QUESTION PRESENTED
You have requested an opinion on the marital status under New Mexico law of an applicant
for widow’s benefits, B~ (the claimant), who alleged a common-law marriage to J~ (the
number holder) that began in New York in 1965, continued in Washington, and ended
in New Mexico with the number holders death in March 2015. You asked whether the claimant
established a common-law marriage to the number holder. Among the evidence the claimant
provided with her applications is a New Mexico “Supplemental Regarding Correction
To Death Certificate of J~ To Reflect Married Status” (state court order or order)
finding that the claimant had a “statutory or common law marriage under Washington
law” to the NH, which “will be recognized as a valid marriage under New Mexico law.”
You asked whether the Social Security Administration (SSA or agency) is bound by this
state court order.
ANSWER
We believe that the claimant has not established a common-law marriage with the number
holder under the laws of New York, Washington, or New Mexico because none of these
states’ laws provide for common-law marriage. In making this decision, we considered
the New Mexico state court order that found the claimant had a valid common-law or
statutory marriage with the number holder under Washington law, and have determined
that SSA is not bound by such order. See Social Security Ruling (SSR) 83-37c. Therefore, the claimant has not proven a valid
marriage to the number holder under New Mexico law via this order. As such, she is
not the number holder’s legal widow under the Social Security Act (Act) for purposes
of her applications for widow’s benefits and a lump sum death payment.
BACKGROUND
According to the information you provided, the number holder died on March XX, 2015,
while domiciled in New Mexico. Subsequently, on May XX, 2015, the claimant filed an
application for widow’s benefits and a lump sum death payment (LSDP), alleging a common-law
marriage to the number holder that began on June XX, 1965, in New York, and ended
in L~, New Mexico upon the number holder’s death. To support her claim of a common-law
marriage, the claimant provided tax returns from 1965, 1966, 1967, 1975, 1983, 2000,
and 2013 that were filed with the status “Married Filing Jointly;” pension and life
insurance documents; and a New Mexico death certificate listing her as the number
holder’s wife. The claimant also provided evidence demonstrating that she resided
with the number holder in New York from 1965 to 1967, in T~, Washington from 1967
to 1992, and in L~, New Mexico from 1992 to March XX, 2015. The claimant provided
a D~ County, New Mexico Marriage License issued February XX, 2015, but there is no
evidence that they had a solemnized marriage ceremony in New Mexico. The claimant
further alleged a ceremonial marriage in Pennsylvania, but provided no proof/evidence
of the ceremony, or any information about the witnesses to such ceremony. Additionally,
SSA’s records show that the number holder did not list the claimant as his wife on
his August XX, 1991, SSA retirement application.
SSA awarded the claimant’s LSDP application on May XX, 2015, but denied the claimant’s
application for widow’s benefits on July XX, 2015. You advised that SSA’s LSDP determination
is subject to reopening depending on the outcome of this legal opinion request.
On April XX, 2016, D~ (D~), the claimant’s and the number holder’s daughter, filed
a second application for widow’s benefits on the claimant’s behalf. In support of
the application, D~ submitted a state court order dated February XX, 2016, whereby
the state court found that the claimant and the number holder “had a statutory or
common law marriage under Washington law that will be recognized as a valid marriage
under New Mexico law.” Therefore, the state court ordered the New Mexico Depart of
Vital Records to amend the marital status on the number holder’s death certificate
from “divorced” to “married” to reflect that he was married to the claimant at the
time of his death on March XX, 2015.
ANALYSIS
A. Entitlement under the Social Security Act to Widow’s Benefits and a LSDP as a Widow
A claimant is entitled to widow’s benefits or a lump sum death payment as a widow
under Title II of the Act if, among other things, she was the legal widow, or surviving
spouse of a fully insured deceased individual. See 42 U.S.C. §§ 402(e)(1), (i), 416(a)(2); 20 C.F.R. §§ 404.335, 404.345, 404.390. The
claimant bears the burden of proving that she was in a valid marital relationship
with the insured and was therefore the insured’s surviving spouse. See 20 C.F.R §§ 20 C.F.R. §§ 404.345, 404.704, 404.723, 404.726. In determining the claimant’s
relationship as the insured’s surviving spouse, the agency looks to the law of the
state where the insured had a permanent home at the time the claimant died. See 42 U.S.C. §§ 416(h)(1)(A); 20 C.F.R.
§§ 404.344, 404.345. Permanent home means the true and fixed home or legal domicile
of the insured individual. 20 C.F.R. § 404.303. Here, the number holder was domiciled
in New Mexico at the time of his death. We therefore look to New Mexico law to determine
whether the claimant and the number holder were validly married at the time of the
number holder’s death, or whether the claimant could inherit a widow’s share of the
number holder’s property under state succession law. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.345. More specifically, you asked whether
New Mexico law will recognize the alleged common-law marriage between the claimant
and the number holder as a valid marriage, and whether SSA is bound by a New Mexico
state court order amending the number holder’s death certificate to reflect that the
claimant was married to the number holder.
