This is in response to your request for an opinion as to whether Richard W~, the Number
Holder, and Nicole L~ had a valid marriage under the law of the District of Columbia.
The specific question is whether a couple living in New York would be considered to
have a common law marriage under the law of the District of Columbia based on a three
week visit to the area.
Based on our review of the facts of this case and our research of the relevant law,
we have determined that it is unlikely that a District of Columbia court would find
a valid common law marriage established in its jurisdiction.
The following is a summary of the relevant facts in this matter. The Number Holder
and Ms. L~ lived together in New York for approximately twenty years prior to the
Number Holder's June 1992 death.
According to Ms. L~, they lived as husband and wife throughout that time period, sharing
all household expenses and conducting their affairs together.
Ms. L~ also represented that she wore a wedding ring given to her by the Number Holder
for more than fifteen years.
In January 1993, Ms. L~ filed an Affidavit in Surrogate's Court attesting that she
and Mr. W~ were husband and wife. On June 18, 2003, Ms. L~ was appointed the administrator
of the Number Holder's estate. The Letters of Administration identify Ms. L~ as "Nicole
L~ W~," but do not refer to her as Mr. W~ surviving spouse.
In 1984, Ms. L~ and the Number Holder entered an in vitro fertilization (IVF) program
at the George Washington University Hospital in Washington, D.C. In connection with
that program, Ms. L~ alleges that she and the Number Holder resided in a Washington,
D.C. hotel for a three week period. Ms. L~ provided no direct evidence that she and
the Number Holder cohabitated in the hotel for that three week time period.
However, she did provide a copy of a note addressed to "Mrs. L~-W~" written by a hotel
staff member wishing her luck with her trip to George Washington University Hospital.
Ms. L~ also submitted a letter written by Joseph S!, M.D., in December 1992. Dr. S~
stated that to the best of his recollection, Ms. L~ and the Number Holder resided
together at the hotel during the duration of the program.
Dr. S~ further stated that he had no doubt that Ms. L~ and the Number Holder were
accepted into the IVF program as a married couple.
Several forms completed by the Number Holder and Ms. L~ in connection with the program
have signature lines for "Husband" and "Wife," indicating Ms. L~ as the "Wife" and
the Number Holder as the "Husband." Those designations were not handwritten by either
Ms. L~ or the Number Holder. Rather, the words "Husband" and "Wife" were in typeface
and located underneath the signature lines.
Widow's benefits may be granted based on the earnings record of an insured person
who has died if the applicant was the insured's wife under the law of the state where
the insured had a permanent home at the time of his death.
42 U.S.C. § 416(h)(1)(a)(i); 20 C.F.R. §§ 404.335, 404.345 (2005); POMS RS 00207.001. The relationship requirement is also met if under State law the claimant would be
able to inherit a widow's share of the insured's personal property if he were to die
intestate. 20 C.F.R. § 404.345 (2005). Because the Number Holder was domiciled in
New York at the time of his death, New York law applies.
Under New York's intestacy statute, property of a decedent not disposed of by will
is distributed to the decedent's "spouse" and issue. McKinney's EPTL § 4-1.1. Because
Ms. L~ has neither alleged a ceremonial marriage occurring in New York, nor is there
evidence that Ms. L~ was adjudicated to be the Number Holder's wife, she would not
be entitled to inherit a widow's share of the Number Holder's personal property pursuant
to New York's intestacy statute. Accordingly, Ms. L~ must demonstrate a valid common
law marriage in order to be eligible for widow's benefits.
While New York abolished common law marriages in 1933, it will recognize a common
law marriage contracted in a sister State if the marriage is valid where it was contracted.
v. Duncan Petroleum Trans., et al., 414 N.E.2d 657, 658-59 (N.Y. 1980). To determine whether a common law marriage contracted
out-of-state is valid, New York applies the law of the state in which the marriage
occurred. Id. at 659. Ms. L~ alleges that she and the Number Holder had a common law marriage based
on their three week visit to the District of Columbia.
Thus, we apply the law of the District of Columbia to determine whether a valid common
law marriage was formed.
In the District of Columbia, there are two elements of a common law marriage. First,
there must be proof of an express, mutual, present agreement to be husband and wife.
Mesa v. United
States, 875 A.2d 79, 83 (D.C. 2005) (citing East
v. East, 536 A.2d 1103, 1105 (D.C. 1988)).
Second, there must be good faith cohabitation following the agreement.
Mesa, 875 A.2d at 83. "Since ceremonial marriage is readily available and provides
unequivocal proof that the parties are husband and wife, claims of common law marriage
should be closely scrutinized, especially where one of the purported spouses is deceased
and the survivor is asserting such a claim to promote his financial interest." Coates
v. Watts, 622 A.2d 25, 27 (D.C. 2005). The burden is on the proponent to prove the essential
elements of a common law marriage by a preponderance of the evidence. Id. at 27. In addition, "when one of the parties to the alleged marriage asserts its
existence but either denies or fails to say there was mutual consent or agreement,
then mere cohabitation, even though followed by reputation, will not justify an inference
of mutual consent or agreement to be married." Id. (emphasis supplied) (citations omitted).
