TN 20 (05-15)

PR 05605.010 District of Columbia

A. PR 15-128 Validity of Common-Law Relationship 1 under the law of Québec, Canada —Death Case — REPLY

DATE: May 13, 2015

1. SYLLABUS

The claimant entered into a valid ceremonial marriage with the NH in Hawaii in February 1998.  The NH died on October 24, 1998 in Québec, Canada. Because the NH resided in Canada at the time of his death, we apply District of Columbia law to determine whether they were validly married. Under the law of the District of Columbia, the claimant would be recognized as the NH’s widow. However, under the Act, the marital relationship did not last at least nine months before the NH died as required under the Act. Therefore, the claimant is not entitled to Title II widow’s benefits on the record of the NH. In addition, the agency cannot deem the couple as married for Title II benefit purposes, as their relationship does not allow the claimant the same status as a widow of the NH under the intestacy law of Québec, Canada.

2. OPINION

Question Presented

M~ (the claimant) applied for widow’s insurance benefits on the earnings record of T~, the deceased insured number holder (the NH). The claimant submitted evidence that she had a spousal-type relationship with the NH and that they began living together in 1990 in Québec, Canada. The couple lived in San Francisco, California, and in Maui, Hawaii. In Hawaii, the couple married on February 17, 1998. They moved back to Québec, Canada, where the NH died on October 24, 1998. You have asked if the claimant is entitled to Title II widow’s benefits based on her relationship with the NH.

OPINION

No, the claimant is not entitled to Title II widow’s benefits based on her relationship with the NH. Although the claimant married the NH on February 17, 1998, the marriage did not last the requisite nine months required by the Social Security Act (Act). 2 Section 216(c) of the Act; 20 C.F.R. § 404.335. In addition, the agency cannot deem the couple as married for Title II benefit purposes, as their relationship does not allow the claimant the same status as a widow of the NH under the intestacy law of Québec, Canada.

BACKGROUND

The claimant and the NH lived together from January 1990, until the NH’s death on October 24, 1998, in Québec, Canada. You requested a legal opinion regarding whether the claimant is entitled to Title II widow’s benefits on the record of the NH, based on this relationship.

ANALYSIS 3

Generally, an individual is entitled to widow’s or widower’s benefits if he or she (1) is the insured’s widow or widower and the marital relationship lasted at least nine months before the insured died; (2) files an application; (3) is at least 60 years old; (4) is not entitled to an old-age benefit that is equal to or larger than the insured person’s primary insurance amount; and (5) is not currently married. Sections 206(e), (f), 216(c), (g) of the Act; 20 C.F.R. § 404.335.

Here, because the NH resided in Canada at the time he died, we apply District of Columbia law to determine whether they were validly married. Section 216(h)(1)(A)(i) of the Act; 20 C.F.R. § 404.345. Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. See McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Varr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi,69 F. Supp. 296 (D.D.C. 1946). The only exception is when the marriage is in violation of strong public policy of the District of Columbia. Hitchens v. Hitchens, 47 F. Supp. 73, 74 (D.D.C. 1942).

The Claimant’s Ceremonial Marriage to the NH did not Last at Least Nine Months

The claimant entered into a valid ceremonial marriage with the NH in Hawaii, on February 17, 1998. However, the NH died on October 24, 1998. Under the law of the District of Columbia, the claimant would be recognized as the insured’s widow. However, under the Act, the marital relationship did not last at least nine months before the insured died as required under sections 216(c), 216(g) of the Act; 20 C.F.R. § 404.335. Therefore, the claimant is not entitled to Title II widow’s benefits on the record of the NH, based on their ceremonial marriage.

The Claimant Does Not Have the Same Status as a Wife of the NH Under the Intestacy Law of Québec, Canada

If the claimant cannot be entitled to widow’s benefits based on a marriage to the NH, the agency will deem the couple to have been married, if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, the claimant would have the “same status” as a widow of the NH with respect to the taking of such property, if the NH were to die. See § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345. Under District of Columbia law, intestate inheritance rights are determined by the law of the decedent’s domicile. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.D.C. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)). As previously noted, the NH died domiciled in Québec, Canada. Accordingly, to determine whether the claimant would have the requisite status with respect to inheritance of the NH’s intestate property, we apply the law of Québec.

