TN 32 (02-18)

PR 05605.024 Massachusetts

A. PR. 18-018 Would Massachusetts Recognize a Common-law Marriage or a Non-Marital Legal Relationship (NMLR), Allegedly Contracted within Massachusetts by a Same-Sex Couple, for Entitlement to Widow’s Insurance Benefits

Date: November 15, 2017

1. Syllabus

The number holder (NH) resided in Massachusetts at the time of her death; therefore, we look to the Massachusetts law to determine if the claimant and the NH marriage can meet the nine-month durational requirement set forth in order for the claimant to qualify for widow’s benefits. The claimant alleges that she and the NH entered into a common-law marriage prior to the legalization of same-sex marriage. Massachusetts has never recognized common-law marriage, nor did it ever permit Non-Marital Legal Relationships (NMLRs), such as civil unions or domestic partnerships. The claimant and the NH were validly married at the time of the NH’s death in December 2004, but the claimant cannot be considered the NH’s widow for purposes of entitlement to title II benefits because the couple was legally married for less than nine months, no exception to the statutory duration requirement applies, and Massachusetts would not recognize their prior relationship as a common-law marriage or an NMLR.

2. Opinion

I. Question Presented

S~ (claimant) applied for widow’s benefits on the record of M~, the deceased number-holder (NH). The couple was married in Massachusetts in November 2004, and the NH died in December 2004; therefore, they do not meet the statutory requirement that a marriage must last at least nine months before a claimant can qualify for widow’s benefits. Same-sex marriage was not legalized in Massachusetts until May 2004, only seven months prior to the NH’s death. However, the claimant alleges that she and the NH entered into a common-law marriage prior to the legalization of same-sex marriage. In the alternative, she argues that the agency should treat their relationship as an NMLR. The question presented is whether the agency should recognize the relationship as either a common law marriage or an NMLR, so that the marriage could meet the statutory durational requirement for purposes of entitlement to widow’s benefits under title II of the Social Security Act (the Act).

II. Short Answer

No. Massachusetts has never recognized common-law marriage, nor did it ever permit NMLRs, such as civil unions or domestic partnerships. Therefore, the agency cannot recognize any prior legal relationship that allegedly was established in Massachusetts, and the marriage cannot meet the nine-month durational requirement.

III. Background

The NH, M~, and the claimant, S~, were married in Massachusetts on November XX, 2004. The NH died on December XX, 2004. She was domiciled in Massachusetts at the time.

In October 2016, the claimant applied for widow’s insurance benefits on the NH’s account. She alleged in her application that she and the NH were in a common-law marriage prior to the November 2004 marriage ceremony. She explained that she and the NH began their relationship in 1998, and began living together in 2001. At the time, the claimant was still married to, but separated from, K~; their divorce became final on February XX, 2003.

In support of her application, the claimant provided the following evidence:

The claimant’s Statement of Marital Relationship (SSA-754);

Statements Regarding Marriage (SSA-753) provided by family members: B~ (the claimant’s sister), K2~ (the claimant’s niece), M2~ (the NH’s sister);

The claimant’s and K~’s divorce decree;

Several Designation of Beneficiary forms (FERS, FEGLI, and TSP), completed by the claimant on July XX, 2002, naming the NH as her beneficiary;

The NH’s will, leaving all her property to the claimant; and

A supplemental statement from the claimant, arguing that her relationship should be considered an NMLR under POMS GN 00210.004. In support, she cited the evidence summarized above, and also described other actions she and the NH had taken to formalize their relationship in 2003, prior to their marriage (e.g., both prepared health care proxies giving each other authority to make medical decisions on behalf of the other; both prepared durable powers of attorney giving each other unlimited authority over the assets of the other; and the claimant named the NH as the primary beneficiary on her IRAs).

IV. Applicable Law

Federal 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 42 U.S.C. § 402(e)(1). As pertinent here, the Act defines “widow” as “the surviving wife of an individual…” 42 U.S.C. § 416(c)(1). Under the Act:

An applicant is the . . . wife . . . of a fully or currently insured individual for purposes of this title if the courts of the State in which such insured individual is domiciled at the time such applicant files an application, or, if such insured individual is dead, the courts of the State in which [s]he was domiciled at the time of death . . . would find that such applicant and such insured individual were validly married at the time such applicant files such application or, if such insured individual is dead, at the time [s]he died . . . .