B. New Mexico Law Will Recognize a Common Law Marriage if it is Validly Contracted
in Another State
The claimant reported that she was in a common-law marriage with the number holder
while residing in the states of New York from 1965 to 1967 and Washington from 1967
to 1992, and that such common-law marriage continued during their time in New Mexico
from 1992 until the number holder’s death in 2015. To the extent she is alleging a
common-law marriage contracted in New Mexico from 1992 through 2015, this claim has
no merit because New Mexico law does not authorize common-law marriages. See Matter of Lamb’s Estate, 655 P.2d 1001, 1003 (1982); Dion v. Reiser, 285 P.3d 678, 682 (N.M. App. 2012); N.M. Stat. Ann. § 40-1-3 (the civil contract
of marriage must be solemnized in a marriage ceremony).
Although New Mexico does not authorize or acknowledge a New Mexico based common-law
marriage, it does recognize a common-law marriage if it is valid in the jurisdiction
where it was contracted. See Matter of Lamb’s Estate, 655 P.2d at 1003 (1982); In re Bivian’s Estate, 652 P.2d 744, 748 (N.M. Ct. App. 1982); Dion v. Reiser, 285 P.3d at 682. New Mexico statutes have long codified this principle. See N.M. Stat. Ann. § 40-1-4 (initially enacted in 1862). Specifically, section 40-1-4
of the New Mexico marriage statutes provides:
All marriages celebrated beyond the limits of the state, which are valid according
to the laws of the country wherein they were celebrated or contracted, shall be likewise
valid in this state, and shall have the same force as if they had been celebrated
in accordance with the laws in force in this state.
Id. We note that this statute refers to “laws of the country” where celebrated, indicating
that it is intended to apply to foreign marriages. New Mexico courts have applied
this statute in determining whether to recognize out-of-state marriages from other
U.S. states, as well as marriages performed in foreign countries. See e.g. Matter of Lamb’s Estate, 655 P.2d at 1003 (considering whether New Mexico would recognize as valid a Texas
common-law marriage); In re Bivian’s Estate, 652 P.2d at 748 (considering whether New Mexico would recognize an alleged Texas
and Colorado common-law marriage as valid); Dion v. Rieser, 285 P.3d at 682 (considering section 40-1-4 and whether New Mexico should recognize
an Australian judgment declaring an individual to be a de facto spouse). Therefore,
New Mexico will recognize a common-law marriage between the claimant and the number
holder if it was valid under the laws of the state where it was contacted. See Rivera v. Rivera, 243 P.3d 1148, 1150 (N.M. Ct. App. 2010) (“New Mexico … ‘applies the rule of comity,
that the law of the place of contract governs the validity of a marriage’”) (quoting
In re Bivian’s Estate, 652 P.2d 744, 748 (N.M. Ct. App. 1982). Before moving to New Mexico, the claimant
reported that she was in a common-law marriage with the number holder while residing
in the states of New York from 1965 to 1967 and Washington from 1967 to 1992. Therefore,
we consider the marriage laws of these states to see if they considered the claimant
and the number holder to have a valid common-law marriage.
C. The Claimant’s Alleged Common-Law Marriage to the Number Holder Was Not Contracted
in a State that Recognizes Common-Law Marriages
Neither New York nor Washington authorize or acknowledge a common-law marriage based
in their state. See Program Operations Manual System (POMS) GN 00305.075 State Laws on Validity of Common-Law (non-ceremonial) Marriages (noting that New
York, Washington, and New Mexico laws do not provide for common-law marriage). New
York law provides that “marriage, so far as its validity in law is concerned, continues
to be a civil contract, to which the consent of the parties capable in law of making
a contract is essential,” and that “[n]o marriage shall be valid unless solemnized”
See N.Y. Dom. Rel. Law §§ 10, 11. Thus, as recognized by the New York Court of Appeals,
“New York does not itself recognize common-law marriages.” In the Matter of the Claim of Mott, 414 N.E.2d 657, 658 (N.Y. 1980).
Washington law provides that “marriage is a civil contract between two persons who
have each attained the age of eighteen years, and who are otherwise capable,” and
that no particular form of solemnization is required, but the parties “shall assent
or declare in the presence of the … official of any religious organization, or judicial
officer solemnizing the same, and in the presence of at least two attending witnesses,
that they take each other to be spouses.” Wash. Rev. Code Ann. §§ 26.04.010, 26.04.070.
The Washington Supreme Court has therefore held that “[c]ommon-law marriage is not
recognized under Washington law.” In re the Marriage of Pennington, 14 P.3d 764, 769 (Wash. 2000).
Thus, under the laws of New York and Washington, the claimant and the number holder
could not have entered into a valid common-law marriage during the time in which they
lived in these states prior to moving to New Mexico in 1992. Since neither New York
nor Washington authorize contracting a common-law marriage in their state, there is
no valid out-of-state common-law marriage for New Mexico to recognize.
