QUESTION
For purposes of P1~’s (Claimant’s) application for spouse’s insurance benefits under
Title II of the Social Security Act (Act) on the record of the number holder M1~ (NH)
as her spouse, you asked whether the Claimant and the NH had a valid Colorado common-law
marriage that would be recognized by Idaho, where the couple currently resides.[1]
ANSWER
We believe Idaho courts would find that the Claimant and the NH established a valid
common-law marriage under Colorado law that began on June XX, 2005, when they moved
to Colorado and where they lived for the next ten years, and that they remain validly
married evenafter moving to Idaho in 2015. Thus, there is legal support for the agency
to find that the Claimant is the NH’s spouse for purposes of determining his entitlement
to spouse’s insurance benefits on the NH’s record.
BACKGROUND
On September XX, 2022, the Claimant filed an application for spouse’s insurance benefits
on the NH’s record claiming that he is validly married to the NH and is the NH’s spouse.
The agency obtained the Form SSA-754 Statement of Marital Relationship from the NH
and the Claimant, which they both completed on April XX, 2019. They both listed their
address as Coeur d’Alene, Idaho. They both reported that they began living together
as spouses in July 1991 in California. They both reported that they have continuously
lived together as spouses from 1991 to 2005 in California, 2005 to 2015 in Colorado,
and 2015 to the present in Idaho. When they began living together in 1991, they agreed
to “a lifelong commitment.” They bought a home together in 1993. They believed that
they were common-law married in Colorado. They both reported that they filed joint
tax returns, opened a family trust in 2008, and held joint bank accounts, credit cards,
and insurance. They introduced one another as husband and wife. The NH had a prior
marriage that ended in divorce in 1989.
The agency obtained the Form SSA-753 Statement Regarding Marriage from 3 of the NH’s
relatives:
• J~, the NH’s father, completed the Form SSA-753 in January 2019 and again in May
2019. He reported that the NH and the Claimant were generally known as a married couple,
he considered them a married couple, and he heard them refer to one another as spouses.
He reported that they lived together continuously for 30 years and held all assets,
including homes, jointly. He believed that they maintained a home and lived together
continuously as a married couple in California from 1991 to 2005, Colorado from 2005
to 2015, and Idaho from 2015 to present.
• M2~, the NH’s brother, completed the Form SSA-753 in May 2019. He reported that
the NH and the Claimant were generally known as a married couple, he considered them
a married couple, and he heard them refer to one another as spouses. He reported that
they lived together continuously for 28 years, filed taxes as married, owned real
estate together, and always referred to one another as husband and wife. He stated
that his sister, the NH, would talk about common-law marriage in Colorado and how
she was considered to be married to the Claimant. He believed that they maintained
a home and lived together continuously as a married couple in California from 1991
to 2005, Colorado from 2005 to 2015, and Idaho from 2015 to present.
• C1~, the NH’s sister, completed the Form SSA-753 in May 2019. She reported that
the NH and the Claimant were generally known as a married couple, she considered them
a married couple, and she heard them refer to one another as spouses. She wrote: “We
as a family have witnessed [the NH and the Claimant] as a married couple. They have
lived together for 30+ years and have acted as such. My kids have always considered
them as married.” She believed that they maintained a home and lived together continuously
as a married couple in California from 1991 to 2005, Colorado from 2005 to 2015, and
Idaho from 2015 to present.
The agency obtained the Form SSA-753 Statement Regarding Marriage from 5 longtime
friends:
• C2~, a longtime friend, completed the Form SSA-753 in January 2019. She reported
that the NH and the Claimant were generally known as a married couple, she considered
them a married couple, and she heard them refer to one another as spouses. She wrote:
“They’ve lived together for almost 30 years, purchased real estate jointly, and they
only see the future together.” She believed that they maintained a home and lived
together continuously as a married couple in California from 1995 to 2005, Colorado
from 2005 to 2015, and Idaho from 2015 to present.
• P2~, a longtime friend and the NH’s co-worker, completed the Form SSA-753 in May
2019. He reported that the NH and the Claimant were generally known as a married couple,
he considered them a married couple, and he heard them refer to one another as spouses.
He wrote: “[The NH and the Claimant] have owned homes together since I met [the Claimant]
and they refer to each other as husband and wife.” He believed that they maintained
a home and lived together continuously as a married couple in California from 1991
to 2005, Colorado from 2005 to 2015, and Idaho from 2015 to present.
