Whether D~ (Claimant) is the widow of L~, the number holder (NH), under Florida law,
based on their alleged common-law marriage in the state of Kansas, for purposes of
determining Claimant’s entitlement to WIB on NH’s earnings record.
Based on the evidence supplied by Claimant, we do not believe Claimant has established
is NH’s widow. However, if Claimant supplies additional evidentiary support, we believe
the Florida courts would recognize that Claimant is the NH’s widow based on their
common-law marriage entered into in the state of Kansas, which is relevant for determining
Claimant’s eligibility for WIB.
On April x, 2019, Social Security Administration (SSA or the agency) denied Claimant’s
application for WIB and a lump-sum death payment on NH’s account. On May xx, 2019,
Claimant made a request for redetermination of the decision. In a letter accompanying
her request for reconsideration, Claimant stated that she was “legally married” to
the NH, as she and the NH were married “via [c]ommon-law marriage” on June xx, 1978
in the state of Kansas. Claimant reported that she and the NH were living together
in the state of Florida at the time of his death, in October of 2018.
As proof of her common-law marriage to the NH, Claimant provided the agency with the
birth certificates of four of their children, which Claimant signed using either the
name “D~” or “D~.” She also provided a May xx, 1998 residential rental agreement from
Tampa, Florida that listed occupants “L~” and “D~” and signed by NH and “D~.” Claimant
also provided correspondence dated between 1993 and 1996 from Hillsborough County,
Florida school district related to the education of their children addressed to Mr.
and Mrs. L~. In addition, Claimant submitted a statement from a joint bank account,
which Claimant and NH opened when they moved to Tampa, Florida in 1992. However, the
statement lists Claimant as a joint account holder, not NH’s spouse.
In addition, three of Claimant and NH’s children submitted SSA-753 Forms, Statements
Regarding Marriage. Ms. R~indicated that Claimant and NH, her parents, lived as husband
and wife continuously as long as she had known them. She stated that Claimant and
NH shared a bed in the same room, had conceived six children together, and had not
spent more than twenty-four hours apart, “unless for work,” for as long as she had
known them. Ms. H~ reported that Claimant and NH referred to each other as husband
and wife and introduced themselves to others as husband and wife. In Ms. H~ opinion,
Claimant and NH maintained a home and lived together as husband and wife in Topeka,
Kansas, from June of 1978 through July of 1985, and in Gulfport, Mississippi, from
July of 1985 through August of 1987. Ms. H~ stated that the couple also lived together
in Acworth, Georgia from August of 1987 through September of 1991; in Lamont, Florida
from October of 1991 through April of 1992; in Tampa, Florida from April of 1992 through
December of 2015; and in Center Hill, Florida from January of 2016 through October
of 2018. Finally, Ms. H~ stated that NH was previously married to D~ and they reportedly
divorced on November x, 1975 in Kane County, Illinois.
In her SSA-753 Form, J~stated that Claimant and NH were generally known as husband
and wife and that she considered them husband and wife. She stated that the couple
always referred to themselves as husband and wife to others and celebrated anniversaries
annually. Ms. J~ confirmed some of the locations where the couple had resided together,
and the time periods, set out by Ms. H~. She also noted the NH’s divorce from D~ in
1975. In his SSA-753 Form, J~ stated that Claimant and NH were generally known as
husband and wife. He considered them husband and wife, as they lived together, they
introduced each other as husband and wife, and they “were faithful to each other.”
Mr. T~ also confirmed some of the locations Claimant and NH had resided, and the time
periods, set out by Ms. H~, as well as the NH’s divorce from D~ in 1975. Finally,
Claimant completed an SSA-754 Form, a Statement of Marital Relationship. Claimant
reported that she began living together in a husband and wife relationship with NH
in June of 1978 in Topeka, Kansas. Claimant and NH had lived together continuously
since that time, in various locations, set out in her form and listed above in Ms.
H~ SSA-753 Form. Claimant stated that she had an understanding when she and the NH
began living together that they would live together as husband and wife until “death
do us part.” She said that she had an understanding that their relationship could
only be ended by death. Claimant wrote that she believed that living together made
her and the NH legally married because the state of Kansas recognized common-law marriage
and that the state of Florida would “honor it.”
In the form, Claimant said that she and the NH chose to use their birth names as their
legal names, even after their marriage, but she did use the name D~ or D~ on occasion.
