You requested an opinion concerning whether a putative marriage existed between Andrea
K~ and deceased number holder Michael R~ for purposes of determining spousal benefit
eligibility when her "good faith" remains questionable but an Adams County District
Court order declares her a putative spouse.
The facts in this case are extensive. Michael D. R~ (Mr. R~) (~) and Cynthia L. S~
(Ms. S~) began living together in September of 1984 in Arvada, Colorado. (Cynthia
S~'s Statement of Marital Relationship, April 22, 2002.) Ms. S~ was still married
to Donald S~ at the time. (Colorado Divorce Detail of Cindy S~.) Ms. S~ claims that
Mr. R~ knew that the divorce was not final from the time they began living together
and was with her in court when the decree was entered on April 3, 1987. (Cynthia S~'s
Statement of Marital Relationship.)
In January of 1985, Mr. R~ provided Ms. S~ with a diamond ring and began calling her
"his wife." See id. Although there was never a formal ceremony, Ms. S~ claims that the two of them agreed
to do this eventually. See id. Ms. S~ had a daughter from the previous marriage named Brynn, and Mr. R~ always referred
to her as "his daughter." See id. Ms. S~ introduced Mr. R~ to acquaintances as her "husband." See
Sometime in 1985, they purchased a car together. (Cynthia S~'s Statement of Marital
Relationship.) Later in 1990 or 1991, they purchased a piece of land in Grand Lake
(Grand County Clerk and Recorder Details, April 24, 2003) where they planned to retire
together. (Cynthia S~'s Statement of Marital Relationship.) They purchased another
vehicle, a 1969 Ford Mustang, in 1995, and the bill of sale listed them as "Mike and
Cindy R~." (Bill of Sale, September 3, 1995.)
Over the course of their 14-year relationship, Mr. R~ and Ms. S~ included their names
on documents jointly as husband and wife. In 1992, they filed both federal and State
joint income tax returns as married. (Individual Income Tax Returns, 1992.) In 1989,
Ms. S~ also claimed Mr. R~ as a dependent spouse on her health insurance policies
with Met Life and Metropolitan Insurance Companies. (Insurance Enrollment Form, December
21, 1989.) She included coverage for a spouse on her J.C. Penney Life Insurance Policy
dated July 3, 1993. (J.C. Penney Life Insurance Company, Certificate of Insurance,
July 3, 1993.)
According to Ms. S~, their friends and family considered them married. (Cynthia S~'s
Statement of Marital Relationship.) Various people and entities referred to Mr. R~
and Ms. S~ as married. A wedding invitation in 1994 was addressed to "Mr. & Mrs. Mike
The relationship went sour in January of 1998. Although the couple did not plan to
end the relationship, they planned a 6-month separation. (Cynthia S~'s Statement of
Soon thereafter, Mr. R~ entered into a relationship with another woman. Andrea K~
claims that Mr. R~ began living with her in March 1999. (Andrea K~'s Statement of
Marital Relationship, April 16, 2002.) She claims that they lived together as "man
and wife," and planned a formal ceremony that never came to fruition because Mr. R~
became ill. See id. Mr. R~ died on October 8, 2000, of respiratory problems from sepsis. (Death Certificate
of Michael R~, October 17, 2000.)
Mr. R~ and Ms. K~ structured several accounts and transactions indicative of a marital
relationship. Available evidence indicates that they held a joint account with First
Nationwide Mortgage. (Monthly Mortgage Statement, October 3, 2000.) Mr. R~, a member
of the International Brotherhood of Electrical Workers (IBEW), named Ms. K~ as a beneficiary
spouse on his pension records. (Beneficiary Designation Card of Michael R~, October
13, 1999; see also Letter from the Trust for the IBEW Pension Benefit Fund, June 9, 2000.) Subsequent
correspondence and a death claim check from the IBEW Pension Fund were addressed to
her as "Andrea R~." (Letter from the Trust for the IBEW Pension Benefit, November
13, 2000.) Another life claim letter and check from the Line Construction Benefit
Fund were addressed to Andrea M. K~-R~. (Letter from LINECO, October 24, 2000.) Mr.
R~ included Ms. K~ on his HealthOne insurance policy. (HealthOne Medical Record, July
27, 2000.) They received a warranty deed as joint tenants on some property in Clear
Creek County on December 3, 1999. (Warranty Deed, December 3, 1999.) In addition,
they executed a warranty deed on their home in Thornton on February 26, 1999 (Warranty
Deed, February 26, 1999.) They held joint accounts at Horizons North Credit Union.
