PR 05610.011 Florida

A. PR 04-004 Common Law Marriage of Florida Domiciliaries

DATE: September 23, 2003


A couple living in Florida, which does not recognize common-law marriages, would not be considered to have entered into a common law marriage if they vacationed or spent time in Georgia or Montana, which recognize common-law marriages.



You have requested an opinion on whether, for the purposes of determining eligibility for benefits under the Social Security Act (the Act), a couple living in Florida, which does not recognize common law marriages, would be considered to have entered into a common law marriage if they vacationed or spent time in the states of Georgia or Montana, which recognize common law marriage.


It is our opinion a couple domiciled in Florida who vacationed or spent time in Georgia and Montana cannot establish a valid common law marriage. In this case, the couple married in 1975, divorced in 1981. The couple lived together and permanently resided in Florida in 1982 and 1983. The couple married again in 1984, and divorced again in 1989. The numberholder died in Florida. The claimant lives and filed her application for benefits in Arkansas. The specific issue is whether they were common law married in 1982 and 1983 by virtue of having visited Montana and Georgia.

Under the provisions of the Act, the Commissioner and the courts are to apply the law of the state where the deceased was domiciled at the time of his death. Florida would not recognize a purported common law marriage as valid, regardless of its potential validity in Montana and Georgia. Therefore, under the Act, for the purposes of determining entitlement to benefits, the couple was not married during the relevant time period.

Notes on Procedure for Writing this Opinion

This is a multi-region case. The claimant lives in Arkansas, which is in the Dallas region. The applicable law is Florida, where the number holder was domiciled at the time of his death and which is in the Atlanta region, as is Georgia. The opinion request was made to the Denver region, which includes Montana. Consequently, although OGC Denver wrote this opinion, we sought comments from the Atlanta_* and Dallas regions.

We have refrained from answering your initial question: how long a couple must reside in Montana or Georgia to enter a common-law marriage. That issue is not relevant to this opinion. Even if the couple had been considered married under Montana or Georgia law, they would not have been considered married under Florida law, which controls this case.


Donald K~, the deceased numberholder and Betty K~ the claimant, were married in Florida on January 28, 1975. Their marriage was dissolved in Florida on March 5, 1981. The claimant contends that she and the numberholder lived together in Florida, beginning in 1982. During that time, she contends that they visited relatives in Montana for 2 to 3 weeks and visited Georgia on numerous occasions. The claimant also contends that, after the divorce, the couple reconciled and “just continued [their] marriage.” She claims that they introduced each other as husband and wife.

The numberholder's niece, Kathleen H~, avers that the couple “presented themselves as married and slept together,” the claimant used the numberholder's name, and the couple referred to each other as husband and wife.

Pat G~, a friend of the couple, state that she knew that they had divorced, but claimed that others who were not as close to the couple did not know and would not have known the couple was divorced. She averred the couple presented themselves as married while they were divorced. Ms. G~ also wrote that it was her belief that the numberholder's “intent [was] to take care and provide for [Claimant's] financial needs.”

Barbara D~, a friend of the couple, wrote that she “probably knew that [the couple was] legally divorced during that period of time but [she] did not consider them in that regard. [She] considered them a couple for all intents and purposes and that's the way that they presented themselves.”

Karol G~, a friend of the couple, wrote that “[e]veryone in our social circle who did not know that [the couple] was divorced during this period would have assumed they were married. They presented themselves as a couple, attended lots of functions together, and probably introduced each other as their husband or wife.” She also wrote that, in April 1982, the couple was living together and “for all intents and purposes, [the couple] presented themselves as a couple, lived together as husband and wife during this period, and were considered to be a couple.”

The claimant applied for Widow's Insurance Benefits on May 19, 2002, claiming she was married to the numberholder continuously from 1975 to 1989.