Claimant stated that she and the NH introduced themselves to relatives, friends, neighbors,
and business acquaintances as husband and wife. Claimant listed the following individuals
as the closest relatives, other than her children, who knew of her relationship with
NH: R, Claimant’s brother; V~, Claimant’s sister; G, NH’s brother; and E~, NH’s sister.
Claimant indicated that NH was married D~ in an August 1968 ceremonial marriage and
they divorced in November 1975.
A. Federal Law
A claimant may be eligible for WIB if she is the widow of an individual who died fully
insured. See Social Security Act (Act) § 202(e)(1); 20 C.F.R. § 404.335(a) (2021); Program Operations Manual System (POMS) RS 00207.001A.1.b.1. A claimant may qualify as the widow of an insured individual if the courts of
the state where the insured was domiciled when he died would find: (1) the claimant
and insured were validly married when the insured died; or (2) the claimant had the
same status as a widow with respect to taking the insured individual’s personal property
through intestacy. See Act § 216(h)(1)(A); 20 C.F.R. §§ 404.335(a), 404.345; POMS
GN 00305.001A.2.a; POMS RS 00207.001A.1.a.1.
SSA defines a common-law marriage as “one considered valid under certain State laws
even though there was no formal ceremony. It is a marriage between two persons free
to marry, who consider themselves married, live together as man and wife, and, in
some States, meet certain other requirements.” 20 C.F.R. § 404.726(a); see POMS GN 00305.060.A. Here, NH resided in the state of Florida at the time of his death. Therefore,
the agency must determine whether Florida courts would consider Claimant and NH validly
married at the time of NH’s death or whether Claimant would be deemed the NH’s widow
for intestate succession, despite the fact that the couple did not legally or ceremonially
marry in Florida.
B. Florida Law on Common-law marriage
Florida does not recognize the validity of common-law marriages contracted in the
state after 1968. Fla. Stat. § 741.211 (1969); see also Anderson v. Anderson, 577
So.2d 658, 660 (Fla. Dist. Ct. App. 1991) (reversing trial court decision where the
trial court did not consider the validity of a common-law marriage established in
the state of Georgia). However, “Florida will respect a common[-]law marriage when
entered into in a state which recognizes common[-]law marriages.” Anderson, 577 So.2d
at 660 (citing Johnson v. Lincoln Square Properties, 571 So.2d 541 (Fla. Dist. Ct.
App. 1991)). Florida has always determined the validity of a marriage in accordance
with the laws of the place where the marriage occurred. Johnson, 571 So.2d at 542
(citing Goldman v. Dithrich, 179 So. 715 (Fla. 1938)). In Johnson, the court noted
that the Attorney General opined that section 741.211 of the Florida Statutes did
not change the state’s established principle that the validity of a marriage is determined
by the place where the marriage occurred. Id. at 543 (holding, as a matter of first
impression, that section 741.211 was limited to marriages occurring in Florida and
was never intended to affect persons lawfully married outside of Florida).
C. Kansas Law on Common-law marriage
Kansas recognizes common-law marriage. In re Estate of Antonopoulos, 268 Kan. 178,
192, 993 P.2d 637, 647 (Kan. 1999); see also POMS PR 05605.019A (discussing whether Massachusetts would recognize an opposite-sex, common-law marriage
contracted in Kansas in awarding spousal benefits). “The essential elements of a common-law
marriage are: (1) capacity of the parties to marry; (2) a present marriage agreement
between the parties; and (3) a holding out of each other as husband and wife to the
public.” Estate of Antonopoulos, 993 P.2d at 647. The party asserting common-law marriage
bears the burden of proof. Furthermore, substantial evidence must support a district
court’s finding the existence of a common-law marriage. See id. at 647-48. In addition,
each element must co-exist to establish a common-law marriage. See Thompson v. Barnhart,
Case No. 04-2080, 2005 WL 23347, at *2 (D. Kan. Jan. 5, 2005) (internal citation omitted).
Essential to proving a valid Kansas common-law marriage is the existence of a mutual
present agreement to the marriage. See Schrader v. Schrader, 207 Kan. 349, 484 P.2d
1007, 1009 (1971), disapproved on other grounds by Eaton v. Johnston, 235 Kan. 323,
329, 681 P.2d 606, 611 (1984); Cain v. Cain, 160 Kan. 672, 165 P.2d 221, 223 (1946).