42 U.S.C. § 416(h)(1)(A)(i); see also 20 C.F.R. § 404.345. The relationship requirement will also be met if under State law the claimant would be able to inherit a wife’s share of the insured’s personal property if she were to die without leaving a will. 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

Additionally, to be considered a “widow,” a claimant must show that “she … was married to [her spouse] for a period of not less than nine months immediately prior to the day on which [her spouse] died…” 42 U.S.C. § 416(c)(1)(E).1

Here, the NH resided in Massachusetts at the time of her death. Therefore, the relevant inquiry is whether, and for how long, Massachusetts courts would consider the claimant and the NH to have been validly married.

Massachusetts Law

Same-sex marriages have been valid in Massachusetts since May 17, 2004, as a result of the Supreme Judicial Court’s decision in Goodridge v. Dep’t of Public Health, 440 Mass. 309 (2003). Prior to Goodridge, Massachusetts did not provide for civil unions, domestic partnerships, or other formal legal recognition of same-sex couples. There is no Massachusetts case law addressing common-law same-sex marriage, presumably because Massachusetts has never recognized common-law marriage for opposite-sex couples. Sutton v. Valois, 66 Mass. App. Ct. 258, 262 (2006); Collins v. Guggenheim, 417 Mass. 615, 617 (1994).

Analysis

The only disputed issue is whether the couple’s marriage can meet the nine-month durational requirement set forth in 42 U.S.C. § 416(c)(1)(E), in order for the claimant to qualify for widow’s benefits. There is no dispute that the claimant and the NH were validly married at the time of the NH’s death on December XX, 2004, see 42 U.S.C. § 416(h)(1)(A)(i), given their November XX, 2004, Massachusetts marriage. But because this marriage lasted less than two months, they can only meet the durational requirement if the agency can recognize a pre-existing legal relationship.

In the alternative, the claimant alleges that she and the NH had a common law marriage. While the claimant began living with the NH in 2001, SSA could only consider the alleged common-law marriage (or other legal relationship) to have begun after February XX, 2003, when the claimant’s divorce from her prior husband was finalized. See Mass. Gen. Laws ch. 207, § 4 (providing, with limited exceptions not present here, that a marriage is void if one spouse still has another spouse living and has not divorced). We do not question that the claimant and the NH were in a committed, exclusive relationship since at least 2003. However, under title II of the Act, the agency could only consider the parties’ relationship to be a common-law marriage if Massachusetts would do so, see POMS GN 00305.065(A) (the agency makes common-law marriage determinations in accordance with state law), and as we noted above, Massachusetts has never recognized common-law marriages – for either same- or opposite-sex couples, see Collins, 417 Mass. at 617. Therefore, the agency cannot recognize the parties’ relationship as a common-law marriage in this case.

The claimant also asserts that her relationship to the NH should be considered an NMLR under POMS GN 00210.004. See “To Whom It May Concern” Statement dated October XX, 2016. In particular, she notes that the POMS includes designated beneficiaries and reciprocal beneficiaries in its list of examples of such relationships. She points to evidence that she designated the NH as her beneficiary on various Federal forms, and that she and the NH each named the other as beneficiaries in their wills to justify her assertion on this point. Id. However, these designations do not satisfy the POMS requirements for recognition of an NMLR. An NMLR can only be recognized for benefit purposes if the relationship: (1) was valid in the State where it was established, and (2) qualifies as a marital relationship using the laws of the State of the NH’s domicile or would allow the claimant to inherit a spouse’s share of the NH’s personal property should the NH have died without leaving a will. POMS GN 00210.004(C). The POMS lists designated beneficiaries and reciprocal beneficiaries as types of relationships that might be permitted by some States and might be recognized by the agency. See POMS GN 00210.004(D)(2). As the claimant acknowledged in her October XX, 2016 Statement, Massachusetts never permitted civil unions, domestic partnerships, designated beneficiary status, or any other kind of NMLRs before legalizing same-sex marriage. Because Massachusetts law does not recognize an NMLR, the agency also cannot recognize an NMLR in this case.

