claimant’s and the NH’s daughter K2~ (born in 1990 in Texas) provided some statements describing their relationship in Texas. K2~ wrote that they lived together as husband and wife in Texas from 1986 to 1991, raised her and her sister (born in 1988 in Texas) together, and ran a household together even before she was born. K2~ presumably based these statements on information received from others, as opposed to her personal knowledge, as she was not born until 1990, just one year before the Claimant and the NH moved to California in 1991. Nonetheless, when viewed in combination with the previously discussed statements from the Claimant and the NH’s sister C~, K2~’s statements further support an agreement to be married. 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 the totality of the evidence presented in these uncontroverted statements, we believe a Texas court 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. Indeed, all four statements explain that their marriage lasted in total 32 years until the NH’s death on May XX, 2018. Thus, we believe that Texas courts would find the Claimant satisfied the first element of a common-law marriage to the NH. 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.

Here, the Claimant and the NH’s sister C~ both reported to the agency that the Claimant and the NH lived together continuously as husband and wife in Texas from 1986 to 1991 prior to their move to California in September 1991.[15] Further, while presumably based on information received from others, as opposed to her personal knowledge given her age, the Claimant’s and the NH’s daughter K2~ also wrote that the Claimant and the NH lived together continuously as husband and wife in Texas from 1986 to 1991. In her Form SSA-754, the Claimant wrote that she was not sure of the exact address, but that they began living together in Houston, Texas in March 1986. Additionally, both daughters were born in Houston, Texas, as evidenced by their 1988 and 1990 Texas birth certificates. In addition, while the children’s birth certificates do not have a space to reflect the NH’s address, they list the Claimant’s address as Houston, Texas in 1988 and Cypress, Texas in 1990, both in Harris County, Texas. Thus, the children’s Texas birth certificates provide some corroboration to the statements that the NH and the Claimant lived together in Texas from 1986 until September 1991. See 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).

[15]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). Thus, although they may have also lived together in California, we must examine their relationship while living in Texas.

Thus, we believe that Texas courts would find that the Claimant has proven by a preponderance of the evidence that she and the NH lived together continuously for five years in Texas as spouses. Therefore, we believe the agency could reasonably conclude that the Claimant has proven the second element for a valid common-law marriage under Texas law.

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.

Here, the Claimant, the Claimant and the NH’s daughter K2~, and the NH’s sister C~ provided statements indicating that while living in Texas, the Claimant and the NH represented to others that they were husband and wife.[16]

In the Form SSA-754, the Claimant stated that in introducing themselves to others, she and the NH referred to one another as “my husband” and “my wife” and they told others they were “common law married.” The Claimant reported that they were shown as husband and wife on tax returns and bank accounts. She reported that she began using the NH’s last name N~ after the birth of their daughters and that mail was addressed to them as “Mr. and Mrs. N~.” The Claimant listed the names of four relatives, two of her sisters and two of the NH’s sisters, who knew of their relationship. As explained, the Claimant and the NH also had two children together in 1988 and 1990 while living in Texas, and the children’s Texas birth certificates identify them as the parents and list the children with the NH’s last name (N~). See 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 addition, K~’s 1988 birth certificate identifies the Claimant using both her maiden name and the NH’s last name (N~). The Claimant’s statements and the children’s birth certificates in general are supportive of this element of representing to others that they are married.

Further, the witness statements corroborate this holding out element. Their daughter K2~ and the NH’s sister C~ similarly stated that the Claimant and the NH referred to each other as husband and wife, they were generally known as husband and wife, and they considered them to be husband and wife. K2~ wrote that her parents lived together her whole life, raised her and her sister together, and ran a household together even before her birth in 1990. C~ described the Claimant as her sister in law, she said that she saw the Claimant and the NH on a yearly basis as well as on holidays, and she believed that they were married because they raised two daughters together.

