On January 11, 1985, you referred to us a request for a legal opinion from the Director,
GLPSC. In this particular case, SSA determined that a valid common law marriage existed
between the deceased wage earner (DWE), James L. D~ , and claimant Flora D~. On the
basis of that determination, SSA awarded survivor's benefits to claimant and her children,
and accordingly reduced similar benefits to a prior claimant, the DWE's ex-wife, Carolyn
D~, and their son.
After the time for reconsideration and appeal, and for reopening as of right, had
expired, Carolyn D~ submitted a state probate court ruling that there was no valid
common law marriage between the DWE and Flora. She asked that SSA rescind the award
to Flora and restore full benefits to her and her son.
You raise two issues. First, you ask whether SSA must accept the state court determination
under the decision in Gray v. Richardson, adopted as SSR 83-37c (C.B. 1983). The state court decision here meets all of the
Gray criteria except that of having been decided prior to the initial determination
made by SSA. SSA has recently adopted a policy that Gray v. Richardson should be applied where a state court decision is rendered after SSA's determination
becomes administratively final, if the state court decision is submitted within the
four year period allowed for reopening. 20 C.F.R. 404.988. SSA has adopted this position
on the basis that a state court decision that satisfies Gray, is "new and material
evidence." See 20 C.F.R. 404;989. This policy disposes of your first question and your second, which
asks whether the state court decision in this case is "new and material evidence"
if Gray were to not apply.
We explain below the basis for our opinion and why we agree that the state court ruling
meets the other Gray v. Richardson criteria.
After the DWE's death in March XX, 1982, Carolyn D~ and her son, James D~ , were awarded
mother's and child's insurance benefits. Later, Flora D~ also applied for benefits,
claiming that she was the common law wife of the DWE, and SSA agreed. SSA also awarded
benefits to Derell D~ Flora's son whose May, 1982 birth certificate had been signed
by the DWE as his father, and to Steven D~, Flora's son by her former husband. Steven's
entitlement was as the DWE's stepchild. SSA based its determination about Steven on
the determination of a common law marriage and the child's residence with Flora and
the DWE; support of Steven by the DWE was deemed on that basis. 1/
Flora dates her "marriage" to the DWE as July, 1980, "after my divorce." Her divorce
and that of the DWE are documented, so both were at that time competent to marry.
Per POMS GN 00305.245, SSA repeatedly sought statements about 'the marriage from the DWE's relatives, who
refused to cooperate. One relative, his sister, is recorded as "upset" when she refused
to give a statement about D~.
SSA decided that a common law marriage existed based on documents and corroborating
statements. Flora and the DWE signed a July, 1980 rental application and agreement
as husband and wife. 2/ A March, 1983 letter to Flora from the DWE's employer refers
to the DWE--as her husband, and offers condolences on his death and information about
life insurance benefits. A neighbor, Karen A~ gave a statement covering the period
from December, 1981 until the DWE's death, which supports that the couple cohabited
and held themselves out as husband and wife. A second statement from Flora's sister
provides similar support with regard to an unspecified six month period when the couple
lived with her in Mobile, Alabama. 3/
The award on Flora's claim was made on August 11, 1983. As a result of the award to
Flora and to Steven D~ , the amount of benefits received by Carolyn and James Jr.
was reduced, effective April and May, 1983 respectively 4/. 42 U.S.C. 4(13(a). In
April and May, 1983, Carolyn and James Jr. had received notice of the impending change
and were given an opportunity to file a protest. They did not. On August 25, 1984,
they were notified of the initial determination in Flora's favor, and advised of their
right to appeal within 60 days. Although Carolyn D~ acted on another matter addressed
in the August notice, by requesting a waiver of the overpayment which resulted from
the retroactive reduction, she did not timely appeal the determination of a common
Over a year later, on October XX, 1984, Carolyn submitted a September 26, 1984 state
probate court ruling 5/ that Flora was not the DWE's common law wife. She requested
that her benefits and those to James Jr. therefore be increased. The court ruled in
a case brought by Flora to declare her an heir of the DWE on the basis that she was
his common law wife. 6/ As summarized in the court's findings, the evidence in that
case presents' a different picture than that before SSA.