(Account Statement, June 30, 2001.) They did not, however, file joint tax returns,
but rather, Mr. R~ filed as "single" and Ms. K~ as "head of household" in both 1999
and 2000. (Individual Income Tax Returns for both 1999 and 2000.) Ms. K~ maintains
that she was not aware of a possible common law marriage between Mr. R~ and Ms. S~
until after Mr. R~'s death. (Andrea K~'s Statement of Marital Relationship.)
Following Mr. R~'s death, conflict arose between Ms. S~ and Ms. K~ over which was
his legal spouse. The first death certificate issued on October 17, 2000, for Mr.
R~ listed Ms. K~ as his spouse. (Death Certificate of Michael R~.) An amended death
certificate issued on December 12, 2000 listed Ms. S~ as the spouse. (Amended Death
Certificate of Michael R~.)
Ms. K~ applied for mother's benefits in November of 2000. She also filed for child's
benefits on behalf of her two children, Jeremiah and Mariya, alleging they were stepchildren
to Mr. R~. These claims were denied for failure to establish entitlement as a spouse,
resulting in no stepchild relationships being established.
In July 2001, Ms. K~ obtained a court "stipulation to Spousal Status" from Adams County
District court, declaring her the putative spouse of Mr. R~ as of the date of his
death. (Adams County Court Order Approving Stipulation to Spousal Status, July 5,
2001 (hereinafter "Adams County Court Order").) The order was issued subsequent to
an agreement between Ms. S~ and Ms. K~ in the settlement of Mr. R~'s estate. (Settlement
Agreement Between Cynthia L. S~ and Andrea K~, June 27, 2001.) The order recognized
Ms. S~ as the legal spouse on the date of death. (Adams County Court Order.) It also
stated that Ms. K~ was a putative spouse and therefore entitled to claim all benefits
available to her under the law arising from Mr. R~'s death. See id. Ms. K~ applied again for mother's benefits and child's benefits on April 18, 2002,
and has protective filing to August 2001. (Application for Benefits, April 18, 2002.)
In her application under penalty of perjury, she stated that she always knew about
Ms. S~ and was always pushing Mr. R~ to do something legal to terminate that relationship.
Upon further investigation, the district office where Ms. K~'s claims were taken discovered
that Margaret R~, mother of the deceased number holder, did not consider Ms. K~ to
be the spouse of her son. (Report of Contact with Margaret R~, April 23, 2002). She
also states that Mr. R~ didn't either. See id.
Section 202 of the Social Security Act provides that a surviving spouse of an individual
who dies insured may be eligible for mother's benefits. See 42 U.S.C. § 402(g)(1)._11 The applicant must (1) not be married, (2) not be entitled
to a surviving spouse's insurance benefit or old age benefits, (3) file an application,
and (4) have a child of the deceased wage earner in his or her care. See 42 U.S.C. § 402(g)(1)(A)-(F); see
also 20 C.F.R. § 404.339._22 A "surviving spouse" is defined as a "widow," or surviving
wife of the wage earner who was married to him for at least one year before the application.
See 42 U.S.C. § 416(b)-(c). Likewise, the Act provides benefits for children, if, among
other things the child for who benefits are applied for (1) was the insured person's
child and (2) the child was dependent on a deceased wage earner. See 42 U.S.C. § 402(d)(1); see also 20 C.F.R. § 404.350. The definition of "child" includes those children who were stepchildren
of the deceased wage earner for at least one year before an application for child's
benefits is filed. See 42 U.S.C. § 416(e). Stepchildren are eligible for benefits only if the natural parent
was legally married to the insured. See 20 C.F.R. § 404.357.
In deciding whether a claimant was legally married to an insured person, we look to
the laws of the State where the insured had a permanent home when he or she died.
See id. § 404.345; see
also 42 U.S.C. § 416(h)(1)(A)(i) (applicant is wife of deceased insured individual if
the courts of the State where applicant was domiciled at the time he died would find
that such applicant and deceased insured individual were validly married at the time
that he died); see also Warren v. Sec'y of Health
& Human Servs., 868 F.2d 1444, 1447 (5th Cir. 1989) (stating that "the courts" refers to the highest
court of that State in a proceeding contested by parties with opposing interests).
"Permanent home" means the "true and fixed home" or legal domicile of a person, or
the place that they intend to return whenever he or she is absent. See 20 C.F.R. § 404.303. In this case, no dispute exists as to whether Mr. R~ had a permanent
home in Colorado when he died.
