You have asked us to determine if a valid same-sex common law marriage existed in
Colorado between the number holder, K~ (NH), and the claimant, R~ (CL), such that
the CL is eligible to receive widow’s benefits and a lump sum death payment under
the Social Security Act.
Yes. We believe that State courts in Colorado would find that a valid same-sex common
law marriage existed between the NH and the CL under Colorado law at least since September
XX, 2002, the date they allege of their marriage ceremony occurred. Accordingly, we
believe the agency would be justified in finding that the CL should be considered
the NH’s widow for purposes of determining entitlement to widow’s benefits on the
Based on the information provided, the NH and the CL began living together in November
1997. See, e.g., Form SSA-754, Statement of Marital Relationship. On September XX, 2002, they celebrated
their relationship in a commitment ceremony, attended by friends and family. They
resided in Colorado for the entirety of their relationship; the NH died in Colorado
on April XX, 2013. See Form SSA-754, Statement of Marital Relationship; State of Colorado, Certificate of
The CL filed for widow’s benefits and a lump-sum death payment in February 2017. She
submitted evidence in support of that application, including real estate records,
life insurance forms, bank records, and third-party statements from family and friends,
discussed in more detail below.
A claimant must establish that he or she is the “widow” or “widower” of an individual
who died fully insured to be entitled to benefits as a surviving spouse. See Social Security Act §§ 202(e)(1), (f)(1), (i); 216(a)(2), (c), (g); 20 C.F.R. §§
404.335, 404.390. Under section 216(h)(1)(A)(i) of the Act, SSA will find a claimant
to be the widow or widower of an insured individual if the courts of the State in
which the insured individual was domiciled at the time of his or her death would find
that the claimant was validly married to the insured individual when the death occurred. See also 20 C.F.R. § 404.345. Since the NH and the CL resided in Colorado at all relevant times,
and the NH was domiciled in Colorado when she died, Colorado law applies.
Colorado recognizes common law marriage, which can be established if the parties mutually
consent or agree to be spouses and demonstrate a mutual and open assumption of a marital
relationship. POMS GN 00305.075; People v. Lucero, 747 P.2d 660, 663 (Colo. 1988); see also Colo. Rev. Stat. § 14-2-104(3). In addition, common law marriages entered into on
or after September 1, 2006, are only valid if the parties were 18 years of age or
older and not entering into a marriage otherwise prohibited by statute (i.e., marriages between certain blood relations or where a prior undissolved marriage
or civil union exists). See Colo. Rev. Stat. §§ 14-2-109.5, 14-2-110; POMS GN 00305.075. However, even prior to September 1, 2006, some marriages were similarly prohibited
under Colorado’s common law (see below).
Burden of Proof
The burden of proof for establishing a common law marriage in Colorado is by a preponderance
of the evidence. See Colo. Rev. Stat. § 13-25-127(1) (unless otherwise specified, burden of proof in a
civil action is by a preponderance of the evidence); Lucero, 747 P.2d at 664, n.6 (clarifying that earlier case law stating evidence “should
be clear, consistent and convincing” did not establish a higher burden of proof, but
instead merely indicated the need for “more than vague claims unsupported by competent
evidence”) (internal citation omitted).
Marriage Not Prohibited by Statute or Common Law
Although the Colorado Constitution and a separate Colorado statute indicate a marriage
is only valid if it is between one man and one woman, those provisions are unconstitutional
in light of the decision of the United States Supreme Court in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). In Obergefell, the Supreme Court held state laws invalid to the extent they exclude same-sex couples
from civil marriage on the same terms and conditions as opposite-sex couples. 135
S. Ct. at 2604-05. Pursuant to Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 94-98 (1993), SSA should give Obergefell full retroactive effect in all cases still open on direct review and as to all events,
regardless of whether such events predate or postdate Obergefell. As a result, SSA considers Colorado’s same-sex-marriage bans void and ineffective.
Other statutorily prohibited marriages in Colorado include (1) marriage entered into
prior to the dissolution of an earlier marriage or civil union; (2) marriage between
an ancestor and descendant, or sister and brother; and (3) marriage between an uncle
and niece or aunt and nephew. Colo. Rev. Stat. §§ 14-2-109.5, 14-2-110. These prohibitions
were made specifically applicable to common law marriages entered into on or after
September 1, 2006. See id. § 14-2-109.5. Although the statutory prohibitions are part of Colorado’s Uniform
Marriage Act (UMA), which existed prior to that date, the Colorado Court of Appeals
has held that common law, not the UMA, governs common law marriage (absent a clear
expression of legislative intent to modify or abrogate the common law). In re Marriage of J.M.H. &
Rouse, 143 P.3d 1116, 1120 (Colo. App. 2006). Under the common law, Colorado still recognized
that a common law marriage cannot arise while one party is still married to a third
party. See, e.g., In re Morrow’s Estate, 68 P.2d 36, 39 (Colo. 1937).
