You asked whether, in light of a cohabitation agreement with the number holder, a
claimant established the existence of a valid Georgia common-law marriage for determining
her eligibility for widow’s insurance benefits (WIB) on the number holder’s earnings
The claimant has not established the existence of a valid Georgia common-law marriage
with the number holder for determining her eligibility for WIB on the number holder’s
According to the information provided, J~, the number-holder (NH), died on September
XX, 2015, while domiciled in Georgia. On September XX, 2015, M~ (Claimant), applied for WIB on NH’s earning record. Claimant alleges a common-law marriage with
NH that began in September 1996.
In Claimant’s undated Statement of Marital Relationship, she indicated the following:
She and NH lived together continuously from September XX, 1996, until his death on
September XX, 2015. They had a written understanding as to their relationship when
they began living together, and the understanding remained unchanged. She believed
living together made them legally married because she “felt married and so did he.”
They discussed holding a ceremonial marriage at some point in the future; however,
“[h]is two bad marriages kept him from having a ceremonial marriage.” She did not
use his last name even after they began living together, because, in her own words,
they “were not legally married.” Nevertheless, a number of people referred to her
as M5~. She referred to NH as her husband, and he introduced her as his bride. Mail
was addressed to her individually as M~ or L~ and to them as a couple as Mr. and Mrs.
Social Security Administration (SSA) notes indicate Claimant and NH did not file joint
tax returns, have any charge accounts, or own any property as husband and wife. However,
on her undated Statement of Marital Relationship, Claimant marked both yes and no
to a question regarding whether they had any joint financial dealings after they began
living together. Furthermore, although she listed “House Deed” as a financial dealing
that took place after they began living together, she did not indicate when the deed
was executed or whether they were shown as husband and wife on the deed. The record
does not contain any copies of a deed, although as discussed below, they may have
agreed to a joint tenancy with right of survivorship in their residency upon one or
the other’s death.
The record contains a “Co-habitation Agreement” (Agreement) that Claimant and NH signed
on September XX, 1996. The Agreement states as follows: At the time of the Agreement,
they were cohabiting and had developed a caring and loving relationship for one another.
They desired and anticipated a relationship of long duration that “may at some time
in the future result in a more formal relationship.” Despite their relationship, they
desired to keep separate all real and personal property owned by either party at the
formation of the Agreement, except for his residence and any future jointly owned
property. Both parties waived all rights to alimony which may attach to their separate
property “[i]n the event of a future marriage, and then an annulment, legal separation
or divorce.” As noted, the Agreement also appears to contemplate the creation of a
joint tenancy with right of survivorship between them in the property upon which they
reside at one or the other’s death.
In December 2015, Claimant’s brother completed a Statement Regarding Marriage, in
which he indicated that he had known NH for twenty years and Claimant for eighty-seven
years and saw them three-to-four times a year for family visits. To his knowledge,
Claimant and NH were generally known as husband and wife, and he considered them husband
and wife. Claimant’s brother left blank a question asking whether he ever heard Claimant
and NH refer to each other as husband and wife. In his opinion, Claimant and NH maintained
a home and lived together continuously as husband and wife until NH’s death: however,
he did not know when they began living together as husband and wife.
In a March 2016 Statement Regarding Marriage, NH’s grandson indicated that he considered
Claimant to be his grandmother. He had known NH all his life and Claimant for around
twenty-five years. While NH was still alive, NH’s grandson visited Claimant and NH
every couple of weeks. To his knowledge, Claimant and NH were generally known as husband
and wife. NH’s grandson indicated NH had told him that NH and Claimant “got married
and they lived together.” NH’s grandson heard them refer to each other as husband
and wife. In the opinion of NH’s grandson, Claimant and NH retained a home and continuously
lived together as husband and wife, although NH’s grandson left blank boxes asking
the specific dates Claimant and NH lived together as husband and wife.