According to the judgment, Flora testified in support of her claim, and we assume
she repeated at least the same statements she gave to SSA. The judgment cites one
item of evidence from Flora's side, the testimony of Karen A~, the neighbor on whose
statement SSA relied. She is quoted, however, only as saying that in late 1982 the
DWE told her of his intent to pick out an engagement ring, and that he and Flora would
be married. 7/ The judgment, moreover, mentions that there were other witnesses on
Flora's behalf who "failed to testify as to the reputation in the community .... [or]
lived in the community." The judgment makes no express mention of the rental application
and agreement, the condolence letter from the DWE's employer, the birth certificate
signed by the DWE or Flora's sister.
Against a common law marriage, the judgment cites documents not available to SSA:
a 1981 welfare application by Flora in which she gave her last name as D~ and her
marital status as single, and the 1980-1982 tax returns of the DWE in which he gave
his status as single or as a head of household but with only one dependent, his son
James Jr. 8/ Flora testified that she did not file her own returns in those years
but also that she did not sign joint return's with the DWE.
The court determined that Flora had established none of the elements of a common law
marriage. Due to the divergence of the court ruling from the evidence before SSA,
we contacted the attorney for Flora, Sheldon S~ He advised us that Flora's case included
eight witnesses, that Karen A~ gave the same testimony that she gave to SSA and that
her testimony about the DWE's plans to marry was merely that the couple planned "to
make it formal," and that the court did consider the rental agreement evidence. He
also reported that the testimony against Flora's case consisted of two witnesses,
one of which was the DWE's father who both gave testimony against a common law marriage
and "refused to acknowledge his own grandson" (D~).
With regard to Flora's welfare application, the attorney did not attempt to explain
Flora's conduct. He reacted to the tax returns by saying that the DWE was a strange
man, adding that he sometimes went to stay with his parents for extended periods.
He also reported that an insurance company had paid life insurance proceeds to Flora,
which suggests that the DWE designated her as the beneficiary; whether the designation
specifically used the term "wife" is not known.
The lawyer also stated that he felt the court's ruling was incorrect and ignored substantial
holding out and reputation evidence supporting the common law marriage. He reported
that he had strongly recommended to Flora that she appeal the ruling but that she
did not, giving an inability to pay legal fees as the reason.
In Gray v. Richardson, 474 F.2d 137(1 (6th Cir. 1973) the Court of Appeals for the Sixth Circuit 'held
that although the Secretary is not bound by a state trial court decision in a proceeding
to which she was not a party, she is not free to ignore it in making Social Security
determinations if four requirements are met: 1) an issue involved in a claim for social
security benefits has been previously determined by a court of competent jurisdiction;
2) the issue was genuinely contested before the court by parties with opposing interests;
3) the issue falls within the category of domestic relations law; and 4) the state
court ruling is consistent with the law as enunciated by the state's highest court.
SSR 83-37c; Tony M~, ~ , RA V (Weinstein/Gilbert) to ARC-Programs (Washington) SSA
V (12/12/83), and prior opinions cited therein.
Although the trial court decision in this matter was not one "previously determined,"
SSA has recently as a matter of policy chosen to apply Gray v.
Richardson to final SSA determinations if the state court decision is submitted within four
years of the initial determination. Director, OPSC (Overs) to Director, Mid-America
PSC (Mings), "When the Social Security Administration (SSA) in Bound by a State Court
Decision," (9/17/84) (copy attached). SSA based this choice on the principle that
a state court decision meets the definition of "new and material evidence." See 20 C.F.R. 404.988(b), 4I)4.989(a)(1). Accord, SSR 67-22 (C.B. 1967) (where SSA rejected
claim for child's benefits because presumption of legitimacy had not been rebutted,
the child having been born while the mother was married to a man other than the DWE,
submission within four years of state court ruling that presumption was rebutted,
after SSA's denial was upheld by federal district court, required reopening as new
and material evidence because the decree "materially affected the status of the child
for social security purposes."); Merle J. D~, , Oswald C~ , ~ OGC (Altman)to Division
of Claims Policy, BOASI (6/25/59)
where widow's benefits were terminated because of remarriage, state court annulment
ab initio (from the beginning) of remarriage was new and material evidence submitted
within four years that permitted reopening).
The decree in this matter is within these precedents, and therefore need not meet
the "previously determined" criterion of Gray. 9/ We concur with your view that the decree otherwise meets the requirements of
Gray, and thus "would permit entitlement if a new claim were filed." 9/17/85 OPSC
memorandum, supra. The issue of whether a common law marriage existed between Flora
and the DWE falls within the general category of domestic relations law, it was decided
by a state court of competent jurisdiction, and the matter was genuinely contested
by parties with opposing interests: Flora, seeking to be declared an heir of the DWE,
was plaintiff; James D~ , the DWE's son by Carolyn, was a defendant and was declared
the DWE's sole heir.