• S1~, a longtime friend and the NH’s co-worker, completed the Form SSA-753 in May
2019. She reported that the NH and the Claimant were generally known as a married
couple, she considered them a married couple, and she heard them refer to one another
as spouses. She wrote: “They have been together since they met and lived together
as husband and wife in 1991.” She believed that they maintained a home and lived together
continuously as a married couple in California from 1991 to 2005, Colorado from 2005
to 2015, and Idaho from 2015 to present.
• M3~, a longtime friend and the NH’s co-worker, completed the Form SSA-753. She reported
that the NH and the Claimant were generally known as a married couple, she considered
them a married couple, and she heard them refer to one another as spouses. She wrote:
“In addition to cohabitating since the early ‘90s,’ [the NH and the Claimant] have
invested and worked on several real estate projects together always sharing ownership
as a married couple. Although they have no children, they have treated each other’s
extended families as their own and have always parented an evolving menagerie of beloved
pets.
Finally, the Claimant provided documents to support their marriage and time in Colorado.
• Bank statements from 2012, 2013, 2014, and 2015 were addressed to both the NH and
the Claimant as joint account holders living at the same address in Colorado.
• A “Trust Agreement Creating the Family Trust” signed and executed by the NH and
the Claimant before a notary public on May XX, 2008, establishes a family trust and
states: “We, P1~ and M1~, are married to each other. While we did not engage in a
civil marriage within the meaning of Title 14 of the Colorado Revised Statutes, we
have resided together as husband and wife for seventeen years, and we consider ourselves
married to each other.” The Trust Agreement states that they were residents of Colorado.
• A Land Title Guarantee Company “Statement of Settlement - Purchasers” for a home
in Durango, Colorado shows that the NH and the Claimant bought the home together on
July XX, 2005. A Land Title Guarantee Company “Statement of Settlement - Sellers”
for this home in Colorado shows that the NH and the Claimant, as trustees through
the Family Trust, sold the home on February XX, 2015.
• Mortgage Interest Statements for 2011 and 2013 were addressed to both the NH and
the Claimant in Durango, Colorado.
• A La Plata County Treasurer property tax receipt shows that the Family Trust paid
property taxes on real property in Durango, Colorado in 2009.
• 2011 and 2015 tax documents show that the Claimant listed the NH as his spouse and
that their filing status was married filing jointly.
• 2009-2010 USAA car insurance documents show that the NH and the Claimant were co-insureds
of two cars and that they were living at the same address in Colorado.
ANALYSIS
A. Federal Law: Entitlement to Spouse’s Insurance Benefits as a Spouse [2]
Under Title II of the Act, a claimant may be entitled to spouse’s insurance benefits
on an insured individual’s record if, among other things, he or she is the spouse
of the insured individual entitled to old-age or disabled insurance benefits and their
marital relationship has lasted at least one year before the date the claimant filed
the application for benefits. See 42 U.S.C. §§ 402(b), (c), 416(a)(1), (b), (f); 20
C.F.R. § 404.330(a); see also Program Operations Manual System (POMS) RS 00202.001.B (the claimant meets the one year marriage duration requirement if he or she has
been married to the insured individual for at least one continuous year immediately
before the day the claimant files the application; this duration requirement “may
be met on the basis of an application actually filed before the first anniversary
of the marriage as long as the one-year anniversary occurs prior to adjudication”
of the claim).
The agency will find a claimant to be an insured individual’s spouse if the courts
of the State in which the insured individual was domiciled at the time the claimant
filed the application would find that the claimant and the individual were validly
married at the time the claimant filed the application, or if, under application of
that State’s intestate succession laws, the claimant would be able to inherit a spouse’s
share of the insured’s personal property. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R.
§§ 404.344, 404.345. It is our understanding that the NH was domiciled in Idaho when
the Claimant filed the application for spouse’s benefits. Therefore, we look to Idaho
law to determine if the Claimant is the NH’s spouse.
