The number holder (NH) was domiciled in South Carolina at the timed of his death; therefore, we look to the South Carolina law to determine if the Claimant and NH had a valid common-law marriage. We believe South Carolina courts would find that the Claimant and the NH had a valid common-law marriage under South Carolina law from 1984 until the NH’s death in 2010. We believe South Carolina courts would find that the Claimant has proven by clear and convincing evidence that she and the NH mutually agreed and intended to be married while living in South Carolina, and thus, had a valid common-law marriage under South Carolina law. As such, there is legal support for the agency to find that the Claimant is the NH’s widow under the Act for purposes of determining her entitlement to widow’s insurance benefits on the NH’s record.

QUESTION PRESENTED

W1~ (Claimant) filed an application for widow’s insurance benefits under Title II of the Social Security Act (Act) on the record of the deceased number holder (NH) C~, as his widow. The NH died domiciled in South Carolina. You asked whether the Claimant and the NH had a common-law marriage under South Carolina law such that the Claimant is the NH’s widow for Title II benefit purposes.

ANSWER

We believe South Carolina courts would find that the Claimant and the NH had a valid common-law marriage under South Carolina law from 1984 until the NH’s death in 2010. Thus, we believe South Carolina courts would find the Claimant was validly married to the NH at the time of his death on May XX, 2010. As such, there is legal support for the agency to find that the Claimant is the NH’s widow under the Act for purposes of determining her entitlement to widow’s insurance benefits on the NH’s record.

BACKGROUND

You advised that the NH died on May XX, 2010, domiciled in South Carolina. The Claimant filed an application for widow’s insurance benefits on the NH’s record claiming she and the NH were common-law marriage.

An agency report of contact reflects the following information obtained from the Claimant. The Claimant alleged that she and the NH were living together as common-law spouses at the time he died on May XX, 2010. She alleged that they had been living together in South Carolina as spouses since 1991 and lived together until his death. She acknowledged that when they each filed earlier applications for benefits with SSA, neither reported that they were married. She also acknowledged that they never filed taxes as a married couple. She also stated that the NH proposed to her several times, but they never married. The Claimant’s SSI application that she filed in 2015 showed her address South Carolina and agency records show this to be the same residence address for the NH when he was living.

The Claimant completed the Form SSA-754 Statement of Marital Relationship on July XX, 2023. She reported that she and the NH began living together as spouses in February 1984 and continuously lived together in South Carolina for 26 years until the NH’s death in 2010. She reported that they “assumed the same relationship as husband and wife” and they “lived and did everything a married couple did.” She identified neighbors, friends, and relatives who knew of their relationship.

The Claimant provided the following documents to support her common-law marriage claim:

• A life insurance policy from Life Insurance Company of Georgia identifies the NH as the insured person and states that the policy was issued in March 1998. In the application for this life insurance policy, the NH identifies the Claimant as the beneficiary and the relationship is listed as his “CLW” (presumably common-law wife). The NH signed and completed this application in 1998.

• The Claimant similarly applied for life insurance. Her application for life insurance is signed and dated by the Claimant in 2003, and she identifies the NH as her beneficiary and the relationship is listed as her “CLH” (presumably common-law husband). •

A copy of the NH’s obituary states that the NH was survived by “his wife, [the Claimant].” •

A “certificate of appointment” filed July XX, 2010, in the probate case for the NH upon his death (In the Matter of C~, Marion County, South Carolina, Probate Court) named the Claimant as the NH’s personal representative.

• A “deed of distribution” filed May XX, 2011, in the probate case for the NH upon his death for property at South Carolina released the property to the Claimant.

• A Marion county property tax receipt for 2011 shows both the NH and the Claimant as owners of the house at South Carolina.

