TN 19 (04-14)

PR 05605.042 Pennsylvania

A. PR 14-063 Validity of Marital Relationship between Number Holder (John), SSN ~, and Natividad

DATE: February 28, 2014

1. SYLLABUS

The agency looks to the laws of the State where the insured is domiciled at the time the claimant files an application. Here, because the NH was domiciled in Pennsylvania when the claimant applied for wife’s benefits, the Pennsylvania law applies. Pennsylvania abolished the doctrine of common-law marriage as of January 1, 2005. No common-law marriage contracted after January 1, 2005, shall be valid. In order for a common-law marriage to be valid and enforceable, those seeking to prove it must show that it was contracted on or before January 1, 2005. 

In this case, because the legal impediment (NH’s undissolved marriage to claimant) was not removed on or before January 1, 2005, a common-law marriage cannot be found.  A common law marriage has no validity in the face of an existing marriage. It also cannot be salvaged as can a ceremonial marriage which provides that marriage during existence of former marriage is valid if parties continue to live as husband and wife in good faith on part of one of them after removal of the impediment to marriage. We also cannot consider the marriage between the NH and claimant a deemed marriage. Under the Act, for entitlement to wife’s insurance benefits, a deemed marriage is created when the claimant’s marriage to the insured spouse would have been valid except for a legal impediment, i.e., a previous marriage that had not ended. However, for the Agency to find a deemed marriage, the claimant is required to have gone through the marriage ceremony in good faith with no knowledge, at the time of the ceremony, of any legal impediment that would invalidate the marriage.  Because the evidence demonstrated that the claimant knew of the of the NH’s existing marriage when she married him, she did not marry the NH in good faith and, therefore, her relationship with the NH cannot alternatively be considered a deemed marriage.

2. OPINION

QUESTION PRESENTED

You requested an opinion as to whether Pennsylvania would recognize the marriage between the NH and Diaz as a valid common-law marriage once the legal impediment (the NH’s prior undissolved marriage) was removed, and if so, what would be the beginning date of the marriage.

SUMMARY

 Based upon our review of the facts of this case and our research of relevant Pennsylvania law, we have determined that a Pennsylvania court would not find that a valid common law marriage was established between the NH and Diaz. 

BACKGROUND

The NH married Celia on May 21, 1957 in San Juan, Puerto Rico. They separated in 1984 while living in New Jersey. They never divorced.    Jimenez was awarded wife’s insurance benefits on the NH’s account effective May 1994.   In 1984, the NH moved to Buenos Aires, Argentina. He began living with Diaz in 1986. Diaz did not like living together without being married so after approximately six months, she and the NH got ceremonially married in Buenos Aires on December 22, 1986. Diaz reported in her application for wife’s insurance benefits that when she married the NH, she was aware that he was still married to Jimenez and that they had not divorced. The NH similarly admitted in a Statement of Claimant or Other Person (SSA-795) that when he married Diaz, he falsely reported that he was single, even though he knew this information was incorrect. The Argentinian marriage certificate identifies the NH as a “single” man when he married Diaz. 

The NH and Diaz lived together in Argentina from 1986 to 2001. In 2001, they both moved to Philadelphia, Pennsylvania, and continued to live together. 

Jimenez died in Connecticut on December 20, 2009. The NH reported that he never filed for divorce and that Jimenez never divorced him. 

On October 25, 2013, Diaz protectively applied for wife’s insurance benefits on the NH’s account. On her application, Diaz identifies her date of marriage to the NH as

“December 22, 1986.”

In a Statement of Marital Relationship (SSA-754-F4), signed by Diaz, she reported she “formed an alliance which seemed to be the natural conclusion to a very trusting relationship which was based on respect and a deep feeling of companionship.” The NH similarly reported in his Statement of Marital Relationship (SSA-754-F4) that he and Diaz “evolved informally into a mutual arrangement based upon companionship.” Diaz believed that living with the NH made her legally married to him. She reported that there had been an agreement or promise that a “second ceremonial marriage” would be performed in the future, but that the ceremony was never performed because she “truly felt that we were man and wife.” In contrast to Diaz, the NH reported in his Statement of Marital Relationship that there was no agreement or promise that a second ceremonial marriage would be performed in the future. 

 The NH similarly stated that he had no reason to doubt that he and Diaz were “man and wife.” Diaz and the NH reported that they introduced themselves to others as wife and husband.  They did not file joint tax returns, execute any deeds or contracts, take out any insurance policies, or open any joint bank accounts. Both Diaz and the NH admitted that at the time they began living together, they were aware that the NH’s earlier marriage to Jimenez was still in effect. Neither the NH nor Diaz indicated whether they said anything to each other about their relationship after they learned that the NH’s earlier marriage had ended with Jimenez’s death in December 2009. The NH stated that he believed his marriage to Diaz was valid “because we believed it together.” 

DISCUSSION

To determine a claimant’s relationship as an insured’s spouse, the agency looks to the laws of the State where the insured is domiciled at the time the claimant files an application. See section 216(h)(1)(A)(i) of the Social Security Act (Act); see also 20 C.F.R. §§ 404.344, .345 (2013).  If the claimant and the insured were validly married under State law at the time the claimant applies for spousal benefits, the relationship requirement will be met. A claimant is also a wife of the insured if the intestate laws of the state of the NH’s domicile at the time of his death would allow her to inherit a wife’s share of the insured’s personal property. 42 U.S.C. 416(h)(1)(A)(ii); 20 C.F.R. § 404.345. As we ultimately determine that Diaz did not contract a common law marriage with the NH, she would not be entitled to inherit a wife’s share of the NH’s personal property if he died intestate. 

 Id.  Here, because the NH was domiciled in Pennsylvania when the claimant (Diaz) applied for wife’s benefits, Pennsylvania law applies. 

Generally, if parties enter into a ceremonial marriage that was void because of a legal impediment (as in this case with a prior undissolved marriage) a common-law marriage may later come into being if: (a) the impediment is later removed and (b) the parties continue to live together as husband and wife after removal of the impediment.  POMS GN 00305.070(1).  State laws vary, however, on the requirements needed to establish a common law marriage after removal of the legal impediment to marriage. Id.

Pennsylvania abolished the doctrine of common-law marriage as of January 1, 2005. See 23 Pa. Const. Stat. Ann. § 1103 (2014). Specifically, the Pennsylvania statute provides that “[n]o common-law marriage contracted after January 1, 2005, shall be valid.” Id. The statute does not affect common-law marriages that were otherwise lawful and contracted on or before

January 1, 2005. Id. “Thus, in order for a common-law marriage to be valid and enforceable, those seeking to prove it must show that it was contracted on or before January 1, 2005.” 

Murray v. IBEW, Civil Action No. 10-3852, 2011 WL 1883189, at *7 (E.D. Pa. May 17, 2011). 

In this case, because the legal impediment (NH’s undissolved marriage to Jimenez) was not removed on or before January 1, 2005, a common-law marriage cannot be found. “A common law marriage has no validity in the face of an existing marriage and it cannot be salvaged as can a ceremonial marriage by [23 Pa. Const. Stat. Ann. § 1702(a)],” which provides that marriage during existence of former marriage is valid if parties continue to live as husband and wife in good faith on part of one of them after removal of the impediment to marriage. Covington v. Covington, 617 A.2d 1318, 1320 (Pa. Super. Ct. 1992) (citing Commonwealth ex rel. Wenz v. Wenz, 171 A.2d 529, 532-33 (Pa. Super. Ct. 1961)); see also In re Estate of G~, 378 A.2d 307, 309 n. 5 (Pa. 1977) (“[o]ne whose previous marriage has not been dissolved is incapable of contracting to marry another.”).  Here, Jimenez died on December 20, 2009, which was more than four years after the date that common-law marriages were abolished. Accordingly, by the time the legal impediment was removed, it was too late for the NH and Diaz to legally establish a common-law marriage.  Even if common law marriage were recognized in 2009, this purported marriage likely would not qualify. As explained above, prior to Jimenez’s death in December 2009, the NH had no legal capacity to enter into a common law marriage. A common law marriage can only be created by “an exchange of words in the present tense,” spoken with the specific purpose of creating the legal relationship of husband and wife.  Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1020 (Pa. 1998) (citing Commonwealth v. Gorby, 588 A.2d 902, 907 (Pa. 1991)). This is a heavy burden and must be established by clear and convincing evidence. Id. at 1021. No specific form of words are required; “all that is essential is proof of an agreement to enter into the legal relationship of marriage at the present time. Estate of G~, 417 A.2d 168, 171 (Pa. 1980) (citing G~, 378 A.2d at 309).  Although proof of constant cohabitation and a general reputation can raise a rebuttable presumption of a common law marriage, this presumption is generally not applicable where, as here, the putative spouses are alive and able to testify regarding the marriage. S~, 714 A.2d at 1021. In this case, the NH and Diaz stated that they “evolved informally into a mutual arrangement based upon companionship” and that they “formed an alliance which seemed to be the natural conclusion to a very trusting relationship.” While these sentiments indicated that the NH and Diaz had a close relationship, it was not proof that after Jimenez died in December 2009, there was an agreement made or an exchange of words in the present tense spoken with the specific purpose of creating a legal relationship of husband and wife.  Indeed, neither the NH nor Diaz reported that they said anything to each other about their relationship after they learned that the NH’s earlier marriage had ended. The fact that the NH and Diaz believed that their “marriage” had always been valid and they felt that they were “man and wife,” did not negate the need to affirmatively establish a common-law marriage after Jimenez’s death (if that was their intent), especially since they knew that the first ceremonial marriage was based on false information. The fact that the NH and Diaz also did not file joint tax returns, execute any deeds or contracts together, take out any insurance policies, or open any joint back accounts cast further doubt on whether they believed they had entered into a valid common-law marriage.  Accordingly, even assuming that common-law marriages were still permitted in Pennsylvania, there was a lack of clear and convincing evidence establishing that such a marriage was duly formed here. 

Furthermore, the fact that both the NH and Diaz allegedly “lived together” since 1986 is not determinative as to whether they had a valid marriage here. “Cohabitation and reputation are not a marriage; they are but circumstances from which a marriage may be presumed, and such presumption may always be rebutted and will wholly disappear in the face of proof that no marriage has occurred.” Commonwealth ex rel. McDermott v. McDermott, 345 A.2d 914, 915 (Pa. Super. Ct. 1975).  As stated above, Jimenez died on December 20, 2009 and there was no divorce decree or annulment dissolving her marriage to the NH prior to her death.  Thus, from the inception of their relationship in 1986 through December 20, 2009, the NH and Diaz could not legally enter a common-law marriage or a traditional ceremonial marriage. Where “the relationship was illicit and meretricious in its inception, it is presumed to have continued so until a change in such a relationship is affirmatively established.” In re S~, 94 A.2d 726, 727

(Pa. 1953) (emphasis in original). Notably here, even though Jimenez died more than four years ago and the NH and Diaz could no longer establish a common-law marriage, they still have not undergone a valid ceremonial marriage under Pennsylvania law, i.e., obtain a marriage license and undergo a solemnizing ceremony. See 23 Pa. Const. Stat. Ann. §§ 1301-10, . 1501-04 (setting forth the marriage requirements). 

Likewise, the fact that the NH and Diaz underwent a ceremonial marriage in 1986 in Argentina and they “truly felt” that they were married did not mean that Pennsylvania would find their non-legal marriage valid as of Jimenez’s death in December 2009. Pennsylvania law provides that “[a]n otherwise valid marriage can be cured … after the impediment to marriage is removed, only if the marriage is entered into in good faith without the knowledge of the impediment.” International Painters v. Calabro, 312 F. Supp. 2d 697, 703 n. 4 (E.D. Pa. 2004) (citing 23 Pa. Const. Stat. Ann. § 1702(a)).  In this case, neither the NH nor Diaz entered the 1986 ceremonial marriage in good faith. Both parties were aware that the NH was not divorced when they “married” and that the NH’s marriage was still in effect.  Hence, for purposes of this case, not only was there was not a valid common law marriage, but there was also not a valid ceremonial marriage. 

Alternatively, we also note that no “deemed marriage” could exist between the NH and Diaz under the Agency’ regulations. Pursuant 20 C.F.R. § 404.346 (2013), for entitlement to wife’s insurance benefits, a deemed marriage is created when the claimant’s marriage to the insured spouse would have been valid except for a legal impediment, i.e., a previous marriage that had not ended. However, for the Agency to find a deemed marriage, the claimant is required to have gone through the marriage ceremony in good faith with no knowledge, at the time of the ceremony, of any legal impediment that would invalidate the marriage. 20 C.F.R. § 404.346(a). As explained above, because the evidence demonstrated that Diaz knew of the of the NH’s existing marriage when she “married” him, she did not “marry” the NH in good faith and, therefore, her relationship with the NH cannot alternatively be considered a deemed marriage. 

CONCLUSION

For the reasons stated above, it is our opinion that, under the controlling law of the Commonwealth of Pennsylvania, there was not a valid common law marriage between the NH and Diaz. 

Respectfully submitted,
Nora R. Koch
Acting Regional Chief Counsel, Region III
By:______________________
Kenneth DiVito
Assistant Regional Counsel

B. PR 10-030 Number Holder: Sarah Is An Affidavit Of Common-Law Marriage Acceptable Documentation To Support The Number Holder’s Request For Name Change?

DATE: November 23, 2009

1. SYLLABUS

An affidavit of Common-Law Marriage submitted by NH is not in and of itself sufficient evidence of a valid common-law marriage to support a name change. Consistent with Agency policy, further factual development is warranted to support the request for name change. In establishing whether the common-law marriage factors are met, the Agency’s preferred sources of proof include completion of form SSA-754-F4 (Statement of Marital Relationship) from each spouse, and of form SSA-753 (Statement Regarding Marriage) from a blood relative of each spouse

2. OPINION

QUESTION PRESENTED AND BRIEF ANSWER

Question: Is the Affidavit of Common-Law Marriage presented by Number Holder Sarah sufficient proof under Pennsylvania law to support a name change?