D. SSA Is Not Bound by the New Mexico State Court Order
In support of her claim that she is the number holder’s widow, as noted, the claimant
provided the February XX, 2016, state court order in which the state court found that
the claimant and the number holder “had a statutory or common law marriage under Washington
law that will be recognized as a valid marriage under New Mexico law.” The state court
also ordered that the number holder’s death certificate be amended to show the number
holder’s marital status as married to the claimant. SSR 83-37c, in accordance with
the Sixth Circuit’s holding in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), provides that the Commissioner should accept the
determination of a state court when the following prerequisites exist: (1) An issue
in a claim for social security benefits previously has been determined by a state
court of competent jurisdiction; (2) this issue was genuinely contested before the
state court by parties with opposing interests; (3) the issue falls within the general
category of domestic relations law; and (4) the resolution by the state trial court
is consistent with the law enunciated by the highest court in the State. See SSR 83-37c, 1983 WL 31272 at *3. The state court order does not meet the Gray and SSR 83-37c standards for recognition by SSA.
In this case, the state court, which was of competent jurisdiction, decided an issue
in a claim for social security benefits, namely whether clamant and the number holder
were validly married. Additionally, the issue decided by the state court falls within
the category of domestic relations law. Thus, the first and third prongs of the Gray analysis appear to have been met. However, it does not appear that the question of
whether the claimant and the number holder had been in a valid marriage was genuinely
contested before the State court by parties with opposing interests. From the documentation
provided, it does not appear that anyone challenged the change of the number holder’s
status to married. Therefore, the second prong of the Gray analysis does not appear to have been met.
More importantly, the state court order clearly does not meet the fourth prong because
it is not consistent with the law enunciated by the highest court in the state. Although
the New Mexico state court found that the claimant and the number holder “had a statutory
or common law marriage under Washington law,” as demonstrated above, the Washington
Supreme Court, based upon Washington statutory law, has declared that the Washington
does not recognize common-law marriage. In re the Marriage of Pennington, 14 P.3d at 769. The claimant has also produced no evidence to show that she entered
into a statutory ceremonial marriage with the number holder in Washington pursuant
to Wash. Rev. Code Ann.§ 26.04.010. Therefore, the state court erred in finding that
the claimant and the number holder had entered into a valid marriage under Washington
law, and, consequently, erred in finding that New Mexico would recognize this invalid
purported Washington common-law marriage. Therefore, the state court order is not
consistent with the law enunciated by the New Mexico Supreme Court because the alleged
common-law marriage was not valid where it was purportedly contracted (in Washington). See Gallego v. Wilkerson, 445 P.2d 972, 972 (N.M. 1968) (New Mexico will recognize a common-law marriage validly
entered into in another state). Because the New Mexico state court order does not
meet all of the Gray and SSR 83-37c requirements, it does not bind SSA.
E. The Claimant Has Not Proven She is the Number Holder’s Widow Under New Mexico Law
In summary, we look to Mew Mexico law to determine whether the claimant and the number
holder were validly married at the time of the number holder’s death, or whether the
claimant could inherit a widow’s share of the number holder’s property under the state
intestate succession law. See 42. U.S.C. § 416(h)(1)(A); 20 C.F.R. §404.345. The claimant alleged a common-law
marriage to the number holder. However, as shown above, the claimant was not validly
married to the number holder at the time of his death in March 2015 under New Mexico
law because none of the states that they resided in together (New York, Washington,
and New Mexico) authorized common-law marriage and because the facts as submitted
do not show that they participated in a ceremonial marriage. See 42. U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.345 (the relationship requirement will
be met if validly married under state law).
Under the Act, even if not validly married, we also consider whether the claimant
could inherit a spouse’s share of property under New Mexico intestate succession law.
See 42 U.S.C.
§ 416(h)(1)(A)(ii); 20 C.F.R. § 404.345 (the relationship requirement will also be
met if an applicant can inherit a spouse’s share under state intestate succession
law). New Mexico appears to require a valid marriage to be considered a “surviving
spouse” for inheritance purposes. Dion v. Rieser, 285 P.3d at 684 (determining that a “de facto spouse” under Australia law did not
give the plaintiff the status of “surviving spouse” under New Mexico’s Probate Code
because she had not proven a legal marriage relationship). Because the claimant has
not proven a valid marriage to the number holder, she has not established that she
could inherit a spouse’s share under New Mexico intestate succession law.
CONCLUSION
It is our opinion that the claimant and the number holder did not have a valid common-law
marriage under the relevant state laws of New Mexico, New York, or Washington. Further,
the New Mexico state court order finding a valid marriage between the claimant and
the number holder under Washington law does not bind SSA. Therefore, the claimant
has not established that she was validly married to the number holder under New Mexico
law, or that she could inherit a spouse’s share under New Mexico intestate succession
law. As such, she is not the number holder’s legal widow, or surviving spouse, under
the Act for purposes of her applications for widow’s benefits and LSDP as a widow.
Michael McGaughran
Regional Chief Counsel
By: Martin W. Long
Assistant Regional Counsel