Applicable Law, Regulations, and Policy

Under the provisions of the Act and the Commissioner's regulations, a widow is entitled to benefits if she was married to a deceased numberholder for ten consecutive years. 42 U.S.C. § 416(d)(2); 20 C.F.R. § 404.331(a)(2) (2003). The Commissioner's policy is that, to meet this requirement, the couple need only be married one day in each of the ten consecutive years. POMS RS 00202.005 (“This requirement is met if the divorce became final on or after the 10th anniversary of the marriage. This is so even if this period was interrupted by a prior divorce, provided the remarriage took place no later than the calendar year immediately following the calendar year of the divorce.”).

The Act and the Commissioner's regulations read that the law of the state where the numberholder is deceased applies to determine if there was a qualifying marriage. See 42 U.S.C. § 416(h)(1)(a)(i); 20 C.F.R. § 404.345 (2003) (“To decide your relationship as the insured's widow or widower, we look to the laws of the State where the insured had a permanent home when he or she died.”).

Florida does not recognize the validity of common law marriages contracted in Florida after 1968. However, Florida does recognize common law marriages that are entered into in states that do accept common law marriages. The validity of a marriage is to be determined by the law of the jurisdiction where the marriage was entered into.

Smith v. Anderson and Mulkey, 821 So.2d 323, 325 (Fla. 2d DCA, 2002) (citations and internal punctuation omitted). However, infrequent trips to a state that recognizes common law marriages do not cause an otherwise unrecognized Florida marriage to become a recognized marriage. See id. at 326.


As noted above, under the Act's choice of law provision, the applicable law is the law of the State of Florida, where the numberholder resided upon his death.

Thus, the question is whether Florida would recognize the numberholder and Claimant as married during the relevant time period. The facts here are strikingly similar to those in Smith v. Anderson. In both cases, the couples were domiciliaries of Florida who lived together and held themselves out as being married. In Smith, there was no marriage. Although the couple had a marriage ceremony, it was void due to a legal impediment. See Smith, 821 So.2d at 324. In the case of the K~, there was no marriage ceremony. Both couples resided in Florida and took relatively short trips to a state or states that recognized common law marriage; the Smiths went to Georgia, see id., and the K~ went to Georgia and Montana. The Florida courts held that the Smiths were not married under Florida law. See id. at 326. Similarly, were the Florida courts to consider the K~'s case, they would likely decide no marriage existed in 1982 and 1983.


Because the couple was not married in 1982 and 1983, they were not married for ten consecutive years. Consequently, the claimant is not entitled to benefits based upon a claim of a common law marriage.

Very truly yours,

Yvette G. K~
Regional Chief Counsel

Allan D. B~
Assistant Regional Counsel.

_*We also note that an opinion was requested from the Atlanta region regarding the existence of a “continuation of marriage” judgement. See Memorandum from Regional Chief Counsel, Atlanta to Assistant Regional Commissioner and Operations Support, Request for Leal Opinion, Number Holder - Donald K~ SSN ~(October 1, 2002).

B. PR 03-030 Request for Legal Opinion Deceased Number Holder - Daniel D~, SSN ~

DATE: January 31, 2001


Florida would consider these children of a purported Mexican marriage legitimate. The mother and NH reportedly entered into a marriage in Mexico, for which some documentation was provided. There is no indication that either was not free to marry. Even if the marriage were void, Florida would recognize the marriage because it was followed by the couple holding themselves out as married, holding property, and raising two children. Additionally, the children's mother and the NH may have been married under Iowa common law. Even if considered illegitimate, the children could inherit under Florida law, or qualify under section 216(h)(3) of the Act, based on court orders of support.


You have requested our opinion as to whether Dimitri and Alec M~ are children of the deceased number holder (NH) Daniel George D~ for purposes of entitlement to child's insurance benefits.