B. State Law: Valid Marriage
1. Idaho’s Recognition of Valid Out-of-State Common-Law Marriages
The Claimant and the NH moved to Idaho in 2015 where they are presently living. The
Idaho Legislature abolished common-law marriages within Idaho effective January 1,
1996. See Dire v. Dire-Blodgett, 102 P.3d 1096, 1097-1098 (Idaho 2004); Idaho Code
Ann. § 32-201. Thus, after January 1, 1996, a couple must obtain a marriage license
and have their marriage solemnized in accordance with the law in order to have a valid
marriage under Idaho’s laws. Id. The Claimant and the NH do not claim to have entered
into a valid ceremonial marriage in Idaho; rather, they claim to have entered into
a common-law marriage while living in Colorado from 2005 to 2015
Although a couple cannot enter into a common-law marriage in Idaho, Idaho will recognize
a valid out-of-state common-law marriage. See Idaho Code Ann. § 32-209 (“All marriages
contracted without this state, which would be valid by the laws of the state or country
in which the same were contracted, are valid in this state, unless they violate the
public policy of this state.”); Morrison v. Sunshine Mining Co., 127 P.2d 766, 769
(Idaho 1942) (“Having assumed and entered into the marital relationship with appellant
in Montana, the status thus established followed Morrison to Idaho and could not be
shed like a garment on entering this state.”); Huff v. Huff, 118 P. 1080, 1084 (Idaho
1911) (“[i]f the marriage of respondent and M4~ was valid under the laws of Missouri,
then such marriage was valid in this state”); Hilton v. Stewart, 96 P. 579, 583 (Idaho
1908) (“any contract which is a valid marriage according to the law of the place where
the contract is made is valid everywhere”); State v. Orozco, , 2015 WL 4456239, at
*2 (Idaho Ct. App. July 21, 2015) (“a valid common law marriage in [another state
or country] … should be recognized by Idaho … as Idaho law provides for recognition
of foreign or out-of-state marriages”). Thus, we consider whether the Claimant has
proven a valid Colorado common-law marriage entered into in Colorado before the NH
and the Claimant moved to Idaho.
2. Valid Common-Law Marriage under Colorado Law
While the Claimant and the NH allege that they began their common-law marriage on
July XX, 1991 in California, California does not recognize common-law marriages within
the State. See Elden v. Sheldon, 758 P.2d 582, 587 (Cal. 1988) (noting that California
abolished common-law marriage in 1895). The couple then moved to Colorado on June
XX, 2005, where they lived for ten years until May XX, 2015, when they moved to Idaho.
The Claimant and the NH believed that they were common-law married in Colorado. As
explained in detail below, Colorado recognizes common-law marriage, which can be established
by “the mutual consent or agreement of the couple to enter the legal and social institution
of marriage, followed by conduct manifesting that mutual agreement.” Hogsett v. Neale,
478 P.3d 713, 715, 723-724, 727 (Colo. 2021),see also Colo. Rev. Stat. § 14-2-104(3).
[3]
a. Burden of Proof: Preponderance of the Evidence
Unlike some other States which impose a higher burden of proof on claimants who seek
to prove the existence of a common law marriage, the burden of proof for establishing
a common-law marriage in Colorado is by a preponderance of the evidence. [4] See Colo. Rev. Stat. § 13-25-127(1) (unless otherwise specified, burden of proof
in a civil action is by a preponderance of the evidence); People v. Lucero, 747 P.2d
660, 664 n.6 (Colo. 1988) (abrogated on other grounds by Hogsett) (clarifying that
earlier case law stating evidence concerning a common-law marriage “should be clear,
consistent and convincing” did not establish a higher burden of proof, but instead
merely indicated the need for “more than vague claims unsupported by competent evidence”
(internal citation omitted)). “A fact is established by a preponderance of the evidence
when, upon consideration of all the evidence, the existence of the fact is more probable
than its nonexistence.” People v. Garner, 806 P.2d 366, 370 (Colo. 1991). No specific
form of evidence is required, but parties must present more than vague claims unsupported
by competent evidence. [5] Lucero, 747 P.2d at 663-65 & n.6. “A determination of whether a common law marriage
exists turns on issues of fact and credibility.” Lucero, 747 P.2d at 665.