Conclusion

The claimant cannot be considered the NH’s widow for purposes of entitlement to title II benefits because the couple was legally married for less than nine months, no exception to the statutory duration requirement applies, and Massachusetts would not recognize their prior relationship as a common-law marriage or an NMLR. Therefore, the agency cannot recognize a marriage of sufficient duration to establish entitlement for benefits in this case.

Michael J. Pelgro

Regional Chief Counsel

By: Assistant Regional Counsel

B. PR 16-025 Whether Massachusetts would recognize a common-law marriage, allegedly contracted in Kansas, for the purpose of entitlement to spousal benefits

Date: November 13, 2015

1. Syllabus

The claimant alleges that he and the NH entered a common-law marriage on a one-night trip, in June 1967, to the state of Kansas, where such marriages are recognized. When the claimant applied for spousal benefits, the NH resided in Massachusetts, therefore, 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. Common-law marriages cannot be formed in Massachusetts, but Massachusetts follows the general rule that the validity of a marriage is governed by the law of the state where the marriage was contracted. The state of Kansas does recognize common-law marriage. In Kansas, 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. The party asserting common-law marriage bears the burden of proof and a district court’s decision of the existence of a common-law marriage must be supported by substantial evidence. Although there is no durational component for establishing a common-law marriage in Kansas, 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.

In this case, in 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. If the claimant can provide additional evidence to show a present agreement to be married in Kansas and a holding out as husband and wife while in that State, we believe that the Massachusetts courts would likely conclude that the couple entered a valid, common-law marriage during their one-night stay in Kansas

2. Opinion

I. Question Presented

B~ (the claimant) applied for spousal benefits on the earnings record of M~, the insured number holder (NH). The claimant alleges that he and the NH entered a common-law marriage during on a one-night trip, in June 1967, to the state of Kansas, where such marriages are recognized. The question presented is whether the agency should consider the claimant to be the NH’s “spouse” in determining his entitlement to spousal benefits under Title II of the Social Security Act (the Act).

II. Short Answer

Yes, but the claimant must first provide additional evidentiary support. Although Massachusetts does not recognize common-law marriage, we believe a Massachusetts court would likely consider this marriage valid if the claimant provides additional evidence that support each of the common-law marriage elements under Kansas law.

III. Background

On March XX, 2014, the claimant applied for spousal benefits on the earnings record of the NH. The claimant alleges that a common-law marriage resulted from a one-night trip in the state of Kansas, where common-law marriage is recognized. The couple has never resided in Kansas. They were residents of Missouri at the time of the Kansas trip, then later moved from Missouri to Massachusetts in 1967, where they continued to reside until the claimant applied for benefits.

On June XX, 2014, the claimant completed the SSA-754 form, Statement of Marital Relationship, and both the claimant and the NH provided additional signed statements supporting the claim of marriage under common law. The claimant alleges that the couple entered into a common-law marriage in June 1967 in Kansas, which was followed by a “honeymoon” in Colorado. The couple reportedly spent one night in Lawrence, Kansas. The couple indicated that they returned to Missouri after their “honeymoon” in Colorado, before moving to Massachusetts later that year.

The claimant indicated in his SSA-754 form that the couple began living together in a husband and wife relationship in June 1967 in Lawrence, Kansas, although they resided in Columbia, Missouri. In his supplemental signed statement, the claimant stated, “We left for Colorado on a honeymoon and 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 indicated that they have lived together continuously since June 1967.

The claimant’s SSA-754 responses indicate that the couple had an understanding when they began living together that “[i]t was a vow [they] made to each other forever,” that this understanding never changed between the two of them, and the couple understood they would live together forever. The claimant stated he believed that living together made him legally married to the NH because their “love was stronger than a piece of paper.”

The couple opened a joint bank account in 1967, identifying themselves as husband and wife, and obtained a mortgage together in 1971, again identifying themselves as husband and wife. In 1970, the claimant started a business and he named the business after himself and his “wife.” The claimant reported that the couple introduced themselves as B~ and M~. The claimant stated that their neighbors and employers “only know of [them] as a married couple.” The couple reportedly never discussed the status of their relationship with others, including their closest relatives, as they never “needed to[ ].” In the claimant’s form, he indicated that the couple objected to the agency contacting their employers about the status of their relationship, as “no one kn[ew]” about the status of any marriage. In his supplemental statement, the claimant stated, “No one has knowledge of our marriage as such, not even our children, neighbors, [or] relatives. There has been no reason to discuss it.”