Vivian M~ (Vivian) is the mother of Dimitri and Alec M~. On April 2, 1999, Vivian's attorney, Clarence B. M~, Jr., provided the following information in connection with Vivian's withdrawal of her request for an SSA administrative hearing. Vivian believes she married the NH in Mexico in 1968. The record contains a receipt dated July 20, 1968, from Mr. Jose L~, “in charge of Foreign Affairs,” Tijuana, Baja California, Mexico, acknowledging receipt of fifteen dollars from the NH and Vivian for service in representing and completing “Their Marriage Transactions Before the Proper authorities.” This receipt was filed with the Circuit Court for Lee County, Florida. On her October 8, 1982, Petition for Dissolution of Marriage, in the Circuit Court for Lee County, Florida, Vivian states that she and the NH married on July 27, 1968, in Tijuana, Mexico, and that Dimitri and Alec were born of the marriage.

Until 1999, no one denied the validity of their marriage or questioned the NH's paternity of her sons or of a first child who was stillborn in 1968. Mr. M~ states that when Vivian filed in 1982 for divorce in Florida, the court ordered the NH to pay temporary, and possibly permanent, child support. Mr. M~ states that according to the record, the divorce decree was set aside for jurisdictional reasons, but that the NH did not deny, by responsive pleading or otherwise, the validity of his marriage or the children's paternity. The record indicates that on September 17, 1984, the Circuit Court for Lee County, Florida, issued an Order Setting Aside Final Judgment of Dissolution, and the court ordered the NH to pay child support and medical bills on behalf of Dimitri and Alec. When a settlement agreement was reached between the parties, divorce proceedings were dismissed without a determination of the validity of their marriage or the paternity of the children. On July 15, 1985, the Circuit Court Clerk for Lee County, Florida, certified a Stipulated Settlement of Lawsuit Property and Child Custody Rights.

Mr. M~ said he believed that even if a Mexican marriage could not be established, Vivian and the NH were married under Iowa common law. Mr. M~ said he presented Vivian's testimony and that of Helen D~, a distant cousin of Vivian's mother, to establish Vivian's and the NH's general reputation in the Council Bluffs community and among their families as husband and wife. He indicated that had Vivian not withdrawn from the scheduled SSA hearing, he had intended to present additional testimony from the NH's sister and two other persons who knew the NH and Vivian as husband and wife in Council Bluffs.

In a letter dated March 8, 2001, George F. D~ identified himself as the NH's father and as Dimitri and Alec's grandfather. Mr. D~ stated the NH met Vivian in 1964. Thereafter the NH and Vivian moved to California. After the NH completed aviation school in California, he and Vivian moved into a house together in Council Bluffs, Iowa. The NH told his father that they were married by a Mexican Justice of the Peace. In the mid-70's, Vivian temporarily moved to Greece as she and the NH were “in constant arguments.” She returned to Iowa, and Dimitri was born in 1979. The NH moved his family to Ft. Myers, Florida, where their second son, Alec, was born in 1982. The NH and Vivian eventually separated, with Vivian returning to Iowa. Mr. D~ said he believed that Dimitri and Alec are the NH's biological children, and he submitted his Christmas 2000 newsletter referencing Dimitri and Alec as the NH's children.

In a letter dated December 11, 2001, Connie J. D~-Young (Connie), the NH's sister, reiterated her father's statements that the NH and Vivian met in 1964, and that they were together until 1973, moving together from Iowa to California in 1968. During 1968, Vivian had a stillborn baby, and the NH's father flew to California to bring the baby “back to Iowa to be buried with our family gravesites.” Connie also said the NH and Vivian married in 1968 in Tijuana, Mexico. While in Mexico, they had a bad automobile accident and were held by the Mexican government. The NH's father went to the American Embassy in Mexico to get them returned to the United States. The couple separated in 1974, and Vivian moved to Greece. Vivian later returned to the United States and became pregnant in 1979, giving birth to Dimitri on November 3, 1979. The couple again separated, and the NH moved to Florida. Vivian followed the NH to Florida, where she became pregnant, giving birth to Alec in 1982 in Ft. Myers, Florida. Vivian stayed in Florida until 1984 when she moved back to Iowa. Connie states she “can honestly say that Dimitri and Alec are the real children from my brother.”

