When the claimant applied for spousal benefits in March 2014, he and the NH resided
in Massachusetts. Thus, the agency looks to Massachusetts law to determine whether,
at the time the claimant filed his application, the Commonwealth would have found
him to be validly married to the NH. 42 U.S.C. § 416(h)(1)(A)(i); see also 20 C.F.R. § 404.345.
The couple does not allege that they were married under Massachusetts law, but that they entered into a common-law marriage while in Kansas (when they were
residents of Missouri). Massachusetts follows the general rule that the validity of
a marriage is governed by the law of the state where the marriage was contracted. See Damaskinos v. Damaskinos, 89 N.E.2d 766, 767 (Mass. 1950). The question then becomes, did the claimant and
the NH form a valid common-law marriage in Kansas? If so, under the principles of
comity, Massachusetts would recognize that marriage. See Delk, 658 N.E.2d at 683-84.
Applying Kansas law, we believe a Massachusetts court could conclude that a common-law
marriage was established, but that additional evidence must be provided to adequately
support the claim. As noted above, the essential elements of a Kansas 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. Because there is no indication that the couple lacked the legal
capacity to marry, we turn to the second and third elements.
There is evidence to satisfy the second element—present marriage agreement—but a more
definitive statement from the NH and other blood relatives might be required. In his
Statement of Marital Relationship the claimant reported to SSA that he began living
with the NH in a “husband and wife relationship” in June of 1967 in Lawrence, Kansas.
When asked whether the couple had an understanding about their relationship when they
began living together, the claimant stated that they made a “vow …to each other forever”
and that understanding never changed. He also indicated that he believed they were
legally married, explaining “[o]ur love was stronger than a piece of paper.” In a
separate statement, the claimant wrote that the couple “stayed overnight in Lawrence,
Kansas (where [his] parents got married) since we had no money, we vowed to be together
from that time on.” The claimant reported that the couple honeymooned in Colorado.
He also stated that there was no agreement or promise that a ceremonial marriage would
be performed in the future. The NH provided a statement that she and the claimant
have been together since meeting in 1966 and were “together and still in love and
growing old together.” We believe the claimant’s statements provide evidence of a
present agreement between the parties to marry in Kansas—because they suggest that
the couple traveled to Kansas expressly for the purpose of entering a common-law marriage—but
that a more corroborative statement from the NH and other blood relatives would be
necessary to adequately prove a present intent to marry in Kansas. Under agency policy,
preferred evidence of a common law marriage includes completion of form SSA-754-F4
(Statement of Marital Relationship) by each spouse, and of form SSA-753 (Statement Regarding Marriage) by a blood relative of
each spouse. POMS GN 00305.065. In this case, only the claimant completed the SSA-754-F4 and no blood relatives
have provided statements.
The third element 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 has
continuously satisfied this element since the time of their alleged common-law marriage.
For example, the NH took the claimant’s surname, they have two children together,
they own real property jointly, they have shared a joint bank account since 1967 (when
they allegedly became married under common law), they have continuously lived together
since 1967, they introduce themselves to others as “B~ and M~,” and others “only know
of [them] as a married couple.” There is no statement or other evidence showing that
the couple held out as husband and wife during their one-night stay in Kansas. While
we view the couple’s subsequent actions as providing ample support for this third
element—particularly in light of the short duration of their sojourn—we still believe
it is necessary that the couple provide statements that they held out as husband and
wife while in Kansas.
Although there is no durational component for establishing a common-law marriage in
Kansas, we also considered whether a one-night stay might be too brief a period to
establish a valid union. The agency recognizes that, depending on state law, common-law
marriage can arise from a temporary stay or sojourn, if accompanied by holding out
as husband and wife, even if the parties were never residents of that state. POMS
GN 00305.060A.4. As noted above, time is not a factor in establishing a common-law marriage in
Kansas. See, e.g., 1 Kan. Law & Prac., Family Law § 3:8.