In lieu of obtaining a Statement Regarding Marriage from a second blood relative of
NH, Claimant reported that NH had no living relatives besides his grandson who were
able to provide information. Contrary to her report, an online obituary shows that
NH was survived by a number of blood relatives, including a brother, son, daughter,
grandson (mentioned above), two granddaughters, and five great grandchildren. See Obituary for J~, (last visited April 4, 2016).
The record contains a copy of NH’s September 2015 death certificate, which lists NH’s
residence as Georgia. Claimant acted as informant and identified herself as his spouse.
Regarding NH’s previous marriages, SSA was not able to verify he was finally divorced
from his first wife, L2~. SSA records indicate both NH and L2~ had previously alleged
in separate Social Security claims that they were divorced in Sparta, GA. However,
in an October 2015 letter, the Clerk of the Superior & Juvenile Court of Hancock County
indicated she was unable to provide Claimant with a copy of NH’s divorce decree due
to a fire in August 2014. As for NH’s second marriage, the record contains a separation
agreement and Superior Court of Laurens County, Georgia, divorce decree indicating
NH was divorced from his second wife, B~, in 1989.
Regarding Claimant’s prior marriages, SSA records verify that both her prior spouses
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), 216(c); 20 C.F.R. § 404.335(a) (2015). A claimant may qualify as the widow of an insured individual if the courts of the
State in which the insured individual was domiciled at the time of death would find
the claimant and insured individual were validly married when the insured individual
died. See Act § 216(h)(1)(A)(i); 20 C.F.R. §§ 404.335(a), 404.345; Program Operations Manual
System (POMS) GN 00305.001(A)(2)(a).
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); POMS GN 00305.060.A. NH’s death certificate indicates he was a resident of Georgia when he died. Therefore,
we look to Georgia law to determine if Claimant and NH had a valid common-law marriage.
No Valid Common-Law Marriage Under Georgia Law
Georgia recognizes valid common-law marriages beginning before January 1, 1997. Ga.
Code Ann. § 19-3-1.1 (West 2015). For a common-law marriage to have been valid (pre-1997), the parties must have been
able to contract, agreed to live together as husband and wife, and consummated the
agreement. See Ga. Code Ann. § 19-3-1; Wright v. Goss, 494 S.E.2d 23, 25 (Ga. Ct. App. 1997) (citing Ga. Osteopathic Hosp. v. O’Neal, 403 S.E.2d 235, 243 (Ga. Ct. App. 1991)). A common-law marriage cannot be partial
or periodic, and all three requirements of common-law marriage must coexist. See Wright, 494 S.E.2d at 25.
The evidence must show an express present intention to be husband and wife. See In re Wilson, 512 S.E.2d 383, 385 (Ga. Ct. App. 1999); Edwards v. Edwards, 222 S.E.2d 169, 170-71 (Ga. Ct. App. 1975). An agreement to marry in the future
is insufficient to establish a common-law marriage. See Wilson, 512 S.E.2d at 385. A determination of whether a couple agreed to live together as
man and wife “may be inferred from proof of cohabitation and that the parties held
themselves out to the world as husband and wife, and such proof may be made by general
repute among neighbors and others in a position to know the facts.” Id. (internal quotation marks omitted).
“The existence of a common-law marriage is a question for the trier of fact.” Id. at 386. Georgia appellate courts have upheld findings of no common-law marriage,
even when there is conflicting evidence, so long as there is evidence to support a
finding of no marriage. See Wilson, 512 S.E.2d at 386 n.7 (listing cases where Georgia appellate courts have upheld
findings of no common-law marriages based on conflicting evidence).
In Claimant’s undated Statement of Marital Relationship, she stated she and NH began
living together on September XX, 1996, the same day they signed the Agreement. She
also stated that, at the time they began living together, they had a written understanding
as to their relationship. Claimant did not explicitly indicate the Agreement and the
written understanding were the same, but the record contains no documentary evidence
of a written understanding other than the contemporaneous Agreement. Thus, the Agreement
is presumably the written understanding to which she refers.