Answer: By itself, no. Although the Affidavit of Common-Law Marriage provides evidence of a common-law marriage under Pennsylvania law, it is not dispositive of a valid common-law marriage. Additional documentation is necessary to support the request for name change.

BACKGROUND

On October 29, 2009, Number Holder (NH), Sarah , filed an SS-5 to change her name from Sarah J. E~ to Sarah J. G~. To support the name change, the NH submitted a notarized document dated November 12, 1997, entitled “Affidavit of Common-Law Marriage” as proof of her marriage to Howard , Jr. The Affidavit of Common-Law Marriage contains signatures attributed to both the NH and Howard, Jr. It states that the parties entered into the relationship of common-law husband and wife on November 12, 1997, and that the parties had the intent to be married, evidenced by words spoken in the present tense.

In addition to the Affidavit of Common-Law Marriage, NH also submitted her birth certificate, issued in the name of Sarah J. E~, her social security card in the name of Sarah J. E~, a United States passport in the name of Sarah J. G~, and a Pennsylvania driver’s license in the name of Sarah J. G~. We are not aware of further documentation that the NH presented with her request.

We do not believe that Pennsylvania would find the Affidavit of Common-Law Marriage to be sufficient proof of a valid marriage to support a name change. Accordingly, we recommend that the Agency request additional proof. Agency policy provides that preferred evidence of common-law marriage includes completion of form SSA-754-F4 (Statement of Marital Relationship) from each spouse and form SSA-753 (Statement Regarding Marriage) from a blood relative of each spouse. See POMS GN 00305.065(1)(a). It is our opinion that the Agency should request such additional evidence.

DISCUSSION

The Intelligence Reform and Terrorism Prevention Act requires the Social Security Administration (Agency) to “establish minimum standards for verification of documents or records submitted by an individual to establish eligibility for an original or replacement social security card.” See Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 7213(a)(1)(B). Pursuant to this directive, the Agency requires that “[a] legal document showing a name change or the basis of the name change (divorce, marriage, naturalization) must be submitted when the applicant requests an SSN card in a new name.” See Social Security Program Operations Manual System (POMS) Record Maintenance (RM) 00203.210(A)(2). Without a legal document showing a name change, the Agency’s records must continue to reflect the applicant’s legal name, i.e., the name on the birth certificate. See POMS RM 00203.210(A)(2).

“For a U.S. resident, a legal name change based on a U.S. marriage depends on the laws of the State where the marriage occurred.” See POMS RM 00203.210(B)(1). In all 50 states, a wife may take her husband’s last name as her new last name. See POMS RM 00203.210B(1)(a). In Pennsylvania, court approval is not required for a name change based on marriage.

See generally, 54 Pa.C.S.A. §§ 701-705; 67 Pa.Code § 85.1 (2009) (“actual name” for issuance of Pennsylvania driver’s license means, in “the case of a married person, the surname assigned to the person at birth, the surname of the other spouse or a hyphenated combination of both their surnames, whichever the person elects”).

The Commonwealth of Pennsylvania recognizes common-law marriages that were contracted between the parties on or before January 1, 2005. See 23 Pa.C.S.A.§ 1103 (2005). However, such marriages are disfavored. The party seeking to prove such a marriage bears a “heavy” burden to prove the marriage with “clear and convincing” evidence.

See Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1020-21 (Pa. 1998); POMS GN 00305.075(C) (Pennsylvania). A common-law marriage in Pennsylvania can only be created “by an exchange of words in the present tense, spoken with the specific purpose that the legal relationship of husband and wife is created by that.” S~, 714 A.2d at 1020. See POMS GN 00305.075(C) (Pennsylvania). The Affidavit of Common-Law Marriage submitted by NH provides evidence of such an exchange of words and an intention to be married: It states that on the day of its execution, the parties “had the present intent to be married, evidenced by words in the present tense uttered with a view and purpose of establishing the relationship of husband and wife.”

Nonetheless, although it provides evidence of the intent and exchange of words that is necessary to create a valid common-law marriage, we do not believe that the Affidavit of Common-Law Marriage, by itself, provides sufficient proof of a valid common-law marriage under Pennsylvania law. In some Pennsylvania cases, similar affidavits have been overcome by evidence of an actual lack of intent to be married. In Bell v. Ferraro, 849 A.2d 1233 (Pa. Super. 2004), the putative common-law wife filed for divorce, and the putative husband defended by contending there was no marriage. The putative wife presented an Affidavit of Common Law Marriage that had been signed by both parties, which the putative husband acknowledged. However, the putative husband testified that it was not in fact the parties’ intent to create a marriage. According to his testimony, the Affidavit was executed only to enable him to add plaintiff to his health insurance. The putative husband also presented documents dated subsequent to the Affidavit in which the parties represented themselves as having single status. In the view of the court, the Affidavit of Common Law Marriage was “admissible and probative evidence,” but it was not “irrebuttable evidence,” id. at 1235, and the husband’s testimony about the parties’ actual intent in executing the Affidavit effectively rebutted the contents of the Affidavit. The Superior Court affirmed the trial court’s decision that no common-law marriage had occurred. Notably, in the present situation, the evidence submitted by NH does not indicate whether the putative husband is deceased or is available to confirm (or deny) the marriage, and it appears that the Agency has no statement from him.

The evidence submitted by NH also fails to address other potential impediments to a valid common-law marriage in Pennsylvania. The evidence does not indicate, for example, whether one or both of the parties were already married to a third party as of November 12, 1997, the date of the purported common-law marriage (which would invalidate the common-law marriage). Furthermore, if it were the case that such an impediment to marriage existed as of November 12, 1997 (while NH and her purported common-law husband presumably were cohabitating), then even if the impediment had since been removed (i.e., if the third-party died or a divorce was obtained), Pennsylvania law would require proof of a new exchange of words sufficient to form a common-law marriage after the impediment was removed. This is because there is a presumption in Pennsylvania law that once a meretricious relationship is entered into, it continues as a meretricious relationship even after an impediment to a valid marriage is removed. Clear and convincing evidence is required to rebut this presumption. See In re Estate of Harold G~, 378 A.2d 307, 309 (Pa. 1977); In re Estate of Ada G~, 284 A.2d 742, 744 (Pa.1971); Int’l Painters and Allied Trades Indus. Pension Fund, 312 F.Supp.2d 697, 703 (E.D. Pa. 2004); POMS GN 00305.075(C) (Pennsylvania). The Affidavit of Common-Law Marriage submitted by NH does not address any of these issues.

Consistent with the heavy burden of proof that must be carried by a party claiming a common-law marriage in Pennsylvania, we have not located state statutes or regulations that provide that Pennsylvania accepts Affidavits of Common-Law Marriage similar to that presented here as sufficient evidence of marriage to support a name change. Thus, for example, to be eligible for subsidized child care in Pennsylvania, acceptable verification of identity includes a “[m]arriage license, divorce decree or court order for a name change.” 55 Pa. Code § 3041.69 (2009). Similarly, if a name change is sought in connection with a learner’s permit or non-commercial driver’s license, the Pennsylvania Department of Transportation requires original documents supporting the name change “such as a marriage certificate, divorce decree or court order.” See www.dmv.state.pa.us/teenDriversCenter/obtainingLearnersPermit.shtml. To be eligible as a spouse for firemen and law enforcement officer death benefits under Pennsylvania law, the applicable regulations state that “[i]f a common law marriage is claimed, the affidavits or certified statements of the spouse” are needed “setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as a result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as a result of personal observation the reputed relationship which existed between the parties to the alleged marriage including the period of cohabitation, places of residences, whether the parties held themselves out as husband and wife, and whether they were generally accepted as such in the communities in which they lived.” 4 Pa. Code. § 89.6(b)(5) (2009).

It thus appears that Pennsylvania would require additional evidence to supplement the Affidavit of Common-Law Marriage to support a name change. This conclusion is consistent with the Agency’s general policies concerning establishment of a common-law marriage. Pursuant to POMS GN 00305.060(A), a common-law marriage can be established when certain prerequisites are demonstrated, which generally includes evidence, among other things, that “the parties are legally capable of entering into a valid marriage” (a matter not addressed by the Affidavit of Common-Law Marriage supplied by NH). In establishing whether the common-law marriage factors are met, the Agency’s preferred sources of proof include completion of form SSA-754-F4 (Statement of Marital Relationship) from each spouse, and of form SSA-753 (Statement Regarding Marriage) from a blood relative of each spouse. See POMS GN 00305.065(1)(a). These forms inquire into the putative common-law marriage relationship in a far greater level of detail than what is reflected in the Affidavit of Common-Law Marriage provided by NH. For example, the Statement of Marital Relationship inquires as to when the parties began living together in a husband and wife relationship; whether they lived together continuously since that time; whether any understandings between them were changed; whether any children were born of the relationship; how the couple was introduced to others; whether the parties ever lived with anyone else as husband and wife (and the status of that relationship when the current relationship began); and whether tax returns, deeds, insurance policies, or contracts were executed as husband and wife. There is no indication here that NH and her putative husband, if he is available, have submitted these forms or similar materials to prove their common-law marriage. It is our opinion that further development is necessary to determine whether NH can establish a valid common-law marriage under Pennsylvania law to support a change of name.

CONCLUSION

For the reasons outlined above, it is our opinion that, under the controlling law of the Commonwealth of Pennsylvania, the Affidavit of Common-Law Marriage submitted by NH is not sufficient evidence, standing alone, of a valid common-law marriage to support a name change. Consistent with Agency policy, we believe that further factual development is warranted to support the request for name change.

Sincerely,
Eric P. Kressman
Regional Chief Counsel, Region III
By:______________________
Jordana Cooper
Assistant Regional Counsel

C. PR 09-126 SSN~, Number Holder: James Claimant: Mary Can Mary A. recover widow's benefits on James ' record when she had an intervening dissolved common law marriage?

DATE: June 26, 2009

1. SYLLABUS

Under Pennyslvania law a common-law marriage affidavit signed for the purpose of obtaining health benefits does not establish the requisite present intent to be married. A void remarriage does not interrupt a surviving divorced spouse's entitlement to widow's benefits as opposed to reinstatement.

2. OPINION

QUESTION PRESENTED AND BRIEF ANSWERS

Question: Can Mary become entitled to widow's benefits under James’s Social Security record?

Answer: Yes. When a surviving divorced spouse remarries, and then divorces or obtains an annulment from her second husband, she is entitled to reinstatement of benefits on her first husband's account.

Question: Did Mary and Mr. K~ ever have a valid common law marriage?

Answer: Based on the facts available -- no. Under Pennsylvania law, an affidavit attesting to a common law marriage, if created solely for the purpose of obtaining health care benefits, does not establish a common law marriage. The Lycoming County Court decree, therefore, was not a divorce or an annulment, but rather a declaratory judgment that Mary and Mr. K~ were never married and their purported marriage was void from the beginning. As such, Mary is likely to be entitled to widow's benefits on James' account as though she had no intervening marriage to Mr. K~.

BACKGROUND

Mary married James in 1969, and they divorced on September 27, 1990. James died on December 21, 1990. On February 11, 1995, Mary and Mr. K~ signed an affidavit stating that they had a common law marriage. Thereafter, Mary sought widow's benefits on James' Social Security record. When the Commissioner denied benefits because she was married to Mr. K~, Mary and Mr. K~ provided a stipulation to the Pennsylvania Court of Common Pleas, Lycoming County, attesting that the prior affidavit of common law marriage was executed solely for the purpose of allowing Mary to obtain health insurance from a plan provided by Mr. K~'s employer. The stipulation further provided that although Mr. K~ and Mary lived together, they never spoke words in the present tense that could be construed as vows, they did not hold themselves out as married, and they did not share finances.

DISCUSSION

Under the Social Security Act, 42 U.S.C. § 402, a widow or a surviving divorced wife is entitled to benefits. "The widow (as defined in section 416(c) of this title) and every surviving divorced wife (as defined in section 416(d) of this title) of an individual who died a fully insured individual, if such widow or such surviving divorced wife -- (A) is not married . . . shall be entitled to a widow's insurance benefit." 42 U.S.C. 402(e)(1)(A) (2009); see also 20 C.F.R. §§ 404.331(e), 404.336(e) (2009). Therefore, a surviving spouse's right to benefits depends on whether she remarried. State law determines whether she is married. See Legory v. Finch, 424 F.2d 406, 409-10 (3d Cir. 1970); Slessinger v. Sec'y of Health and Human Welfare, 835 F.2d 937, 939-40 (1st Cir. 1987).

A. Under Pennsylvania Law, Mary Never Remarried.

Mary and Mr. K~ never entered into a common law marriage because a common law marriage affidavit signed for the purpose of obtaining health benefits does not establish the requisite present intent to be married. Bell v. Ferraro, 849 A.2d 1233 (Pa. Super. 2004). A common law marriage is created by an agreement to marry, not a wedding ceremony. Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1020 (Pa. 1998). Although Pennsylvania abolished common law marriage in 2005, it continues to recognize lawful common law marriages created on or before January 1, 2005. 23 Pa.C.S. § 1103 (2009).

A lawful common law marriage is established by "words in the present tense, uttered with the view and for the purpose of establishing the relation of husband and wife." In re G~, 284 A.2d 742, 743 (Pa. 1971). A present tense utterance is not the sole method by which common law marriage is established. Steadman v. Turner, 516 A.2d 21, 23 (Pa. Super. 1986). Evidence of cohabitation and the parties' reputation as a married couple can also establish a rebuttable presumption of common law marriage. Id. This is only a presumption, however, and can be rebutted by circumstances and facts showing that the parties did not intend to be married. Id. The key issue is whether the evidence establishes the parties' intent to enter into a marital relationship. Id.

Here, Mary and Mr. K~ likely did not have the requisite intent to marry. B~, 849 A.2d at 1235. In B~, the parties executed an "Affidavit of Common Law Marriage." Id. The appellant claimed that she and the appellee intended to marry and they informed their friends and relatives that they were married. Id. The appellee claimed that they were never married and testified that "the affidavit was executed solely to enable him to add Appellant to his health insurance and that they did not present themselves to the community as married persons." Id. Based on this testimony, the court affirmed a declaratory judgment finding that the parties never created a valid common law marriage. Id.