Two of the NH’s relatives provided statements to the agency in support of the Claimant’s common-law marriage with the NH, as follows:

• The NH’s sister, W2~, provided a statement on the Form SSA-795 on May XX, 2023, that the Claimant and the NH lived together for 26 ½ years and “she was his wife to him and is my family.” The NH’s sister also completed the Form SSA-753 Statement Regarding Marriage on July XX, 2023. She reported that the NH and the Claimant were generally known as a married couple and she considered them married, noting that they lived together for over 26 ½ years and she would always treat the Claimant like a sister. She always heard the NH and the Claimant refer to one another as spouses. In her opinion, they maintained a home and lived together continuously as a married couple in South Carolina from 1984 until the NH’s death in 2010.

• The NH’s stepmother, J~, provided an identical statement on the Form SSA-795 on May XX, 2023, that the Claimant and the NH lived together for 26 ½ years and “she was his wife to him and is my family.” The NH’s stepmother also completed the Form SSA-753 Statement Regarding Marriage on July XX, 2023. She reported that the NH and the Claimant were generally known as a married couple and she considered them married. She wrote: “they lived together for over 26 ½ years” and the Claimant “will always be part of the family.” She heard the couple refer to each other as spouses. In her opinion, they maintained a home and lived together continuously as a married couple in South Carolina from 1984 until the NH’s death in 2010.

ANALYSIS

A. Federal Law: Entitlement to Widow(er)’s Insurance Benefits as a Widow(er) ^[1]

Under Title II of the Act, a claimant may be entitled to widow(er)’s insurance benefits on a deceased insured individual’s record if, among other requirements, the claimant is the widow(er) of the insured individual and their marriage relationship lasted at least nine months before the insured individual died.^[2] See 42 U.S.C. §§ 402(e), (f), 416(a)(2), (c), (g); 20 C.F.R. § 404.335.

The agency will find a claimant to be an insured individual’s widow(er) if the courts of the State in which the insured individual was domiciled at the time of death would find that the claimant and the insured individual were validly married at the time the insured individual died, or if, under application of that State’s intestate succession laws, the claimant would be able to inherit a spouse’s share of the insured individual’s personal property. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. It is our understanding that the NH was domiciled in South Carolina when the NH died in 2010. Therefore, we look to South Carolina law to determine if the Claimant is the NH’s widow.

B. South Carolina State Law: Valid Marriage or Inheritance of a Spouse’s Share under Intestate Succession Law

1. South Carolina Law Regarding Common-Law Marriage

a. Common-Law Marriage Entered into Prior to July 24, 2019

South Carolina recognizes common-law marriages entered into in the State before July 24, 2019. See Stone v. Thompson, 833 S.E.2d 266, 267, 269-270 (S.C. 2019) (abolishing common-law marriage in South Carolina, stating “from this date forward—that is, purely prospectively—parties may no longer enter into a valid marriage in South Carolina without a license”).

b. Burden of Proof: Clear and Convincing Evidence

The South Carolina Supreme Court in Stone not only abolished establishment of new common-law marriages in South Carolina prospectively from the date of the decision, but also “update[d] the standards courts are to apply in future common-law marriage litigation.” Stone, 833 S.E.2d at 270. The South Carolina Supreme Court held that the heightened burden of proof of clear and convincing evidence now applied where courts had previously applied a preponderance of the evidence burden of proof. Id. at 267, 269-271. Additionally, prior South Carolina case law provided that cohabitation and a reputation in the community as being married created a rebuttable presumption that a common-law marriage existed, but the South Carolina Supreme Court in Stone held that courts should no longer apply such presumptions. Id. at 271 (“Courts may continue to weigh the same circumstantial factors traditionally considered, but they may not indulge in presumptions based on cohabitation, no matter how apparently matrimonial.”).