Since Kansas does not require a particular form to satisfy this element, the acts
and conduct of the parties may evidence the present agreement. In re Estate of Keimig,
215 Kan. 869, 872-73, 528 P.2d 1228, 1230-31 (1974); Cain, 165 P.2d at 223. For instance,
the Kansas Supreme Court held that a common-law marriage was established—despite the
statement that “we have not got [sic] married, not because we don’t want to.” The
Court determined this statement meant that no formal ceremony had occurred—because
the same individual also testified that she had been living with the man she considered
her common-law husband for fourteen years and they called each other husband and wife.
In re Adoption of X.J.A., 284 Kan. 853, 878, 166 P.3d 396, 411 (2007).
Holding out as husband and wife can include cohabitation, otherwise living together
as husband and wife, publicly acknowledging each other as husband and wife, assuming
the rights, duties, and obligations of marriage, and a general reputation as husband
and wife in the community. See Schuchart v. Schuchart, 61 Kan. 597, 60 P. 311, 312
(1900). There is no durational requirement to establish a common-law marriage in Kansas.
Once the parties meet the requirements for a common-law marriage, a legally recognizable
marriage contract exists. Cain, 165 P.2d at 223.
Applying Kansas law to the common-law marriage allegedly entered into by Claimant
and NH in 1978, we believe a Florida court could conclude Claimant has not yet established
a valid common-law marriage. However, we believe Claimant may prove a common-law marriage
if she supplies additional evidence as required by Kansas’ three-prong standard, discussed
above. Because there is no indication that the couple lacked the legal capacity to
marry in 1978, we turn to the second and third elements needed to establish a common-law
marriage in Kansas.
Claimant provided some evidence of a present marriage agreement between the parties
but not enough to meet the second element under Kansas law. Specifically, Claimant’s
SSA-754 statements regarding her understanding of her relationship with NH provide
evidence of a present agreement between the parties to marry while living in Kansas.
To meet the second prong of the standard, Claimant needs to submit additional corroborative
statements from two of NH’s blood relatives. See 20 C.F.R. §404.726(b)(2) (stating
that the preferred evidence of a common-law marriage when one of the parties is deceased
is the signed statement of the living spouse and signed statements from two blood
relatives of the deceased person); POMS GN 00305.065. The additional statements should corroborate specifically that Claimant and NH made
a present agreement to marry while living in the state of Kansas. The statements should
not be generic statements that the couple intended to be married throughout the course
of their lives, as they lived in various states during their lives together, not all
of which recognize common-law marriage.
The third element of establishing a common-law marriage in Kansas is a holding out
of each other as husband and wife to the public. As noted above, this can include
living together as husband and wife; publicly acknowledging each other as husband
and wife; assuming the rights, duties, and obligations of marriage; and generally
being reputed as husband and wife in the community. See Schuchart, 61 Kan. at 597,
60 P. at 312. There is significant evidence that the couple continuously satisfied
this element at least since they begin living in Florida. Specifically, Claimant at
times used NH’s surname; the couple had 6 children together; and the couple lived
together and shared a marital bed for their entire alleged common-law marriage. In
addition, the couple rented property jointly; the couple shared a joint bank account
since at least 1992; the couple consistently referred to themselves as husband and
wife; and Claimant and NH introduced themselves to others as husband and wife. However,
none of the evidentiary statements produced show that the couple held themselves out
as husband and wife during the time they lived in Kansas. While we view the couple’s
subsequent actions as providing ample support for this third element, we still believe
it is necessary that Claimant provide statements that she and the NH held out as husband
and wife while in living in Kansas. See 20 C.F.R. §404.726(b)(2); POMS GN 00305.065.
Based on the foregoing, we recommend the agency request additional evidence to show
a present agreement to be married in Kansas and evidence that the couple held themselves
out as a married couple during the period they lived in the state of Kansas. See 20
C.F.R. § 404.726(b)(2). If Claimant provides such evidence, there would be sufficient
proof of a valid common-law marriage in Kansas, such that a Florida court would recognize
the marriage, which is relevant to determining her entitlement to WIB under the Act.
Based on the evidence supplied by Claimant, we do not believe Claimant has established
is NH’s widow. However, if Claimant submits additional evidentiary support, we believe
the Florida courts would find that Claimant is the NH’s widow based on their common-law
marriage entered into in the state of Kansas, which is relevant for determining Claimant’s
eligibility for WIB.