Similarly, Mr. K~ and Mary have both sworn that they executed their common law marriage affidavit solely to allow Mary to obtain health insurance. Mary and Mr. K~ expressly stipulated that they never intended to be married; they never held themselves out in the community as married; they were never introduced as husband and wife; and they never had joint financial accounts. Based on this stipulation, the Lycoming County Court confirmed that they never entered into a common law marriage. Under B~, therefore, Mr. K~ and Mary were never married and their affidavit is insufficient evidence of intent because it was created to obtain health benefits, not to actually create a marriage.

B. A Void Remarriage Does Not Interrupt A Surviving Spouse's Entitlement To Widow's Benefits.

Courts have consistently held that when a surviving divorced spouse obtains a divorce or Annulment from an intervening second marriage, she is entitled to reinstatement of benefits on her deceased first husband's Social Security account. See Legory v. Finch, 424 F.2d 406, 411 (3d Cir. 1970); Yeager v. Flemming, 282 F.2d 779, 781-82 (5th Cir. 1960); Folsom v. Pearsall, 245 F.2d 562, 565-66 (9th Cir. 1957); Starace v. Celebrezze, 233 F. Supp. 452, 453-54 (W.D. Pa. 1964). "[W]hen the remarriage is subsequently annulled, benefits should be reinstated." Legory v. Finch, 424 F.2d 406, 411 (3d Cir. 1970). Social Security Ruling (SSR) 67-4p accepts this rule and explains that upon receiving a divorce, benefits are reinstated as of the date the divorce became final. "[B]eginning with the month in which the divorce became final, the widow 'is not married' within the meaning of [the Act] . . . and accordingly, may become reentitled to mother's insurance benefits upon proper application." SSR 67-4p, 1967 WL 2988.

If the second marriage is declared void, the surviving divorced spouse is entitled to benefits uninterrupted as though the second marriage never existed, as opposed to reinstatement as of the date of divorce. Starace v. Celebrezze, 233 F. Supp. 452, 453 (W.D. Pa. 1964). "A void marriage does not preclude initial entitlement to benefits of claimants who must not be married, nor does the date of entitlement depend on the date of the Annulment." POMS GN 00305.125(B)(1).

In S~, a widow married another man following the death of her first husband, but within six months brought a suit to annul her second marriage. 233 F. Supp. at 453. She claimed that upon marrying her second husband, she discovered he was an alcoholic and she received no support from him. Id. The Pennsylvania Court of Common Pleas granted an annulment, declaring "that the alleged marriage was and is wholly and absolutely null and void as to all intents and purposes whatsoever." Id. Thereafter, she sought Social Security benefits, and the court ruled that she was entitled to benefits for the entire period that she was "married" to her second husband. Id. The court reasoned that an Annulment under Pennsylvania law does not end a marriage, but instead decrees that it never existed in the first instance. Id. at 454 (citing Knode v. Knode, 27 A.2d 536, 538 (Pa. Super. 1942), Faivre v. Faivre, 128 A.2d 139 (Pa. 1956)). "It does not create a new status, it affirms that there has been no change in status." Id. Therefore, the second marriage was void, and never existed for Social Security benefits purposes. Id.

Mary' marriage to Mr. K~ was also void for Social Security purposes because the Lycoming County Court of Common Pleas declared that no common law marriage ever existed. Under Pennsylvania law, this ruling is neither a divorce nor an Annulment, but amounts to a declaratory judgment that no marriage ever existed. Steadman v. Turner, 516 A.2d 21, 23-24 (Pa. Super. 1986). Accordingly, based on the current facts, Mary was entitled to benefits as though she was never married to Mr. K~.

The Lycoming County Court of Common Pleas' declaration, while certainly highly relevant evidence, is not binding on the Commissioner. See L~, 424 F.2d at 410 (citing Cain v. Sec'y of Health, Educ., & Welfare, 377 F.2d 55, 58 (4th Cir. 1967)). The Commissioner may disregard the declaration if it is "demonstrably inconsistent with the general law of the state." Id. Here, however, the Lycoming Court's declaration is consistent with Pennsylvania law. As stated in B~, an affidavit created for the purpose of obtaining health benefits does not establish a common law marriage.

As such, the Commissioner would need to challenge the factual, not the legal, basis for the Lycoming County decree. Given that Mary' affidavit stating she was married directly contradicted her stipulation before the Lycoming County Court, she presented false information in one of the documents. If the Commissioner gathers evidence that the facts in her stipulation are false, then he would not have to recognize the Lycoming County Court's decree. For example, the Commissioner could gather additional evidence to determine if Mr. K~ and Mary actually held themselves out as married in the community, or purchased property together as a married couple. However, this would require an independent investigation involving a public records search and locating witnesses who knew Mr. K~ and Mary. Based on the records currently available, there is insufficient evidence to disprove the facts in Mr. K~ and Mary' stipulation. As such, it appears that the affidavit for health insurance purposes, not the stipulation, contained false statements.

CONCLUSION

Mary will likely be able to obtain Social Security benefits on James' account and her eligibility was not interrupted by a marriage to Mr. K~. Mr. K~ and Mary's affidavit attesting to a common law marriage does not establish the necessary intent to marry because it was created to allow Mary to obtain health insurance benefits. Therefore, the marriage was void and never existed for the purpose of Social Security benefits. Granting benefits may appear inequitable given that Mary clearly provided false information either on her affidavit to obtain health insurance or on the stipulation in Lycoming County Court. However, a false affidavit to Mr. K~'s health insurer does not establish a common law marriage, but would possibly be evidence that Mr. K~ and Mary defrauded Mr. K~'s insurer. Alternatively, Mary and Mr. K~ may have submitted a false stipulation to the Lycoming County Court, but an investigation into the facts asserted in the stipulation would be necessary to attack the Lycoming County Court's decree. Regardless, without additional evidence that the stipulation was false and that Mary and Mr. K~ were actually married, Mary' eligibility for surviving divorced spouse benefits was uninterrupted.

Eric P. Kressman
Acting Regional Chief Counsel,

By:__________

Edward C. Tompsett
Assistant Regional Counsel

D. PR 09-120 Reply to Your Request for a Legal Opinion Regarding the Validity of Marital Relationship Between the Number Holder (Lawrence ) and Maureen

DATE: June 19, 2009

1. SYLLABUS

Under limited circumstances, Pennsylvania law recognized the existence of a common-law marriage where a ceremonial marriage was void because of a legal impediment. The evidence submitted would not constitute clear and convincing evidence to establish a common-law marriage between the insured and claimant. There is no evidence as to whether the number holder was aware that the claimant was still married at the time of their marriage. A deemed marriage does not exist since the claimant did not marry in good faith.

2. OPINION

QUESTION PRESENTED

You requested our opinion as to whether a valid common-law marriage arose under Pennsylvania law between Lawrence, the Number Holder (NH), and Maureen upon the death of Norman, Maureen first husband to whom she was still married when she ceremonially married the NH.

SUMMARY

Based upon our review of the facts of this case and our research of relevant Pennsylvania statutes and case law, we have determined that a Pennsylvania court applying the state's law on common-law marriage would likely find that the evidence submitted to date would not constitute clear and convincing evidence sufficient to establish a common-law marriage between the Number Holder and Maureen; however, a valid common-law marriage could be established with the submission of additional evidence.

BACKGROUND

According to the information you provided, Maureen married Norman on August 7, 1965 in McKeesport, Pennsylvania. They were never divorced. On January 6, 1992, Maureen then ceremonially married the NH in West Mifflin, Pennsylvania, despite the fact that her existing marriage to Norman constituted a legal impediment to her marrying the NH.

From the information provided, Maureen was aware at the time that she ceremonially married the NH that she had never divorced Norman. We do not know whether the NH was aware that Maureen was still married to Norman at the time of the NH's ceremonial marriage to Maureen. Two years and two months after Maureen ceremonially married the NH, Norman died.

DISCUSSION

Generally, if parties enter into a ceremonial marriage that was void because of a legal impediment, a common-law marriage may later come into being in some states if: (a) the impediment is later removed and (b) the parties continue to live together as husband and wife after removal of the impediment. GN 00305.070(1). State laws vary, however, on the requirements needed to establish a common-law marriage after removal of the legal impediment to marriage.

Pennsylvania law prospectively abolished common-law marriages effective January 1, 2005. For common-law marriages existing prior to 2005, however, Pennsylvania law, under limited circumstances, recognized the existence of a common-law marriage where a ceremonial marriage was void because of a legal impediment.

The Marriage Law of 1953, enacted on January 1, 1954, and in effect at the time of Maureen void ceremonial marriage to the number holder, stated:

If a person, during the lifetime of a husband or wife with whom a marriage is in force, enters into a subsequent marriage pursuant to the requirements of this act, and the parties thereto live together thereafter as husband and wife, and such subsequent marriage was entered into by one or both of the parties in good faith in the full belief that the former husband or wife was dead, or that the former marriage has been annulled or terminated by a divorce, or without knowledge of such former marriage, they shall, after the impediment to their marriage has been removed by death of the other party to the former marriage, or by annulment or divorce, if they continue to live together as husband and wife in good faith on the part of one of them, be held to have been legally married from and immediately after the removal of such impediment. 48 P.S. § 1-17.

Thus, where only one party to a ceremonial marriage knew it was void because of an impediment, the marriage was considered legal by statute without a new agreement to marry if the parties continued to live together as husband and wife as of the date of removal of the impediment. See Leroy Roofing Co. v. Workmen's Compensation Appeal Bd., 327 A.2d 876, 877-78 (Pa. Cmwlth. 1974) (validating a marriage under 48 P.S. § 1-17 where a second wife was unaware at the time of her wedding that her husband was already married, despite the second wife's inability to satisfy all of the requirements of common marriage after her husband divorced his first wife).

Where both parties knew the marriage was void because of an impediment and therefore entered into the void ceremonial marriage in bad faith, however, courts will presume that the parties continued to live together unmarried even after the impediment is removed, absent clear and convincing evidence of a change of status required to rebut this presumption. In re G~' Estate, 378 A.2d 307, 474 (Pa. 1977). A common-law marriage may thereafter be created by the parties uttering words in present tense with intent to establish a marital relationship. Commonwealth v. Sullivan, 398 A.2d 978, 980 (Pa. 1979). No marriage is created if words are used in the future tense, and cohabitation and reputation cannot establish marriage if the requisite "contract" was not entered into. Id.

From the information received, Maureen was aware of the legal impediment to her marriage to the NH. We have no information as to whether the NH was aware that Maureen was still married to Norman at the time the NH married Maureen.

We recommend obtaining a Statement of Marital Relationship from two blood relatives of the NH addressing whether he was aware of the legal impediment to his ceremonial marriage to Maureen at the time of their wedding. GN 00305.065(2)(a). If the NH was unaware of Maureen existing marriage to Norman at the time the NH married Maureen, the agency should also obtain corroborating evidence that the NH and Maureen continued to live together after Norman's death, as husband and wife, until the NH's death. Such evidence could include mortgage/rent receipts, insurance policies, medical records, and bank records that would establish that the couple considered and held themselves out as husband and wife.

GN 00305.065(3)(e).

If the NH was aware of Maureen existing marriage to Norman at the time the NH married Maureen, a subsequent common-law marriage must then be proven by evidence that the NH and Maureen made a new agreement to marry after the removal of the impediment, i.e., after the death of Norman on March 1, 1994. In re G~'s Estate, 379 A.2d at 474. The agency should then obtain a Statement of Marital Relationship from two blood relatives of the NH to determine if the NH and Maureen ever made a new agreement to marry after Norman's death. If no new agreement to marry was made, a valid common-law marriage cannot be established. GN 00305.065(2)(a).

We also note that no deemed marriage could exist between the NH and Maureen under the Agency's regulations. Pursuant to 20 C.F.R. § 404.346 and GN 00305.055(A)(1), for an entitlement to widow's benefits, a deemed marriage is created when the claimant's marriage to the worker would have been valid except for a legal impediment. However, for the agency to establish a deemed marriage, the claimant is required to have gone through the marriage ceremony in good faith with no knowledge, at the time of the ceremony, of any legal impediment that would invalidate the marriage. 20 C.F.R. § 404.346(a), GN 00305.055(A)(1)(b). Because the evidence demonstrates that Maureen knew of her existing marriage to Norman when she married the NH, she did not marry the NH in good faith and, therefore, her relationship with the NH cannot be considered a deemed marriage.

CONCLUSION

Accordingly, we recommend that the Agency take reasonable steps to obtain additional evidence, including, but not limited to that suggested above, prior to making a decision in this case. Corroborative evidence of the NH was unaware of Maureen existing marriage to Norman at the time of his ceremonial marriage to Maureen, coupled with evidence that the NH and Maureen continued to live together as husband and wife after Norman's death, would likely constitute clear and convincing evidence of a legal marriage under the Pennsylvania statute from the relevant period. If the NH was aware of Maureen legal impediment at the time he married Maureen, corroborative evidence of a new agreement to marry between the NH and Maureen, made after Norman's death, coupled with evidence that the NH and Maureen thereafter lived together as husband and wife, would likely constitute clear and convincing evidence of a common-law marriage.

Eric P. Kressman
Acting Regional Chief Counsel,

By: Stephen T. Giacchino
Assistant Regional Counsel

E. PR 08-131 Validity of Marital Relationship Between the Number Holder (Russell ) and Naomi , SSN: ~ -- REPLY

DATE: August 1, 2008

1. SYLLABUS

The presumption of an illicit and meretricious relationship continues absent clear and convincing evidence that the parties subsequently entered into a valid marriage. The party asserting the existence of a marriage bears the burden of proving that a change in the relationship occurred. The claimant has not provided sufficient evidence of constant cohabitation and a broad and general reputation of marriage with the number holder.

