TN 27 (01-17)

PR 05605.032 New Hampshire

A. PR 17-017 Common-Law Marriage in State of New Hampshire

Date: November 7, 2016

1. Syllabus

The number holder (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. 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. The claimant and the NH cohabitated, acknowledged each other as husband and wife, and were generally reputed to be husband and wife in their community for the requisite three-year period preceding the death of the NH. For purposes of awarding survivor benefits, the claimant and NH’s relationship satisfies the requirements to establish a valid common-law marriage in the State of New Hampshire.

2. Opinion

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.

III. Background

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

Federal 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 457:39. Id.

“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).

V. Analysis

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 and child.”

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.

VI. Conclusion

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

B. PR 09-167 Common Law Marriage in New Hampshire - Gary P~ SSN: ~

DATE: September 2, 2009

1. SYLLABUS

Under New Hampshire law a marriage is absolutely void where either party to the marriage has a former spouse still living and knows that the former marriage has not been legally dissolved. Under Gray v. Richardson the agency is only required to follow a judgment that is “fair and consistent with the law enunciated by the highest court in the State”. The New Hampshire Probate Court did not mention the NH’s previous marriage nor did it address the court’s prohibition against entering into another valid marriage until after the dissolution of an existing prior marriage. Thus, the court’s decision is not binding upon the agency. The claimant and NH did not meet the three year requirement and could not be considered married under New Hampshire law. .

2. OPINION

This memorandum is in response to your request for an opinion concerning whether a common law marriage existed between Gary P~, the deceased number holder, and Kathy A. Y~, who has applied for widow’s benefits on his account. For the reasons discussed below, Ms. Y~ cannot be found to have been the common law wife of the number holder because at the time of the number holder’s death, Ms. Y~ and the number holder had not met the three year minimum required to establish a common law marriage.

Factual Background

The materials you submitted indicate that Gary P~ formally married Angela E~ on December XX, 1974. Mr. P~ and Ms. Y~ began residing together in New Hampshire in July 1, 1994, until Mr. P~ death on March XX, 2009. Mr. P~ marriage to Ms. E~ was legally dissolved on August XX, 2006. Although they were never formally married, Mr. P~ and Ms. Y~ considered themselves to be husband and wife during the time they lived together in New Hampshire. The question of whether Mr. P~ and Ms. Y~ met the requirements for common law marriage was presented to the New Hampshire Probate Court in April 2009. The Probate Court determined that Ms. Y~ and Mr. P~ had entered into a common law marriage.

Analysis

New Hampshire law provides that persons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for a period of three years and until the death of one of them, shall thereafter be deemed to have been legally married. N.H. Rev. Stat. Ann. § 457:39. However, this provision applies only to persons who are competent to contract marriage together. Hilliard v. Baldwin, 80 A. 129 (1911). Relevant here, under New Hampshire law, a marriage is absolutely void where either party to the marriage has a former spouse still living and knows that the former marriage has not been legally dissolved. N.H. Rev. Stat. Ann. § 458:1. Consequently, since Mr. P~ marriage to Ms. E~ was only legally dissolved on August XX, 2006, Mr. P~ and Ms. Y~ were only competent to contract marriage together from August 10, 2006, to March 6, 2009, which is a period less than three years. Thus, the provisions of section 437:39 to this case are inapplicable, and Ms. Y~ cannot be found to have been the common law wife of the number holder. See generally Fowler v. Fowler, 79 A.2d 24 (1951).

The New Hampshire Probate Court decision you submitted, which held that Ms. Y~ and the number holder met the conditions of section 437:39 pertaining to common law marriage, is not binding upon the Social Security Administration. While the Social Security Administration is “not free to ignore an adjudication of a state trial court,” the agency is only required to follow a judgment that “is fair and consistent with the law enunciated by the highest court in the State.” SSR 83-37c, 1983 WL 31272, at *3 (1983) (adopting Gray v. Richardson, 424 F.2d 1370 (6th Cir 1973)). Here, the Supreme Court of New Hampshire has determined that in order to enter into a common law marriage, neither party may be married to someone else. Fowler 79A.2d at 27. The New Hampshire Probate Court did not mention Mr. P~ previous marriage to Ms. E~, nor did it address the highest New Hampshire state court’s prohibition against entering into another valid marriage until after the dissolution of an existing prior marriage. In Re: Estate of Gary Edward P~, (May 7, 2009). Because the New Hampshire State Probate Court’s decision is inconsistent with the law enunciated by the highest court in the state, the Probate Court’s decision is not binding upon the Social Security Administration.

Conclusion

We believe that Ms. Y~ and the number holder were not legally competent to enter into a marriage contract until August 10, 2006, and that, due to Mr. P~ death in March 2009, they did not meet the three year requirement of N.H. Rev. Stat. Ann. section 457:39, and thus could not be considered married. The New Hampshire Probate Court’s failure to address the number holder’s marriage to Ms. E~ through August 2006 renders that decision not binding upon the Social Security Administration.

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

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, James E~, and the applicant, Renee K~ 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 8, 2008, Ms. K~ petitioned for surviving spouse's benefits for herself, and surviving child's benefits for her adopted son, Daniel K~. Ms. K~ 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 9, 2000, finding that Ms. K~ is the common-law spouse of the decreased number holder, Mr. E~, 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 Ms. K~ met New Hampshire's statutory requirements to be deemed a common-law spouse.

First, while Ms. K~ claims that she and Mr. E~ shared a religious ceremony in 1982, she was not officially divorced from her husband, Mr. K~, 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 Ms. K~ failed to provide a specific date, location, or any other corroborating evidence.

Ms. K~ also claimed in her Petition to the Court that she and Mr. E~ shared a family life, and raised two children, Yuri K~ and Daniel K~. Mr. E~, however, is not listed on Daniel K~'s adoption decree, dated June XX, 1989.

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

Lastly, Ms. K~ 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 Mr. E~ or Ms. K~ intended to make New Hampshire their principal place of residence. This is evidenced by the fact that while Ms. K~ 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 Daniel K~. Mr. E~'s 1999 Death Certificate also lists both his residence and Ms. K~'s as Cambridge, MA. Further, Mr. E~ did not hold Ms. K~ 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 Mr. E~ or Ms. K~ 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, Mr. E~'s permanent home when he died was in Massachusetts. There is no evidence that Mr. E~ and Ms. K~ were validly married in Massachusetts, as Rabbi Cherie K~-F~'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, Ms. K~ 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 Ms. K~ or Mr. E~ 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 Daniel K~

Your third question is whether Daniel K~ 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, Ms. K~, Daniel's adoptive mother, was never married or deemed married to the insured. For this reason, Daniel K~ 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.


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PR 05605.032 - New Hampshire - 01/30/2017
Batch run: 01/30/2017
Rev:01/30/2017