Québec recognizes marriages, civil unions,4 and de facto unions (conjoints de fait), 5 all of which are open to couples who are in an opposite or same-sex relationship. De facto unions exist when two people live together as a couple without being married or in a civil union. 6 According to Justice Québec, the website of Québec’s Department of Justice:

Québec lawmakers, respecting the freedom of choice of couples living in a de facto union, have deliberately chosen not to extend to de facto couples the same rights and responsibilities that married or civil union couples have under the Civil Code of Québec, regardless of the number of years of cohabitation.7

Here, the claimant does not allege that she was in a civil union with the NH. Instead, the claimant and the NH lived together from January 1990, until the NH’s death on October 24, 1998. Under the laws of Québec, this relationship would be defined as a de facto union (conjoints de fait). However, under the Civil Code of Québec, a member of a de facto union does not have spousal rights of intestate inheritance from the other member. Accordingly, the agency would not deem a couple in a de facto union as married.

CONCLUSION

The claimant does not have the same status as a wife of the NH under the law of Québec. Thus the agency cannot deem the couple married for Title II purposes.

B. PR 14-047 Widow’s Benefit Eligibility Based on Record of Common-Law Partner in New Brunswick, Canada

DATE: January 14, 2014

1. SYLLABUS

Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. To determine whether claimant was validly married to the NH for Social Security purposes, we must determine whether their relationship constitutes a valid marriage under New Brunswick law. As pertinent here, the Act provides two methods for a claimant to show that she is the widow of an insured who was domiciled outside the United States. First, a claimant is the widow of such insured if the courts of the District of Columbia would find that the claimant was validly married to the insured at the time he died.   Second, even if a claimant was not validly married to the insured at the time he died, she will be deemed to be his widow if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, she would have the same status as a widow of the insured with respect to the taking of such property. Claimant fails to satisfy either requirement.

The Province of New Brunswick recognizes common-law relationships for certain purposes, but does not consider a common-law couple to be validly married because the union was never solemnized. In this case, claimant does not allege that her relationship with NH was solemnized by a marriage ceremony.  Under the laws of New Brunswick, Canada, the couple was not validly married because there was no solemnized marriage ceremony. We believe that the claimant should not be deemed NH's widow for purposes of determining her entitlement to widow’s insurance benefits.

2. OPINION

I. Question Presented

The claimant, S~, applied for widow’s insurance benefits on the earnings record of P~, the deceased insured number holder. S~ submitted evidence showing that she had a spousal-type relationship with P~ and that they lived together in New Brunswick, Canada from 1967 until P~’s death in June 2012. The question presented is whether the agency should consider S~ to be P~’s “widow” in determining her eligibility for survivors benefits under Title II of the Social Security Act (the Act).

CONCLUSION

Based on our review of the facts of this case and our research of the relevant law, we have determined that it is unlikely that a District of Columbia court would find a valid common law marriage established in its jurisdiction.

II. Short Answer

No. Under the laws of New Brunswick, Canada, a common-law relationship is not a valid marriage. Further, when a common-law partner dies without a will, the surviving partner does not have the same property rights as a legal widow or widower under New Brunswick intestacy laws. For those reasons, the agency should not consider S~ to be P~’s widow for Title II survivor’s benefits eligibility purposes.

 III. Background On August 31, 2012, S~ filed for widow’s benefits based on an alleged common-law marriage to the deceased number holder, P~.  Both were previously married to others, and their divorces reportedly became final sometime between 1967 and 1970. The couple shared the same address in New Brunswick, Canada, purchased property jointly, and shared joint bank accounts. S~ and P~ signed a Statutory Declaration of Common-Law Union for the purposes of the Canadian Pension Plan. In that Declaration, the couple alleged that they had been living together as husband and wife in Canada since 1967. S~ is named as P~’ “spouse” and “next of kin” in the “proof of death certificate” issued by Fundy Funeral Home, New Brunswick, Canada.