Colorado recognizes the doctrine of common law marriage. See
Klipfel's Estate v. Klipfel, 92 P. 26 (Colo. 1907) (quoting Taylor
v. Taylor, 50 P. 1049, 1049 (Colo. App. 1897)). A common law marriage in Colorado requires
two elements. First, there must be an agreement to take each other in marriage. See Taylor, 50 P. at 1049. Agreement can be inferred from cohabitation and reputation that the
parties "hold themselves out" to the community as husband and wife. Id. at 1049; see People v. Lucero, 747 P.2d 660, 663 (Colo. 1987). Second, there must be mutual and open assumption
of a marital relationship. See Clayton Coal
Co. v. Indus. Comm'n, 25 P.2d 170 (Colo. 1933). Generally, common law marriage cannot arise while one
of the parties is still legally married to another until the legal marriage to the
other person is dissolved or other impediment removed. See Crandell
v. Resley, 804 P.2d 272, 276 (Colo. App. 1990); see
also Clark v. Clark, 229 P.2d 142 (Colo. 1951); see
also In re Morrow's Estate, 68 P.2d 36, 39 (Colo. 1937). The party asserting common law marriage carries the
burden of proof, which is a preponderance of the evidence but evidence must also be
"clear, consistent, and convincing."
Employee' Mut. Liab. Ins. Co. of Wisconsin v. Indus.
Comm'n, 234 P.2d 901, 903 (Colo. 1951).
Colorado also adopts the putative spouse doctrine, which allows a person to claim
the rights of a marital relationship in the absence of a legal marriage. A putative
spouse obtains the rights conferred upon a legal spouse, whether or not the marriage
is prohibited, when the person has (1) cohabitated with another to whom (2) he or
she is not legally married in (3) the good faith belief that he was married to that
person (4) until "knowledge of the fact that he is not legally married terminates
his status and prevents acquisition of further rights." Colo. Rev. Stat. § 14-2-111
(2003) (emphasis added). The definition of "prohibited marriage" includes those marriages
entered into prior to the dissolution of an earlier marriage of one of the parties.
Colo. Rev. Stat. § 14-2-110 (2003). In addition, Program Operations Manual System
(POMS) GN 00305.085 clearly states that putative marriage requires continuous good faith belief that the marriage was legal until the worker dies in order to be
Based upon the available facts, after her divorce in April 1987, Ms. S~ could satisfy
the elements required for a common law spouse. Common law marriage in Colorado requires
cohabitation. See Taylor, 50 P. at 1049; see also Lucero, 747 P.2d at 663. Mr. R~ and Ms. S~ lived together from September 1984 until they
separated in January of 1998. Common law marriage also requires "holding out." See id. It also requires a "mutual" and "open" assumption of marital status. See Clayton, 25 P.2d 170. In 1992, Mr. R~ and Ms. S~ filed both State and Federal tax returns
jointly. Ms. S~ claimed him as a dependent spouse for health insurance purposes and
included coverage for Mr. R~ as her spouse on her life insurance policy. They received
a wedding invitation addressed to them as though they were married. These facts evince
that Mr. R~ and Ms. S~ were "holding themselves out" to the community as man and wife,
and both openly presented themselves as married to each other. Even though Ms. S~
was still married to Donald S~ at the time she began living with Mr. R~, that impediment
was removed with finalization of her divorce in April 1987. She and Mr. R~ continued
to cohabitate and held themselves out as married until their eventual separation in
January of 1998. The evidence of a common law relationship between Mr. R~ and Ms.
S~ seems "clear, consistent and convincing." On these facts, Ms. S~ could satisfy
the legal requirements as a common law spouse to Mr. R~ under Colorado law.
Ms. K~ cannot satisfy the legal requirements for a common law marriage to Mr. R~ because
Mr. R~ and Ms. S~'s relationship had not legally terminated at the time Ms. K~ began
living with Mr. R~. She also cannot satisfy the legal requirements of a putative marriage
because she lacked a good faith belief that Mr. R~'s prior relationship to Ms. S~
was legally dissolved.