2. OPINION

QUESTION PRESENTED

You requested a legal opinion as to whether a valid common law marriage existed under the laws of Pennsylvania between Russell , the number holder (NH), and Naomi, an applicant for widow's benefits. If a valid common law marriage existed, you have also requested a legal opinion regarding the effective date of the common law marriage, and whether Naomi is entitled to retroactive benefits.

CONCLUSION

Based on the information you provided and our research, we believe that a common law marriage did not exist between Naomi and the NH under Pennsylvania law. Naomi has not provided "clear and convincing" evidence that she and the NH agreed to marry and contracted a valid common law marriage on or before January 1, 2005, the effective date for abolishing common law marriages in Pennsylvania. Although Pennsylvania law recognizes a rebuttable presumption in favor of common law marriages, the presumption does not apply in this case because Naomi has not proffered sufficient evidence of constant cohabitation and a broad and general reputation of marriage with the NH. Even if the presumption of marriage would apply, we believe that a Pennsylvania court would find that the facts of this case have rebutted the presumption. Finally, we believe that the Agency is not bound by the March 25, 2008, court order finding a common law marriage between Naomi and the NH because the court order does not satisfy the four-prong test outlined in Social Security Ruling (SSR) 83-37c.

BACKGROUND

According to the information you provided, on April 21, 2008, Naomi filed a second application for widow's benefits, alleging that she entered into a common law marriage with the NH on June 6, 1994. The relevant facts are as follows:

On July 10, 1997, the NH filed an application for retirement benefits and reported that he was not currently married. The NH listed five prior marriages, all of which ended in divorce. The last marriage to Betty ended in divorce on October 7, 1988, as shown on a divorce decree issued in the Court of Common Pleas of Lancaster County.

Naomi also filed an application for retirement benefits and reported that she was not currently married. In her October 3, 1997 application, Naomi listed one prior marriage to Phillip, which ended in divorce. The Court of Common Pleas of the 44th Judicial District issued the divorce decree on April 12, 1983. If a common law marriage existed between Naomi and the NH when she filed her application for retirement benefits on October 3, 1997, Naomi would have been entitled to auxiliary spouse's benefits on the NH's account. However, she did not file an application for these benefits.

The NH died on December 28, 2005. His death certificate lists his marital status as divorced. On February 15, 2006, Naomi filed for widow's and lump-sum death benefits. In her application, she alleged that she entered into a common law marriage with the NH on June 15, 1988. The NH and Naomi did not live together at the time of his death. The NH's death certificate provides that he resided in Tunkhannock, Pennsylvania. Naomi reported that she and the NH did not live together for the three years prior to his death due to her bipolar disorder. The Agency denied Naomi's claim for widow's and lump-sum death benefits at the initial and reconsideration levels of administrative review for lack of relationship.

In support of her current application for widow's benefits, Naomi submitted a court order from the Court of Common Pleas Susquehanna County, Pennsylvania, finding that the NH and Naomi entered into a common law marriage on June 6, 1994. The court order provides:

NOW TO WIT, this 25th day of March, 2008, after hearing held, the court finds that Naomi and Russell entered into a common law marriage on June 6, 1994, after having resided together since 1988, by means of a private marriage ceremony between themselves pledging each to the other for their life's duration, speaking words to each other with the specific intent to become husband and wife. We find that they thereafter continued to cohabitate exclusively as husband and wife and enjoyed a reputation in the Meshoppen, Pennsylvania area of being husband and wife as well as among their family and friends.

Naomi stated that she provided the same documentation and information to the court that she previously supplied to the Agency in 2006, when she first applied for widow's benefits.

The Agency's Technical Expert reported in his rationale for denying Naomi's first application that Naomi stated in her SSA-754-F4 (Statement of Marital Relationship) 1 that "there was no intent to marry." The Technical Expert stated that the NH and Naomi had different addresses listed on their respective Master Beneficiary Records. Naomi reported that the bills and the house were in her name, and that she and the NH had no joint accounts.

You subsequently provided us with the reconsideration determination that the Agency issued in connection with Naomi's first application. The reconsideration determination indicates that Naomi submitted affidavits from the NH's brother and sister that state that Naomi and the NH were husband and wife.

There is no evidence that Naomi assumed the NH's surname.

DISCUSSION

A. Relevant Law

An applicant is the "widow" of an insured individual if she were married to the insured for a period of not less than nine months immediately prior to the day on which he died. 42 U.S.C. § 416(c)(1)(E); 20 C.F.R. § 404.335 (2007). The Agency considers an applicant "married" to an insured individual if the courts of the state in which the insured was domiciled at the time of his death would find the applicant and the insured validly married at the time the insured died. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345; POMS GN 00305.001A.2.a. Although the Agency is not bound by a decision of a state trial court in a proceeding to which it was not a party, it may not ignore such a decision where: (1) an issue in a claim for Social Security benefits has been determined by a state court of competent jurisdiction; (2) the 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. SSR 83-37c; POMS GN 00305.001A.3. 2

As the NH was domiciled in Pennsylvania, you have requested a legal opinion to determine whether Naomiand the NH had a valid common law marriage under the laws of Pennsylvania when the NH died there on December 28, 2005. 3 The State of Pennsylvania recognizes common law marriages that are contracted between the parties on or before January 1, 2005. 4 23 Pa. C.S.A § 1103 (2005). However, Pennsylvania courts disfavor common law marriages, describing them as a "fruitful source of perjury and fraud" that are treated with "hostility." Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1019-20 (Pa. 1998). A common law marriage only exists where there is an "exchange of words in the present tense, spoken with the specific purpose that the legal relationship of husband and wife is created by that." Id. at 1020 (citing Commonwealth v. Gorby, 588 A.2d 902, 907 (Pa. 1991)). A common law marriage contract does not require any specific exchange of words, but proof of an agreement to enter into a legal relationship at the present time is essential. S~, 714 A.2d at 1020. The party alleging the existence of a common law marriage carries a "'heavy burden'" subject to "'great scrutiny'" to provide clear and convincing evidence of an agreement to enter into the legal relationship of marriage at the present time. Id. at 1020, 1021. Under Pennsylvania law, the clear and convincing evidence standard requires "'proof greater than a mere preponderance, but less than beyond a reasonable doubt.'" Estate of V~, 798 A.2d 203, 209 (Pa. Super. Ct. 2002) (citations omitted). "'Clear and convincing evidence' is the highest burden in our civil law and requires that the fact-finder be able to 'come to clear conviction, without hesitancy, of the truth of the precise fact in issue.'" In re Estate of H~, 647 A.2d 243, 244 (Pa. Super. Ct. 1994) (citing Lessner v. Rubinson, 592 A.2d 678, 681 (Pa. 1991)).

Although Pennsylvania courts disfavor common law marriages, they have developed a rebuttable presumption in favor of common law marriages where there is sufficient proof of constant cohabitation and a reputation of marriage which is not partial or divided, but is broad and general. S~, 714 A.2d at 1021. Cohabitation and reputation do not create the marriage; rather, they are circumstances giving rise to a rebuttable presumption of marriage. Id. (citations omitted). The rebuttable presumption is a rule of "necessity" allowing evidence of cohabitation and reputation where there is an inability to present direct testimony regarding the required exchange of words in the present tense. Id. This includes situations where one party to the purported marriage is deceased or otherwise disabled from testifying. Id.

However, the presumption of a common law marriage does not arise where the parties lived together unmarried up to the time of the alleged agreement to create a marriage contract. In re C~, 479 A.2d 537, 542 (Pa. Super. 1984) (citations omitted). "[Where] the relationship was illicit and meretricious in its inception, it is presumed to have continued so until a change in such relationship was affirmatively established." In re S~, 94 A.2d 726, 727 (Pa. 1953) (emphasis in original); see also In re M~, 159 A.2d 697, 699 (Pa. 1960) (stating that if the parties lived together before the alleged common law marriage, their relationship from the beginning was meretricious absent evidence of a change in the relationship). The presumption of an illicit and meretricious relationship continues absent clear and convincing evidence that the parties subsequently entered into a valid marriage. In re C~, 479 A.2d at 542; see also In re G~ 284 A.2d 742, 744 (Pa. 1971) (stating that a meretricious relationship continues until a valid marriage is established by clear and convincing evidence). The party asserting the existence of a marriage bears the burden of proving that a change in the relationship occurred. Id.

B. A Common Law Marriage Did Not Exist Between Naomi and the NH Under Pennsylvania Law.

1. Naomi Has Not Provided Clear and Convincing Evidence of an Agreement to Marry.

We believe that a common law marriage was not proven to exist between Naomi and the NH under Pennsylvania law. As outlined above, Pennsylvania law places a heavy burden on the party alleging the existence of a common law marriage to provide clear and convincing evidence of an agreement to marry at the present time. Here, Naomi has not provided the Agency with any evidence of the words she claims that she and the NH exchanged in the present tense on June 6, 1994 to become husband and wife. Without evidence of the specific words exchanged, we cannot "come to clear conviction" that Naomi and the NH agreed to enter in to a common law marriage. In fact, Naomi stated in her SSA-754-F4 that "there was no intent to marry." As proof of an agreement to marry is essential under Pennsylvania law, we believe that Naomi has not met her heavy burden to establish clear and convincing evidence of an agreement with the NH to be married.

2. The Rebuttable Presumption in Favor of a Common Law Marriage Does Not Apply.

Naomi cannot rely upon the rebuttable presumption in favor of a common law marriage because she has not provided sufficient evidence of constant cohabitation and a reputation of marriage that is broad and general. First, there is insufficient proof of constant cohabitation.

Naomi and the NH have different addresses listed on their respective Master Beneficiary Records. Naomi also admitted that the house and household bills are in her name only.

Furthermore, while Naomi alleges that she and the NH enjoyed a reputation as husband and wife in Meshoppen, Pennsylvania, the NH's death certificate shows that he resided in Tunkhannock, Pennsylvania at the time of his death. Therefore, the evidence does not establish that Naomi and the NH lived together in a marital relationship.

Nor has Naomi established that she and the NH shared a broad and general reputation as husband and wife. Although Naomi submitted affidavits from the NH's siblings stating that she and the NH were husband and wife, "'[t]he mere fact that they . . . were known to a few people as man and wife is not sufficient evidence to establish marriage. Proof of reputation for such purpose must be general and not confided to a few persons in the immediate neighborhood . . . .'" In re M~, 159 A.2d at 700 (citations omitted). There is no evidence that Naomi assumed the NH's surname, and she admitted that no joint records exist between her and the NH. As such, Naomi has not provided sufficient evidence that she and the NH shared a reputation that was not partial or divided. Given all of the above, she cannot rely upon the rebuttable presumption in favor of a common law marriage.

We also note that Pennsylvania law has a presumption that a relationship that is illicit and meretricious at its inception, continues as such absent clear and convincing evidence that the parties subsequently entered into a valid marriage. Naomi advised the Court of Common Pleas in Susquehanna County, Pennsylvania that she and the NH entered into a common law marriage on June 6, 1994, after having resided together as unmarried individuals since 1988. As previously discussed, Naomi has not provided evidence of the words she exchanged with the NH to establish a present agreement to marry, and she admitted in her SSA-754-F4 that "there was no intent to marry." Accordingly, Naomi has not provided clear and convincing evidence that a change in the relationship occurred.

3. Even if a Rebuttable Presumption Existed in Favor of a Common Law Marriage, the Presumption Is Rebutted.

Assuming for sake of argument that a presumption in favor of a common law marriage between Naomi and the NH existed, the factual circumstances of this case rebut this presumption. Although Naomi alleges that a common law marriage existed since June 6, 1994, she reported in her SSA-754-F4 that "there was no intent to marry." In 1997, three years after Naomi alleged that she and the NH formed a common law marriage, both Naomi and the NH filed applications for retirement benefits stating that they were not currently married. When Naomi filed her application for retirement benefits, she could have filed for auxiliary spouse's benefits while the NH was alive. However, she did not make a claim for these benefits as the NH's common law wife while the NH was living and able to dispute this assertion. There is no evidence that Naomi assumed the NH's last name, and the NH's death certificate lists his marital status as divorced. The death certificate also shows that the parties did not live together at the time of the NH's death. Naomi admitted that she and the NH lived separately for three years, and the Agency's records show different addresses on the respective Master Beneficiary Records. Naomi reported that the house and household bills were only in her name, and that no joint records existed between her and the NH. Given the fact that Pennsylvania courts disfavor common law marriages as "fruitful source[s] of perjury and fraud," we believe the above-cited evidence is enough to rebut a presumption of a common law marriage.

4. The Agency Is Not Bound by the State Court's Order Finding a Common Law Marriage Between Naomi and the NH since June 6, 1994.

The Agency is not bound by a decision of a state trial court in a proceeding to which it was not a party, except where: (1) the decision involves an issue in a claim for Social Security benefits that has been determined by a state court of competent jurisdiction; (2) the 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. SSR 83 37c. Here, we believe the Agency need not follow the March 25, 2008 court order issued by the Court of Common Pleas Susquehanna County, Pennsylvania, finding that the NH and Naomi entered into a common law marriage on June 6, 1994. This is because the court's order does not meet the second and fourth prongs of the four-prong test outlined in SSR 83-37c.

a. The Court's Order Does Not Meet the Second Prong.

The court's decision does not meet the second prong of SSR 83-37c because there is no evidence that anyone genuinely contested the issue of whether Naomi contracted a common law marriage with the NH. The caption of the court's order states, "IN RE: THE COMMON LAW MARRIAGE OF NAOMI AND RUSSELL" and does not reflect a contested issue between two parties with competing interests. Although the court's order indicates that the decision was made after a hearing, it does not identify the parties or witnesses at the hearing, nor does it indicate that the order was issued after a "contested" hearing.