Finally, the resolution by the state trial court is consistent with the law enunciated
by the highest court in the State. We have previously addressed the requirements under
Ohio law to establish a common law marriage. 10/ The Ohio Supreme Court recently reaffirmed
these principles but also reaffirmed that common law marriages are not favored by
public policy. Nestor v. Nestor, 472 N.E.2d 1091 (1984). The elements that must be shown are an agreement of marriage
per verba de praesenti, which is a mutual contract to then take each other as man
and wife, made by parties competent to marry, followed by cohabitation, a holding
out as husband and wife, and a reputation in the community as being husband and wife.
Each element must be established by "clear and convincing evidence." Id.; Roland I~ ,~, RA V (Cordek) to Reg. Rep. BSRI, GLPSC (Berman) (1/20/76). The State
trial court expressly applied these requirements.
Under Ohio law, "clear and convincing evidence is that measure or degree of proof
which will produce in the mind of the trier of facts a firm belief or conviction as
to the allegations sought to be established. It is intermediate, being more than a
mere preponderance, but not to the extent of such certainty as is required beyond
a reasonable doubt as in criminal cases. It does not mean clear and unequivocal."
Cross v. Ledford, 161 Ohio St. 469, 477 (S.Ct. lg59). In our opinion, the trial court's determination
that Flora had not shown the elements of a common law marriage by clear and convincing
evidence is legally supportable.
The critical element is an agreement de verba de praesenti (in the present) by the
parties that they will be henceforth married. This element, however, need not be proven
by direct evidence. That is, it may be inferred from the conduct and statements of
the parties, including their cohabitation and holding out. Nestor v. Nestor, supra, 472 N.E.2d at 1094.
SSA's initial determination was not inconsistent with Ohio law. Flora alleged the
couple's agreement to marry, by virtue of their respective divorces the two were competent
to marry, and the rental agreement, employer's condolence letter, and the statements
of the neighbor and the sister establish both that the couple cohabited and held themselves
out and had a reputation as husband and wife. The July 1980 rental application and
agreement are probative as well of an agreement to marry since the couple appears
to have signed them as husband and wife contemporaneously with the alleged agreement
to marry and live together as husband and wife.
However, the principle that an agreement to marry may be inferred from the conduct
of the parties has an obvious corollary: the element may also fail to be satisfactorily
proved because of other conduct by the parties. If conduct inconsistent with the proposition
that the couple considered themselves to be married is sufficient to prevent the trier
of fact from having a "firm belief or conviction" that there was an agreement to marry,
or that another element such as holding out is met, then a common law marriage is
not established. We think the trial court could reasonably conclude that it lacked
a firm belief or conviction that Flora and the DWE had entered into a common law marriage.
The welfare application and tax returns cited by the court are consistent with the
inference that the parties did not consider themselves married, and, thus, that there
had been no agreement to marry. This evidence also weighs against the conclusion that
they were cohabiting or that they held themselves out and had a reputation as married.
The parties held themselves out in these documents as single; in addition, the tax
returns are inconsistent with cohabitation, since the DWE failed to claim as a dependent
not only Flora, but her son Steven and their son Derell, who were supposedly living
with him, while claiming James Jr., who was not. As a general matter, it would likely
have been to the DWE's financial advantage to list additional dependents.
The court also emphasized the testimony that the DWE in late 1982 discussed plans
to buy an engagement ring and marry Flora. This evidence of a future intent to marry
is inconsistent with a past agreement to marry in praesenti in 1980. Although there might have been testimony explaining this as simply a plan
to make the marriage formal, 11/ the trial court might well have found the DWE's contemporaneous
conduct of filing his 1982 tax return as single or without listing Flora as a more
reliable guide to whether the DWE's plan was to reaffirm a past agreement or to marry
Nora for the first time. 12_/ The conclusion that the plan represented a future intent
to marry is also supported by Flora's 1981 welfare application and the DWE's earlier
Under Nestor v. Nestor, .supra, the inference from conduct in which a couple acts as married to the existence
of prior agreement to marry in praesenti is stronger if the length of time the couple were together is substantial. Id. In Nestor, the Court found a common law marriage with regard to a couple who lived and acted
as married, even if not always consistently, for twelve and one-half years. There
was an unchallenged finding of direct evidence to prove an agreement in praesenti. In such cases, the Court held, the direct evidence of an agreement in
praesenti itself lends greater weight to the evidence of cohabitation and reputation to support
the overall inference of marriage.