We recognize that prior to Stone, there had been some inconsistencies among South Carolina courts in the standard of proof applied to determine a common-law marriage where one party to the purported marriage was deceased (which is the case in a claim, such as the present one, for surviving spouse’s benefits where the NH is deceased). See In re Estate of Duffy, 707 S.E.2d 447, 450 (S.C. Ct. App. 2011) (in a probate court case, the court explained that because the plaintiff sought to establish the existence of a common-law marriage after the death of the decedent, section 62-2-802(b)(4) of the South Carolina Code required proof by clear and convincing evidence); Barker v. Barker, 499 S.E.2d 503, 507 (S.C. Ct. App. 1998) (in a probate court case, the court stated that the claimant had the burden of proving a common-law marriage by a preponderance of the evidence); see also Williams v. Saul, 2020 WL 1303146, at *2 n.2 (D.S.C. March 19, 2020) (in affirming the Commissioner’s final decision denying the claim for widow’s benefits, the court found the ALJ properly applied the preponderance of the evidence standard of proof in considering whether the claimant had proven a common-law marriage under South Carolina law). However, the Court in Stone made clear that for “future common-law marriage litigation” involving living litigants alleging a common-law marriage and those alleging a common-law marriage in which one purported spouse is deceased, the standard of proof is clear and convincing evidence.

Finally, we emphasize that the Act instructs the agency to determine whether the South Carolina Supreme Court would find that the Claimant and the NH were validly married at the time the NH died, or if, under application of South Carolina’s intestate succession laws, the Claimant would be able to inherit a spouse’s share of the NH’s personal property. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. Here, the NH died on May XX, 2010; Claimant applied for widow’s benefits with the agency in 2023; and the agency is presently adjudicating this claim for benefits. The Claimant is seeking to establish a common-law marriage entered into prior to July 24, 2019. We believe that the South Carolina Supreme Court would require application of the post-Stone clear and convincing standard of proof if the Court were today to determine the marital status of the couple at the time of the NH’s death on May XX, 2010, particularly given the Court’s language in Stone explaining why the Court adopted a heightened burden of proof for common-law marriages entered into prior to July 24, 2019. See Stone, 833 S.E.2d at 271 (“[C]onsistent with our preceding discussion regarding the sanctity of a marital relationship and our reticence to impose one on those who did not fully intend it, we believe a heightened burden of proof is warranted. Therefore, we hold the ‘clear and convincing evidence’ standard utilized in probate matters should also apply to living litigants.”). Furthermore, application of the clear and convincing standard of proof to all claims adjudicated by the agency post-Stone ensures consistency in the agency’s evaluation of similar claims under South Carolina law, which we believe is also consistent with the South Carolina Supreme Court’s reasoning in the Stone decision. See id. at 270 (“Our public policy is to promote predictable, just outcomes for all parties involved in these disputes, as well as to emphasize the sanctity of marital union. We can discern no more efficacious way to fulfill these interests than to require those who wish to be married in our State to comply with our statutory requirements.”).

Thus, under South Carolina law, the party asserting that he or she entered into a common-law marriage in South Carolina before July 24, 2019, has the burden of proving the elements of a common-law marriage by “clear and convincing evidence.” Stone, 833 S.E.2d at 271. “This is an intermediate standard—more than a preponderance, but less than beyond a reasonable doubt—and requires a party to show a degree of proof sufficient to produce a firm belief in the allegations sought to be established.” Id.

c. Mutual Assent to be Married

Under South Carolina law:

A common-law marriage is formed when the parties contract to be married, either expressly or impliedly by circumstance. The key element in discerning whether parties are common-law married is mutual assent: each party must intend to be married to the other and understand the other’s intent.

Stone, 833 S.E.2d at 270 (internal citations and footnote omitted). In addition:

A party is not required to show his opponent had legal knowledge of common-law marriage; ignorance of the law remains no excuse. He must demonstrate that both he and his partner mutually intended to be married to one another, regardless of whether they knew their resident state recognized common-law marriage or what was required to constitute one.