The NH changed her surname from M~ to R~ in April 1968 in Massachusetts. A document indicating the reason for the change of name was not required at that time. In April 2000, the NH updated her social security number to show her status as a naturalized citizen. The SS-5 shows the Naturalization certificate issue date of December XX, 1968. The surname given on the SS-5 is R~, which was her legal name at the time.

In addition to their statements, the claimant and the NH submitted the following documentation to support the claim: (1) a Form 1040 U.S. Individual Tax Return for year 1980, identifying the NH as the claimant’s spouse; (2) a 2013 Form 8879 for the IRS e-file Signature Authorization, showing the NH as the claimant’s spouse; (3) a 2014 real estate tax bill from the Town of Chelmsford, MA, showing the NH and the claimant as joint owners of real property; (4) a joint policy for automobile insurance; (5) a joint bank account, with debit cards, at Enterprise Bank; and (6) the identification of the couple’s two children, listing the NH and the claimant as their parents. The claimant also indicated that he started an engineering consulting company in 1970 (where he still works), named “B~,” which he explained incorporated the names B~ and M~.

IV. Applicable Law

A. Federal Law

To qualify for spousal benefits under the Act, a claimant must show, among other things, that he is the insured’s husband. See 42 U.S.C. §§ 402(c), 416(f); see also 20 C.F.R. § 404.330(a). Under the Act:

An applicant is the . . . husband . . . of a fully or currently insured individual for purposes of this title if the courts of the State in which such insured individual is domiciled at the time such applicant files an application . . . would find that such applicant and such insured individual were validly married at the time such applicant files such application . . .

42 U.S.C. § 416(h)(1)(A)(i); see also 20 C.F.R. § 404.345.

Here, when the claimant applied for spousal benefits, the NH resided in Massachusetts. Therefore, the agency must determine whether the courts of Massachusetts would consider the claimant and the NH to be validly married at the time the application was filed.

B. Massachusetts Law on Common-Law Marriage

Common-law marriages cannot be formed in Massachusetts. See e.g. Collins v. Guggenheim, 417 Mass. 615, 617 (1994); Sutton v. Valois, 66 Mass. App. Ct. 258, 262 (2006). However, the Commonwealth still recognizes common-law marriages validly formed in other states. See e.g. Craddock’s Case, 37 N.E.2d 508, 510-12 (Mass. 1941); Boltz v. Boltz, 92 N.E.2d 365, 367-68 (Mass. 1950). Massachusetts follows “the general rule that the validity of a marriage is governed by the law of the State where the marriage is contracted,” Cote-Whiteacre v. Dept. of Public Health, 844 N.E.2d 623, 636 (Mass. 2006) (Spina, J., concurring), and will “ordinarily extend recognition to out-of-state marriages under principles of comity, even if such marriages would be prohibited here, unless the marriage violates Massachusetts public policy, including polygamy, consanguinity and affinity.” Elia-Warnken v. Elia, 972 N.E.2d 17, 20 (Mass. App. 2012); Mass. Gen. Laws Ann. ch. 207, §§ 1, 2, 4. The principles of comity require Massachusetts “to concede that . . . our sister States, even when they reach a different decision than we would have, are endowed with an equal measure of wisdom and sympathy.” Delk v. Gonzalez, 658 N.E.2d 681, 683-84 (Mass. 1995).