Dimitri D~ was born on November 3, 1979, in Omaha, Nebraska, and his Nebraska birth certificate identifies the NH as his father. Alec D~ was born in Fort Myers, Florida, on September 2, 1982, and his Florida Certificate of Live Birth shows the NH as his father. Pursuant to a May 1985, Florida Final Judgment of Name Change, Dimitri and Alec changed their last name to M~. On July 12, 1985, Vivian applied for amendment of Dimitri's birth certificate, changing his father's identity to “unknown,” and reflecting the change of Dimitri's last name to M~.

The record also contains a July 26, 1994, the County Court, Lee County, Florida, Judgment Satisfaction in the case of Hospital Board of Directors of Lee County v. Daniel G. and Vivian J. D~ showing that the NH and Vivian paid a judgment which had been entered by the court on July 8, 1982. Also, an August 22, 1994, letter from the Iowa Department of Human Services to Vivian addresses the role of a child support recovery attorney and references the wage earner “D.G. D~.” A subsequent notice from the Iowa Department of Human Services notes that a support order was filed on September 17, 1984, and that the NH was $2,800.00 in arrears.

In a letter dated December 30, 1997, Joy D~ identified herself as the NH's widow and stated that Evan is the NH's son. She stated a stipulated settlement between the NH and Vivian released the NH's estate from subsequent claims. In a subsequent letter dated December 22, 1998, Ms. D~ indicated she knew nothing of Vivian except for the contract the NH and Vivian signed “almost 14 years ago.” She stated her husband died in prison in Georgia, leaving her and their son with nothing. NH lived in Florida before his imprisonment.

We believe that Dimitri and Alec are children of the NH for purposes of entitlement to child's insurance benefits.

The Social Security Act, 42 U.S.C. Sec. 416(h)(2)(A), provides that the Commissioner, in determining whether an applicant is the child of an insured individual, shall use the law governing the devolution of intestate personal property applied by the courts of the State in which the insured individual was domiciled at the time of his death. Here, NH, although in prison at the time of his death, was domiciled in Florida. One of the children was born in Florida and both lived there for several years. Accordingly, it appears that Florida courts would look to Florida laws to determine the status of these children. See Memorandum, Florida Choice of Law Issue (Hoyt) to Sandy G~, June 25, 2001 (attached).

Under Florida law, Dimitri and Alec would likely be considered legitimate children eligible to inherit. Vivian and NH reportedly entered into a marriage in Mexico and some documentation was provided supporting this claim. There is no indication in the record that Vivian or NH was previously married or unable to contract a marriage. Even if the marriage were void, Florida would likely recognize the marriage because it was followed by the couple holding themselves out as married to family, friends and the public, holding property and raising two children. Also, no allegation apparently was made that the marriage was void until Vivian filed her dissolution proceeding. Under these circumstances, a Florida court held that annulment of a Mexican marriage was improper and that the husband was estopped to deny the validity of the marriage. See Lambertini v. Lambertini, 655 So.2d 142 (Fla. App. 1995).

Additionally, Vivian and NH may have been married under the common law of Iowa. Common law marriages cannot be entered into in Florida. Fla. Stat. Ann. Sec. 741.211 (West 2002). However, Florida also would recognize a valid common law marriage established in Iowa. See Compagnoni v. Compagnoni, 591 So.2d 1080 (Fla. App. 1991); American Airlines v. Mejla, 766 So.2d 305 (Fla. App. 2000). Iowa recognizes common law marriages. See Matter of Estate of Stodola, 519 N.W.2d 97 (Iowa App. 1994). Such a marriage may be established by clear and convincing evidence of intent and agreement to marry, cohabitation, and general and substantial public declarations that the parties are husband and wife. Id.; In re Marriage of Grother, 242 N.W.2d 1 (Iowa App. 1976). Here, evidence from NH's family members indicates that Vivian and NH viewed themselves as married, cohabited, and were viewed by the community as a married couple. They appear to have established a valid common law marriage in Iowa that would be recognized in Florida.