In what appears to be the only OGC opinion applying Kansas (and Iowa) law to determine
whether a state (Maine, in this case) would recognize as valid, a common-law marriage
formed during a brief sojourn to Kansas and Iowa, OGC concluded that it would. SSA
OGC Opinion re: Validity of Marriage - Maine Law, Florence Allen, Region I (March
23, 1991). In that opinion, the couple alleged that they held out as husband and wife
“while traveling through, or on a ‘brief sojourn,’ in Kansas and Iowa.” Id. See also HHS-OGC Opinion re: Pete Weldy, Region V (Sept. 8, 1987) (opining that a common-law
marriage can be created even where the sojourn was “so short as a train, bus or auto
trip through Iowa...[and where] the parties never spent a night in the state.”) (quoting
Howard L. U~, A/N ~, RA V (B~) to Manager, OASI (May 15, 1952)); HHS-OGC Opinion re:
Theotha Bass, Deceased Wage Earner-D Beatrice Bass Common-law Marriage, South Carolina,
Region IV (Jan. 10, 1979) (“It is our opinion that the evidence would support a finding
that the cohabitation and relationship between the parties while on any one of various
temporary sojourns to the State of South Carolina resulted in a common-law marriage
under the laws of that state.”). But see SSA OGC Opinion re: The validity of a common-law marriage in Montana, NH-D. Schlichenmayer,
Region IIX (April 5, 2005) (No common-law marriage established by North Dakota couple
who cohabited for brief periods in Montana based on Montana Supreme Court holding
that short periods of cohabitation and holding out as husband and wife are insufficient
to establish one of the elements of common law marriage in Montana).
Courts have also held that a brief trip to a state that recognizes common-law marriage
is sufficient to establish a legal marriage, provided the parties satisfied the elements
for a marriage while in the common-law state. See, e.g., In re Estate of Pecorino, 64 A.D.2d 711, 407 N.Y.S.2d 550 (1978) (3-day stay in Pennsylvania sufficient for
common-law marriage where couple traveled to Pennsylvania with express purpose of
entering common-law marriage); Old Republic Ins. Co. v. Christian, 389 F. Supp. 335, 338-89 (E.D. Tenn. 1975) (“The Court cannot conclude that cohabitation
in a nondomicilliary state for a ten day period is an insufficient period of time
to create a common[-]law marriage, under the circumstances of this case and assuming
that the requirements for a common[-]marriage are otherwise met.”). The Second Circuit
affirmed a common-law marriage, applying New York law, where the couple had eight
one-night stays in the state of Pennsylvania, a common-law marriage state, even without
“proof of words in the present tense establishing a marriage contract while in Pennsylvania,”
a requirement under the state’s law. Renshaw v. Heckler, 787 F.2d 50, 52-53 (2d Cir. 1986). The court “held that, even in the absence of
a ‘new contract in verba de praesenti’ in Pennsylvania, ‘the subsequent conduct of the parties was equivalent to a declaration
by each that they did, and during their joint lives were to, occupy the relation of
husband and wife.” Id. at 54 (quoting Sullivan v. American Bridge Co., 176 A. 24, 25 (Penn. 1935)); see also Metropolitan Life Ins. Co. v. Holding, 293 F. Supp. 854, 857-58 (E.D. Va. 1968) (recognizing common-law marriage legally
contracted in Florida and Ohio, by brief trips to those states in 1961, where neither
“Florida nor Ohio prescribes any minimum or maximum periods of residence as man and
wife as a prerequisite to the creation of a common[-]law marriage”).
Courts finding no common-law marriage created during a brief sojourn have often based
their decisions on the idea that individuals cannot circumvent the laws of their state
of residence by visiting another state for the purpose of entering a common-law marriage.