Id. at 271. In discerning parties’ mutual assent and intent to be married, “[c]ourts may continue to weigh the same circumstantial factors traditionally considered, but they may not indulge in presumptions based on cohabitation, no matter how apparently matrimonial.” Id. Some of the factors relevant in discerning parties’ mutual assent and intent to be married include such things as cohabitating; introducing themselves as spouses in public; filing joint tax returns; identifying parties as spouses on documents filed under penalty of perjury; entering into contracts together; holding joint bank accounts; and raising children together. See id. at 270, 272-274.

In summary, consistent with the new standards for evaluating common-law marriage claims under South Carolina law set forth in Stone, “a party asserting a common-law marriage is required to demonstrate mutual assent to be married by clear and convincing evidence.” Id. A party can do so through direct evidence of an express contract to be married or circumstantial evidence. Id. at 270. We next consider whether the Claimant has provided such clear and convincing evidence – proof sufficient to produce a firm belief - of a mutual assent to be married between Claimant and NH.

2. Application of the Law to the Claimant’s Common-Law Marriage with the NH

a. Common-Law Marriage Entered Into Prior to July 24, 2019

The Claimant has alleged that her marriage to the NH began in 1984 and continued until the NH’s death in 2010. The NH’s sister and stepmother corroborated the couple’s 26 years together in South Carolina prior to his death in 2010.^[3] This meets the requirement under Stone that the common-law marriage must be entered into prior to July 24, 2019.

b. Mutual Assent to be Married by Clear and Convincing Evidence

The Claimant has provided her own statement, statements from two of the NH’s relatives, and documents to support her common-law marriage claim.^[4] As we consider whether this evidence establishes mutual assent to be married, we note again that some factors relevant in discerning parties’ mutual assent and intent to be married include such things as filing joint tax returns; identifying parties as spouses on documents filed under penalty of perjury; entering into contracts together; introducing themselves as spouses in public; holding joint bank accounts; cohabitating; and raising children together. See Stone, 833 S.E.2d at 270, 272-274.

The Claimant’s statements support a mutual assent to be married. She reported that she and the NH began living together as spouses in February 1984 and continuously lived together in South Carolina for 26 years until the NH’s death in 2010. She reported that they “assumed the same relationship as husband and wife” and they “lived and did everything a married couple did.” She identified neighbors, friends, and relatives who knew of their relationship. The Claimant’s statements and their 26 years together are supportive of a mutual agreement to be married.

Documentary evidence corroborates that they lived together in the same house in South Carolina for 26 years and shows conduct consistent with marriage such as co-owning a home and paying property taxes together and naming one another as beneficiaries of life insurance policies in 1998. On their life insurance policy applications, the NH identified the Claimant’s relationship to him as his “CLW” and the Claimant identified the NH’s relationship as her as her “CLH.” Most likely, these abbreviations for the relationship indicate common-law wife and common-law husband. The NH’s obituary published at the time of his death states that he was survived by “his wife,” the Claimant.

Additionally, the witness statements on the Form SSA-753 from two of the NH’s relatives establish their cohabitation and representation to others of being married. The NH’s relatives’ statements are supportive of Claimant’s common-law marriage claim. The NH’s sister reported that the Claimant and the NH were generally known as a married couple, and she considered them to be a married couple based on their 26-year relationship living together. She heard them refer to one another as spouses. In her opinion, the Claimant and the NH maintained a home and lived together continuously as a married couple in South Carolina from 1984 until the NH’s death in 2010. Similarly, the NH’s stepmother reported that the NH and the Claimant were generally known as a married couple and she considered them married. She wrote: “they lived together for over 26 ½ years” and the Claimant “will always be part of the family.” She heard the couple refer to each other as spouses. In her opinion, they maintained a home and lived together continuously as a married couple in South Carolina from 1984 until the NH’s death in 2010.