Even where no valid marriage results, Florida public policy does not favor penalizing children of an invalid marriage for the actions of their parents. As one Florida court noted, “Such children are the innocent victims of the situation. They should not be deprived of the right to be supported merely because the parents have created the invalidating circumstances.” Burger v. Burger, 166 So.2d 433, 436 (Fla. Sup. Ct. 1964). In that case, both parties obtained Mexican mail-order divorces before obtaining a Mexican proxy marriage. The court held that it had jurisdiction to grant a divorce and provide for support of the children despite the arguable invalidity of the marriage. Accordingly, it appears that Florida would view Dimitri and Alec as legitimate children.

Even if the children were considered illegitimate, they would be entitled to inherit under Florida law. Pursuant to Florida Statutes Annotated Sec. 732.108(2), which defines the inheritance rights of persons born out of wedlock, such persons can inherit from their father if: (a) The natural parents participated in a marriage ceremony before or after the birth, even though the attempted marriage is void; (b) The paternity of the father is established by an adjudication before or after the death of the father; or (c) The paternity of the father is acknowledged in writing by the father. These factors must be established by clear and convincing evidence. See Thurston v. Thurston, 777 So.2d 1001 (Fla. App. 2000). As noted above, both testimony from family members and a document indicate that Vivian and NH participated in a marriage ceremony in Mexico before the birth of the children.

Aside from Florida law, the Social Security Act, 42 U.S.C. 416(h)(3)(C), allows a “deemed child” to receive child's benefits on the account of a deceased father if before his death the father: (I) acknowledged in writing that the child was his; (II) had been decreed by a court to be the father; (III) had been ordered by a court to contribute to the support of the applicant before the death of the father. NH's name was on both of the children's birth certificates when they were born. NH also had been ordered by forums in two jurisdictions (Iowa and Florida) to pay child support. The record appears to contain clear and convincing evidence that Dimitri and Alec are the children of the NH and would be eligible to receive benefits.

Joy D~ submitted a stipulated agreement dated April 17, 1985, in which Vivian waives her right to receive child support or make any claim against NH's estate. However, Vivian could not waive the rights of her children to receive support or share in their father's estate. Florida courts have repeatedly held that a parent cannot waive a child's right to support. In Fleming v. Brown, 581 So.2d 202 (Fla. App. 1991), the court held that a mother could not waive her child's entitlement to support in exchange for the husband's waiver of parental rights; accord, Paris v. Bollon, 503 So.2d 1387 (Fla. App. 1987); see also Shinall v. Pergeorelis, 325 So.2d 431 (Fla. App. 1976) (an illegitimate child's right to support from his putative father cannot be contracted away by its mother and any release executed by her is invalid to the extent that it purports to affect rights of child). Florida courts have also held that a mother cannot waive the right of her children to receive benefits from the father or any other governmental agency. See State of Florida Dept. of Revnue for Payne v. Ortega, 682 So.2d 589, 590 (Fla. App. 1996). Accordingly, this stipulation and agreement would not prevent Dimitri and Alec from receiving child's benefits.

It is our opinion that Dimitri and Alec M~ are children of the the NH for purposes of entitlement to child's insurance benefits, whether they are viewed as legitimate or illegitimate children of NH. As legitimate children, Dimitri and Alec would be entitled to benefits from at least six to twelve months before the time of their own applications. See 20 C.F.R. Sec. 404.621(a)(1(i) & (ii) (2001) (applicant for child's benefits may be entitled to benefits for up to six or 12 months before the month in which he or she applies, depending on the eligibility status of the NH). Vivian's 1997 application on the children's behalf was dismissed at her request on April 6, 1999. The dismissal of a request for a hearing is binding unless vacated within 60 days of the date of receipt of the notice. 20 C.F.R. Sec. 404.958 (2001). Determinations may be reopened within four years only if good cause is established. 20 C.F.R. Sec. 404.988 (2001). Good cause may be found by the existence of new and material evidence, clerical error, or clear error in the decision. 20 C.F.R. Sec. 989 (2001). Here, there does not appear to be good cause for re-opening the 1999 dismissal. Thus, benefits would not be payable back to the 1997 application.