See, e.g., In re Mortenson’s Estate, 316 P.2d 1106, 1107 (Ariz. 1957) (“A marriage declared void by our statute cannot
be purified or made valid by merely stepping across the state line for purpose of
solemnization. We cannot permit the public policy of this state to be defeated by
such tactics.”); See Metropolitan Life Ins. Co. v. Chase , 294 F.2d 500, 503 (3d Cir. 1961) (applying New Jersey law, finding “where the parties,
while retaining their domicile in one state, pay a temporary visit to another state
and there enter into a marriage which would not be recognized by the law of the state
of their domicile if entered into therein, the latter state does not always look to
the law of the place of the marriage to determine its validity”); Peirce v. Peirce, 379 Ill. 185, 191, 39 N.E.2d 990, 993 (1942) (“common law marriage is void in Illinois,
even if performed in some other jurisdiction. The rule, however, is limited to the
situation where the parties whose marriage is sought to be upheld in Illinois were,
at the time of the marriage, domiciled in Illinois, although the marriage occurred
in another State”). But see Lieblein v. Charles Chip’s, Inc., 32 A.D.2d 1016, 1016, 301 N.Y.S.2d 743, 745 (1969) (“It is well established that
New York will recognize a common-law marriage entered into in a sister state that
recognizes the validity of such marriages, even though it may have been entered into
at a time when such marriage would have been invalid in New York.”).
That is not the case here. The claimant and the NH were not residents of Massachusetts
at the time of the alleged common-law marriage. Thus, they did not violate Mass. Gen.
Laws Ann. ch. 207, § 10. The facts here are similar to those in Boltz, where a couple who resided in New York later moved to Massachusetts and asked the
Commonwealth to recognize a common-law marriage formed in New York. 92 N.E.2d at 366-67.
The Supreme Judicial Court concluded that the couple had not violated the State’s
own laws, because “no evidence that the petitioner resided in this Commonwealth in
December, 1918, or went into another jurisdiction for the purpose of contracting a
marriage which would have been void if contracted here.” Id. Notably, in Boltz, the Court held that the couple’s New York common-law marriage was created in as
few as four days (between December 13, 1918 and December 17, 1918). Id.
In other cases, OGC has opined that no common-law marriage would be recognized after
a sojourn because one of the necessary elements was not satisfied. See, e.g., SSA OGC Opinion re: M. Bollett, Region IX (Jan. 28, 1986) (Hawaiian couple who alleged
common-law marriage based on periodic sojourns in Pennsylvania not deemed married
under common law because they failed to satisfy the intent pre-requisite—there was
no evidence that the couple had any idea of entering into a common law marriage when
they went to Pennsylvania); SSA OGC Opinion re: Common-Law Marriage -- Sojourn Doctrine
-- Herbert O. Gustafson, Region IIX (Feb. 1, 1982) (a Wyoming couple alleged common-law
marriage based on trips to Colorado not deemed married because “There is no evidence
that any of such trips to Colorado were made for the purpose of changing their domicile
or residence to that jurisdiction or contracting a common-law marriage while they
were in that State, or that while there any agreement was ever made by them to become
husband and wife, or that they ever thought that such was necessary to give their
marriage any validity.”); SSA OGC Opinion re: Common-Law Marriage--Sojourn Doctrine-Supplement,
Region IIX (May 12, 1981) (“We are unwilling to hold that a man and woman who travel
from [Colorado] into a State that recognizes common-law marriages and cohabit for
a few days are thereby deemed, in the eyes of the law, to be man and wife, unless
there is shown a clear intent to enter into that status.”). We do not believe that
reasoning would apply here because the claimant expressly intended to form a common-law
marriage in Kansas, where his parents reportedly married.
Although there is some uncertainty in the law, we believe a Massachusetts court would
recognize as valid the couple’s alleged common-law marriage if the claimant produces
more evidence to support his claim. Specifically, the agency should 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 their stay in the state. Since
both the husband and wife are alive, the preferred evidence of a common-law marriage
would be their signed statements and those of two blood relatives. 20 C.F.R. § 404.726(a).
If the claimant and the insured can provide such evidence, we believe there would
be sufficient proof of a valid common-law marriage in Kansas, such that a Massachusetts
court would recognize the marriage and the claimant would be entitled to spousal benefits
under the Act.