Although the Claimant admitted that she and the NH did not report being married on their earlier Social Security benefit applications or in filing taxes, it is unclear whether they believed a South Carolina common-law marriage – as opposed to a ceremonial marriage – should be reported on such government documents. If they understood marriage in the government forms included common-law marriage, this would provide an inconsistency to the Claimant’s common-law marriage claim. It is possible that they wanted to avoid any penalties or reduction in benefits associated with a marriage. These actions cast some doubt on the common-law marriage claim. However, based on the totality of the evidence provided, including two supportive statements from the NH’s relatives and the longevity of their 26-year relationship, we believe South Carolina courts would find that their conduct overall is sufficient to provide a firm belief that they had a mutual agreement to enter into a common-law marriage while living in South Carolina. See Stone, 833 S.E.2d at 270; see also Stiggers-Smith v. Smith, 2009 WL 9527554, at *3-5 (S.C. Ct. App. March 2, 2009) (holding evidence supported family court’s decision that couple’s actions after moving to South Carolina, including holding themselves out to the community as married and purchasing property while living in the State, demonstrated an intent to enter into a common-law marriage while living in South Carolina).

In summary, unlike the evidence in Stone, which the court found to be “decidedly mixed” and conflicting as to the parties’ intent, in the present matter, the evidence as a whole as presented in the witness statements from the NH’s own relatives and documents is all generally consistent and supportive of Claimant’s common-law marriage with NH, with the exceptions noted above. See Stone, 833 S.E.2d at 273 (reversing the family court’s order and finding the evidence to be conflicting and insufficient to prove the mutual intent required for a common-law marriage); Powell v. Dolin, 879 S.E.2d 26, 32-33 (S.C. Ct. App. 2022) (finding that the evidence considered in determining intent was conflicting and “decidedly against a finding of common-law marriage”). We believe South Carolina courts would find that the Claimant has proven by clear and convincing evidence that she and the NH mutually agreed and intended to be married while living in South Carolina, and thus, had a valid common-law marriage under South Carolina law that began in 1984 and continued for 26 years until the NH’s death in 2010.

CONCLUSION

We believe South Carolina courts would find that the Claimant and the NH had a valid common-law marriage under South Carolina law from 1984 until the NH’s death in 2010. Thus, we believe South Carolina courts would find the Claimant was validly married to the NH at the time of his death on May XX, 2010. As such, there is legal support for the agency to find that the Claimant is the NH’s widow under the Act for purposes of determining her entitlement to widow’s insurance benefits on the NH’s record.

According to SSR 83-37c SSA's determination as to whether the claimant is entitled to benefits as the NH's widow is not bound by the probate court finding that the claimant was NH's common-law wife. We cannot conclude from the court order or the guardian ad litem's report that the issue of Claimant's status as NH's common-law wife was genuinely contested by parties with opposing interests. Thus, the order of the probate court is not convincing evidence of Claimant's common-law marriage. The NH and claimant's signed statement that they were in a marital relationship even though they never had a marriage ceremony, provides strong support of mutual assent. Signed statements from blood relatives were not obtained. If the claimant cannot provide preferred evidence of a common-law marriage, he or she must explain why and provide other convincing evidence of marriage.

QUESTION

Whether the evidence provided by Chasity Sanders (Claimant) meets the requirements of South Carolina law to establish a common-law marriage to Jerry Powell, the number holder (NH).

ANSWER

For the reasons stated below, we believe the evidence is sufficient under South Carolina law to establish Claimant is NH's common-law wife. Our conclusion is not based on the court order from Anderson County, South Carolina, Probate Court because the order does not meet the prerequisites set forth in Social Security Ruling (SSR) 83-37c. Rather, the evidence we found compelling under South Carolina law is the mutual statements Claimant and NH provided on August 20, 2004, stating they were in a marital relationship even though they had not had a marriage ceremony.