IV. Applicable Law

To be entitled to widow’s insurance benefits under the Act, a claimant must show, among other things, that she is the “widow” of the insured. See Act § 202(e)(1), 42 U.S.C. § 402(e)(1). As pertinent here, the Act provides two methods for a claimant to show that she is the widow of an insured who was domiciled outside the United States.  First, a claimant is the widow of such insured if the courts of the District of Columbia would find that the claimant was validly married to the insured at the time he died. See Act § 216(h)(1)(A)(i), 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345.  Second, even if a claimant was not validly married to the insured at the time he died, she will be deemed to be his widow if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, she would have the same status as a widow of the insured with respect to the taking of such property. See Act § 216(h)(1)(A)(ii), 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

IV. Analysis

  1. S~ was not validly married to P~ under New Brunswick law.

    Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. See McConnell v. McConnell, 99 F. Supp. 493, 494 (Dist. Court, Dist. of Columbia 1951); Carr v. Varr, 82 F. Supp. 398 (Dist. Court, Dist. of Columbia 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (Dist. Court, Dist. of Columbia 1946). Accordingly, to determine whether S~ was validly married to P~ for Social Security purposes, we must determine whether their relationship constitutes a valid marriage under New Brunswick law. The Canadian provinces have exclusive jurisdiction over the solemnization of marriage under section 92(12) of the Constitution Act, 1867. Constitution Act, 1867, 30 & 31 Vict., c. 3. Further, the Supreme Court of Canada ruled in January 2013 that the provinces held the authority to decide what rights should be given to common-law couples. Quebec (Attorney General) v. A, 2013 SCC 5 (CanLII) (also known as “Eric” v “Lola”).

    The Province of New Brunswick recognizes common-law relationships for certain purposes, but does not consider a common-law couple to be validly married because the union was never solemnized. Marriage Act, R.S.N.B. 2011, c. 188, s. 27, par. 1. See also Public Legal Education and Information Service of New Brunswick, Living Common-Law: Rights and Responsibilities (March 2013), http://www.legal-info-legale.nb.ca/en/index.php?page=living_common-law.

     Like validly married couples, common-law partners in New Brunswick are able to claim credits for tax purposes The Income Tax Act recognizes common-law partners for tax purposes. Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.). or file a claim for a portion of their partners’ pensions. Under the Pension Act, the surviving common-law partner of a member of the forces is entitled to a pension. Pension Act, R.S.C. 1985, c. P-6, s. 45, par. 2.1. Unlike validly married couples, common-law partners can be forced to testify against each other, are not responsible for the debts of their partners, cannot make health care decisions for their partners (unless they hold a power of attorney), and the children of such unions are considered illegitimate. Public Legal Education and Information Service of New Brunswick, Living Common-Law: Rights and Responsibilities (March 2013), http://www.legal-info-legale.nb.ca/en/index.php?page=living_common-law.  To be validly married under New Brunswick law, a couple must have their marriage solemnized in accordance with the Marriage Act. Marriage Act, R.S.N.B. 2011, c. 188, s. 27, par. 1.

    In this case, S~ does not allege that her relationship with P~ was solemnized by a marriage ceremony.  While it appears that they were recognized as common-law partners by the Canadian Pension Plan, the rules governing that program are not applicable to this question. Similarly, the fact that S~ was named as P~’ deceased spouse and next of kin on the proof of death certificate issued by the funeral home has no bearing on whether the couple would be considered validly married under New Brunswick law.  Because there was no solemnized marriage ceremony, the couple was not validly married. Accordingly, S~ cannot qualify as P~’ widow for Social Security purposes on the basis of a valid marriage.