We also note that while it does not directly bear on their relationship in Texas from March 1986 to September 1991, when the Claimant filed for Supplemental Security Income (SSI) in June 1993, she represented to SSA that the NH was her holding out spouse. In December 1993, SSA added the NH to the Claimant’s SSI record as her spouse. The Claimant’s representation to SSA given close in time to the relevant period (March 1986-September 1991) supports the other statements provided.

Considering this uncontroverted evidence in statements from the Claimant, the Claimant’s and the NH’s daughter K2~, and the NH’s sister C~, corroborated by the children’s Texas birth certificates, we believe a Texas court would find that the greater weight and degree of credible evidence supports a reasonable belief that over the course of their five-year relationship in Texas, living together and having two children together, the Claimant and the NH held themselves out to others as being in a committed and dedicated marital relationship. See 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); cf.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).

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 while living in Texas. 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, the statements provided by the Claimant and relatives, as corroborated by the children’s birth certificates, present an overall consistent depiction of the Claimant’s and the NH’s relationship as a common-law marriage during their time in Texas. In applying the preponderance of the evidence standard of proof, we believe Texas courts would find that the greater weight and degree of credible evidence supports a reasonable belief that in March 1986, the Claimant and the NH agreed to be in a permanent marital relationship and began living together in Texas and representing to others that they were married. 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, moving to another state does not terminate a Texas common-law marriage. The evidence indicates that while living in California, the Claimant and the NH temporarily separated between 2008 or 2009 and 2017. However, the Claimant admitted that they never divorced and indeed, there is no evidence of a divorce decree or annulment, and thus, based on the information available, the agency could reasonably conclude that they were still married at the time of the NH’s death in California in May 2018.[17]. Therefore, we believe the agency could reasonably conclude that Texas courts would find that the Claimant has proven a common-law marriage to the NH under Texas law that began in 1986 in Texas and ended with the NH’s death in 2018 in California.

CONCLUSION

In summary, we believe that Texas courts would find that the Claimant has proven that she was in a valid common-law marriage with the NH under Texas law from March XX, 1986 until the NH’s death on May XX, 2018, and that California courts would recognize this valid Texas common-law marriage. See Act § 202(e)(1), (f)(1), (i), 42 U.S.C. § 402(e)(1), (f)(1), (i); Act § 216(a)(2), (c), (g), (h)(1)(A), 42 U.S.C. § 416(a)(2), (c), (g), (h)(1)(A); see also 20 C.F.R.

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] Although there are some statements from the Claimant and their relatives regarding their time living in California, evidence concerning the Claimant’s and the NH’s relationship after they moved to California in September 1991 is not determinative of the issue relevant to this legal opinion - whether the Claimant and the NH met all three elements for a common-law marriage under Texas law while living in Texas.

[3]See https://www.legacy.com/obituaries/name/thomas-nelson-obituary?pid=189180019 (last visited August 19, 2019).

4] Of their time in California, she stated that they lived in Oxnard, California from September 1991 to March 1992; in Ventura, California from June 1992 to June 1993; and in Ojai, California from June 1994 until the present. The Claimant explained that they were homeless at times while living in California and they did not live together continuously from October 2008 to June 2017 because the NH was abusive and the Claimant left. The NH was also “in and out some of this time due to his homelessness.”

[5] Cypress is an unincorporated community in Harris County, Texas, located completely inside the extraterritorial jurisdiction of the city of Houston and approximately 24 miles northwest of downtown Houston. See https://en.wikipedia.org/wiki/Cypress,_Texas (last visited August 20, 2019).

6 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.

[7] “Living in the same household” means that the claimant and the insured individual “customarily lived together as husband and wife in the same residence.” 20 C.F.R. § 404.347; see also POMS RS 00210.035(A)(3) (the couple “must have shared a temporary or permanent residence for at least part of a day following the beginning of the marital relationship”).