We consider whether the Claimant has proven that a valid common-law marriage with
the NH is more probable than not. As explained below, we believe Idaho courts would
find that the Claimant has proven by a preponderance of the evidence that he and the
NH had a valid common-law marriage under Colorado law beginning on June XX, 2005 and
that such marriage continues as it has not been terminated by divorce. See LaFleur
v. Pyfer, 479 P.3d 869, 888 (Colo. 2021) (Boatright, concurring) (“parties who enter
into licensed or common law marriages remain married until they legally divorce, regardless
of their conduct”).
b. Age Requirement and Prohibited Marriages
Colorado law regarding common-law marriage sets forth an age requirement and prohibits
certain marriages. Common-law marriages entered into on or after September 1, 2006,
are only valid: (1) if the parties are 18 years of age or older[6] , and (2) if the marriage is not prohibited as provided in section 14-2-110 (i.e.,
marriages between certain blood relations or where a prior undissolved marriage or
civil union exists). See Colo. Rev. Stat. §§ 14-2-109.5, 14 2-110;[7] see also POMS GN 00305.075B (digest of state laws regarding the recognition of common-law marriages). Even prior
to September 1, 2006, some marriages were similarly prohibited under Colorado’s common
law.[8] Under the common law, Colorado still recognized that a common-law marriage cannot
arise while one party is still married to a third party. See, e.g., In re Morrow’s
Estate, 68 P.2d 36, 39 (Colo. 1937). However, once the legal impediment is removed,
a finding of a common-law marriage may be warranted. See Rocky Mountain Fuel Co. v.
Reed, 130 P.2d 1049 (Colo. 1942).
Here, the NH and the Claimant were of age and their marriage was not prohibited by
statute. There is no indication that either had any prior undissolved marriages or
that the NH and the Claimant were closely related.
c. Mutual Consent or Agreement to Enter the Legal and Social Institution of
Marriage, Followed by Conduct Manifesting that Mutual Agreement
A common-law marriage requires “the mutual consent or agreement of the couple to enter
the legal and social institution of marriage, followed by conduct manifesting that
mutual agreement.” Hogsett, 478 P.3d at 715, 723-724, 727. The key question is “whether
the parties intended to enter a marital relationship – that is, to share a life together
as spouses in a committed, intimate relationship of mutual support and obligation.”
Id. (emphasis in original). In assessing whether a common-law marriage has been established,
weight should be given to evidence reflecting the couple’s express agreement to marry.
Id. at 715, 727. Absent such evidence, the parties’ agreement to enter a marital relationship
may be inferred from their conduct. Id. The conduct identified in connection with
the old (Lucero) standard for determining a common-law marriage can still be relevant
to that inquiry: the parties’ cohabitation, reputation in the community as spouses,
maintenance of joint banking and credit accounts, purchase and joint ownership of
property, filing of joint tax returns, and use of one spouse’s surname by the other
or by children raised by the parties. Hogsett, at 715, 724-725, 727. Other factors
that should be considered include evidence of shared financial responsibility, such
as leases in both partners’ names, joint bills, or other payment records; evidence
of joint estate planning, including wills, powers of attorney, beneficiary and emergency
contact designations; symbols of commitment, such as ceremonies, anniversaries, cards,
gifts, and the couple’s references to or labels for one another; and the parties’
sincerely held beliefs regarding the institution of marriage. Id. at 725. A party’s
behavior when a relationship ends may also be instructive. Id. at 725.1
Further, “the manifestation of the parties’ agreement to marry need not take a particular
form.” Hogsett, at 715, 724. But the parties’ conduct “must be assessed in context;
the inferences to be drawn from [their] conduct may vary depending on the circumstances.”
Id. at 715, 724, 727. There is no longer any assumption that the presence of a particular
factor necessarily supports a finding of marriage, or that its absence necessarily
weighs against a finding of marriage. Id. at 725. “[T]he significance of a given factor
will depend on the individual, the relationship, and the broader circumstances, including
cultural differences.” Id.; see also In re Estate of Yudkin, 478 P.3d 732, 737 (Colo.
2021) (“The purpose of examining the couple’s conduct is not to test the couple’s
agreement to marry against an outdated marital ideal, but to discover their intent.”).
Last, we note that the “mutual consent or agreement to be [spouses] must exist in
the present, since an agreement to marry in the future does not create a common law
marriage.” Crandell v. Resley, 804 P.2d 272, 276 (Colo. App. 1990) (citing Radovich
v. Radovich, 269 P. 22 (Colo. 1928)). In Crandell, the court rejected an alleged common-law
marriage where both parties were aware that they could not presently marry due to
a legal impediment; the putative wife remained married to someone else, and the parties
did not intend to be married until that impediment was formally removed. Thus, ordinarily,
where a legal impediment prevents an otherwise valid marriage (e.g., where one of
the parties is already married to another person), the effective date of the common-law
marriage would not occur until the impediment is removed since parties could not evince
the state of mind needed to “mutually consent” to enter into a valid common-law marriage.