  2. S~ does not have the same status as P~’ widow under New Brunswick intestacy law.

    Even if S~ is not validly married to P~, she will still be deemed his widow if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, she has the same status as his widow with respect to the taking of such property. See Act § 216(h)(1)(A)(ii), 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

    Under District of Columbia law, intestate inheritance rights are determined by the law of the decedent’s domicile. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (Dist. Court, Dist. of Columbia 2005) (citing In re G~’s Estate, 168 F. Supp. 124 (Dist. Court, Dist. of Columbia 1958)). Here, P~ was domiciled in New Brunswick, Canada. Accordingly, to determine whether S~ has the requisite status to inherit P~’ intestate property, we apply New Brunswick law. The Canadian provinces have exclusive jurisdiction over property and civil rights under section 92(13) of the Constitution Act, 1867. Constitution Act, 1867, 30 & 31 Vict., c. 3.

    In New Brunswick, the Devolution of Estates Act mandates how an estate is to be distributed when an individual dies intestate (without a will). The Act recognizes the entitlement of a legally married spouse – i.e., “widow” – but does not recognize entitlement of a common-law relationship partner. Devolution of Estates Act, R.S.N.B. 1973, c. D-9, s. 22. Although common-law partners have no property rights, they may still petition a court to order the partner’s estate to provide support under the Provisions for Dependents Act. Provision for Dependants Act, R.S.N.B. 1973, c P-22.3. Through such petition, the common-law partner may be awarded a portion of the deceased’s estate. Such an award would not, however, amount to a right to inherit the deceased partner’s intestate property. See also Public Legal Education and Information Service of New Brunswick, Living Common-Law: Rights and Responsibilities (March 2013), http://www.legal-info-legale.nb.ca/en/index.php?page=living_common-law. Because New Brunswick law will not entitle S~ to inherit P~’ property in the absence of a will, the agency should not deem S~ to be the insured’s widow under the Act. See Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.

CONCLUSION

For the above reasons, we conclude that a common law marriage under the law of the District of Columbia has not been established between the Number Holder and L~ given the evidence you provided.

Donna L. Calvert
Regional Chief Counsel
By:________________________________
Elizabeth A. Corritore
Assistant Regional Counsel

C. PR 05-271 Validity of Marital Relationship Between R~ (Number Holder) and N~, SSN: ~

DATE: October 25, 2005

1. SYLLABUS

To determine whether a common law marriage contracted out-of-state is valid, New York applies the law of the State in which the marriage occurred. In the District of Columbia, there are two elements of a common law marriage. First there must be proof of an express, mutual, present agreement to be husband and wife. Second, there must be good faith cohabitation following the agreement.

2. OPINION

QUESTION PRESENTED

This is in response to your request for an opinion as to whether R~, the Number Holder, and N~ had a valid marriage under the law of the District of Columbia. The specific question is whether a couple living in New York would be considered to have a common law marriage under the law of the District of Columbia based on a three week visit to the area.

CONCLUSION

Based on our review of the facts of this case and our research of the relevant law, we have determined that it is unlikely that a District of Columbia court would find a valid common law marriage established in its jurisdiction.

FACTUAL BACKGROUND

The following is a summary of the relevant facts in this matter. The Number Holder and N~ lived together in New York for approximately twenty years prior to the Number Holder's June 1992 death.

According to N~, they lived as husband and wife throughout that time period, sharing all household expenses and conducting their affairs together.

N~ also represented that she wore a wedding ring given to her by the Number Holder for more than fifteen years.

In January 1993, N~ filed an Affidavit in Surrogate's Court attesting that she and R~ were husband and wife. On June 18, 2003, N~ was appointed the administrator of the Number Holder's estate. The Letters of Administration identify N~ as "N~," but do not refer to her as R~ surviving spouse.

In 1984, N~ and the Number Holder entered an in vitro fertilization (IVF) program at the George Washington University Hospital in Washington, D.C. In connection with that program, N~ alleges that she and the Number Holder resided in a Washington, D.C. hotel for a three week period. N~ provided no direct evidence that she and the Number Holder cohabitated in the hotel for that three week time period.

However, she did provide a copy of a note addressed to "N~" written by a hotel staff member wishing her luck with her trip to George Washington University Hospital. N~ also submitted a letter written by Joseph, M.D., in December 1992. Dr. S~ stated that to the best of his recollection, N~ and the Number Holder resided together at the hotel during the duration of the program.