We note that the court's order contains findings that are inconsistent with the information the Agency collected. The court's order states that Naomi and the NH spoke words to each other with the specific intent to become husband and wife. The court's order also finds that Naomi and the NH cohabitated exclusively as husband and wife and enjoyed a reputation in Meshoppen, Pennsylvania as husband and wife. However, Naomi reported in her SSA 754 F4 that "there was no intent to marry." The Agency's Master Beneficiary Records for Naomi and the NH include two different addresses and the NH was domiciled in Tunkhannock, Pennsylvania, when he died. Naomi has not presented any evidence that she and the NH agreed to marry. She has not produced any documents, such as tax returns or insurance policies, identifying her and the NH as spouses, and she acknowledges that they held no joint records. Accordingly, given the inconsistencies in the court's order with the information that the Agency collected on issues essential to the formation of a common law marriage, we believe the Agency should not follow the March 25, 2008 court order obtained after the NH's death, absent evidence that the court's proceedings were genuinely contested.

b. The Court's Order Does Not Meet the Fourth Prong.

Finally, we question whether the court's order is consistent with the law enunciated by the Pennsylvania Supreme Court. The court's order finds that Naomi and the NH entered into a common law marriage on June 6, 1994 after having resided together since 1988. As previously explained, Pennsylvania Supreme Court cases identify a presumption that a relationship that is illicit and meretricious at its inception, continues as such absent clear and convincing evidence of a change in the relationship. See In re S~, 94 A.2d at 727. Here, the court's order finds that the parties resided together for six years before they entered into a common law marriage. However, the court's order does not indicate that it considered the presumption of a continued illicit and meretricious relationship, nor does it indicate that it required or found clear and convincing evidence to rebut the presumption. Accordingly, we do not believe the court's order is consistent

CONCLUSION

It is our opinion that a common law marriage did not exist between Naomi and the NH.

Michael McGaughran
Acting Regional Chief Counsel

By:______________________
Michelle Scotese
Assistant Regional Counsel

F. PR 05-083 Change in Pennsylvania Legislation; Abolishment of Common Law Marriages Contracted After January 1, 2005

DATE: January 26, 2005

1. SYLLABUS

The recent change in Pennsylvania law which abolishes common law marriage must be applied prospectively. If the factors to establish a common law marriage are met, the Agency must then determine the exact date on which they were met based on previously existing policy and procedure. If that date is on or before January 1, 2005, the Agency should award benefits without regard to the change in Pennsylvania law. If that date is after January 1, 2005, the Agency should deny benefits.

2. OPINION

QUESTION PRESENTED

You have requested an opinion as to the legal ramifications of a recent change in Pennsylvania law which abolishes common law marriages that are contracted between the parties after January 1, 2005. See 23 Pa. C.S.A. § 1103.

SUMMARY

The recent change in Pennsylvania law which abolishes common law marriage must be applied purely prospectively. The key date for determining the prospective application of the new law is the date on which the marriage was contracted, or the date on which the parties to the marriage actually expressed or proved a mutual intent to become husband and wife. Thus, the date of the application for benefits has no relevance in terms of Agency decision making. If there is clear and convincing evidence that the parties entered into a contract of marriage, without the necessary legal formalities or ceremony, on or before January 1, 2005, any application for benefits should be processed as if the new law has no effect. If the parties cannot establish that a contract of marriage took place, without the necessary legal formalities or ceremony, on or before January 1, 2005, any application for benefits based on the existence of a valid marital relationship should be denied.

DISCUSSION

On September 17, 2003, the Commonwealth Court of Pennsylvania rendered a decision in the case of PNC Bank Corp. v. Workers' Compensation Appeal Bd., 831 A. 2d 1269 (Pa. Cmmw. 2003), which abolished common law marriages in Pennsylvania. The court reasoned that the need for the judicially created doctrine of common law marriage no longer existed in modern society and that the doctrine had become fraught with perjury and fraud perpetrated by parties seeking to gain financial or other advantage. Id. at 1276-80. The Court expressed a desire for a bright line rule under which all parties contemplating marriage would understand their rights and responsibilities and obtain identical outcomes in terms of their receipt of the legal benefits of marriage. Id. at 1279-80. The Court also approved of the screening mechanisms provided by the formal marriage process and the reduction in litigation that would result from a clear and equitably applied rule. Id. At 1280-82.

In applying this change in the law, the Court determined that a purely prospective approach would be the most appropriate. Id. At 1283-84.

Accordingly, the Court specifically indicated that the rule abolishing common law marriage in Pennsylvania would affect only future cases. Id.

Although the Commonwealth Court of Pennsylvania ruled that it would no longer recognize common law marriage in Pennsylvania, the Social Security Administration (SSA) is not bound by a state court decision unless it is consistent with state law as interpreted by the highest court in the state.

On December 2, 2003, SSA issued EM-03111 emphasizing that Pennsylvania common law marriages were still recognized for social security purposes.

The decision in the PNC case resulted in confusion as to whether or not the Commonwealth Court of Pennsylvania had the authority to take action to abolish common law marriage, without a change in relevant legislation, through judicial decision making alone. Other Pennsylvania courts who considered the issue subsequent to the PNC decision specifically questioned the binding effect of the Commonwealth Court's decision. See Bell v. Ferraro, 849 A. 2d 1233, 1234-35 (Pa. Super 2004)(completely declining to apply the holding in the PNC case); Stackhouse v. Stackhouse, 862 A. 2d 102, 104-06 (Pa. Super 2004) (questioning, but accepting in general, the binding effect of the PNC decision).

The Pennsylvania legislature then took action to conform Pennsylvania statutory law to the Commonwealth Court's decision in the PNC case. On November 23, 2004, the General Assembly of the Commonwealth of Pennsylvania amended the Pennsylvania Code adding the following language:

[n]o common-law marriage contracted after January 1, 2005, shall be valid. Nothing in this part shall be deemed or taken to render any common-law marriage otherwise lawful and contracted on or before January 1, 2005, invalid.

Act No. 2004-144, H.B. No. 2719, amending 23 Pa. C.S.A. § 1103 (2004).

Pursuant to the Social Security Act (Act) and the regulations promulgated thereunder, the Agency looks to state law in establishing the status of particular family relationships as they relate to receipt of program benefits. 42 U.S.C. §§ 416(h)(1)(A)(i), (ii); 20 C.F.R. §§ 404.344, .345. In applying the above amendment to the Pennsylvania Code, the only relevant date for consideration by the Agency on any application for benefits that is dependent on the existence of a valid marriage is the date on which the marriage was contracted.

It is well settled under Pennsylvania law that a common law marriage has been contracted when there is testimony by the parties that there has been an exchange of words between them in the present tense spoken with the specific purpose of creating a legal relationship as husband and wife.

Staudenmayer v. Staudenmayer, 714 A. 2d 1016, 1020 (Pa. 1998). The parties must prove this verbal exchange of mutual intent by offering clear and convincing evidence. Estate of G~, 417 A. 2d 168, 171 (Pa. 1980). If testimony that there was a verbal exchange of a present intent to enter into a marriage is not available, a rebuttable presumption in favor of common law marriage is allowed where there is sufficient proof of continuous cohabitation and reputation of marriage in the general community.

S~ at 1021; Estate of M~, 159 A. 2d 697, 700 (Pa. 1960).

The courts have considered many individual factors in determining whether there has been a sufficient expression of a present intent to be married and/or of cohabitation and reputation, such as simultaneously executed written documentation, testimony of witnesses, use of joint bank accounts, and filing of joint tax returns. See generally, Giant. Workmen's Compensation Appeal Bd., 602 A. 2d 387, 389-90 (Pa. Cmmw. 1992); In Re Cummings Estate, 479 A. 2d 537, 541-43 (Pa. Super. 1984); Estate of R~, 480 A. 2d 327, 328-29 (Pa. Super. 1984); Torres v. Commonwealth of PA Dep't of Pub. Welfare, 393 A. 2d 1079, 1080 (Pa. Cmmw. 1978); In re M~'s Estate, 179 A. 599, 601-04 (Pa. 1935).

However, the Agency currently has its own internal policy for making this determination that basically replicates the requirements found in the pertinent court decisions. Pursuant to POMS GN 00305.060(A)(1), a common law marriage can be established when:

a. the marriage is entered into by mutual consent of the parties to become husband and wife from that time on and is not solemnized by a ceremony;

b. the parties have the intent to marry;

c. the parties consider themselves to be husband and wife;

d. the parties are legally capable of entering into a valid marriage.

In establishing whether these factors are met, the Agency traditionally looks to statements of the marital relationship from each spouse, statements regarding the marriage from a blood relative of each spouse, and other corroborating evidence, such as mortgage/rent receipts, insurance policies, medical records, and bank records. POMS GN 00305.060(B)(1)-(3).

Specifically in Pennsylvania cases, the Agency has issued a policy statement that the agreement to become husband and wife can be implied if the parties cohabitate as husband and wife for many years unless the parties did not agree to be husband and wife. POMS GN 00305-075(B).

Accordingly, the Agency should consider whether these factors are met in light of the particular evidence submitted with an application for benefits based on marital status. If these factors are met, the Agency must then determine the exact date on which they were met. If that date is on or before January 1, 2005, the Agency should award benefits without regard to the change in Pennsylvania law. If that date is after January 1, 2005, the Agency should deny benefits.

CONCLUSION

It is our opinion that, in all cases involving an alleged common law marriage in Pennsylvania, the Agency should first determine, based on previously existing policy and procedure, the exact date on which the marriage was contracted. If that date is after January 1, 2005, benefits must be denied as a result of the change in the law outlined above.

Donna L. Calvert
Acting Regional Chief Counsel

By:______________________
Amy E. Nalence
Assistant Regional Counsel

G. PR 04-220 Validity of Marital Relationship Between Number Holder (Brian) and Katera , SSN ~

DATE: May 14, 2004

1. SYLLABUS

The NH' s Islamic marriage to the claimant does not constitute a valid ceremonial marriage under Pennsylvania law. However, further development is necessary to determine whether the marriage is a valid marriage under Pennsylvania common law.

2. OPINION

BACKGROUND

The Number Holder, a resident of the Commonwealth of Pennsylvania, became entitled to disability benefits effective December 2000. In his application for benefits filed on February 14, 2001, he indicated that he had married Katera on February 19, 1998.

Katera filed an application for wife's benefits on January 7, 2004. In her application, she indicated that she had married the Number Holder on February 27, 1998, in Pennsylvania.

The Number Holder completed a Marriage Certification on January 9, 2004, in which he indicated that his marriage to Katera was performed by a clergyman. He also indicated that he had a prior marriage to Gail B~ in July 1992 which ended on September 26, 1996. Their Divorce Decree dated September 26, 1996, has been submitted as evidence.

Katera previously was married to Poindexter , Jr., from whom she was divorced on January 15, 1998, in Pennsylvania. Their Divorce Decree has been submitted as evidence.

The Number Holder and Katera's Islamic Marriage Certificate has been submitted as evidence of their relationship. The marriage certificate indicates that they were married on February 26, 1998, in Pennsylvania. The Number Holder and Katera stated that they never secured an application for a marriage license from Pennsylvania or any other legal source.

Katera has submitted an insurance policy from State Farm Life Insurance Company dated September 6, 1998. In this policy, under which she is the insured, the Number Holder is named as the designated beneficiary and has been identified as her spouse.

The Number Holder was insured with Metropolitan Life Insurance Company on April 2, 2001. In this policy, he named Katera as the designated beneficiary and identified her as his spouse.

DISCUSSION

To determine a claimant's relationship as an insured's spouse, the Commissioner looks to the law of the state where the insured had a permanent home when the claimant applied for spousal benefits. 20 C.F.R. § 404.345 (2003). If the claimant and the insured were validly married under state law at the time the claimant applies for wife's benefits, the relationship requirement will be met. 20 C.F.R. § 404.345 (2003). In the present case, the Number Holder was a resident of the Commonwealth of Pennsylvania when Katera applied for spousal benefits. Therefore, the law of Pennsylvania applies.

Two forms of marriage are recognized in Pennsylvania, namely, ceremonial, which involves a marriage performed by a religious or civil authority with the usual ceremony or formalities, and common law. Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1019 (1998). In the present case, Katera’s marriage to the Number Holder is a ceremonial marriage because it allegedly was performed by a religious authority with the usual ceremony and formalities.

Under Agency policy, the preferred proof of a ceremonial marriage includes one of the following:

  1. A copy of a public record of marriage, certified by the custodian of the record or by an authorized SSA, State Department, or VA employee;

  2. A copy of a religious record of marriage, similarly certified;

  3. The original certificate of marriage; or

  4. A foreign record which shows that the individuals are married. POMS GN 00305.020. An original certificate of marriage does not include a souvenir certificate of marriage.

Here, Katera has presented no evidence to satisfy the Agency's requirement for proof of a valid ceremonial marriage. For example, there is no evidence of a public record of marriage, a religious record of marriage, or a foreign record of marriage. Although she has presented an Islamic Marriage Certificate, this marriage certificate appears to be a souvenir certificate and not an original certificate of marriage. POMS GN 00301.050. A souvenir certificate is an original document given to an individual at the time of a ceremonial event that is not a custodian-issued certification of a record. POMS GN 00301.050. Katera Islamic Marriage Certificate does not contain a state or county seal or certification, suggesting that it is not a certification of a record. Moreover, both the signature line certifying that the certificate is a true extract from the Marriage Register, and its location, have been left blank.

Even if Katera's Islamic Marriage Certificate was sufficient proof of a ceremonial marriage under Agency policy, it would not satisfy the requirements of a valid marriage under Pennsylvania law. Pennsylvania requires that a marriage license be obtained in order to establish a valid marriage. 23 Pa. Con. Stat. § 1301. Here, Katera has indicated that she and the Number Holder have not obtained a state marriage license.