8] In addition to proving that she is the insured individual’s widow(er) whose marriage lasted nine months (for widow’s benefits) and that she was living in the same household as the insured (for the LSDP), the Claimant must satisfy other criteria that are outside the scope of this legal opinion request. See Act § 202(e), (f), (i), 42 U.S.C. § 402(e), (f), (i); Act § 216(c), (g), 42 U.S.C. § 416(c), (g); 20 C.F.R. §§ 404.335, 404.390, 404.391.

[9] On September 25, 2019, OGC Region 9 reviewed and concurred with our discussion of California law provided in this opinion.

10] The regulations explain that a person who applies for Social Security spousal benefits, such a 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. We note that the Claimant did not provide the agency’s preferred evidence of her common-law marriage with the NH under the regulations. See 20 C.F.R. § 404.726(b)(2). Although two the NH’s blood relatives provided statements (sisters A and C), these statements were not entirely supportive of a common-law marriage while living in Texas from 1986 to 1991 as A reported only on their relationship while in California beginning in 1991. Thus, we consider whether the Claimant provided “other convincing evidence” of the common-law marriage that satisfies Texas’s preponderance of the evidence standard of proof. See 20 C.F.R. §§ 404.704 (“When evidence is needed to prove your eligibility or your right to continue to receive benefit payments, you will be responsible for obtaining and giving the evidence to us.”), 404.709 (explaining the agency’s consideration of preferred and other evidence), 404.726(b)(2) (the agency’s preferred evidence of a common-law marriage when one spouse is dead is a signed statement from the living spouse and signed statements from two blood relatives of the deceased spouse); POMS GN 00305.065(B)(3) (the agency is instructed to obtain a Form SSA-754-F4 from the surviving spouse and a Form SSA-753 from two blood relatives of the deceased spouse and from a blood relative of the surviving spouse). The regulations explain that “[i]f preferred evidence is not available, we will consider any other evidence you give us” and determine whether this other evidence is “convincing evidence.” 20 C.F.R. § 404.709. As to evidence of a common-law marriage in particular, the regulations state that “[i]f you cannot get preferred evidence of a common-law marriage, we will ask you to explain why and to give us other convincing evidence of the marriage. We may not ask you for statements from a blood relative or other person if we believe other evidence presented to us proves the common-law marriage.” 20 C.F.R. § 404.726(c).

[11] 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.

[12] 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.

[13] In support of her claim that she was the female decedent’s common-law widow in Ranolls, the plaintiff provided the court with affidavits, including her own, stating that she and the deceased lived together since 1996; agreed to be married; wore wedding bands to symbolize their marriage; raised a son together; presented themselves as spouses at work events, family gatherings, parties, dinner, and other events; presented themselves as a married couple in their daily lives; introduced each other as spouses and their child as their son; and were both listed on school paperwork as the son’s parents. Ranolls, 223 F.Supp.3d at 624-25. After holding that Obergefell was retroactive such that plaintiff could legally establish a same-sex marriage prior to the date of Obergefell , the Court denied defendants’ motion for summary judgment and found that a genuine issue of material fact existed as to whether there was a same-sex common-law marriage. Id . The parties subsequently reached a settlement and the case was dismissed on May 22, 2017.

[14] As discussed in the background portion of this legal opinion, the NH’s sister A also provided a statement describing the Claimant’s and the NH’s relationship. However, A~’s statement only described their relationship in California beginning in 1991, and thus it is not relevant as to whether the Claimant and the NH met all three elements for a common-law marriage while living in Texas from 1986 to 1991.

[15]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). Thus, although they may have also lived together in California, we must examine their relationship while living in Texas.

[16] We note that some of the Claimant’s and the NH’s sister C~’s statements do not distinguish between their relationship from 1986 to 1991 in Texas and their relationship from 1991 to 2018 in California. However, we recognize that the agency forms do not make such distinctions either. Thus, we understand such statements to characterize the entirety of their relationship, which would include their time in Texas. We also note that because their daughter K2~ was not born until 1990, to the extent that K2~ appears to be describing the Claimant’s and the NH’s relationship in Texas from 1986 to 1991, she presumably based these statements on information she received from others, as opposed to her personal knowledge.