Dr. S~ further stated that he had no doubt that N~ and the Number Holder were accepted into the IVF program as a married couple.

Several forms completed by the Number Holder and N~ in connection with the program have signature lines for "Husband" and "Wife," indicating N~ as the "Wife" and the Number Holder as the "Husband." Those designations were not handwritten by either N~ or the Number Holder. Rather, the words "Husband" and "Wife" were in typeface and located underneath the signature lines.

DISCUSSION

Widow's benefits may be granted based on the earnings record of an insured person who has died if the applicant was the insured's wife under the law of the state where the insured had a permanent home at the time of his death.

42 U.S.C. § 416(h)(1)(a)(i); 20 C.F.R. §§ 404.335, 404.345 (2005); POMS RS 00207.001. The relationship requirement is also met if under State law the claimant would be able to inherit a widow's share of the insured's personal property if he were to die intestate. 20 C.F.R. § 404.345 (2005). Because the Number Holder was domiciled in New York at the time of his death, New York law applies.

Under New York's intestacy statute, property of a decedent not disposed of by will is distributed to the decedent's "spouse" and issue. M~'s EPTL § 4-1.1. Because N~ has neither alleged a ceremonial marriage occurring in New York, nor is there evidence that N~ was adjudicated to be the Number Holder's wife, she would not be entitled to inherit a widow's share of the Number Holder's personal property pursuant to New York's intestacy statute. Accordingly, N~ must demonstrate a valid common law marriage in order to be eligible for widow's benefits.

While New York abolished common law marriages in 1933, it will recognize a common law marriage contracted in a sister State if the marriage is valid where it was contracted. Mott v. Duncan Petroleum Trans., et al., 414 N.E.2d 657, 658-59 (N.Y. 1980). To determine whether a common law marriage contracted out-of-state is valid, New York applies the law of the state in which the marriage occurred. Id. at 659. N~ alleges that she and the Number Holder had a common law marriage based on their three week visit to the District of Columbia.

Thus, we apply the law of the District of Columbia to determine whether a valid common law marriage was formed.

In the District of Columbia, there are two elements of a common law marriage. First, there must be proof of an express, mutual, present agreement to be husband and wife. Mesa v. United States, 875 A.2d 79, 83 (D.C. 2005) (citing East v. East, 536 A.2d 1103, 1105 (D.C. 1988)).

Second, there must be good faith cohabitation following the agreement.

Mesa, 875 A.2d at 83. "Since ceremonial marriage is readily available and provides unequivocal proof that the parties are husband and wife, claims of common law marriage should be closely scrutinized, especially where one of the purported spouses is deceased and the survivor is asserting such a claim to promote his financial interest." Coates v. Watts, 622 A.2d 25, 27 (D.C. 2005). The burden is on the proponent to prove the essential elements of a common law marriage by a preponderance of the evidence. Id. at 27. In addition, "when one of the parties to the alleged marriage asserts its existence but either denies or fails to say there was mutual consent or agreement, then mere cohabitation, even though followed by reputation, will not justify an inference of mutual consent or agreement to be married." Id. (emphasis supplied) (citations omitted).

We have extensively researched relevant case law from District of Columbia courts regarding the establishment of a common law marriage. The few published state court decisions that do exist address whether a common law marriage was formed by District of Columbia residents in the District of Columbia. They do not address whether a common law marriage can be established by out-of-state couples who are merely visiting the District of Columbia for a short period of time.

However, there are two cases of interest applying District of Columbia law.

In the first case, Cross v. Cross, 146 A.D.2d 302 (N.Y. 1989), the putative wife sought to establish a common law marriage under District of Columbia law. The couple were residents of New York, but travelled to Washington, D.C., for a two day weekend. In holding that the putative wife had failed to establish a common law marriage based on District of Columbia law, the Court noted that she did not introduce "a scintilla of evidence that she and defendant had entered into a present tense agreement to be husband and wife while they were in Washington, D.C." Id. at 309 (emphasis supplied).