BACKGROUND

On November 21, 2005, after NH's death on October 25, 2005, Claimant, the mother of NH's child, filed a claim for survivor benefits for the child. The child was born June 21, 2003, and NH's paternity of the child is not disputed. On September 29, 2006, Claimant filed a claim for mother's benefits and submitted a September 8, 2006, court order from the Anderson County, South Carolina Probate Court finding she was NH's common-law wife. Agency documents show NH applied for title II benefits in May 2003 and stated he had never been married. He applied for title XVI benefits in August 2004 and stated he and Claimant considered themselves to be in a marital relationship, that they had been living together since their son was born, and were engaged. He stated he had been living at his address since he was born in 1966. The same address is shown as Claimant's address on her driver's license and motor vehicle tax records.

On August 20, 2004, NH and Claimant each signed separate but identical statements that read as follows:

Understanding that this statement is for the use of the Social Security Administration, I hereby certify that - (Jerry P~ or Chasity S~) and I consider ourselves in a marital relationship. We are engaged to be married. We have lived together since the birth of our son in June 2003. We consider ourselves in a marital relationship even though we have not gone through an actual marital ceremony at this time.

When Claimant filed the claim for survivor benefits on behalf of her son, she stated she and NH never married, but dated or lived together several years. They were not living together when NH died. When she filed the application for mother's benefits, she stated she and NH were married. She stated she had misunderstood the question about marriage when she filed the application for NH's son. She had thought they had to have a marriage license from a court or public official. She left NH in June 2005 and removed her belongings from the apartment they had shared in August 2005. Claimant stated she did not get along with NH's parents and they may not complete statements of marital relation. On another form completed with this application, she stated she and NH had intended to have a ceremony, but every time they made plans, someone died or got sick. Claimant further stated they understood they would live together forever or until one died and the relationship could end through divorce. She stated they lived like any married couple, paid bills together, bought food together, and kept the house and yard together.

Claimant's father submitted a statement identifying himself as NH's father-in-law. He stated he saw NH on weekends and at family gatherings. Claimant's father further stated NH and Claimant were generally known as husband and wife and he considered them husband and wife. He stated they had lived together three years as husband and wife, they referred to each other as husband and wife, made a home together as husband and wife, and where one went, the other went.

NH's father also completed a statement. He stated he lived in Georgia and saw his son as often as he could, specifically naming Christmas and Thanksgiving. He sometimes saw Claimant when he visited his son, and he did not know if they considered themselves husband and wife. He had not heard them refer to each other as husband and wife. He stated they did live together, but had separated two or three times and were not living together at the time of NH's death.

A probate court order dated September 8, 2006, on a petition to establish heirs filed by Claimant against the child she had by NH, found Claimant was NH's common-law wife. The guardian ad litem for the child filed a report, stating she had talked with seven witnesses besides Claimant, including NH's family members, Claimant's family members, and mutual friends of NH and Claimant. NH's aunt stated NH and Claimant referred to each other as husband and wife. NH's father and stepmother stated NH and Claimant were not married, but they did not know if they married by common-law. Claimant's parents stated NH and Claimant held themselves out to the public as husband and wife. A mutual friend stated NH and Claimant regularly referred to each other as husband and wife. Claimant also had a Sam's Club membership card issued in 2002, which states on the face of the card "Complimentary Spouse." The guardian ad litem reported that the member must be present when a complimentary spouse card is issued and therefore NH and Claimant must have held themselves out as husband and wife when obtaining the card.

The file also contains an August 2003 Medicaid Approval Letter for low income families, listing NH, Claimant, and their son Grayson G. P~. Also included is a court record showing an action by Claimant against NH for protection from domestic abuse of an intimate partner filed in September 2005.

DISCUSSION

Section 202(g) of the Act provides that the surviving spouse of a deceased individual can be entitled to a mother's/father's insurance benefit. "Surviving spouse" is defined in § 216(a)(2) to include a widow, as defined in § 216(c). Section 216(c) defines "widow" to include the surviving wife of an individual who is the mother of his son or daughter. NH's paternity of Claimant's child is not in dispute. To decide Claimant's relationship as NH's surviving wife, we look to the laws of the state where NH had a permanent home when he died. See § 216(h), 20 C.F.R. § 404.345(2006). NH was domiciled in South Carolina when he died. However, he and Claimant did not have a formal marriage ceremony. Therefore, the issue is whether Claimant and NH had a common-law marriage under South Carolina law.