Id. at 276.
Here, we believe Idaho courts, in applying Colorado law, would find that there is
ample evidence demonstrating the mutual consent or agreement of the NH and the Claimant
to enter into the legal and social institution of marriage at least as of June XX,
2005, when they began living together in Colorado, followed by sufficient conduct
manifesting that mutual agreement to satisfy the preponderance of the evidence standard
of proof. The supportive evidence includes statements from the NH, the Claimant, and
8 friends and relatives, as well as documentary evidence. Both the NH and the Claimant
are asserting that they entered into a common-law marriage under Colorado’s laws.
The NH and the Claimant both reported in the SSA-754 that they have continuously lived
together as spouses from 1991 to 2005 in California, 2005 to 2015 in Colorado, and
2015 to the present in Idaho. When they began living together in 1991, they agreed
to “a lifelong commitment.” They believed that they were common-law married in Colorado.
They introduced one another as husband and wife. They both reported that they filed
joint tax returns, opened a family trust in 2008, and held joint bank accounts, credit
cards, and insurance. They provided bank statements from 2012, 2013, 2014, and 2015
to corroborate that they held joint bank accounts and were living together in Colorado
during this time. They provided a Trust Agreement that they established together in
2008 while in Colorado in which they declared: “We, P1~ and M2~, are married to each
other. While we did not engage in a civil marriage within the meaning of Title 14
of the Colorado Revised Statutes, we have resided together as husband and wife for
seventeen years, and we consider ourselves married to each other.” Documents show
that they bought a house together in Colorado in July 2005 and sold this home in February
2015. Property tax records and mortgage interest statements confirm their home ownership
together in Colorado. Car insurance documents show that they were co-insureds on two
cars while living together in Colorado. Tax return documents from 2011 and 2015 show
that the Claimant listed the NH as his spouse and that their filing status was married
filing jointly. Thus, the documents corroborate their statements in the SSA-754 as
to their common-law marriage.
Additionally, the NH’s father, brother, and sister all provided statements on the
SSA-753 supporting the NH’s common-law marriage to the Claimant. Similarly, five longtime
friends of the couple provided statements supportive of their common-law marriage.
All eight witnesses reported that the NH and the Claimant were generally known as
a married couple, that each witness believed they were married, and that the couple
referred to one another as spouses. All eight witnesses believed that they maintained
a home and lived together continuously as a married couple in California, then in
Colorado for ten years from 2005 to 2015 and continuing in Idaho where they presently
live. The NH’s sister wrote: “We as a family have witnessed [the NH and the Claimant]
as a married couple. They have lived together for 30+ years and have acted as such.
My kids have always considered them as married.” One friend, S2~, described their
relationship as follows: “I have never known [the Claimant and the NH] as anything
but a married couple which is also how my children have always known them. They have
always conducted their lives as a married couple and I daresay a successful and loving
marriage in every way.” Another longtime friend, M3~, stated: “In addition to cohabitating
since the early ‘90s,’ [the NH and the Claimant] have invested and worked on several
real estate projects together always sharing ownership as a married couple. Although
they have no children, they have treated each other’s extended families as their own
and have always parented an evolving menagerie of beloved pets.”
In summary, this is not a case of deficient or conflicting evidence. Considering the
totality of the evidence, we believe Idaho courts, applying Colorado law, would conclude
that the NH and the Claimant established a common-law marriage by a preponderance
of the evidence beginning on June XX, 2005, when they moved to Colorado and where
they lived for the next ten years, and that their marriage continued even after their
move to Idaho. Thus, we believe Idaho would recognize their valid Colorado common-law
marriage.
CONCLUSION
We believe Idaho courts would find that the Claimant and the NH established a valid
common-law marriage under Colorado law that began on June XX, 2005, when they moved
to Colorado and where they lived for the next ten years, and that they remain validly
married even after moving to Idaho in 2015. Thus, there is legal support for the agency
to find that the Claimant is the NH’s spouse for purposes of determining his entitlement
to spouse’s insurance benefits on the NH’s record under Title II of the Act.