The Nestor Court found a common law marriage by clear and convincing evidence despite evidence
that both parties had prepared documents in which each's marital status had been listed
as single. 472 N.E.2d at log7 (dissenting opinion). We believe that the Court reached
the conclusion because the weight of the evidence of holding out and other elements
was reinforced by the directly proved agreement to marry. The Court's ruling, moreover,
is also consistent with the principle that once a common law marriage has been established
by an agreement and conduct, it cannot be terminated by later conduct inconsistent
with a marriage, but only by formal divorce. See Dibble v. Dibble, 100 N.E.2d 457, 461 (Ct. App. 1950); Jolley v. Jolley, 46 Ohio Misc. 2d 40, 347 N.E.2d 557, 560 (Ct. Corn. Pl. 1975). 13_/
Flora and the DWE were together at most a bit over two and one-half years. The inference
from the evidence that supports cohabitation and holding out to an agreement in 198fl
to take each other as man and wife is of minimal strength. Flora's direct proof of
the 1980 agreement consists solely of her self-serving statements, which are insufficient
as clear and convincing evidence. There is not, as in other cases, direct proof of
the agreement in praesenti, such as by testimony of witnesses who observed the couple announce their "marriage"
and display a "wedding ring." E.g. In re Estate of Soeder, 7 Ohio App.2d 271, 220 N.E.2d 54, 555-557 (1966). See Etter v. Von Aschen, 163 N.E.2d 197, 199 (Prob. Ct. 1959).
Thus, under Nestor, the case for a common law marriage is limited at best, since there is no direct
evidence of an agreement in
praesenti, and the couple's life together was brief. The trial court's conclusion that the
welfare application and tax returns precluded finding a common law marriage by clear
and convincing evidence is consistent with other cases decided under Ohio law.
In Estate of Soeder, supra, there was an undisturbed finding of an agreement in praesenti, and evidence of cohabitation, holding out and reputation. 220 N.E.2d at 554-556,
556, 563, 574, 576-578, 581. But the court ruled that the evidence did not establish
a common law marriage. It reached this conclusion on a record which established that
the "husband" was recorded as stating that he was single in hospital records and on
his tax returns, id. at 551, and after it ruled that the trial court improperly excluded two items of
evidence: during their time together, the woman listed her status as single to a priest
for a church registration form, and the deceased man had told his priest that he had
been single all his life. Id. at 567, 572, 574.
In Jolley v. Jolley, supra, the court concluded that there was no common law marriage because there was no evidence
to support an agreement in
praesenti. Among the evidence cited in the opinion is the fact that the man, who denied the
marriage in this divorce proceeding, had often filed separate tax returns listing
his status as single.
Messenger v. Finch, CA 69-23 (N.D. Ohio, December 17, 1969), where the federal district court upheld
the Secretary's determination of no common law marriage, is similar. The "wife" had
used her maiden name and represented herself as unmarried in her personal affairs,
including those that involved the DWE. He listed her on a beneficiary form as "friend,"
and treated her inconsistently on his tax returns, one year filing as unmarried, listing
no dependents, another year listing her as a dependent by her maiden name but not
as his wife, and still another year listing her as his wife. This evidence was sufficient
to support the Secretary's finding, despite the couple's decade together which produced
documents (bills, letters) showing them as holding out and regarded as husband and
wife, along with supporting testimony from friends and relatives. The evidence of
an agreement in praesenti was described as inconsistent in details.
We have found no authority which would lead us to question the weight the trial court
gave to the welfare application and tax returns in the D~ case. The wife in Estate of McLaughlin, supra, had filed tax returns in her maiden name. But the court nonetheless found the evidence
of cohabitation and holding out over twelve years sufficient, although not undisputed,
and it emphasized the wife's credibility and reputation as a deciding factor.
In Spirous v. Gardner, Civ. No. 67-244 (N.D. Ohio, JulyS19, 1968), another federal district court reversed
the Secretary's determination that there was no common law marriage. The "husband"
had once applied for welfare and listed himself as single. The court dismissed the
significance of this evidence:
To relate back this single instance as substantial evidence of an intention not to
marry in prasenti... years before, flies in the face of human experience, the conduct
of the parties over a period of years and the applicable law .... [S]ome persons,
especially laymen, who have entered into valid common law marriages will have doubts
as to how the relationship may be regarded by government tribunals and officials ....