Similarly, while N~ has produced some evidence that she and the Number Holder held themselves out as husband and wife during the IVF program, there is insufficient evidence of an express, present tense agreement to be husband and wife which was formed while they were in Washington, D.C. In the Affidavit filed in connection with administration of the Number Holder's estate, N~ avers that she and the Number Holder travelled to Washington, D.C. to enter an IVF program. She did not allege that she and the Number Holder entered into a marital agreement while in Washington, D.C.

In the second case, National Union Fire Insurance Co. v. Britton, 187 F.Supp. 359 (D.D.C. 1960), a couple allegedly entered into a common law marriage in Virginia. Unbeknownst to the couple, the Commonwealth of Virginia did not recognize common law marriages. The couple later moved to the District of Columbia, where they continued living together for approximately ten years. The Court noted that "the impediment to the inception of the marriage was removed and since the relation continued pursuant to the agreement entered into previously, a common-law marriage was created as soon as the couple moved to the District of Columbia and continued living there." Id. at 364 (emphasis supplied). In holding that a common law marriage existed, it appears that the Court in Britton found it relevant that the couple established residency in the District of Columbia after forming the marital agreement in Virginia. That is unlike the facts of the present case, where there is no evidence that N~ and the Number Holder ever intended to make the District of Columbia their domicile.

In our opinion, N~ cannot establish that an express, mutual, present agreement to be husband and wife was contracted in the District of Columbia, nor can she prove that the three week visit satisfies the "good faith cohabitation" requirement of a common law marriage in the District of Columbia. Even assuming that N~ can demonstrate, by affidavit or otherwise, that she and the Number Holder cohabitated at the hotel and held themselves out as husband and wife during their three week sojourn in the District of Columbia, we believe a District of Columbia court would conclude that they failed to satisfy either element of a common law marriage.

Several regional offices of the Agency have come to the same conclusion analyzing similar fact patterns occurring in other jurisdictions. In an advice opinion dated February 14, 1985, Region III addressed whether the State of Delaware, which does not itself recognize common law marriages, would recognize as valid a common law marriage after a brief weekend visit to the Commonwealth of Pennsylvania to attend another couple's wedding.

Region III concluded that under Pennsylvania law, the evidence was insufficient to establish the essential elements of a common law marriage, namely, present intent of the parties to form a marriage contract and a reputation of marriage. On September 27, 1985, Region VII addressed the question of whether the State of Missouri would recognize a common law marriage based on a sojourn in a common law state.

While this opinion is not precisely on point, insofar as the author concludes that no common law marriage would be recognized in Missouri based on public policy grounds, the author does note that a temporary stay in Ohio by non-residents was insufficient to establish a common law marriage pursuant to Ohio law. On April 5, 2005, Region VIII issued an opinion concluding that North Dakota law would not recognize a common law marriage purportedly entered into in Montana based on short visits, finding insufficient evidence of cohabitation and repute in Montana, especially insofar as there was no evidence that the couple ever intended to make Montana their residence. Given the District of Columbia's proclamation that common law marriage claims should be closely scrutinized, especially where one party is deceased, we conclude that it is unlikely that a District of Columbia court would find a valid common law marriage was established in its jurisdiction.

CONCLUSION

For the above reasons, we conclude that a common law marriage under the law of the District of Columbia has not been established between the Number Holder and N~ given the evidence you provided.

Donna L. Calvert
Regional Chief Counsel
By:________________________________
Elizabeth A. Corritore
Assistant Regional Counsel

D. PR 05-260 S2D3B-6, Validity of Alleged Common Law Marriage Between R~ and M~

DATE: October 7, 2005

1. SYLLABUS

Although a common law marriage cannot be formed within New York, the State will recognize valid common law marriages from other jurisdictions. In making the determination, New York will apply the common law marriage requirements of the other jurisdiction.

2. OPINION

QUESTION PRESENTED

On August 30, 2005, you asked for our advice as to whether there was a valid common law marriage between R~ (claimant), a claimant for survivor's benefits, and M~ (number holder), the deceased number holder.