[17]Your legal opinion request asked whether there is sufficient documentation to rebut the presumption that a common-law marriage did not exist between the Claimant and the NH under Texas law if their relationship ended when they temporarily separated (in 2008 or 2009) and not at the NH’s death in 2018. 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, it is rebuttably presumed that the parties did not enter into an agreement to be married.” Tex. Fam. Code Ann. § 2.401(b). The Claimant’s statements are unclear as to their separation. She indicated in the Form SSA-754 that they separated for a period of time while living in California but also that he was “in and out” during some of this time. Their daughter K2~ reported in the Form SSA-753 that they “separated for a short period,” and she reported that her parents “lived together my whole life.” The NH’s sister Alice reported that they lived together continuously in California, and his sister C~ reported that they lived together continuously in Texas and California. Thus, the evidence of separation is unclear. Regardless, this is only a rebuttable presumption that an individual may rebut 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 also Joplin 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”). Here, we believe that Texas courts would find that Claimant has proven a common-law marriage, and thus, any presumption against the agreement to be married based on a period of separation has been rebutted.

B. PR 86-025 Jose (Common law marriage in Cuba)

DATE: June 4, 1986

1. SYLLABUS

MARRIAGE -- COMMON-LAW MARRIAGE -- CALIFORNIA

Common law marriage has been legally acknowledged in Cuba since the Constitution of 1940 went into effect on October 19, 1940, ( Jose; RA IX; ; June 3, 1986).

MARRIAGE -- COMMON-LAW MARRIAGE -- CALIFORNIA

In order to be recognized under Cuban law, a common law marriage must be validated by a final court judgment, as evidenced by either (1) a certificate of marriage issued by the Civil Registry where the validation decree was recorded, or (2) a certified copy of the decree (together with verification by the court clerk that it is a final decree). ( Jose; RA IX; June 3, 1986).

2. OPINION

Doraida has filed an application for widow's insurance benefits on the account of the deceased wage earner, Jose. Jose and Doraida cohabited in their native country, Cuba, from March 9, 1952 through July 28, 1960. Doraida emigrated to the United States in October 1966. Jose followed in May 1967. Thereafter, they lived together in California until Jose's death on November 8, 1984. They were never married ceremonially.

Because Jose was a California domiciliary at the time of his death, California state law applies in assessing Doraida's entitlement to widow's benefits. See section 216(h) (1) (A) of the Social Security Act. A marriage entered into outside California which would be valid under the laws of the jurisdiction where it was contracted is, as a rule, also valid in California. E.g., GC opinion re Joe , February 11, 1986. Doraida's claim to be Jose's widow is based on her contention that Cuba recognizes common law marriage. Therefore, you have asked us to advise whether common law marriage is valid under Cuban law and, if so, what the requirements are for such a marriage.

We are informed by the Hispanic Law Division of the Library of Congress that common law marriage has been legally acknowledged in Cuba since the Constitution of 1940 went into effect on October 19, 1940. However, in order to produce 1egal effects between the parties, the relationship must be validated by a final court judgment granting the same status as a civil marriage. [1] If the requisite judicial validation has been procured, it will be evidenced by either (1) a certificate of marriage issued by the Civil Registry where the validation decree was recorded, or (2) a certified copy of the decree (together with verification by the court clerk that it is a final decree).

Thus, Doraida's contention that cohabitation and procreation are sufficient to establish a common law marriage in Cuba is erroneous. We recommend that you ask Doraida whether she and Jose procured the mandatory validation decree. If so, it will be necessary to obtain appropriate documentation, as indicated above. Absent such documentation, a common law marriage cannot be found to have existed under Cuban law.

 


Footnotes:

[1]

The judgment validates the relationship retroactive to the date of commencement.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1505605006
PR 05605.006 - California - 12/19/2019
Batch run: 12/17/2024
Rev:12/19/2019