I. Question Presented
M~ (the claimant) applied for survivor benefits on the earning records of G~, the
insured number holder (NH). The claimant alleges that she and the NH began cohabitating
on January XX, 2012 in California and subsequently moved to New Hampshire in January
2014. The question presented is whether the relationship between the claimant and
the NH qualifies as a common-law marriage in the State of New Hampshire for the purpose
of awarding survivor benefits.
II. Short Answer
The relationship between claimant and the NH would likely qualify as a common-law
marriage in the State of New Hampshire for the purpose of awarding survivor benefits
to the claimant.
On September 19, 2016, we received your request for an opinion as to whether a common-law
marriage existed between the claimant and the NH.
The claimant alleges that she began living with and entered into a common-law marriage
with the NH on January XX, 2012 in the State of California. The claimant asserts that
she and the NH lived together in California until January 2014, when they purchased
a home and moved to M2~, New Hampshire. A copy of the property deed for the property
in M2~, New Hampshire lists the claimant as a tenant in common with the NH. The parties
signed the deed on December XX, 2013. The claimant and the NH opened a joint bank
account in February 2014. The claimant gave birth to a child, A~ in May 2015. The
NH died approximately one year later, on July XX, 2016, in W~, Massachusetts.
The claimant indicated in her SSA-754 that the she and the NH understood they were
in an “intimate, monogamous relationship and planned to spend [their] lives together”
when they began living together in California. Although the claimant explained that
she did not believe living together made the couple legally married, she stated that
there was an understanding that they would live together “in perpetuity.” The claimant
introduced the NH as her partner or husband. The claimant denied living with any other
person as husband and wife.
In addition to the claimant’s statements, the NH’s father completed an SSA-754 in
which he identified himself as the claimant’s father-in-law and indicated that the
claimant and the NH lived together continuously since January 2012. He stated that
the couple moved from California to New Hampshire but visited him in California to
introduce their baby. The NH’s father stated that while he did not hear the couple
refer to each other as husband and wife, he explained, “[i]n our family setting it
was implicit and did not need to be stated.” The NH’s mother made similar statements
in her SSA-754, identifying herself as the claimant’s mother-in-law and asserting
the couple’s status as husband and wife was “tacitly understood.” She confirmed the
couple lived together continuously since January 2012.
The claimant’s father stated that he considered the couple as husband and wife and
heard them refer to each other as such. He indicated the couple lived together continuously
since January 2012. The claimant’s mother provided the same information in her SSA-754.
The claimant also provided the following documentation to support the claim: (1) a
property deed executed in December 2013 for a home in M2~, New Hampshire identifying
the claimant and the NH as tenants in common, each with an undivided one-half interest
in the property; (2) life insurance policy documents listing the claimant as a beneficiary
upon the NH’s accidental death; (3) a 2016 report from the Savings Bank of Walpole
listing the NH and the claimant as joint titleholders for a deposit account; and (4)
select pages of Form 1040 U.S. Individual Tax Return for year 2015 for the NH in which
the couple’s daughter was listed as a dependent.
IV. Applicable Law
To qualify for survivor insurance benefits under the Act, a claimant must show, among
other things, that she is the insured’s widow. See 42 U.S.C. § 402(e)(1). As pertinent here, the Act defines a widow as the surviving
wife of an individual, who is also the mother of his child, and was married to the
individual for at least nine months prior to the date of the individual’s death. See 42 U.S.C. § 416(c)(1). Under the Act:
An applicant is the . . . widow . . . of a fully or currently insured individual for
purposes of this subchapter if . . . the courts of the State in which [the insured
individual] was domiciled at the time of death . . . would find that such applicant
and such insured individual were validly married at the time . . . such insured individual
. . . died.
If such courts would not find that such applicant and such insured individual were
validly married at such time, such applicant shall, nevertheless be deemed to be the
. . . widow . . . of such insured individual if such applicant would, under the laws
applied by such courts in determining the devolution of intestate personal property,
have the same status with respect to the taking of such property as a . . . widow
. . . of such insured individual.
42 U.S.C. § 416(h)(1)(A); see also 20 C.F.R. § 404.345.
Here, the NH resided in New Hampshire at the time of his death. Therefore, the agency
must determine whether the courts of New Hampshire would consider the claimant and
the NH to be validly married at the time of death or whether the claimant would be
deemed the NH’s widow for intestate succession. Id.
Common-law marriages are among the relationships considered when determining whether
a claimant qualifies as a spouse under the Social Security Act. See Program Operations Manual System (POMS) GN 00305.005. When one spouse is deceased, the preferred evidence to establish a common-law marriage
includes: SSA-754-F4 from the surviving spouse, SSA-753 from a blood relative of the
surviving spouse, and SSA-753 from two blood relatives of the deceased spouse. See POMS GN 00305.065.B.3.