SUMMARY

Based on our review of the information you have provided, it is our opinion that the claimant did not present sufficient evidence to demonstrate a common law marriage with the number holder under the laws in the District of Columbia. We would recommend further development of the record to determine whether a common law marriage existed.

BACKGROUND

On April 18, 2005, the claimant filed an application for survivor's benefits as the common law spouse of the deceased number holder. In his application, the claimant indicated that he and the number holder had a common law marriage since January 1977 and that the marriage ended by the number holder's death on February 10, 2001. In January 1977, the claimant and number holder started a business in the District of Columbia. The claimant and number holder lived together in the District of Columbia until December 1978 when they relocated to New York, where they lived together until the number holder's death. Until 1986, the claimant and number holder continued to travel to the District of Columbia to run their business.

In support of this application, the claimant submitted affidavits signed in 2002 by Shirley, the claimant's sister, and George, a friend of the claimant and number holder. Shirley and George stated that they knew the claimant and number holder since at least 1977 and that the claimant and number holder lived together in the District of Columbia in 1977 and later in New York. Although the claimant and number holder purportedly represented themselves as a married couple, Shirley and George never identified when the claimant and number holder first represented that they were married.

The claimant also submitted several financial records, including a life insurance policy, two joint bank accounts, and a W-2 form. These records showed that the claimant and number holder resided together in New York and that the claimant was the beneficiary of the number holder. These records were relatively recent (since 1998) and did not indicate when the life insurance policy or bank accounts were opened. The number holder used her own last name in all of these records.

As noted in a print out from a SSA database, when the number holder applied for retirement benefits in March 1998, she indicated that she had never married.

The number holder's death certificate identified the claimant's "relationship to deceased" as "companion." The claimant obtained a copy of the autopsy report which is only available for inspection by a relative, next of kin, or heir of the decedent. The claimant's request for the autopsy was not provided. It is unknown under which classification the claimant was provided the autopsy report. The death certificate showed that the number holder resided with the claimant.

APPLICABLE LAW

To determine a claimant's relationship as a deceased number holder's spouse, the Agency looks to the law of the number holder's permanent home at the time of her death, which, in the instant case, is New York. 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.345. Although a common law marriage cannot be formed within New York, the state will recognize valid common law marriages from other jurisdictions. Mott v. Duncan Petroleum Trans., 51 N.Y.2d 289, 292 (1980). In making this determination, New York will apply the common law marriage requirements of the other jurisdiction. Id.

The District of Columbia does recognize common law marriages. Johnson v. Young, 372 A.2d 992, 994 (D.C. 1977). To establish a valid common law marriage in the District of Columbia, the parties must "express [a] mutual present intent to be husband and wife, followed by good faith cohabitation."

Id. Although recognized, claims of common law marriages should be closely scrutinized, especially when the surviving spouse has asserted "such a claim to promote [a] financial interest." Coates v. Watts, 622 A.2d 25, 27 (D.C. 1993); see also Mesa v. United States, 875 A.2d 79, 83 (D.C. 2005). claimant has the burden of proving the existence of a common law marriage by a preponderance of the evidence. East v. East, 536 A.2d 1103, 1106 (D.C. 1988). This burden is satisfied when the claimant's evidence is of greater weight, or is more convincing, than the evidence offered in opposition. In re E.D.R., 772 A.2d 1156, 1160 (D.C. 2001).

When evaluating an alleged common law marriage, the preferred evidence is a completed Form 754-F4 (Statement of Marital Relationship) from the claimant and a completed Form 753 (Statement Regarding Marriage) from one blood relative of the claimant and two blood relatives of the deceased number holder. POMS GN 00305.065(2)(a). If a Form 753 cannot be completed by the necessary individuals, the Agency should obtain a written explanation from the claimant, and the form should instead be completed by an individual who knows all of the facts. Id. The Agency can also use other direct evidence, such as property deeds or tax returns, to evaluate an alleged common marriage. Mesa, 875 A.2d at 83.