Social Security regulations define common-law marriage as one considered valid under a state's laws even though there is no formal marriage ceremony. See 20 C.F.R. § 404.726(a). A common-law marriage is a marriage between two persons free to marry, who consider themselves married, live together as man and wife, and in some states, meet certain other requirements. See id. Preferred evidence of a common-law marriage is: (1) if both the husband and wife are alive, their signed statements and those of two blood relatives; (2) if either the husband or wife is dead, the signed statements of the one who is alive and those of two blood relatives; or (3) if both the husband and wife are dead, the signed statements of one blood relative of each. See 20 C.F.R. § 404.726(b).

Claimant did not submit preferred evidence of a common-law marriage. See id. The file contains statements signed by both NH and Claimant on August 20, 2004, that they were in a marital relationship, but does not include any statements from blood relatives. Claimant's father, Doug Sanders, stated that NH and Claimant lived together as husband and wife, but Claimant reported in September 2006 that Mr. S~ was her adoptive father. Therefore, his statement is not a statement from a blood relative.

The regulations state that if the applicant cannot provide preferred evidence of a common-law marriage, he or she must explain why and provide other convincing evidence of the marriage. See 20 C.F.R. § 404.726(c). Claimant did not explain why she did not get statements from two blood relatives. However, her report that she is adopted, along with her assertion in September 2006 that she did not get along with NH's parents and they may not complete statements of marital relation, may be interpreted as an implicit explanation.

In determining whether Claimant provided other convincing evidence of the marriage, as required by 20 C.F.R. § 404.726(c), we note a September 8, 2006, court order from the Anderson County, South Carolina Probate Court finding Claimant was NH's common-law wife. Under Social Security Ruling (SSR) 83-37c, the Agency is not bound by a State trial court's determination to which it was not a party. However, the Agency cannot ignore the decision if all four of the following prerequisites are met:

(1) an issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction; (2) this issue was genuinely contested before the State court by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the State trial court is consistent with the law enunciated by the highest court in the State.

SSR 83-37c; see Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). We cannot conclude from the court order or the guardian ad litem's report that the issue of Claimant's status as NH's common-law wife was genuinely contested by parties with opposing interests. Rather, the guardian ad litem acted more as a fact-finder for the court than an advocate for the child. Thus, we do not believe the order of the probate court is convincing evidence of Claimant's common-law marriage to NH.

As evidenced by the probate court order, South Carolina recognizes common-law marriage. See Barker v. Baker, 499 S.E.2d 503 (S.C. 1998); Kirby v. Kirby, 241 S.E.2d 415 (S.C. 1978). A common-law marriage is formed when two parties contract to be married. Callen v. Callen, 620 S.E.2d 59, 62 (S.C. 2005). No express contract is necessary; the agreement may be inferred from the circumstances. Id. The fact finder is to look for mutual assent: the intent of each party to be married to the other and a mutual understanding of each party's intent. Id. If these factual elements are present, the court should find as a matter of law that a common-law marriage exists. Id. A party need not know every nuance of marriage law, but must at least know his actions will render him married as that word is commonly understood. Callen, 620 S.E.2d at 63. If he does not comprehend that his actions will result in a legally binding marital relationship, he lacks intent to be married. Id. The marriage must be proved by a preponderance of the evidence. Barker, 499 S.E.2d at 507. However, if a party claiming common-law marriage proves the parties participated in apparently matrimonial cohabitation during which they had a reputation in the community as being married, a rebuttable presumption arises that a common-law marriage was created. Callen, 620 S.E.2d at 62. This presumption can be overcome by strong and cogent evidence that the parties never in fact agreed to marry. Id.