Although the Agreement establishes Claimant and NH agreed to cohabit as of September
XX, 1996, it stops short of establishing an agreement to live as husband and wife.
Rather, the Agreement states that both parties desired a relationship of long duration
that “may at some time in the future result in a more formal relationship.” Furthermore,
the Agreement provides that both parties waived all rights to alimony “[i]n the event
of a future marriage.” However, an agreement to marry in the future is insufficient
to establish a common-law marriage. See Wilson, 512 S.E.2d at 385.
The Agreement’s language indicates Claimant and NH were merely contemplating the possibility
of a future marriage when they agreed to cohabit. Indeed, Claimant’s Statement of
Marital Relationship indicated she and NH discussed holding a ceremonial marriage
in the future, but ultimately “his two bad marriages kept him from having a ceremonial
marriage.” Additionally, she did not use his last name because, in her own words,
they “were not legally married.” Moreover, she affirmatively stated that their understanding
of their relationship never changed after they began living together.
In other words, the Agreement shows that while Claimant and NH agreed to live together,
they did not agree to live together as husband and wife. Thus, they did not have an
actual contract to marry. See Ga. Code Ann. § 19-3-1; Wright, 494 S.E.2d at 25. Accordingly, Claimant cannot show
that her relationship with NH met all three requirements of common-law marriage necessary
for a valid common-law marriage under Georgia law.
Insufficient Evidence of Common-Law Marriage Under the Regulations and POMS
Moreover, Claimant has not provided sufficient evidence to establish that she and
NH had a common-law marriage under the regulations and the POMS. To prove a common-law
marriage when either the husband or wife is dead, a claimant generally must provide
“preferred evidence” of a common-law marriage, consisting of a signed statement from
the surviving spouse, a signed statement from a blood relative of the surviving spouse,
and signed statements from two blood relatives of the deceased spouse. See 20 C.F.R. § 404.726(b)(2); POMS GN 00305.065.B.3. These signed statements should show why the declarer believes there was a marriage
between the two individuals. See 20 C.F.R. § 404.726(b).
Claimant did not provide “preferred evidence” of a common-law marriage under the regulations
and POMS. See 20 C.F.R. § 404.726(b)(2); POMS GN 00305.065.B.3. She submitted signed statements from: (1) herself (the alleged surviving spouse),
(2) her brother (a blood relative of the surviving spouse), and (3) NH’s grandson
(a blood relative of the deceased spouse). See 20 C.F.R. § 404.726(b)(2); POMS GN 00305.065.B.3. However, the record does not contain a statement from a second blood relative
of NH. See 20 C.F.R. § 404.726(b)(2); POMS GN 00305.065.B.3.
If preferred evidence is not available, the claimant must explain why it is not available
and provide “other convincing evidence of the marriage.” 20 C.F.R. § 404.726(c); see POMS GN 00305.065.B.4. Although the regulations do not specify what constitutes “other convincing evidence,”
the POMS indicates that for each signed statement not obtained from a blood relative,
SSA should obtain either a statement “from a person who knows the facts” or other
evidence. POMS GN 00305.065.B.4.
We found no Eleventh Circuit case addressing the evidentiary burden imposed by the
Commissioner’s regulations, but at least two circuit courts have addressed a claimant’s
failure to establish a common-law marriage through “preferred evidence.” The Sixth
Circuit cited 20 C.F.R. § 404.726 as setting out “the evidence which will usually
be accepted as sufficient by the [Commissioner] to establish a [common-law] marriage.”