RELEVANT TIME PERIOD

The claimant asserted that he and the number holder had a valid common law marriage while living in the District of Columbia. In December 1978, the claimant and number holder moved from the District of Columbia and relocated to New York where they lived together until the number holder's death in 2001. Because New York does not independently recognize a common law marriage, the claimant must prove that he and the number holder had a valid common law marriage in the District of Columbia prior to December 1978.

DISCUSSION

In the instant case, there is insufficient evidence in the record to show that a valid common law marriage existed prior to December 1978. As noted above, claims of a common law marriage are closely scrutinized in the District of Columbia, especially when one party has a financial interest.

C~, 622 A.2d at 27; see also Mesa, 875 A.2d at 83. The record, at this time, does not show a "mutual present intent to be husband and wife." J~, 372 A.2d at 994. The death certificate identified the claimant as a "companion" and the number holder's application for retirement benefits indicated that she had never married. Both of these documents, created long after the relevant time period, suggest that the claimant and number holder never expressed a "present mutual intent" to marry prior to December 1978.

Although the record currently does not demonstrate a common law marriage, it is conceivable that additional development would demonstrate such a marriage. The Agency recognizes several standardized forms as the preferred evidence to establish a common law marriage. POMS GN 00305.065(2)(a). The current record contains neither a completed Form 753 from two blood relatives of the number holder nor a written explanation from the claimant for the inability to obtain such completed forms. We recommend that the Agency obtain, if possible, a completed Form 753 from two blood relatives of the number holder.

Apart from these standardized forms, we also recommend further development of other direct evidence that courts have given significant weight, such as tax returns and property documents. Mesa, 875 A.2d at 83. The direct evidence currently in the record (i.e., several financial records) is recent and sheds no light on the existence of a common law marriage during the relevant time period. We recommend that the Agency request, if possible, additional direct evidence during or soon after the relevant time period supporting the claimant's application. Given the passage of time, we understand that such evidence may be difficult to obtain. The Agency,however, should not ignore recent direct evidence. Although recent evidence may not prove a common law marriage during the relevant time period, it may disprove it. For example, the claimant and number holder may have claimed to be single on recent tax returns.

If the Agency obtains cumulative or no additional evidence, then we believe that the claimant has failed to demonstrate a common law marriage prior to December 1978 by a preponderance of the evidence. If additional evidence is obtained, the Agency must determine whether this additional evidence satisfied the claimant's burden of showing a common law marriage. Although completed Forms 753 are the preferred evidence, they are not irrefutable.

The Agency must weigh all of the evidence to determine whether a common law marriage existed. If the totality of the evidence suggests that it is more likely than not that a common law marriage existed, then the claimant should be awarded benefits. If it is more likely than not that a common law marriage did not exist or if the existence and non-existence of a common law marriage is equally likely, then the claimant has failed to meet his burden and his application should be denied.

CONCLUSION

For the reasons discussed above, we believe that the claimant presently lacks sufficient evidence to demonstrate a common law marriage with the number holder in the District of Columbia. We would recommend further development of the record to determine whether a common law marriage was created prior to December 1978.

Sincerely,
Donna L. Calvert

Regional Chief Counsel
By:______________________
Craig B. Ormson
Assistant Regional Counsel


Footnotes:

[1]

As explained in this opinion, in Québec, this type of relationship is termed a “de facto union” or “conjoints de fait.”

[2]

As you did not ask about the nine-month duration requirement, we assume you have examined this requirement and the exceptions prior to sending us this request.

[3]

We note that our discussion of the law of Quebec, Canada is based in part on an opinion we received from the Library of Congress.

[4]

Civil Unions, JUSTICE QUÉBEC, http://www.justice.gouv.qc.ca/english/publications/generale/union-civ-a.htm (last updated May 4, 2009).

[5]

De Facto Spouses, JUSTICE QUÉBEC, http://www.justice.gouv.qc.ca/english/publications/generale/union-a.htm (last updated Sept. 10, 2013).

[6]

Id.

[7]

Id.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1505605010
PR 05605.010 - District of Columbia - 05/29/2015
Batch run: 05/29/2015
Rev:05/29/2015