Two common law marriages cannot exist simultaneously. See
In re Morrow's Estate, 68 P.2d at 39; see also
Crandell, 804 P.2d at 276. Because Mr. R~'s common law marriage to Ms. S~ had not legally
terminated when his relationship with Ms. K~ commenced, he and Ms. K~ could not have
a common law marriage even though they arguably held themselves out to the community
As previously stated, a putative spouse must (1) live with another person (2) to whom
she is not legally married with (3) good faith belief that she is married to the other
person (4) until knowledge of the fact that she is not legally married terminates
her status. See Colo. Rev. Stat. § 14-2-111. Also, as mentioned in previous memoranda on this topic,
to receive benefits a putative spouse in Colorado must have continuous good faith
belief in the validity of the marriage until the worker dies. See Memorandum from OGC Region VIII to RC, Putative Common Law Marriage in Colorado, 3
(1985) (Claimant cannot be putative common law spouse if finder of fact determines
that she knew of prior undissolved marriage before worker died); see also Memorandum from OGC Region VIII to RC, Putative Marriage, Colorado (1979) (Putative
common law marriage did not arise when putative spouse did not meet the good faith
belief requirement of the Colorado statute).
Ms. K~ did not meet the required elements and was not Mr. R~'s "common law putative
spouse." First, it is true that Mr. R~ and Ms. K~ lived together. Second, if Mr. R~
was legally married to Ms. S~, he could not have been legally married to Ms. K~. It
is also true that they may have held themselves out as married because they held some
joint accounts; Ms. K~ was named as a beneficiary spouse on Mr. R~'s union pension,
and Ms. K~ was included on Mr. R~'s health insurance policy. However, Ms. K~ fails
to meet the elements of a putative spouse because she lacked a good faith belief that
she was married to Mr. R~ prior to his death. Specifically, in her application for
benefits on April 16, 2002, she acknowledged that she was "aware of Mr. R~'s relationship
with Ms. S~ and had asked him several times to take legal action to end the marriage."
On these facts, Ms. K~ lacked a good faith belief that Mr. R~ was not married to another
and therefore could not have been his putative spouse.
We recognize the Adams County District Court issued an order determining that Ms.
K~ was Mr. R~'s putative spouse. However, the Commissioner of Social Security is not
bound by the decisions of a State court in a proceeding to which she is not a party.
But, she is not free to ignore an adjudication of a State trial court where it is
fair and consistent with the law as enunciated by the highest court of the State.
The Commissioner must accept the determination made by a State court where (1) an
issue in a claim for Social Security benefits previously has been determined by a
State court of competent jurisdiction, (2) the issue is 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 Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973) (emphasis added) (citing Legory
v. Finch, 424 F.2d 406 (3rd Cir. 1970)); see also Social Security Ruling (SSR) 83-37C (1983). Where the highest court in the State
has not spoken on the particular area of law at issue, the Commissioner may follow
the decision of the lower court but "is free to disregard that decision if he feels
that it is contrary to what the supreme court of that State would rule if presented
with the question." Rogers v. Sullivan, 795 F. Supp. 761, 764-65 (E.D.N.C. 1992) (quoting Cain v. Sec'y
of Health, Educ. & Welfare, 377 F.2d 55, 57 (4th Cir. 1967); see also Warren, 868 F.2d at 1447 (stating that the Commissioner is obligated by statute to determine
the law as would the highest court of the State in a proceeding contested by parties
with opposing interests). A lower court decision should be followed if it is "fair
and logical and no authoritative decision to the contrary exists." Id., see also
Legory, 424 F.2d at 410.
The Adams County District Court order approving stipulation to spousal status involves
the issue of Ms. K~'s relationship to Mr. R~, an issue in her claim for benefits,
and the issue was determined by a State court of competent jurisdiction. See Colo. Const. Art. 6 § 9 (stating jurisdiction vests in Colorado District Courts to
hear matters regarding probate or domestic relations). Thus, the first requirement
of the Gray analysis is satisfied. Ms. K~'s status as a putative spouse also arguably "falls
within the general category of domestic relations law," satisfying the third step
of the Gray analysis.
However, Ms. K~'s spousal status does not appear to have been "genuinely contested"
under the meaning of SSR 83-37c. To be genuinely contested, an issue must be disputed
by parties with opposing interests. See George v. Sullivan, 909 F.2d 857, 861 (6th Cir. 1990) (a court order did not bind the Commissioner and
was not genuinely contested where no evidence was presented or any material controversy
resolved); see also Outwater v. Sec'y of Health
& Human Servs., 894 F. Supp. 1114, 1120 (E.D. Mich. 1995) (court found that where transcript from
the proceeding failed to show that the issue was discussed that it could not have
been "genuinely contested" under Gray); Rogers, 795 F. Supp. at 765 (court stated that a proceeding where a jury found that a party
was a common law wife was "genuinely contested"); McEvers
v. Sullivan, 785 F. Supp. 1321, 1328 (C.D. Ill. 1992) (finding that a court order declaring a
marriage invalid after one of the parties died was not "genuinely contested"); Winters v.