There are few Massachusetts cases analyzing the validity of out-of-state, common-law marriages and none that apply Kansas law. In 1941, the Supreme Judicial Court applied Pennsylvania law to conclude that a common-law marriage was established where the couple lived together in Pennsylvania and were regarded as husband and wife. Craddock’s Case, 37 N.E.2d at 510-12. In another case, decided two years later, the same court held that a New York common-law marriage was created during a small window of time—between December 13, 1918 and December 17, 1918 (or until the end of December of that year)—while a couple was living together in New York. Boltz, 92 N.E.2d at 366-67. The court based its ruling on different factors, including that: (1) the couple held a marriage ceremony on June 18, 1918 (which, although invalid because the man was still married to another woman, still served as “strong evidence that they intended the petitioner was to become a wife and not merely a mistress.”); (2) the couple continued to live together from the date of the invalid ceremony until December 1918; (3) a daughter was born to the couple in November 1918; and (4) the respondent testified that “he always held the petitioner out as his wife.” Id. In a footnote, the Court also indicated that the couple “had children, owned property together, including one parcel held as tenants by the entirety, and continuously held themselves out as husband and wife for twenty-nine and one half years.” Id. at 728, n.1.

The Massachusetts Supreme Judicial Court found that no common-law marriage was established under Rhode Island law in 1948, because previous illicit relations existed between the parties. Panneton v. Panneton, 82 N.E.2d 595, 596-97 (Mass. 1948) (citing Ibello v. Sweet, 47 R.I. 480, 482 (1926) (where previous illicit relations existed between the parties, in the “absence of clear proof to the contrary, the presumption of law is that such meretricious relation continued.”). In Hatton v. Meade, 502 N.E.2d 552, 554 n.1 (Mass. App. Ct. 1987), the Appeals Court of Massachusetts noted that the plaintiff’s allegation that a common-law marriage resulted from a trip to Pennsylvania followed by cohabitation in Massachusetts was not properly preserved for appeal.

An evaluation of whether a common-law marriage can be formed under Kansas law would be a question of first impression in Massachusetts.

C. Kansas Law on Common-Law Marriage

Unlike Massachusetts, the state of Kansas does recognize common-law marriage. In re Estate of Antonopoulos, 268 Kan. 178, 192, 993 P.2d 637, 647 (Kan. 1999). “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.” See id. The party asserting common-law marriage bears the burden of proof and a district court’s decision of the existence of a common-law marriage must be supported by substantial evidence. See id. at 647-48. In addition, each element must co-exist to establish a common-law marriage. Thompson v. Barnhart, 04-2080, 2005 WL 23347, at *2 (D. Kan. Jan. 5, 2005) (internal citation omitted).

Essential to proving a valid common-law marriage is the existence of a mutual present agreement to the marriage. 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 no particular form is required to satisfy this element, the present agreement may be evidenced by the acts and conduct of the parties. In re Estate of Keimig, 215 Kan. 869, 872-73, 528 P.2d 1228, 1230-31 (1974); Cain, 165 P.2d at 223. In Anguiano v. Larry’s Electrical Contracting L.L.C., 44 Kan. App.2d 811, 816, 241 P.3d 175, 179 (2010), the Kansas Court of Appeals held that substantial evidence did not support a present marriage agreement because, among other things, the appellant “testified that [the appellee] never stated that the two were actually married but only that he was ‘going to marry her.’” The Kansas Supreme Court also 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,” which the Court believed was better understood to mean that no formal ceremony had occurred—because the same individual also testified that she had been living with the man she considered to be 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 generally being reputed as husband and wife in the community. See Schuchart v. Schuchart, 61 Kan. 597, 60 P. 311, 312 (1900). However, where parties hold themselves out as “man and wife only when it [i]s advantageous,” the court will not find that the parties have established the third element, necessary to prove a common-law marriage. Murphy v. Murphy, No. 110,386, 324 P.3d 1154, at *6-7 (Kan. App. May 23, 2014) (unpublished opinion); State v. Johnson, 216 Kan. 445, 449, 532 P.2d 1325, 1329 (1975), overruled on other grounds by State v. Lee, 266 Kan. 804, 977 P.2d 263 (1999).

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 v. Cain, 160 Kan. 672, 165 P.2d 221, 223 (1946).

IV. Analysis

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,2 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.3 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, § 10.4 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.

V. Conclusion

If the claimant can provide additional evidence to show a present agreement to be married in Kansas and a holding out as husband and wife while in that State, we believe that the Massachusetts courts would likely conclude that the couple entered a valid, common-law marriage during their one-night stay in Kansas in 1967. The additional evidence should include an SSA-754-F4 form completed by the NH, as well as signed statements from the claimant and the NH and, preferably, two blood relatives. If the claimant can produce this evidence, the agency should conclude that he is entitled to spousal benefits under Title II.