The August 20, 2004, signed statements by NH and Claimant that they were in a marital relationship even though they never had an actual marriage ceremony provides strong support for finding mutual assent. The statements were identical, were signed on the same day, and included an acknowledgement that the statements were for the use of the Social Security Administration; these facts indicate not only the intent of each to be married to the other, but the mutual understanding of each other's intent and the possible legal consequences. Under the Callen holding, a finding of this mutual assent requires a finding that a common-law marriage exists.

Moreover, these statements are consistent with other evidence, including NH's affirmative statements in August 2004 that he and Claimant considered themselves to be in a marital relationship, Claimant's descriptions of their relationship, and her father's statement that NH and Claimant were generally known as husband and wife and he considered them husband and wife. Numerous documents, including benefits applications, Claimant's driver's license and motor vehicle tax assessments, and the Medicaid approval letter, confirm that NH and Claimant were using the same address for several years. We further note the guardian ad litem's report in the probate court action. She stated she had talked with seven witnesses besides Claimant, including NH's family members, Claimant's family members, and mutual friends of NH and Claimant. NH's aunt told the guardian ad litem NH and Claimant referred to each other as husband and wife. Claimant's parents stated NH and Claimant held themselves out to the public as husband and wife. A mutual friend stated NH and Claimant regularly referred to each other as husband and wife. Claimant also had a Sam's Club membership card issued in 2002, which states on the face of the card "Complimentary Spouse." The guardian ad litem reported that the member must be present when a complimentary spouse card is issued and therefore NH and Claimant must have held themselves out as husband and wife when obtaining the card.

We also note that the assertions of a marital relationship are not strongly rebutted. When NH filed an application for title II benefits in May 2003, he stated he had never been married. However, this statement was more than a year before his affirmative statements to the contrary in August 2004. Thus, even if he did not consider himself married in May 2003, his intent may well have changed, especially considering the birth of his son in June 2003. While NH's father stated he did not know if NH and Claimant considered themselves husband and wife, he did not deny or refute the possibility. He lived in another state and was not clear on how often he saw NH. He conceded he sometimes saw Claimant when he visited his son.

We also believe South Carolina courts would not find significant Claimant's own statement in November 2005 that she and NH never married, or NH's father's and stepmother's statements to the guardian ad litem that NH and Claimant were not married, but they did not know if they married by common-law. The South Carolina Supreme Court in Campbell v. Christian, 110 S.E.2d 1, 4 (S.C. 1959), found a woman's testimony that she did not consider herself married did not defeat her claim to be a widow by common-law marriage. The Court found that the woman's testimony related to the performance of a marriage ceremony, rather than the existence of a marriage by common-law. Id. at 3, 4; see also In Re Greenfield's Estate, 141 S.E.2d 916, 919 (1965) (conflicting opinions of the couple's marital status was properly reconciled by the trial court's view that some witnesses mistakenly believed that only ceremonial marriages are valid). The statements by NH and Claimant, as well as the statements by NH's father and stepmother, support this view. NH's father and stepmother acknowledged a difference between being "married" and being "married by common-law." While stating they were "engaged" in August 2004, NH and Claimant both asserted twice in the same statement that they "consider ourselves in a marital relationship even though we have not gone through an actual marital ceremony at this time." When Claimant filed her application for mother's benefits, she stated she previously had misunderstood the question about marriage and had thought she and NH had to have a marriage license from a court or public official. On another form completed with this application, she stated she and NH had intended to have a ceremony, but every time they made plans, someone died or got sick. We do not believe the desire or plan to have a marriage ceremony provides strong evidence that NH and Claimant did not have mutual assent to be married in the absence of a ceremony.

CONCLUSION

For the foregoing reasons, we believe the evidence presented is sufficient to establish that Claimant was the common-law wife of NH under South Carolina law.

Sincerely

Mary Ann S~

Regional Chief Counsel

By: ____________

Nancy R~

Assistant Regional Counsel