We have extensively researched relevant case law from District of Columbia courts
regarding the establishment of a common law marriage. The few published state court
decisions that do exist address whether a common law marriage was formed by District
of Columbia residents in the District of Columbia. They do not address whether a common
law marriage can be established by out-of-state couples who are merely visiting the
District of Columbia for a short period of time.
However, there are two cases of interest applying District of Columbia law.
In the first case, Cross v. Cross, 146 A.D.2d 302 (N.Y. 1989), the putative wife sought to establish a common law marriage
under District of Columbia law. The couple were residents of New York, but travelled
to Washington, D.C., for a two day weekend. In holding that the putative wife had
failed to establish a common law marriage based on District of Columbia law, the Court
noted that she did not introduce "a scintilla of evidence that she and defendant had
entered into a present tense agreement to be husband and wife while they were in Washington,
D.C." Id. at 309 (emphasis supplied).
Similarly, while Ms. L~ has produced some evidence that she and the Number Holder
held themselves out as husband and wife during the IVF program, there is insufficient
evidence of an express, present tense agreement to be husband and wife which was formed
while they were in Washington, D.C. In the Affidavit filed in connection with administration
of the Number Holder's estate, Ms. L~ avers that she and the Number Holder travelled
to Washington, D.C. to enter an IVF program. She did not allege that she and the Number
Holder entered into a marital agreement while in Washington, D.C.
In the second case, National Union Fire Insurance
Co. v. Britton, 187 F.Supp. 359 (D.D.C. 1960), a couple allegedly entered into a common law marriage
in Virginia. Unbeknownst to the couple, the Commonwealth of Virginia did not recognize
common law marriages. The couple later moved to the District of Columbia, where they
continued living together for approximately ten years. The Court noted that "the impediment
to the inception of the marriage was removed and since the relation continued pursuant
to the agreement entered into previously, a common-law marriage was created as soon
as the couple moved to the District of Columbia and continued living there." Id. at 364 (emphasis supplied). In holding that a common law marriage existed, it appears
that the Court in Britton found it relevant that the couple established residency
in the District of Columbia after forming the marital agreement in Virginia. That
is unlike the facts of the present case, where there is no evidence that Ms. L~ and
the Number Holder ever intended to make the District of Columbia their domicile.
In our opinion, Ms. L~ cannot establish that an express, mutual, present agreement
to be husband and wife was contracted in the District of Columbia, nor can she prove
that the three week visit satisfies the "good faith cohabitation" requirement of a
common law marriage in the District of Columbia. Even assuming that Ms. L~ can demonstrate,
by affidavit or otherwise, that she and the Number Holder cohabitated at the hotel
and held themselves out as husband and wife during their three week sojourn in the
District of Columbia, we believe a District of Columbia court would conclude that
they failed to satisfy either element of a common law marriage.
Several regional offices of the Agency have come to the same conclusion analyzing
similar fact patterns occurring in other jurisdictions. In an advice opinion dated
February 14, 1985, Region III addressed whether the State of Delaware, which does
not itself recognize common law marriages, would recognize as valid a common law marriage
after a brief weekend visit to the Commonwealth of Pennsylvania to attend another
Region III concluded that under Pennsylvania law, the evidence was insufficient to
establish the essential elements of a common law marriage, namely, present intent
of the parties to form a marriage contract and a reputation of marriage. On September
27, 1985, Region VII addressed the question of whether the State of Missouri would
recognize a common law marriage based on a sojourn in a common law state.
While this opinion is not precisely on point, insofar as the author concludes that
no common law marriage would be recognized in Missouri based on public policy grounds,
the author does note that a temporary stay in Ohio by non-residents was insufficient
to establish a common law marriage pursuant to Ohio law. On April 5, 2005, Region
VIII issued an opinion concluding that North Dakota law would not recognize a common
law marriage purportedly entered into in Montana based on short visits, finding insufficient
evidence of cohabitation and repute in Montana, especially insofar as there was no
evidence that the couple ever intended to make Montana their residence. Given the
District of Columbia's proclamation that common law marriage claims should be closely
scrutinized, especially where one party is deceased, we conclude that it is unlikely
that a District of Columbia court would find a valid common law marriage was established
in its jurisdiction.
For the above reasons, we conclude that a common law marriage under the law of the
District of Columbia has not been established between the Number Holder and Ms. L~
given the evidence you provided.
Donna L. C~
Regional Chief Counsel
Elizabeth A. C~
Assistant Regional Counsel