Smith-Wilkins v. Sec’y of Health & Human Servs., 880 F.2d 864, 866 (6th Cir. 1989). In applying this regulation, the court considered
signed statements from an insured individual’s father and grandmother that the individual
and claimant were not married. The court determined that “[t]he ALJ could have reasonably
determined from this evidence that Claimant failed to meet the regulatory standard
of common-law marriage.” Id. Similarly, the Tenth Circuit in Brougham v. Apfel, No. 98-6034, 1998 WL 894951 (10th Cir. Dec. 24, 1998) (unpublished), concluded that
substantial evidence supported an ALJ’s finding that a claimant did not establish
a common-law marriage and was not entitled to WIB. Specifically, the court focused
on “preferred evidence” and noted that the insured individual’s mother denied the
existence of a common-law relationship. Brougham, 1998 WL 894951, at *1-2.
These courts also identified other evidence that could be “convincing” or “conclusive”
evidence. The Sixth Circuit looked to federal income tax returns, which identified
the insured individual and the claimant as single, and the insured individual’s death
certificate, on which the claimant failed to list herself as the widow even though
she was the informant on the death certificate, and deemed this evidence weighed against
a common-law marriage. See Smith-Wilkins, 880 F.2d at 866. The Tenth Circuit looked at whether the claimant professed the
relationship to various individuals, including statements made by a welfare worker
that the insured individual was introduced as “just a friend.” Brougham, 1998 WL 894951, at *2.
Claimant attempted to explain why “preferred evidence” was not available by claiming
that a second blood relative’s statement was unavailable because NH has no living
relatives who are able to provide information other than NH’s grandson. See 20 C.F.R. § 404.726(c); POMS GN 00305.065.B.4. However, an online obituary indicates NH was survived by a number of blood relatives
other than NH’s grandson. Claimant did not explain why none of NH’s other surviving
relatives could provide a statement regarding her and NH’s marriage. Unless Claimant
reasonably believed NH had no surviving blood relatives other than his grandson, she
has not sufficiently explained why she failed to provide preferred evidence. See 20 C.F.R. § 404.726(c); POMS GN 00305.065.B.4.
Moreover, the other evidence she submitted does not convincingly establish the existence
of a common-law marriage. See 20 C.F.R. § 404.726(c); POMS GN 00305.065.B.4. As discussed, the Agreement and her statements about it show that she and NH
did not have an express present intention to be husband and wife. See Ga. Code Ann. § 19-3-1; Wilson, 512 S.E.2d at 385; Edwards, 222 S.E.2d at 170-71.
Additionally, while Claimant’s brother and NH’s grandson stated they believed she
and NH were married, neither Claimant’s brother nor NH’s grandson indicated when she
and NH agreed to marry. Similarly, Claimant stated other people referred to her as
“Mrs. M~” yet she admitted she did not actually use NH’s last name, because they were
not legally married. See Brougham, 1998 WL 894951, at *2 (holding claimant’s failure to hold herself out as insured
individual’s spouse showed no common law marriage existed). In addition, although
she identified herself to the funeral director as NH’s spouse for purposes of filling
out his death certificate, her self-identification only shows her belief about their
marital status, not his. Cf. In re Estate of LeGrand, 576 S.E.2d 54, 55-56 (Ga. Ct. App. 2002) (upholding finding of no common-law marriage
where there was evidence that agreement to marry was not mutual).
Claimant also provided contradictory and incomplete information about whether she
and NH had any joint financial dealings after they began living together. While they
may have created a joint tenancy with right of survivorship in their residency via
the Agreement, she fails to show they filed joint tax returns or shared any charge
accounts. See Smith-Wilkins, 880 F.2d at 866 (holding that claimant and insured individual’s separate tax returns
identifying themselves as single showed no common law marriage existed).
In light of the foregoing, the evidence does not show a valid common-law marriage
between Claimant and NH under Georgia law.
Claimant and NH did not have a valid common-law marriage under Georgia law for determining
Claimant’s eligibility for WIB on NH’s earnings record.
Mary Ann Sloan
Regional Chief Counsel
By: Owen Keegan
Assistant Regional Counsel