We have also considered whether Katera can establish that she and the Number Holder entered into a valid marriage under the common law of Pennsylvania. Under Pennsylvania law, a common law marriage can only be created by an exchange of words in the present tense, spoken with the specific purpose that the legal relationship of husband and wife be thereby created. Commonwealth v. Gorby, 588 A.2d 902, 907 (1991). A common law marriage contract does not require any specific form of words, and all that is essential is proof of an agreement to enter into the legal relationship of marriage at the present time. Estate of G~, 417 A.2d 168, 171 (1980). Here, the existence of the Islamic Marriage Certificate provides evidence in support of a finding that Katera and the Number Holder exchanged words in the present tense with the purpose of creating a legal relationship of husband and wife. However, under Agency policy, preferred evidence of a common law marriage includes completion of form SSA-754-F4 (Statement of Marital Relationship) from each spouse, and of form SSA-753 (Statement Regarding Marriage) from a blood relative of each spouse. POMS GN 00305.065. There is no evidence here that Katera or the Number Holder have submitted such forms as proof of their common law marriage. For these reasons, it is our opinion that further development is necessary to determine whether Katera and the Number Holder may establish a valid common law marriage under Pennsylvania law.

CONCLUSION

For the reasons stated above, it is our opinion that, under the controlling law of the Commonwealth of Pennsylvania, the Islamic marriage between Katera and the Number Holder is not a valid ceremonial marriage. It is also our opinion that further development is necessary to determine whether Katera and the Number Holder have established a valid marriage under Pennsylvania common law.

Patricia M. Smith
Acting Regional Chief Counsel

By:______________________
Anne von Scheven
Assistant Regional Counsel

H. PR 04-091 Michigan - Recognition of Common Law Marriage Based on Sojourn to Pennsylvania SSN: ~ Number Holder: Kenneth Claimant: Shirley, SSN ~ Your Reference: S2D5G6 Kenneth Our Reference: 04P037

DATE: March 5, 2004

1. SYLLABUS

The issue raised in this case is whether a Michigan court would recognize that a valid common-law marriage was created in Pennsylvania based on sojourns to Pennsylvania by the NH and the disabled widow claimant. If the NH and the claimant began living together before the NH's divorce from his prior wife, there must be clear and convincing evidence that the couple took some affirmative action to enter into a new agreement to be married during one of their visits to Pennsylvania. If the NH's marriage to his prior spouse ended before he began living with the claimant, it must be established that, during any sojourn to Pennsylvania, the couple exchanged words in the present tense spoken with the specific purpose that the legal relationship be created, as required under Pennsylvania law. There must also be sufficient evidence to raise a rebuttable presumption that a common-law marriage existed based on constant cohabitation and a broad and general reputation as husband and wife.

2. OPINION

You asked whether a Michigan court would recognize that a valid common law marriage was created in Pennsylvania based on sojourns to Pennsylvania by the wage earner, Kenneth, and the applicant for disabled widow's insurance benefits (DWIB), Shirley. We conclude that the information submitted to us is insufficient to support the conclusion that the couple entered into a valid common law marriage in Pennsylvania. We suggest, however, that further development might be undertaken on the issues of whether Kenneth's marriage to Kathy ended prior to the time he began living with Shirley and whether the Kenneth and Shirley had the general reputation as husband and wife.

BACKGROUND

Kenneth and Shirley were ceremonially married in Michigan on September 12, 1992. The materials you supplied to our office include a copy of the marriage certificate, which shows the groom's name as Kenneth and the bride's name as Shirley. Kenneth died on December 7, 1992, less than nine months after the date of his ceremonial marriage to Kathy. He was domiciled in Michigan at the time of his death. Shirley filed a DWIB application on January 26, 2004. (It appears from a report of contact, dated January 23, 2004, that a previous DWIB application was denied in 1997, that Shirley did not request reconsideration at that time, and that she now wishes to have the prior determination reopened for good cause.)

On her January 26, 2004 DWIB application, Shirley listed three previous ceremonial marriages for herself, the last to Sam , ending in divorce on January 1, 1977. Shirley reported that Kenneth had previously been married to Kathy on January 1, 1970 and that the marriage had ended in divorce on January 1, 1980. In the remarks section of her application, Kathy stated:

Kenneth and I began to live as husband and wife from about 1984. Our primary home was always Michigan. We lived together and considered ourselves married from 1984 until his death in 1992. Between 1984 and 1992 we traveled (sic) to Pennsylvania about 3 times. We spent between 3-7 days during the trips to Pennsylvania. While we were there we presented ourselves as husband and wife and all family members assumed we were married.

An SSA-754-F4, Statement Regarding Marriage, submitted by Shirley on January 26, 2004, indicates that the couple began living together some time in 1984 in Ypsilanti, Michigan and lived together continuous from that time until 1992. Shirley states that, when they began living together, she became known as Shirley and they recognized each other as husband and wife and understood that they would live together for the rest of their lives. Shirley checked the box indicating that she believed living together made them legally married and wrote, "We believed we were husband & wife." Although she indicated that there was an agreement to have a ceremonial marriage in the future, she wrote, "A piece of paper didn't seem to matter - we were already husband & wife but the ceremony was perform (sic)." Shirley reported that, after they started living together, there were no tax returns filed, deeds or contracts executed, insurance policies taken out, or bank accounts opened, although it appears that the couple had a carpet laying business. Shirley reported that she introduced Kenneth as her husband and he introduced her as his wife and that their mail was addressed to "Mr. & Mrs. Kenneth G~."

A report of contact on January 23, 2004 indicates that there are no known relatives of Kenneth who can supply an SSA-753, Statement Regarding Marriage. The materials you provided to our office, however, include the following statements from relatives of Shirley:

1. A statement from kenneth's uncle, Clark , indicating that the couple visited his home in Uniontown, Pennsylvania for three days in August 1988. Clark also completed an SSA-753, Statement Regarding Marriage, stating that he had known Kenneth since 1987 and that the couple had visited him and his wife for family reunions and at other times. Clark reported that he considered the couple to be husband and wife because Kenneth had been introduced to him as Shirley's husband and "it was a well known fact." He reported that they referred to each other as husband and wife during visits at his home, at the Shirley's home, and at family reunions and that, to his knowledge they had lived together in Michigan continuously from 1984 to 1992 and were generally known as husband and wife.

2. A statement from Dana , of Uniontown, Pennsylvania, indicates that the couple visited her in August 1986 to lay carpet in her home.

3. A statement from Shirley's aunt, Ferne, of Republic, Pennsylvania, indicates that she first met Kenneth at a family reunion in Uniontown, Pennsylvania in the summer of 1987, at which Shirley introduced him as her husband. The statement also indicates that Ferne "had received" Christmas cards signed "Kenny and Shirley." Ferne also completed an SSA-753, Statement Regarding Marriage, on which she reported that she had met Kenneth several times at family gatherings both in Pennsylvania and Michigan during the period 1987 until Kenneth's death in 1992 and that she believed the couple was generally known as husband and wife and had lived together continuously from 1984 until Kenneth's death.

4. An SSA-753, Statement Regarding Marriage, completed by Shirley's uncle, William , of Ypsilanti, Michigan, indicates that he had known Kenneth for about ten years before Kenneth's death and that he visited with the couple often at the couple's home and at family reunions in Uniontown, Pennsylvania. William reported that he considered the couple to be husband and wife because they "lived together as husband and wife and shared their responsibilities." He stated that the couple maintained a home in Ypsilanti, lived together continuously from 1984 until Kenneth's death, and were generally known as husband and wife.

You also provided our office with copies of what appear to be letters and cards that the couple exchanged during the course of their relationship:

1. What appears to be a handmade Sweetest Day card, dated October 15, 1988 to "Shirley" from "Ken" states, in part, "I will always (sic) have you and will do my best to make you happy. . . . You can depend on me every day of the year." The card does not refer to Shirley as his wife or to himself as her husband.

2. A letter dated June 4, 198 9, is addressed to "My Love" and is signed "Shirley." The letter states, in part, "we have been together 6 years . . . . my Lover, my Friend & my husband you mean the world to me and there will never be anyone else for me . . . I will always be by your side until (sic) the day I die."

3. A handmade birthday card, dated January 20, 1990, from "Kenny," states, in part, "through these coming years, I will always (sic) love you." The card does not refer to Shirley as his wife or to him as her husband.

4. A three-page letter to Shirley is captioned, "To my Loving Wife on our Anniversary - May 28 th, 1990 - From Her Loving Husband - Kenny." The letter, which is signed "Your Husband Kenny" states that, on May 28, seven years earlier he found the person with whom he wanted to spend the rest of his life and that she would never have to worry about his leaving her.

5. A handmade card, dated 1990, has "To my wife on Easter, I Love You" on the cover. The inside of the card conveys Easter wishes "to my wonderful wife," professes love for her that will never die, and is signed, "Love you forever, Kenny."

6. A letter, dated 1990, with no salutation or signature, states, in part, "We have been together since we met in June. And it has been just six short years. . . . And I know that we will last. Because I do love you."

7. A handmade birthday card, dated 1991, to "Shirley" from "Kenny" refers to her as "Honey" but does not contain any reference to their marital status.

The materials you provided also include several SSA screen printouts bearing Kenneth's name. One shows a marriage to Catherine on December 15, 1970 that ended in divorce on October 24, 1983. The printout indicates that proof of the divorce was not secured. The question about whether there were other marriages is answered in the negative, but the date of Shirley's ceremonial marriage to the wage earner, September 12, 1992, is listed following "date of marriage." We are unsure of the source of this information. Another printout lists Shirley as Kenneth's spouse, with September 12, 1992 as the marriage date. Yet another printout lists Kathy as spouse with a marriage date of January 1, 1970 and the marriage ending in divorce on January 1, 1980, with no proof secured. We presume that this particular printout reflects the information supplied by Shirley on her 2004 DWIB application.

DISCUSSION

To be entitled to DWIB, a claimant must be the deceased insured wage earner's "widow" and the marriage must meet a nine-month duration requirement. We look to the law of the State in which the wage earner was domiciled at death, Michigan in this case, to determine whether a claimant is the wage earner's "widow" for DWIB purposes. 20 C.F.R. § 404.345. A claimant is considered the wage earner's widow if she and the wage earner were validly married under State law at the time of the wage earner's death or if, under the law of the applicable State, the claimant could inherit the wage earner's intestate personal property as a spouse. 20 C.F.R. § 404.345. Shirley meets the definition of widow because she and Kenneth were ceremonially married on September 12, 1992 and there is no evidence in the materials supplied to us to indicate that the marriage was invalid or had terminated.

Kenneth died, however, less than nine months after his marriage to Shirley occurred on September 12, 1992. To be entitled to DWIB, the marriage must have lasted for at least nine months immediately preceding the wage earner's death. 20 C.F.R. § 404.335. There are several exceptions to the nine-month duration requirement, none of which appear to apply in Shirley's case. See 20 C.F.R. 404.335(a). Therefore, we look to Shirley's allegation that she and Kenneth had previously entered into a common law marriage. If the couple entered into a valid common law marriage that would be recognized by the State of Michigan and that continued until Kenneth's death, that marriage will fulfill the relationship and duration requirements for DWIB. See 20 C.F.R. §§ 404.335, 404.345. If the couple entered into a valid common law marriage that would be recognized by the State of Michigan, and that marriage lasted at least nine months but terminated at some later time, the combination of that common law marriage and the G~s' later ceremonial marriage would also meet the relationship and duration requirements for DWIB entitlement, provided that, at the time of the ceremonial marriage on September 12, 1992, Kenneth was expected to live for nine months. See 20 C.F.R. § 404.335(a)(2)(iii).

As of January 1, 1957, couples wishing to enter into a marriage in Michigan must not only be capable of consenting to the contract of marriage, they must also obtain a license and be ceremonially married in accordance with Michigan statutes. Michigan Compiled Laws Annotated (MCLA) § 551.2. Thus, effective January 1, 1957, couples are prohibited from entering into a common law marriage in Michigan. Id. See also, People v. Schmidt, 579 N.W.2d 431, 434 (Mich. App. 1998); In re Estate of B~, 486 N.W.2d 113, 114 (Mich. App. 1992) (citing In re Estate of B~, 329 N.W.2d 432 (Mich. App. 1983)). Michigan courts will, however, recognize common law marriages that were entered into before that date. In addition, Michigan follows the general rule that a marriage that is valid where it was contracted is valid everywhere. People v. Schmidt, 579 N.W. 2d at 434. Thus, the Michigan courts will recognize a common law marriage entered into January 1, 1957 or later in another State, so long as the common law marriage would be a valid marriage in the State where the marriage took place. In re Estate of B~, 486 N.W.2d at 114-15. In determining whether the marriage would be valid in the State where it was contracted, the Michigan courts look to the law of the State where the marriage was contracted to determine the legal requirements for a common law marriage and the sufficiency of the evidence. See People v. Schmidt, 579 N.W.2d at 434 (applying Alabama law where couple moved to Alabama with the intent to marry, lived together as husband and wife, and held themselves out to the public as married); In re Estate of B~, 486 N.W.2d at 114-15 (finding that a man's monthly visits to the woman's temporary residence in Texas were insufficient to meet the Texas requirement that the couple live together as husband and wife in Texas); In re Estate of B~, 329 N.W.2d at 434 (finding that alleged common law marriage during trip to Georgia was not valid where the couples did not meet Georgia's cohabitation requirement). Therefore, if the G~s entered into a common law marriage in Pennsylvania during one of their visits, and the marriage would be considered valid under Pennsylvania law, the courts of Michigan would recognize the marriage as valid and determine that Shirley was Kenneth's widow.

We were unable to locate any Michigan cases in which the issue was whether a valid common law marriage had arisen in Pennsylvania. Pennsylvania courts recognize common law marriages, at least those entered into prior to September 17, 2003. 5 The courts examine a purported common law marriage contract with "great scrutiny," as common law marriage is tolerated but not encouraged. In re Estate of G~, 417 A.2d 168, 171 (Pa. 1980); Staudenmayer v. Staudenmayer, 714 A. 2d 1016, 1019-20 (Pa. 1998). Whether a valid marriage exists is a mixed question of law and fact. In re Estate of C~, 479 A.2d 537, 541 (Pa. Super. 1984). In Pennsylvania, "a common law marriage can only be created by an exchange of words in the present tense, spoken with the specific purpose that the legal relationship of husband and wife is created by that." S~, 714 A. 2d at 1020. No specific words are required, but there must be "proof of an agreement to enter into the legal relationship of marriage at the present time," i.e., proof of a verba di praesenti exchange. Id. (citing In re Estate of G~, 417 A.2d 168, 171 (Pa. 1980)). The proof must be clear and convincing. See S~, 714 A. 2d at 1022 (upholding trial court's finding that alleged wife failed to prove clearly and convincingly that a common law marriage existed where alleged husband denied existence of a common law marriage and alleged wife was unable to recall the specific instance of when they said to each other that they were husband and wife or explain why they subsequently married ceremonially). Pennsylvania cases also recognize a rebuttable presumption that a common law marriage exists where the party claiming the existence of a common law relationship proves "(1) constant cohabitation; and, (2) a reputation of marriage 'which is not partial or divided but is broad and general'." S~, 714 A.2d at 1020-21 (quoting In re Estate of M~, 159 A.2d 697, 700 (Pa. 1960)).