Very truly yours,

Mary Ann S~
Regional Chief Counsel

Laurie G. R~
Assistant Regional Counsel.

C. PR 83-021 Existence of Common Law Marriage Between Claimant Ruth K~ and Deceased Wage Earner Ervin K~, A/N ~

DATE: July 19, 1983



Where the evidence as to the existence of a common law marriage was conflicting, a finding by a lower Court in Ohio, subsequently affirmed by an intermediate appellate court, of the existence of such a marriage is sufficient to justify a determination by SSA that the claimant and the deceased were validly married, even though an appeal to Ohio's highest Court is still pending. This finding would be given full faith and credit by the courts of Florida, the State of the deceased's domicile at the time of his death even though Florida does not itself recognize the validity of common law marriages. (K~, Ervin, ~ — RAV (Moscow), to ARC, O7/19/83.)



By transmittal dated May 2, 1983, you have asked our opinion regarding the existence of a common law marriage between the claimant Ruth K~ and the deceased wage earner Ervin K~.


In our opinion, Ruth K~ is entitled to widow's benefits.

The wage-earner's sons told SSA in September 1982 that no common-law marriage ever existed between the wage earner and the claimant. However, you also presented an Ohio Probate Court opinion dated August 24, 1982 which found that there had been a common-law marriage and that the claimant was the surviving spouse of Ervin K~. We have subsequently discovered that the position of the wage earner's sons was fully represented in the Ohio Probate Court proceeding. Further, the wage earner's estate and his sons appealed the Probate Court opinion to the appropriate appellate court, which affirmed the opinion on June 15, 1983. Although the estate has filed a Notice of Appeal to the Ohio Supreme Court, dated July 13, 1983, a motion to stay the execution of the appellate court's judgment was denied on or about July 15, 1983.

This is a case which meets SSA and case-law criteria for SSA to honor pre-existing state court judgement. We are available to give additional advice about a possible overpayment should the Ohio Supreme Court agree to further review this matter and reverse the appellate court.


The claimant and the wage earner lived together in Columbus, Ohio beginning in late 1972. In early 1980, they both moved to Jacksonville, Florida. Mr. K~ died while traveling in Ohio on November 20, 1981, and Ruth K~ has filed a claim with SSA for widow's benefits. There is conflicting evidence on the question of whether they cohabited as man and wife, or whether the wage earner merely boarded in homes owned by the claimant.

Evidence against finding a common-law marriage includes the facts that Ruth P~ maintained her own name for most purposes; owned the Ohio and Florida properties in her own name; and maintained accounts in the name of P~. The claimant has only given SSA envelopes addressed to her as Mrs. K~ which post-date Mr. K~'s death. When Ruth P~ applied for Social Security Disability Benefits on June 27, 1974, at a time when she now claims to have been married under common law to Mr. K~, she identified herself as a single (previously married) person. Mr. K~ also owned property in his own name and filed individual income tax returns. His two sons (from a previous marriage) and former brother-in-law have advised SSA that Ervin K~ told them at various times that he was not married to Ruth P~ and had no intention of marrying her, 1/ and there is evidence that the sons have acted consistently with that belief.

Evidence in favor of finding a common law marriage includes a statement to SSA from Ruth P~'s grown daughter; the pursuit of a claim arising from a 1976 automobile accident as husband and wife, during which Ervin K~ and Ruth P. K~ were represented by an attorney and executed a release as husband and wife in 1978; and an August 1982 Ohio Probate Court Judgment which found that the KIs were married under common law since at least 1978 and that Ruth K~ was therefore the surviving spouse of Ervin K~. The court appears to have been aware of the conflicts in the evidence, but refers to certain additional evidence which SSA has not independently corroborated or disproved, such as introductions to friends over the years as husband and wife; correspondence (of unknown dates) addressed to Ruth K~~; the presence of a wedding ring given by K~ to Ruth; and the existence of some credit cards in the name of Ruth Ki (although the dates the accounts were established is unclear). Further, the trial court's judgment was affirmed by the Pickaway County 4th District Court of Appeals on June 15, 1983. Although further review by the Ohio Supreme Court has been requested, a motion to stay execution of the appellate court's judgment was denied on or about July 15, 1983.