New Hampshire Law on Common-Law Marriage
New Hampshire law provides that “[p]ersons cohabiting and acknowledging each other
as husband and wife, and generally reputed to be such, for a period of 3 years and
until the decease of one of them, shall thereafter be deemed to have been legally
married.” N.H. Rev. Stat. Ann. § 457:39. Beyond Section 457:39, which has been “in
effect in substantially the same form since 1842,” common law marriage is not recognized
in New Hampshire. Joan S. v. John S., 121 N.H. 96, 98, 427 A.2d 498, 499 (1981). Therefore, the status as a common-law
spouse is obtainable only as the survivor of two people who fulfill the terms of Section
“By section 40, chapter 338, Revised Laws, evidence, of ‘acknowledgment, cohabitation
and reputation’ is made competent proof of marriage,” and section 39 established “that
these requirements continued for three years and until the death of one of the parties,
confers thereafter the incidents which follow upon the termination of a valid marriage
by death.” Fowler v. Fowler, 96 N.H. 494, 497, 79 A.2d 24, 27 (1951).
The relationship between the claimant and the NH would likely be considered a common-law
marriage by the courts in the State of New Hampshire because the claimant and the
NH: (1) cohabitated; (2) acknowledged each other as husband and wife; and (3) were
generally reputed to be husband and wife in their community, for the requisite three-year
period preceding the death of the NH.
First, several statements show that the claimant and the NH began cohabitating in
January 2012 in California, and continued to do so until the NH’s death in July 2016.
Indeed, under agency policy, preferred evidence of a common law marriage when one
spouse is deceased includes completion of form SSA-754-F4 (Statement of Marital Relationship)
by the surviving spouse, and of form SSA-753 (Statement Regarding Marriage) by a blood
relative of the surviving spouse and by two blood relatives of the deceased spouse.
POMS GN 00305.065.B.3. Here, the evidence includes SSA-754 forms completed by the claimant, her parents,
and the parents of the NH; all of these statements indicate the claimant and the NH
cohabitated continuously since January 2012. The deed to the property in New Hampshire
further confirms the timeline of events as alleged by the claimant, and, at the time
of the NH’s death, the life insurance policy documentation indicated that both the
NH and the claimant resided in M2~, New Hampshire.
Second, the claimant and the NH acknowledged each other as husband and wife. Although
the claimant admits in her SSA-754-F4 that she did not consider herself legally married,
she stated the relationship was intended to last “in perpetuity,” and she introduced
the NH as her partner or husband. She states that the NH referred to her as his wife
or partner. The claimant’s parents also stated they observed the couple refer to each
other as husband and wife. Both the NH’s parents indicated that such formal titles
were not used in their presence, but they further explained that the couple’s status
as husband and wife was “implicit” or “tacitly understood.”
Third, the claimant and the NH were generally reputed to be husband and wife in their
community. The claimant identified several employers and neighbors who knew of the
couple’s relationship. Members of the family considered the couple to be married,
and they described themselves as “in-laws” in the completed SSA-753 forms. Moreover,
the claimant was the beneficiary of the NH’s life insurance policy and a shared titleholder
on a bank account. Although the NH listed his relationship to the claimant as “other”
on his tax return, he considered her a dependent, along with the couple’s daughter,
and statements from family members confirm that he was working to support his “wife
In sum, the claimant and the NH cohabitated, acknowledged each other as husband and
wife, and were reputed as such for a period of at least three years, until the death
of the NH. See N.H. Rev. Stat. Ann. § 457:39. Indeed, unlike in the case of In re Estate of Bourassa, 157 N.H. 356, 357, 949 A.2d 704, 706 (2008), where the couple held real estate separately
and either expressly refuted any marital relationship or simply refrained from acknowledging
any such relationship, in this case, the claimant and the NH held property jointly,
had a joint bank account, and referred to each other as husband as wife among family
members. In other words, the facts of this case are more similar to the case of In re Estate of Buttrick, 134 N.H. 675, 678, 597 A.2d 74, 77 (1991), wherein the Court found a common-law
marriage existed between a couple after finding statements of friends, relatives,
and acquaintances to sufficiently establish that the couple was “generally reputed
to be” husband and wife. As the Court explained, “[e]ven though Petitioner and Buttrick knew they were not legally married in the eyes of the law, they acknowledged their
relationship to be that of husband and wife, conducted themselves as such and held
themselves out to the public as such.” Id.
Here, the claimant does not maintain that she was “legally married” to the NH, nor
did the NH identify her as a spouse on his tax return; however, other evidence of
record reasonably shows that the couple: (1) cohabitated; (2) acknowledged each other
as husband and wife; and (3) were generally reputed to be husband and wife in their
community, for the requisite three-year period preceding the death of the NH such
that the relationship satisfies the requirements to establish a valid common-law marriage
in the State of New Hampshire.
Based on the foregoing, we believe that a New Hampshire court would conclude that
a valid common-law marriage exists between the claimant and the NH for the purpose
of awarding survivor benefits.
Michael J. Pelgro
Regional Chief Counsel
By: Nicole Sonia
Assistant Regional Counsel