Where the parties lived together unmarried up to the time of the alleged agreement to create a marriage relationship, however, the presumption of a common law relationship by cohabitation and reputation does not arise. A different presumption arises in such a situation, i.e., a relationship that is meretricious (characterized by living together as unmarried) at the start is presumed to continue as a meretricious relationship during the cohabitation of the parties. In re Estate of C~, 479 A.2d at 542. The presumption of a continued meretricious relationship can be rebutted only by clear and convincing evidence of the consent of both parties to enter into a valid marriage. Id. For example, where the cohabitation of the parties began while one of the parties was incompetent to marry because he/she was still married to someone else, it is presumed that the parties continued to live together as unmarried persons, even after the impediment to the marriage was removed. 6 Only clear and convincing evidence of a change in status can rebut this presumption. In re Estate of G~, 378 A.2d 307, 309 (Pa. 1977). The new agreement demonstrating a change in status cannot be merely an admission that the prior relationship, entered into while one party was married to someone else, still exists. There must be a new agreement to enter into the legal relationship of marriage at the present time - a new verba di praesenti. In re Estate of G~, 378 A.2d at 309, n. 7. In re Estate of G~, the court found sufficient evidence of a change of status where the husband showed the wife a copy of his divorce decree and stated, "Now we're legally married," the wife replied "It's about time," the wife began using the husband's name as her last name, and the husband named the wife as a spouse/beneficiary on a life insurance policy. 378 A.2d at 308-10. See also In re Estate of G~, 284 A.2d 742, 743-44 (Pa. 1971) (finding that presumption of continued meretricious relationship was rebutted where, subsequent to removal of the legal impediment, the husband, for purposes of exemption from military service, signed a statement, to which the wife also subscribed, declaring that he considered her to be his wife and stating that he was assuming the responsibilities of a husband and according her the rights and privileges of a wife).

The materials you sent to us are inconsistent regarding the date of Kenneth's divorce from Kathy . Shirley reported that the divorce occurred in 1981. There is an SSA screen printout, however, that indicates Kenneth's divorce from Kathy did not occur until October 24, 1983. This discrepancy is significant, since Shirley alleges that she and Kenneth considered themselves to be married from the time they began living together. Although Shirley's statements, and the statements of her relatives, indicate that the couple began living together as husband and wife sometime in 1984, a letter from Kenneth, dated May 28, 1990, states that it is their seventh anniversary, which would mean that the relationship probably began in May of 1983. Another letter from Kenneth, dated 1990, states that it has been six years since they met, which would mean the relationship began in 1984. A letter from Shirley , dated June 4, 1989, states that they have been together six years, which would mean that their relationship began in June 1983. We recommend further development on the issue of when Kenneth and Shirley began living together. If you determine that they began living together prior to Kenneth's divorce, the rebuttable presumption that a meretricious relationship continued after the divorce applies and, absent clear and convincing evidence that the couple took some affirmative action to enter into a new agreement to be married during one of their trips to Pennsylvania, i.e., that there was a verba di praesenti exchange during one of the trips, no common law marriage can be found and Shirley cannot be entitled to DWIB on Kenneth's account. We see no evidence of such a new agreement in the materials you provided.

If you determine that Kenneth was already divorced from Kathy when he and Shirley began living as husband and wife, or if you determine that Kenneth and Kathy were still married at the time but there is clear and convincing evidence that Kenneth and Shirley entered into a new agreement that they were married after Kenneth's marriage to Kathy ended, then we must determine whether a valid common law marriage arose during one of the couple's visits to Pennsylvania.

As stated above, a common law marriage will be established in Pennsylvania where there is a verba di praesenti exchange -- an exchange of words in the present tense, spoken with the specific purpose that the legal relationship of husband and wife be created by those words. S~, 714 A. 2d at 1020. There must be clear and convincing proof of an agreement to enter into the legal relationship of marriage at the present time. S~, 714 A.2d at 1020, 1022. Shirley's statement indicates that Shirley introduced Kenneth as her husband during a visit to Pennsylvania in the summer of 1987, but there is no indication that there was an exchange between them that demonstrated an intent to enter into a marriage at that time. The statements from Shirley's two uncles and Shirley also give no indication of such an exchange during that trip or the other two trips in 1986 and 1988. Absent from Shirley's statements is any mention that, during any of the trips to Pennsylvania, the couple exchanged any words to the effect that they were entering into a marriage and becoming husband and wife. Her statement that, during their trips to Pennsylvania, they presented themselves as husband and wife, while showing a mutuality not present in the other statements, still does not indicate that, on any one of those occasions, the couple entered into the necessary verba di praesenti exchange. This is particularly true in light of Shirley's statement that the relatives in Pennsylvania "assumed" they were married. The fact that, on May 28, 199 0, Kenneth wrote a letter indicating it was the couple's seventh anniversary also supports the conclusion that the necessary verba di praesenti exchange did not occur during any of the trips to Pennsylvania.

There is case law indicating that, at least in some instances, evidence of cohabitation and general reputation is insufficient to establish a common law marriage in the absence of a verba di praesenti exchange. In S~, the Pennsylvania Supreme Court found that constant cohabitation and general reputation as husband and wife did not raise a rebuttable presumption of common law marriage where both parties were alive and able to testify about the circumstances of the formation of the marriage contract. 714 A.2d at 1021. See also Commonwealth of Pa. v. Sullivan, 398 A.2d 978, 980 (Pa. 1979) (where issue was whether a woman could testify against her alleged common law husband, court found that the evidence established only a contract to enter into a marriage at some time in the future and stated, "Cohabitation and reputation cannot establish a marriage if the requisite contract was not entered into"). It is less clear whether the rebuttable presumption based on cohabitation and reputation can be raised where only one of the parties to the alleged marriage is available to testify about the formation of the marriage contract, or where there is no evidence of an verba di praesenti exchange. See In re N~'s Estate, 29 A.2d 521, 522 (Pa. 1943) (the rule permitting a finding of marriage based upon reputation and cohabitation alone is one of necessity "to be applied only in cases where other proof is not available," but not when the alleged widow is available to testify to the precise form of the alleged marriage contract). But see In re Estate of G~, 417 A.2d 168, 171-73 (Pa. 1980) (finding evidence refuted purported widow's allegation of verba di praesenti exchange, but also acknowledging presumption and noting that there was no evidence of constant cohabitation and general reputation to raise the presumption); Van Brakle v. Lanauze, 438 A.2d 992, 994 (Pa. Super. 1981) (finding that the appellee had failed to establish his ex-wife's subsequent common law marriage, either by evidence of verba di praesenti or by raising a presumption through evidence of cohabitation and reputation). Having located no subsequent Pennsylvania Supreme Court cases that contradict the approach used in In re Estate of G~, 417 A.2d at 171-73, we conclude that, unless both alleged spouses are available to testify about the formation of the marriage contract, an individual may rely on the rebuttable presumption established through evidence of constant cohabitation and general reputation. The federal cases in which the courts have sought to interpret Pennsylvania law on this subject bolster our conclusion. See Turner v. Barnhart, 245 F.Supp.2d 681, 683 (E.D. Pa. 2003) (interpreting Pennsylvania law to allow invocation of the rebuttable presumption where there is no evidence of a verba di praesenti exchange); Charmack v. Office of Personnel Management, No. 01-3278, 28 Fed. Appx. 927, 2001 WL 1398632 (Fed. Cir. Nov. 9, 2001 (unpublished case) (interpreting Pennsylvania law to allow common-law marriage to be established by rebuttable presumption where alleged husband admitted that, during the couple's one-month stay in Pennsylvania, there was no exchange of words in the present tense for the purpose of establishing the relationship of husband and wife); Renshaw v. Heckler, 787 F.2d 50, 52 (2d Cir. 1986) (interpreting Pennsylvania law as permitting a finding of marriage based on reputation and cohabitation where no utterance of words constituting a verba di praesenti exchange was proved); Cherry v. Secretary of HHS, No. Civ. 88-1226A, 1990 WL 357197 (NDNY) (April 17, 1990) (interpreting Pennsylvania law, court stated, "Proof of such agreement [to enter into the legal relationship of marriage at the present time] can be established directly, or circumstantially, by proof of cohabitation and reputation"), citing In re Estate of C~, 479 A.2d at 542.

The question remains, however, whether the information which you provided to our office regarding cohabitation and reputation is sufficient to raise the rebuttable presumption that a common law marriage exists. We conclude that there is not sufficient reputation evidence to raise the presumption. To raise the rebuttable presumption that a common law marriage exists, the party claiming the existence of a common law relationship must prove "(1) constant cohabitation; and, (2) a reputation of marriage 'which is not partial or divided but is broad and general'." S~, 714 A.2d at 1020-21 (quoting In re Estate of M~, 159 A.2d at 700). The couple's cohabitation must be "constant, as distinguished from an irregular or inconsistent cohabitation." Van Brakle v. Lanauze, 438 A.2d at 994 (quoting Estate of M~, 159 A.2d at 700). The statements and other evidence you provided appear to establish that Shirley and Kenneth cohabited continuously, both while in Pennsylvania and in Michigan, until Kenneth's death. None of the materials you provided give any contrary indication. Based on the statements you provided, we conclude that the requirement of "constant" cohabitation, is met.

We do not think, however, that the materials submitted to us establish that the reputation requirement is met. In In re Estate of R~, 480 A.2d 327 (Pa. Super. 1984), the court found that the couple neither engaged in constant cohabitation (they cohabited during alleged husband's visits to alleged wife's home in Florida, where the alleged common law marriage arose, but they did not cohabit at other times) nor general reputation. With regard to the reputation requirement, the court found it insufficient that a few Florida neighbors and the couple's son testified that the couple was known as husband and wife. The court stated, "The mere fact that they [the alleged contracting parties] were known to a few people as man and wife is not sufficient evidence to establish marriage. Proof of reputation for such purpose must be general and not confined to a few persons in the immediate neighborhood, as the relationship may be established merely for the purpose of deceiving others." In re Estate of R~, 480 A.2d at 329 (citations omitted). The Pennsylvania Supreme Court has used the same language. See In re Estate of M~, 159 A.2d at 700 (quoting In re H~'s Estate, 106 A. 69 (Pa. 1919). See also In re N~'s Estate, 29 A.2d 521, 523 (Pa. 1943) (quoting same language in finding that, although there was ample evidence of constant cohabitation, evidence of reputation was insufficient where there was testimony from one close friend and one border that the couple was known as husband and wife). 7 Although there are statements from a few of Shirley's relatives indicating that they knew the couple as husband and wife and that they believed the couple was generally known as husband as wife, we conclude that these statements do not establish a reputation of marriage which is "not partial or divided but is broad and general," as required by the Pennsylvania courts. Thus, the presumption of a common law marriage based on cohabitation and reputation does not arise based on the current evidence alone.

Moreover, there is information in the file that casts doubt on whether the couple's reputation as husband and wife was "not partial or divided" but "broad and general." S~, 714 A.2d at 1020-21 (quoting In re Estate of M~, 159 A.2d at 700). For example, the fact that Shirley and Kenneth later entered into a ceremonial marriage, although not dispositive, might indicate that they believed they were not legally married. See S~, 714 A. 2d at 1022 (wife unable to explain why, if couple had entered into a common law marriage, they later went through a ceremonial marriage). Also, we think it possible that Shirley misunderstood questions 13 and 14 on Form SSA-754-F4. It seems unlikely that she and Kenneth did not file any tax returns, execute any deeds, contracts, or insurance beneficiary forms, or maintain any bank accounts, either separately or jointly, during the course of their years together. This is particularly unlikely since it appears that the couple operated a carpet laying business during that time. Such factors are relevant to a determination as to whether there is sufficient evidence of reputation as husband and wife. In In re Estate of C~, 527 A.2d 1058 (Pa. Super. 1987) , the court affirmed a trial court's finding that there was insufficient evidence to establish general reputation within the community as a married couple. 527 A.2d at 1061. The court noted that title to property, which was purchased after cohabitation began, was in the alleged husband's name only, the couple had not filed any joint tax returns, the alleged wife had not identified herself as the wife at the hospital, and one of the husband's relatives had signed documents in connection with the husband's hospitalization. In C~, a federal court, interpreting Pennsylvania law, found that a common law marriage was not established where, although Pennsylvania relatives treated the couple as husband and wife during their visits, other evidence showed that the alleged wife did not change her name on her employment records, there was no joint ownership of property, they filed no joint income tax returns and had no joint bank accounts, and the alleged wife provided separately for disposition of her property to her children. 1990 WL 35197 at *2.

While we recognize the difficulties of developing evidence of events dating back to 1992 and earlier, we suggest that additional development be undertaken to determine whether the couple was generally known in the Ypsilanti, Michigan area as husband and wife and whether they held themselves out as husband and wife in conducting legal and business matters. Although Shirley has indicated that she does not know of any surviving relatives of Kenneth, perhaps statements could be secured from neighbors, friends, landlords, business associates, and others in the community, such as local merchants, suppliers to the couple's carpet laying business, customers, or members of a religious or fraternal organization, etc. to which the couple may have belonged. Documents such as mortgages, property titles, loan documents, leases, insurance forms, and tax returns would be helpful in determining the degree to which the couple held themselves out as husband and wife. If Shirley's prior DWIB application has been retained by the Agency, there might be helpful information on it. Did Shirley file a name change for her social security number at any point after she began living with Kenneth? Did she wear a wedding ring? Why did the couple enter into a subsequent ceremonial marriage and, if she was using the name (Shirley) G~ at the time, why does the marriage license show her last name as (Shirley)H~? Did she file an application with the Veterans Administration for any benefits based on Kenneth's military service, or did Kenneth file any documents with the Veterans Administration stating that he was married to Shirley?