Under the Social Security Act, whether the claimant in this case can claim widow's benefits is determined by looking first to the law the courts of Florida would apply in deciding whether the claimant was the wage earner's widow or whether she would be able to inherit a widow's share of the wage earner's personal property if he had died without a will. Florida law applies because the wage earner had his permanent home there when he died, even though he died while traveling in Ohio. 42 U.S.C. 416(h)(1)(A); 20 C.F.R. 404.345.

Although the Florida courts have not addressed this case, the Probate Court of Pickaway County, Ohio and the appellate court have ruled that the K~s did have a common law marriage and that Ruth ~ K~ was therefore the wage earner's surviving spouse. It therefore becomes necessary to evaluate what effect a Florida court would give to the Ohio appellate court' s judgment.

It appears that Florida courts would honor the Ohio appellate court's judgment. It therefore also becomes necessary to determine whether SSA is free to ignore the anticipated ruling of the Florida courts.

The statements by K~'s sons that no common-law marriage existed is relevant, because under 20 C.F.R. 404.726(b)(2), signed statements by two of the deceased's blood relatives and the surviving spouse are the preferred evidence of a common-law marriage. However, 20 C.F.R. 404.726(c) recognizes that other evidence may direct the outcome. Here, the preferred evidence supportin9 the relationship is not available because the wage earner's sons challenge the relationship. This alone does not defeat the claimant's claim, however; SSA is still bound by statute to resolve the question under applicable State law. 42 U.S.C. 416(h)(1)(A).

SSA, like the Florida courts, would honor the Ohio result because the criteria for being bound by state court decisions regarding family status, discussed more fully below, were also met.


As required by the full faith and credit clause of the United States Constitution, Article 4, Section 1, Florida courts generally presume that decrees of other State courts are valid. In re Estate of Rifkin, 359 So.2d 1197 (Fla. App. t978). Decrees of other states will be enforced in Florida unless they violate public policy, Berger v, Hollander, 391 So.2d 716 (Fla. App. 1980). Although Florida does not recognize common-law marriages entered into in Florida after January l, 1968, Fla. Star. 741.211, Florida continues to recognize common-law marriages validly entered into elsewhere after that date. Thus it would not be against public policy for a Florida court to honor and implement the Ohio appellate court decree in this case.


Because a Florida court would honor as its own the Ohio appellate court's order, we must therefore address whether SSA would be bound by the conclusion that a common-law marriage existed.

The general rule is that SSA need not afford controlling weight to State court trial decisions regarding family status if the Secretary was not a party to the State court proceeding. Unlike a Florida trial court, which is required to give full faith and credit to most Ohio trial court decrees, the Social Security Act only requires SSA to determine what the highest court in Florida would decide. See Cain v. Secretary of Health Education, and Welfare, 337 F.2d 55 (4th Cir. 1967). However, if SSA concludes that a State trial court decision is not inconsistent with State law and would therefore not be overturned by the State's highest court, SSA should honor that decision. Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). This is true even where SSA questions the correctness of the lower court decision if the State court considered the identical issue that SSA is deciding. Collins v. Celebrezze, 250 F. Supp. 37 (S.D.N.Y. 1966); Zeldman v. Celebrezze, 252 F. Supp. 167 (E.D.N.Y. 1965).

Where a State's Supreme Court has not yet ruled, it is often difficult to predict how it will evaluate a lower court's ruling. In Gray v. Richardson, supra, the Sixth Circuit enumerated four criteria which tend to ensure reliability of a lower court's decision:

1) An issue in a claim for social security benefits previously has been determined by a 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. 474 F.2d at 1373.