Such persons may regard themselves as married in fact, but nonetheless may be quite
fearful of so stating on official government forms in the event they have misunderstood
Spirous v. Gardner (Civ. No. 67-244), Court Opinion p. 9-10.
The court also dismissed the significance of evidence that the wife had used her maiden
name to apply for welfare, to register to vote and to apply for a social security
number. It emphasized that she had not stated that she was single, and her conduct
was explained in part by her uncertainty about whether the common law marriage became
valid only after a period of time, and by the difficulty she found in having government
officers let her use her married name. This couple, moreover, had lived together for
seventeen years, and the record contained much evidence of cohabitation and holding
We followed Spirous v. Gardner in Frank D~ (Epstein) to
Director, Mid Atlantic PSC, BSRI (Sabatini) (8/6/79). There the couple had treated themselves
as married on tax returns, insurance papers and similar documents, and there. was
evidence to support all elements. The one discrepancy was the wife's statement on
an SSA claim form while the husband was alive that she was not married. As with the
wife in Spirous, she had the mistaken notion that a certain period of time had to
pass before the marriage became valid. We concluded that there was a common-law marriage
because awareness of whether the marriage is valid is not a required element, and
because the one single denial did not, in light of the explanation and the Spirous
court's view of statements on government forms, have much significance, and therefore
could not disprove the original agreement in praesenti of several years before.
Both of these cases are unlike the situation in the present matter in which the statements
of single status are more substantial and the evidence for a common law marriage far
less weighty. The 1981 welfare application, 1980-1982 tax returns, and the 1982 plan
to marry present more than isolated conduct. They cover the entire period of "marriage."
There is no suggestion of a mistaken impression on Flora's part or that of the DWE
to explain away their behavior.
A mistaken impression might not in any event explain the DWE's failure to claim exemptions
for dependents to which he was entitled if he in fact supported Flora, Steven or Derell.
Moreover, the trial court in this matter stated that there was no testimony as to
reputation in the community and that none of Flora's witnesses were from the community.
By itself, the lack of reputation testimony precludes finding a common law marriage.
Although it is not required that the community be universally aware of the couple's
marital status, or that the couple must hold themselves out to all with whom they
normally come into contact, there must be a showing of both reputation and holding
out with regard to some of those with whom the couple normally comes into contact.
Nestor v. Nestor, supra, 472 N.E.2d at 1095.
The court's finding on reputation might seem doubtful given the representation by
Flora's attorney that he presented eight witnesses and' that Karen A~ testified consistent
with her statements to SSA. Absent a transcript of the proceeding, however, the court's
finding must be accepted. Even were a transcript to show reputation testimony, or
to suggest that the testimony and evidence before the court of a common law marriage
was arguably sufficient, the trial court decision must still be followed. The court
might not have found these witnesses credible, and judgments based on credibility
and witness demeanor will rarely be disturbed by a reviewing court. Shear v. West American Ins. Co., 11 Ohio St.3d t62, 464 N.E.2d 545 (1984); C.E. Morris Co. v. Foley Construction
Co., 54 Ohio St.2d 279 (1978).
A higher court would not overturn the trial court's ruling with regard to either the
credibility of the witnesses or the controlling weight it gave to the welfare application,
tax returns and the DWE's plan to ceremonially marry Flora unless it was against the
manifest weight of the evidence. Id.; Jones v. VIP
Development Co., 15 Ohio St.3d 9(1, 472 N.E.2d 1046 (1984). For the reasons given in our discussion
above, a higher court would not overturn the trial court on this basis. Therefore,
the Gray criteria that the ruling be consistent with the law enunciated by the State's
highest court is met.
The trial court also held that James D~ , was son and sole next of kin of the DWE.
This ruling implies that Derell D~ is not the son and intestate heir of the DWE. SSA
awarded Derell benefits on the basis that he was the DWE's legitimate son. The court's
finding that there was no common law marriage makes Derell illegitimate. In our opinion,
however, the trial court ruling does not affect the benefits to Derell. 14/
The ruling does not satisfy Gray v. Richardson with regard to the paternity and intestate heir status of Derell and the DWE for
two reasons. First, it does not appear from the court ruling that the issue of whether
Derell is the DWE's son and intestate heir was before the court to be decided. All
of the evidence and law discussed is confined to the existence of a common law marriage.
Flora is the sole plaintiff listed. Had the proceeding also included a claim that
Derell was the DWE's heir, Derell too would more than likely be a named plaintiff.
