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.
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
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
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
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).
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.
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.
Regional Chief Counsel (Acting)
By: Sarah Choi
Assistant Regional Counsel