Our central office has approved a draft SSA ruling incorporating the language of Gray, scheduled to be published this month (copy attached hereto). Where the four criteria are met the Secretary will be bound, although all four criteria need not necessarily be met in all cases. _2/ A potential "fifth criterion" was articulated by the Ninth Circuit in Moreno v. Richardson, 484 F.2d 899 (9th Cir. 1973). In that case involving child's survivors benefits, the court stated that if the evidence presented to the trial court "was the same as the evidence before the Secretary in support of the claim, we would be inclined to hold the Secretary to be bound" by the declaration of the trial court. 484 F.2d at 903, note 4.

In this case, the trial and appellate court records reflect that all four Gray criteria, as well as the Moreno factor, have been met. The presence of an appeal clarifies any pre-existing ambiguities concerning the existence of a genuine contest, and makes the result more likely to be consistent with the law of Ohio's highest court.

At the date of writing, we do not know whether Ohio's Supreme Court will decide to accept this case for further review. However, a motion to stay execution of the appellate court's judgment was denied on or about July 15, 1983. You are free to await further action by the State Supreme Court to conclusively resolve this benefit claim, but we have no indication of the time frames for action by that court. Because the request to stay execution was denied, there is currently in effect an Ohio court judgment which would be honored by Florida courts and which meets the criteria for being honored by SSA.


At the date of writing, Ruth P. K~ is entitled to widow's benefits. We recognize that further action by the Ohio Supreme court may change that conclusion, but that outcome is both unlikely and perhaps far in the future. Should you commence payment of widow's benefits now, we are available to give additional legal advice about any possible overpayment that might develop following action by the Ohio Supreme Court which might affect this matter.

1 / The statements of both sons to SSA also refer to income the claimant earned from a drapery business operated in her home despite receiving SSA disability benefits. This is an issue SSA may also wish to pursue. See Claims Folder

2/ See Howard P ~ Jr., A/N ~ , RA-V (M~) to ARC- Programs V (W~) , June 21, 1983; and Larry G~ , A/N ~ , RA-V (H~) to ARC-Programs-V (W~), July 8, 1982.

D. PR 82-039 Validity of Common-Law Marriage - Hungary Laszio V~, SSN ~

DATE: August 11, 1982


MARRIAGE — Cohabitation and Reputation (Including Common-Law Marriage) — State Law HUNGARY

Where a claimant seeking divorced wife's benefits alleged that she and the deceased wage earner entered into a common-law marriage in Hungary in 1947, we found that common-law marriages are not recognized in Hungary and that therefore the validity of such a marriage in the state of Florida was a moot question.

(Validity of Common-Law Marriage - Hungary - Laszio V~ RA IV (A~) to ARC, 8/10/82)


Recently a claim was filed by Irene N~ on SSN requesting that divorced wife's benefits be paid to her on the record of Laszlo V~. The applicant alleges that she entered into a common-law marriage with the number holder in 1947 in the country of Hungary. The applicant and the number holder separated in 1963. They were ceremonially married in Yonkers, New York in 1967 and were divorced in 1973.

In attempting to resolve this situation on the local level, several opinions were reviewed by your office, but they were generally concerned with situations arising out of the formation of Yugoslavia from parts of Hungary around 1908 and with situations arising prior to World War II. Generally, Hungary seemed to deny the validity of common-law marriages during that period. Since these opinions are so outdated, your office has requested our advice as to whether or not Hungary recognized common-law marriages after World War II. We have contacted the Library of Congress' International Law Department and discussed this matter with Soiyom' F~, a Hungarian law specialist. Mr. F~ has informed us that Hungary does not recognize common-law marriage and such a marriage would not be valid in Hungary.

Since such a marriage would not be valid in Hungary, we need not respond to your question of recognition of the Hungarian common-law marriage in the state of Florida.

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PR 05610.011 - Florida - 02/24/2004
Batch run: 11/29/2012