If, after developing additional evidence, you conclude that there is insufficient evidence to show broad and general reputation as husband and wife, the rebuttable presumption of a common law marriage does not arise, and Shirley will not be entitled to DWIB on Kenneth's account. If you conclude that there is evidence of broad and general reputation, you may presume that a common law marriage was entered into in Pennsylvania that would be recognized in Michigan, unless you find that there is also clear and convincing evidence that contradicts the conclusion that the couple considered themselves to be husband and wife.

CONCLUSION

We conclude that further development should be undertaken to determine whether Kenneth's marriage to Kathy ended prior to the time he began living with Shirley . If you determine that Kenneth and Shirley began living together before Kenneth's divorce, a common law marriage between Kenneth and Shirley cannot be established absent clear and convincing evidence that the couple took some affirmative action to enter into a new agreement to be married during one of their visits to Pennsylvania.

Even if you determine that Kenneth's marriage to Kathy ended before he began living with Shirley , the information submitted thus far is not sufficient to support the conclusion that Shirley and the wage earner entered into a valid common law marriage in Pennsylvania that would be recognized by the Michigan courts. The information you provided does not establish that, during any sojourn to Pennsylvania, Shirley and Kenneth exchanged words in the present tense spoken with the specific purpose that the legal relationship of husband and wife be created, as required under Pennsylvania law. Nor is there sufficient evidence to raise a rebuttable presumption that a common law marriage existed based on constant cohabitation and a broad and general reputation as husband and wife. If you determine that Kenneth's prior marriage terminated before he began living with Shirley, we suggest further development on the issue of whether the G~s had the general reputation as husband and wife.

I. PR 99-110 Widow's application of Joan on the account of Frank , deceased wage-earner, SSN~

1. SYLLABUS

Pennsylvania statutory law follows its common law by providing that marriages within the prohibited degrees of consanguinity (including first cousins) are not void, but are voidable while both parties to the marriage are alive. Pennsylvania statutory law prohibits any proceeding to challenge the legality of a voidable marriage after the death of one of the parties.

Because it is often difficult to prove a common-law marriage or to demonstrate intent directly, Pennsylvania law recognizes a rebuttable presumption of common-law marriage where there is constant cohabitation and a broad, general reputation of marriage in the community.

2. OPINION

You asked us for an interpretation of Pennsylvania law, specifically whether the wage-earner, Frank , and Joan, who are alleged to be first cousins, could nonetheless intend to enter into and create a valid common-law marriage in Pennsylvania.

Our review of the documentation you provided us indicates that the wage-earner's surviving and legally-divorced former spouse has asserted that Frank and Joan are first cousins. Pennsylvania statutory law, 23 Pa.C.S. § 1304(e), provides that a marriage license may not be issued if the applicants are related within specified degrees of consanguinity, including if either the man or woman seeking the marriage license are first cousins.

However, Pennsylvania common law traditionally recognized that marriages between first cousins are not void at inception, but only potentially voidable by a party to the marriage. In re N~'s Estate, 20 Dist. 969, 59 Pitts. 465, 466 (1911) (holding that where marriage between first cousins took place after the passage of the Act the 1901 [the statutory predecessor to 23 Pa.C.S. § 1304] and was not questioned during its existence, the marriage was voidable and not void, so as to permit the widow to receive the decedent's estate.) See also Hornbake v. Hornbake, 72 Pa.Super. 605 (1919); M~'s Estate, 34 Pa.Super. 385 (1907) (holding that marriage licensure act is directory only, and not mandatory, and that a valid marriage can be contracted without such license).

While 23 Pa.C.S. § 1304(e) appears to create an impediment to a common-law marriage between first cousins, Pennsylvania statutory law follows its common law by providing that marriages within the prohibited degrees of consanguinity are not void, but are voidable while both parties to the marriage are alive. 23 Pa.C.S. § 1704. Section 1703 also appears to extend and change common law by prohibiting any proceeding to challenge the legality of a voidable marriage after the death of one of the parties. Section 1704 states that where a marriage otherwise voidable as within the prohibited degrees of consanguinity has "[n]ot been dissolved during the lifetime of the parties, the unlawfulness of the marriage shall not be inquired into after the death of either of the parties to the marriage."

The prohibition of inquiry into a marriage's legality after the death of a party to the marriage appears to reflect the traditional reluctance of courts to upset the rights of presumed legitimate children by invalidating a marriage. In re S~'s Estate, 116 A. 162, 165 (1922) ("When the lips of a man are sealed by death, and he leaves no satisfactory evidence as to the existence of such contract, courts will be very slow to establish it in derogation of the undoubted rights of those who follow him."); accord, O~'s Estate, 185 A. 790 (1936).

As indicated in the file, Joan and the wage-earner raised three children during the period of their alleged marriage. If the wage-earner, during his final months of life, had sought to avoid his support obligation to Joan and the children by asserting that he and Jane were first cousins, and therefore never legally-married, a Pennsylvania court would likely reject such a defense, to avoid bastardizing the children. In view of Section 1704, it appears to be too late for the wage-earner's surviving divorced spouse to challenge the legality

of the marital relationship based upon their alleged status as first cousins. Although our research has not found a factually similar case, we conclude that, even if SSA were to decide that Frank and Joan were first cousins, such an impediment would not be fatal to the creation of a common-law marriage. At best, their alleged status as first cousins would have given rise to a potentially voidable, rather than void, common-law marriage, if SSA determines that they intended and entered into a common-law marriage.

Joan has responded to the allegation that she and the wage earner were first cousins by averring that they "were and were not" first cousins. Joan alleges that although the wage- earner was raised by his parents as if he were their natural child, he was not in fact a natural child of the couple. She alleges that the wage-earner's father conceived him with another woman, and that in 1932, when the child was born, he and the wage-earner's mother agreed to raise the child as if he were their natural child. She further avers that the wage-earner never sought a marriage license in the years they were together because he was never told that they were not first cousins. Finally, she states that she would not have risked having three children with the wage-earner if they were in fact first cousins.

You have asked us whether Joan 's belief that she and the wage- earner were not first cousins establishes sufficient intent by her to enter into a common-law marriage. While we cannot provide you with a definition of intent in Pennsylvania that would precisely fit the facts of this case, we conclude that Joan's allegations, if found to be credible, would evidence her intent to enter into a common-law marriage, particularly when considered in conjunction with their ongoing relationship and raising of three children.

Because it is often difficult to prove a common law marriage or to demonstrate such intent directly, Pennsylvania law recognizes a rebuttable presumption of common-law marriage where two essential elements are present: constant cohabitation and a broad, general reputation of marriage in the community. DeMedio v. DeMedio, 257 Pa.Super. 290 (1969). Section 1704 appears to foreclose any inquiry into whether the wage-earner could have voided the marriage while he was alive. However, the material you provided us shows that Joan and the wage-earner lived together between 1963 and 1997, entered into a mortgage as husband and wife, filed federal tax returns jointly, and raised three children. There are statements by other family members that they were viewed as husband and wife. We recognize that SSA will need to make the determination as to the existence of a common-law marriage, but we can find nothing in the materials provided to us suggesting that either Joan P~ or the wage-earner lacked the requisite intent to enter into a common-law marriage.


Footnotes:

[1]

The Program Operations Manual System (POMS) describe the type of documentation that an applicant should supply where he or she claims to have a common law marriage to a deceased individual. POMS GN 00305.065. The "preferred evidence" includes: (1) an SSA-754-F4 from the surviving spouse; (2) an SSA-753 from a blood relative of the surviving spouse; and (3) SSA-753s from two blood relatives of the deceased person. POMS GN 00305.065.2.a.

[2]

In SSR 83-37c the Agency adopted the Sixth Circuit's decision in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1990), outlining the four-prong test used by the Agency to determine whether it is bound by a state court decision. Although the text of SSR 83-37c states in the first prong that the court decision must pre-date the issue in a claim for Social Security benefits, the Agency's policy is to apply the four-prong test to final decisions if the applicant submits the state court decision within four years of the initial determination. POMS PR 04805.039 (discussing the effect of a post-determination state court ruling as new and material evidence)

[3]

An applicant is also a widow of the insured if the intestate laws of the state of the NH's domicile at the time of his death would allow her to inherit a widow's share of the insured's personal property. 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345; POMS GN 00305.005. As we ultimately determine that Ms. J~ did not contract a common law marriage with the NH, she would not be entitled to inherit a widow's share of the NH's personal property if he died intestate.

[4]

On November 23, 2004, the General Assembly of the Commonwealth of Pennsylvania abolished common law marriages contracted after January 1, 2005. However, the General Assembly provided that, "[n]othing in this part shall be deemed or taken to render any common-law marriage otherwise lawful and contracted on or before January 1, 2005, invalid. Act No. 2004-144, H.B. No. 2719, amending 23 Pa. C.S.A. § 1103 (2004). Therefore, if a marriage is contracted on or before January 1, 2005, the Agency should award benefits without regard to the change in Pennsylvania law. See POMS PR 05605.042 (explaining how the Agency should evaluate applications for benefits where an applicant's alleged entitlement is based upon a common law marriage contracted in Pennsylvania).

[5]

Although a Commonwealth Court of Pennsylvania (an appellate level court) recently ruled that the doctrine of common law marriage was abolished, the court stated that the holding would have purely prospective effect, i.e., only attempted common law marriages entered into after September 17, 2003 would be invalid. PCN Bank Corporation v. Workers' Compensation Appeal Board, 831 A.2d 1269, 1282-83 (Pa Commw. 2003). The decision has no effect on the outcome in Shirley's situation, as she alleges that the she and Kenneth entered into a common law marriage prior to September 17, 2003. Moreover, the Supreme Court of Pennsylvania has not abolished common law marriage, and the Social Security Administration is not bound by a State court decision unless it is consistent with the rulings of the State's highest court. The Social Security Administration continues to follow POMS instructions which state that Pennsylvania common law marriages are recognized.

[6]

A statute provides that, under certain conditions, a couple's ceremonial marriage becomes a valid marriage as of the date the impediment is removed, i.e., the date the prior marriage to someone else is terminated by death, divorce, or annulment. 23 Pennsylvania Statutes and Consolidated Statutes Annotated (PA C.S.A.) § 1702. That statute, however, does not apply to validate an attempted common law marriage. See id. See also Covington v. Covington, 617 A.2d 1318, 1320 (Pa. Super. 1992) (curative statute not applicable to a marriage not entered into pursuant to the statutory requirements of licensing and ceremonial marriage registered in marriage license bureau). Similarly, Social Security's deemed widow provision will not apply where the attempted marriage was not a ceremonial marriage. 20 C.F.R. § 404.346.

[7]

In a letter dated January 19, 2004, Shirley‘s representative cited Renshaw v. Heckler, 787 F.2d. 50 (2d Cir. 1986), in support of Shirley's claim. In that case, a woman had applied for Social Security widow's benefits, claiming that she and the wage earner, who died domiciled in New York, had a valid common law marriage under the law of Pennsylvania. The couple had traveled with relatives through Pennsylvania during eight trips to Virginia and North Carolina. 787 F.2d at 51-52. The court noted that there were no Pennsylvania cases directly on point and relied on two New York cases to conclude that a New York court would find that the couple had contracted a valid common law marriage in Pennsylvania. 787 F.2d at 53. The court found that, although the alleged widow had provided no proof of verba di praesenti, she had presented proof of cohabitation and reputation. Id. Noting that the evidence of reputation was not extensive, the court relied on the fact that the couple had held themselves out as husband and wife to the three people they knew who they saw in Pennsylvania -- his mother, her brother, and their daughter -- in addition to the husband making a telephone reservation for a room for himself, his "wife," and their daughter. Id. The court wrote, however, "In different circumstances, such facts alone might not prove sufficient." Id. Thus, the court did not rely solely on those Pennsylvania contacts to establish the presumption of common law marriage based on cohabitation and reputation. The court also noted that there was uncontroverted evidence with regard to the couple's relationship over 21 years, the couple's intent to live as husband and wife during that time, and the fact that all of the couple's relative, friends, and acquaintances considered them to be husband and wife. Id. The evidence in R~ established that the wife assumed the husband's last name and wore a wedding ring, the couple filed joint tax returns as husband and wife, and the husband listed the wife as his wife and beneficiary on his life insurance policy. 787 F.2d at 51. Thus, the claimant in R~ had submitted substantially more evidence of reputation than has Shirley. Therefore, while we agree that the standards described in R~ would apply here, we believe Shirley has not yet met those standards. Moreover, we note that the facts of the two New York cases relied upon in R~ also differ significantly from Shirley's situation. See 787 F.2d at 51. In McCullon v. McCullon, 410 N.Y.S.2d 226 (NY Sup. 1978), the couple filed joint tax returns, maintained joint accounts, and shared title to their home as husband and wife. 410 N.Y.S.2d at 227. In addition, the wife wore a wedding band, assumed her husband's last name, and worked in the home, caring for the couple's three children. 410 N.Y.S.2d at 227-28. In the other case relied upon in R~, the court relied on the fact that, not only did the couple hold themselves out as husband and wife during a one-month stay in Pennsylvania, they also conducted themselves as husband in wife in New York, where they lived, and on visits to Washington D.C. Skinner v. Skinner, 150 N.Y.S.2d 739, 741 (NY Sup. 1956). The couple held joint title to their home and automobiles as husband and wife, were known as husband and wife at church and social functions, and registered for accommodations as husband and wife while traveling. Id.


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PR 05605.042 - Pennsylvania - 04/16/2014
Batch run: 04/16/2014
Rev:04/16/2014