Christopher Michaels

Regional Chief Counsel (Acting)

By: Sarah Choi

Assistant Regional Counsel

C. PR 09-017 Relationship of Applicants to Deceased Number Holder, J~

DATE: November 5, 2008

1. Syllabus

The State court order was not contested and the facts do not support a finding that the claimant met New Hampshire's statutory requirements to be deemed a common-law spouse. There is no documetary evidence that a religious or any other type of marriage ceremony occurred in New Hampshire. Under SSR 83-37c the court order is not binding on the Agency. Furthermore, there is no evidence that the claimant and NH went through a valid ceremonial marriage in Massachusetts, the State of the deceased's permanent home, when he died. There was no good faith attempt to enter into a valid and State-sanctioned marriage.

2. Opinion

You have requested our opinion on whether the New Hampshire Probate Court document decreeing a common law marriage between the deceased, J~, and the applicant, R~ is legal, whether the 1987 ceremonial marriage between the deceased and applicant meets the regulatory definition to constitute a marriage for entitlement to widow's benefits, and whether the child of the applicant can be considered a step-child of the deceased for the purpose of receiving surviving child benefits. For the following reasons, we believe that the Probate Court's finding is not binding on the Agency. We also believe that the 1987 ceremonial marriage does not meet the regulatory requirements to constitute a valid marriage to establish entitlement to widow's benefits or step-child's benefits.

Factual Background

On April XX, 2008, R~ petitioned for surviving spouse's benefits for herself, and surviving child's benefits for her adopted son, D~ . R~ claims that she married the deceased number holder as of May XX, 1987, by common law in New Hampshire, which has been affirmed by the Probate Court of New Hampshire.

Analysis

1. Legality of Probate Court Order

Your first question is whether the Probate Court Order, issued on August XX, 2000, finding that R~ is the common-law spouse of the decreased number holder, J~ , is legal and binding on the Agency. Pursuant to Social Security Ruling (SSR) 83-37c, the Agency need not always accept a state court order in a proceeding in which the Agency was not a party. Rather, the Agency will accept the state court order only if the issue before the court was genuinely contested by parties with opposing interests, and the court's order is consistent with the law enunciated by the state's highest court.

Here, the issue of the existence of a common-law marriage was not contested in the Probate Court. Further, the facts do not support a finding that R~ met New Hampshire's statutory requirements to be deemed a common-law spouse.

First, while R~ claims that she and J~ shared a religious ceremony in 1982, she was not officially divorced from her husband, J~ , until June XX, 1983. We would also note that we have no information to validate the claim that a religious ceremony took place in 1982, since R~ failed to provide a specific date, location, or any other corroborating evidence.

R~ also claimed in her Petition to the Court that she and J~ shared a family life, and raised two children, Y~ and D~ . J~ , however, is not listed on D~ 's adoption decree, dated June XX, 1989.

R~ further asserted in her Petition that she and J~ owned property together in Danbury, New Hampshire as joint tenants with right of survivorship. R~, however, has failed to present any documentary evidence demonstrating that she and/or J~ owned property in New Hampshire.

Lastly, R~ did not meet the requirements to be deemed legally married in New Hampshire. New Hampshire does not recognize common-law marriage but the state will, after the death of one of them, deem a couple to have been legally married if they were competent to contract marriage, cohabitated and acknowledged each other as husband and wife, and stayed in the relationship for three years. All of these events must have occurred while they were domiciled in New Hampshire. GN 00305.075 and N.H. Rev. Stat. 457:39. Pursuant to N.H. Rev. Stat. 21.6-a, domicile is a location that is designated by an individual as his principal place of physical presence for the indefinite future to the exclusion of others.

Here, there is no evidence that either J~ or R~ intended to make New Hampshire their principal place of residence. This is evidenced by the fact that while R~ reported to the Social Security Administration that she may have resided in New Hampshire for an extended period between 1988 and 1990, she lists her residence as Cambridge, MA on the June 1989 adoption decree for D~ . J~ 's 1999 Death Certificate also lists both his residence and R~'s as Cambridge, MA. Further, J~ did not hold R~ out as his wife, as on his death certificate he is listed as "never married."