Thus, it does not appear that an issue in a claim for social security benefits --
here, paternity -- has been determined by a state court.
Second, the implied ruling that Derell is not the DWE's son and heir is not consistent
with Ohio law. The DWE signed Derell's birth certificate. Derell is therefore presumed
to be the DWE's son. POMS GN 00306.135; Tony M~ , , RA V (Gilbert) to ARC Programs V (Washington) (12/12/83); RA V (Gilbert)
Programs V (Washington), "Ohio Entry in...POMS GN 00306.135 .... " (11/8/83). Under Ohio law, the effect of the presumption is to make Derell
the legitimate son and intestate heir of the DWE. The presumption invoked by the birth
certificate can be rebutted only by clear and convincing evidence. Id.
The appellate courts of Ohio would give reasonable effect to the provisions of Ohio
law that confer legitimacy. Unlike common law marriages, the law favors the legitimacy
of children. The only relevant evidence discussed by the court is the 1982 tax return,
which does not claim Derell as a dependent. This single item is insufficient to rebut
the presumption by clear and convincing evidence. It might simply mean that Derell
was not a dependent, or that the DWE did not want to risk welfare benefits that Flora
was receiving for Derell.
Finally, even were the court ruling to mean that Derell is not the DWE's intestate
heir for purposes of 42 U.S.C. 416(h)(2)(A), Derell is still entitled to benefits
under the alternative federal tests of 42 U.S.C. 416(h)(3)(C). By signing the birth
certificate, the DWE acknowledged Derell as his son in writing before his death. POMS
1/ We could find no evidence in the file apart from Flora's claims that Steven lived
with the DWE. A July, 1980 rental application indicates no children living with the
couple at that time.
2/ That is, the forms call for signatures b either "husband and wife" or "co-tenants."
They were signed "James and "Flora D~." SSA also cited a similarly signed December,
1981 rental agreement. However, the file contains no such document. A statement from
the landlord indicates that this lease was destroyed to convert to a month to month
tenancy, and that the tenants were simply "James and Flora D~."
3_/ The sister's statement is ambiguous as to whether it gives support for a--longer
period. In it, she says she knew the DWE for two years and that the couple lived together
from December, 1981 until the DWE's death.
4/ A resulting overpayment was waived.
5/ The ruling adopted a .May 1984 report of a court 'referee. Although the findings
and analysis discussed appear only in the referee's report, we refer to them as if
in the court judgment.
6/ Whether the court was also ruling on whether Derell D~ was the DWE's--heir is not
self-evident from the documents. The court judgment states, however, that ,lames Jr.
is the son and "sole next of kin" of the DWE. We discuss the possible significance
of this question later.
7/ Flora also told SSA that the couple planned to have a ceremonial marriage.
8/ According to both Flora's and Carolyn's applications in the file, it appears that
during these years James Jr. lived with Carolyn and never with the DWE.
9/ Moreover, in our opinion the new evidence represented by the decree -- the 1981
welfare application and the 1980-1982 tax returns -- are themselves "material" and
would justify reopening.
10/ See RA VIII (Bartman) to ARC Programs, SSA-V "Common Law Marriage - Removal of Impediment
- (Ohio" (12/26/84); Frank D~ , ~ RA V (Epstein) to Director, Mid-Atlantic Program
Service Center (8/6/79). Both opinions cite Ohio case law and prior RA V opinions.
11/ Flora herself mentioned this plan to SSA.
12/ By itself, the 1980 tax return would not weigh against the common law marriage
since federal tax laws permit filing the return for the year in which marriage occurs
as if the single status continued for entire tax year. Here, however, it appears as
part of pattern of conduct.
13/ The Nestor Court also found no problem in the wife's use of her maiden name for business purposes
during the marriage. 472 N.E.2d at 1096. Accord, Sirbello v. McDonald, Case No. 25946 (Ct. App.) cited in In re Estate of Soeder, 7 Ohio App.2d 271, 220
N.E.2d 547, 580 (1966) (dissenting opinion); In re McLaughlin's Estate, 197 N.E.2d 578 (Prob. Ct. 1963), cited as affirmed by Court of Appeals in Estate
of Soeder, supra, 220 N.E.2d at 581.
14/ The award of benefits to Derell has not been challenged. Carolyn submitted the
state court ruling solely to challenge Flora's entitlement on the basis of a common
law marriage. There has been no request to reopen SSA's determination with regard