TN 10 (03-11)
PR 05605.028 Missouri
A. PR 11-070 Whether Missouri Recognizes a Common Law Marriage Contracted in Colorado for Purposes of Entitlement to Spousal Benefits
DATE: March 3, 2011
The issue in this case is whether Missouri courts would recognize a valid common-law marriage that the parties entered into in Colorado. Missouri courts have recognized a common-law marriage as valid when the parties entered a valid common-law marriage in another state and later became Missouri residents. Missouri courts require “stringent proof” (i.e., proof that is convincing or cogent) that a common-law marriage exists. Clear, consistent, and convincing evidence shows that the parties entered into an agreement to be married when they resided in Colorado, and we can consider the claimant as the wife of the insured for entitlement to spousal benefits.
You requested advice regarding whether the claimant, Linda D~, can receive spousal benefits based on the record of her common law husband, John B~, where the common law marriage was entered into in Colorado and the parties resided in Missouri as of the date of the application for spousal benefits. Based on the facts presented, we believe Missouri would recognize Ms. D~ common law marriage to Mr. B~, and therefore, she can be entitled as a spouse on Mr. B~’s record.
The memorandum that you sent with your request states that the number holder, John B~, previously lived in Colorado and moved to Missouri in 2008. The number holder lives with Linda D~, who alleges that she has been in a common law marriage with the number holder since 1994.
In January 2011, John B~ completed a Statement of Marital Relationship, SSA-754, and signed it under the penalty of perjury. On the form, Mr. B~ indicated that he and Linda D~ began living together in a husband and wife relationship in December 1994 and that they lived in Colorado at that time. He indicated that they have lived together continuously since that time. Mr. B~ indicated that he and Linda made a lifetime commitment to each other’s welfare and well-being. He reported that he believed they were legally married because Colorado is a “common law” state. He stated that they introduce each other as husband and wife. Mr. B~ reported that they filed joint income tax forms and listed each other as husband and wife from 1999 through 2009. The evidence received by the field office includes a copy of John and Linda’s 2008 tax return which was filed under the status of “married filing jointly.” Mr. B~ also noted that they were listed as husband and wife on a Kohl’s Health Insurance policy. Linda D~ also completed an SSA Form 754 in January 2011 with essentially the same answers as Mr. B~. Ms. D~ also signed the form under penalty of perjury.
Linda’s father, Cecil D~, and John’s brother, Michael B~, each completed a Statement Regarding Marriage, SSA-753. Both men indicated that Linda and John were generally known as husband and wife and they personally considered John and Linda to be husband and wife. Both men signed the forms under penalty of perjury.
In order to be entitled to wife’s benefits based on John B~’s record, Linda D~ must show that she is John’s wife based upon a relationship described in 20 C.F.R. §§ 404.345 through 404.346. See 20 C.F.R. § 404.330 (2010).
To decide your relationship as the insured’s wife …, we look to the laws of the State where the insured had a permanent home when you applied for wife’s … benefits. If you and the insured were validly married under State law at the time you apply for wife’s … benefits …the relationship requirement will be met.
20 C.F.R. § 404.345.
Because Ms. D~ lives in Missouri and lived there at the time she filed her application for benefits, the question is whether Ms. D~ and Mr. B~ are validly married under Missouri law. Ms. D~ and Mr. B~ have not entered into an official or ceremonial marriage. Both have acknowledged entering into a common law marriage when they lived in Colorado.
The requirements for a valid common law marriage in Colorado are: “mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship.” Whitenhill v. Kaiser Permanente, 940 P.2d 1129, 1132 (Colo. App. Ct. 1997), citing People v. Lucero, 747 P.2d 660 (Colo. 1987). Colorado courts require “clear, consistent, and convincing” evidence of a common law marriage. See Employers Mut. Liability Ins. Co. of Wis. v. Industrial Com’n, 234 P.2d 901, 903 (Colo. 1951). Existence of an agreement to be in a marriage relationship can be inferred from evidence of cohabitation and general repute. See Lucero, 747 P.2d at 664. In this case, both parties have stated, under penalty of perjury, that they agreed to be husband and wife. Additionally, they have lived together, introduced each other as husband and wife, and filed tax returns as a married couple. Ms. D~ father and Mr. B~’s brother both considered the couple to be married. The evidence is clear, consistent, and convincing that the parties entered into an agreement to be married while they were residents of Colorado and continue to live as a married couple. Therefore, we believe Ms. D~ and Mr. B~ entered into a valid common law marriage in Colorado.
Common law marriages are “null and void” in Missouri. Mo. Ann. Stat. § 451.040 (2010). However, Missouri courts have recognized a valid common law marriage entered into in another state when the parties later become residents of Missouri. See Pope v. Pope, 520 S.W.2d 634, 635 (Mo. Ct. App. 1975). Missouri courts require “stringent proof” that a common law marriage exists. See Pope, 520S.W.2d at 636. “Stringent proof” is proof that is convincing or cogent. See id. Ms. D~ and Mr. B~ were residents of Colorado when they entered into the common law marriage and remained residents of Colorado for almost 14 years after their marriage. Missouri courts have recognized a valid common law marriage entered into in Kansas when the parties later become residents of Missouri. See Pope, 520 S.W.2d at 635. Similarly, we believe Missouri courts would recognize a valid common law marriage entered into Colorado when the parties later become residents of Missouri.
As stated above, the evidence is clear, consistent, and convincing that the parties entered into a valid common law marriage in Colorado. Thereofore, we believe that Missouri courts would recognize their common law marriage as valid. For this reason, Ms. D~ can be considered Mr. B~’s wife for the purposes of spousal benefits.
Kristi A. S~
Chief Counsel, Region VII
Assistant Regional Counsel