Therefore, as there is no documentary evidence that a religious or any other type of marriage ceremony occurred in New Hampshire, that either J~ or R~ lived or owned property in New Hampshire, or that either party was ever domiciled in New Hampshire, the Probate Court's Order finding that a common-law marriage existed is not binding on the Agency.

2. Significance of 1987 Ceremonial Marriage

Your second question is whether the ceremonial marriage in 1987 meets the criteria in the regulations to constitute a marriage for entitlement to widow's benefits. Pursuant to 20 C.F.R. § 404.345, to determine an applicant's relationship as the insured's widow, the Agency must look to the laws of the state where the insured's permanent home was when he died. The regulations define a permanent home as the true and fixed home of a person, the place to which he intends to return when absent. 20 C.F.R. § 404.303.

Under this regulatory section, J~ 's permanent home when he died was in Massachusetts. There is no evidence that J~ and R~ were validly married in Massachusetts, as Rabbi Cherie Koller-Fox's stated that while she performed a religious ceremony in 1987, she did not solemnize the marriage under Massachusetts law. Therefore, since Massachusetts does not recognize common-law marriage, R~ does not meet the definition for an insured widow.

The 1987 ceremonial marriage also does not meet the regulatory requirements for a deemed valid marriage. Pursuant to the regulations, an individual will be deemed to be a wife if in good faith she went through the marriage ceremony with the insured that would have resulted in a valid marriage except for a legal impediment. 20 C.F.R. § 404.346(a). In the present case, however, there is no evidence that R~ or J~ attempted to enter into a valid marriage. As was discussed above, the rabbi made no attempt to solemnize the relationship under state law, and thus there was no good faith attempt to enter into a valid and state-sanctioned marriage.

3. Status of D~

Your third question is whether D~ can be considered a step-child of the deceased number holder for the purpose of receiving surviving child's benefits. A child may be eligible for benefits if, after his birth, his natural or adoptive parent marries the insured. 20 C.F.R. § 404.357. The marriage between the natural parent and the insured must be valid under state law unless the union meets the requirements for a deemed marriage under section 346(a). Id.

Here, R~, D~'s adoptive mother, was never married or deemed married to the insured. For this reason, D~ is not eligible for surviving child's benefits.

Conclusion

For the reasons discussed above, we believe that the Probate Court's finding that a common-law marriage existed is not binding on the Agency. We also believe that the 1987 ceremonial marriage does not meet the regulatory requirements to constitute a valid marriage to establish entitlement to widow's benefits or step-child's benefits.


Footnotes:

[1]

. There are limited exceptions, not relevant here, for situations where the marriage could not meet the durational requirement. See 20 C.F.R. §335(a)(2)(i)-(iv).

[2]

. See e.g., Mass. Gen. Laws Ann. ch. 207, §§ 19, 20, 28, 30, 37-39; Mass. Gen. Laws Ann. ch. 46, §§ 1-2, 17A; Mass. Gen. Laws Ann. ch. 111, § 2; Cote-Whiteacre, 844 N.E.2d at 632-33 (Spina, J., concurring).

[3]

. But see Mass. Gen. Laws Ann. ch. 207, § 10 (“If any person residing and intending to continue to reside in this commonwealth is disabled or prohibited from contracting marriage under the laws of this commonwealth and goes into another jurisdiction and there contracts a marriage prohibited and declared void by the laws of this commonwealth, such marriage shall be null and void for all purposes in this commonwealth with the same effect as though such prohibited marriage had been entered into in this commonwealth.”). This provision does not apply in this case because the claimant and the NH were not residents of Massachusetts prior to entering the alleged common-law marriage.

[4]

. “If any person residing and intending to continue to reside in this commonwealth is disabled or prohibited from contracting marriage under the laws of this commonwealth and goes into another jurisdiction and there contracts a marriage prohibited and declared void by the laws of this commonwealth, such marriage shall be null and void for all purposes in this commonwealth with the same effect as though such prohibited marriage had been entered into in this commonwealth.”


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PR 05605.024 - Massachusetts - 02/23/2018
Batch run: 02/23/2018
Rev:02/23/2018