Sec'y of Health & Human Servs., No. C-3-87-419, 1989 WL 280323 at * 2 (S.D. Ohio Dec. 11, 1989) (State court proceeding
is "genuinely contested" when parties are cross examined and evidence is presented
in favor and opposition to positions of the parties); Thomasello
v. Apfel, No. 97-3701, 1998 WL 597643 at * 2 (7th Cir. Aug. 28, 1998) (stating that where
an order is not the product of truly adversarial proceedings, there is good reason
to question it's reliability). In this case, the parties did not litigate, but settled,
after which stipulations were entered to approve of the settlement agreement and spousal
status. In fact, based upon information obtained from the District Court, both a hearing
and trial were scheduled but neither was held. Based upon this information, the court
order appears to fail the "genuinely contested" inquiry of Gray and SSR 83-37c.
We note previous opinions from this office that take an alternative view on the "genuinely
contested" requirement. In particular, we have stated that "to require a genuine contest
may be to require the impossible, and that knowing waiver of the opportunity to contest
can compensate for the absence of a contest." See Memorandum from OGC Region VIII to Acting ARC, Child's Status under North Dakota
Law, 3 (1990) (quoting Memorandum from OGC Region V to ARC, Programs, Mutual Acknowledgement
of Paternity in Michigan, (1985)). Ms. K~ might argue that Ms. S~'s agreement to stipulate
as to spousal status shows both notice and waiver of the opportunity to contest. While
this argument seems compelling, it still does not make the court order binding on
the Commissioner because Ms. K~ cannot satisfy the fourth and final requirement that
the finding be consistent with the law as enunciated by the highest court in the State
if it were to speak regarding this issue.
Based upon the facts, the finding that Ms. K~ was Mr. R~'s putative spouse would probably
not be consistent with a holding of the Colorado Supreme Court if they were to speak
on this particular area of law. As discussed above, where the State Supreme Court
has not spoken on the particular area of law at issue, the Commissioner "is not required
to follow a lower court's decision to which she is not a party" but can disregard
the decision if she feels that it is contrary to what the Supreme Court of that State
would rule if presented with the question. See Rogers, 795 F. Supp. at 764 (quoting Cain, 377 F.2d at 57). There are no reported cases where the Colorado Supreme Court has
spoken regarding Colo. Rev. Stat. § 14-2-111 or the elements of putative marriage.
But, the statute clearly says that for the person claiming to be a putative spouse,
"knowledge of the fact that he is not legally married terminates his status and prevents
acquisition of further rights." Colo. Rev. Stat. § 14-2-111. And, in Williams
v. Fireman's Fund Ins. Co., the Colorado Court of Appeals held that a putative spouse keeps the rights of a
legal spouse if she does not discover the prior undissolved marriage of her spouse
until after his death. 670 P.2d 453, 455 (Colo. App. 1983). Likewise, in People v. McGuire, the Colorado Court of Appeals also held that knowledge of a previous marriage "negates
any good faith belief" that might be available to a participant in an invalid marriage.
751 P.2d 1011, 1012 (Colo. App. 1988). Ms. K~ cannot be a putative spouse because
she knew of the previous legal marriage of Ms. S~ and Mr. R~ prior to his death, which
destroyed her good faith. As such, the Supreme Court of Colorado would probably not
find Ms. K~ to have satisfied the good faith requirement of Colo. Rev. Stat. § 14-2-111,
and she therefore would not qualify as a putative spouse.
Accordingly, we advise that:
(1) Ms. S~ could qualify as Mr. R~'s common law spouse because she and Mr. R~ lived
together and held themselves out to the community as married in a "mutual" and "open"
assumption of a marital relationship.
(2) Ms. K~ could not qualify as Mr. R~'s putative spouse under Colorado law because
she lacked a "good faith belief" that she and Mr. R~ were legally married. Ms. K~
knew of his marital relationship with Ms. S~ and encouraged him to take legal action
to dissolve it.
(3) The Commissioner is arguably not bound by the order issued by the Adams County
District Court because (a) the issue of Ms. K~'s spousal status does not appear to
have been genuinely contested under the meaning of Gray v. Richardson and SSR 83-37c, and (b) based upon the facts, we do not believe the Colorado Supreme
Court would find she meets the legal definition of a putative spouse under Colorado
Yvette G. K~
Regional Chief Counsel, Region VIII
Michael A. T~
Assistant Regional Counsel
_11All references to the United States Code (U.S.C.) are to the 2000 edition.
_22All references to the Code of Federal Regulations (C.F.R.) are to the 2003 edition.