Mutual Agreement to Be Spouses, Followed by Open Assumption of Marital
The Colorado Supreme Court has recognized that the mutual agreement to be spouses
need not be express; instead, such agreement may be inferred from evidence of cohabitation
and general reputation. “In such cases, the conduct of the parties provides the truly
reliable evidence of the nature of their understanding or agreement.” Lucero, 747 P.2d at 664. And “[t]he two factors that most clearly show an intention to be
married are cohabitation and a general understanding or reputation among persons in
the community . . . that the parties hold themselves out as husband and wife.” Id. at 665; see
also Whitenhill v. Kaiser Permanente, 940 P.2d 1129, 1132 (Colo. App. 1997) (cohabitation and general reputation in the
community are most reliable factors in determining intent to be married). In this
regard, where the agreement to marry is not shown directly, the same or similar evidence
might be sufficient to establish both elements, i.e., (1) the parties’ mutual agreement to be spouses; and (2) the open assumption of a
marital relationship. No specific form of evidence is required, but parties must present
more than vague claims unsupported by competent evidence. Lucero, 747 P.2d at 663-64 & n.6. Examples of evidence that might be probative include maintenance
of joint banking and credit accounts; purchase and joint ownership of property; and
the filing of joint tax returns; but “there is no single form that any such evidence
must take.” Id. at 665. Indeed, the Colorado Supreme Court has suggested that the testimony of one
party regarding the elements can be sufficient to establish a common law marriage—if
that testimony is credible and believed by the trier of fact. Id.
We note that the “mutual consent or agreement to be [spouses] must exist in the present,
since an agreement to marry in the future does not create a common law marriage.”
Crandall v. Resley, 804 P.2d 272, 276 (Colo. App. 1990) (citing Radovich v. Radovich, 269 P. 22 (Colo. 1928)). In Crandall, the court rejected an alleged common law marriage where both parties were aware
that they could not presently marry due to a legal impediment; the putative wife remained
married to someone else, and the parties did not intend to be married until that impediment
was formally removed. Under these circumstances, the parties could not evince the
state of mind needed to “mutually consent” and therefore did not have a valid common
law marriage. Id.
at 276. We view this case as limited to the circumstance where a party has some control
over removing the impediment to marriage—because in that circumstance the impediment
necessarily affects the parties’ states of mind. Where the impediment to marriage
is an invalid and unconstitutional statute, over which the parties had no control,
we think the parties could acknowledge the existing state of law yet still manifest
between themselves the mutual agreement to be married (or to be in a long-term, committed
and monogamous relationship equivalent to marriage).
Here, there is no evidence that the NH and CL’s marriage was prohibited by statute
(there is no evidence of prior undissolved marriages or that the NH and CL were closely
related), and there is ample evidence demonstrating their mutual agreement to be married
followed by the open assumption of their marital relationship. The supportive evidence
A Statement of Marital Relationship from the CL in which she reported that she and
the NH lived together continuously since 1997; considered themselves to be married
even though the law at the time would not recognize them as such ; celebrated their relationship with friends in a September XX, 2002, commitment
ceremony; and confidentially registered as domestic partners around 2006 with the
City of Boulder, Colorado.
The NH’s last will and testament, dated February 2013, which left her entire estate
to the CL, who was described as her domestic partner.
Statements Regarding Marriage from NH’s sisters, brother, and sister-in-law, all of
whom indicated that NH and CL were spouses and referred to each other as such. They
also reference attending the “wedding ceremony” or “wedding” between the NH and the
CL. Each relative also referred to their relationship with the CL as “sister-in-law,”
indicating their understanding of a familial relationship through marriage.
Statements Regarding Marriage from the CL’s brother and sister, who likewise considered
the NH and the CL to be married and noted that they held themselves out as spouses.
The CL’s siblings described the NH as “in-law,” and one sibling reported that her
children referred to the NH as “Aunt K~.”
Additional Statements Regarding Marriage from several friends of the couple, which
consistently indicate that the NH and the CL referred to each other as “wife” and
were considered to be married based on their long-term, committed relationship:
o “They were a couple from the moment I met them to the moment [the NH] took her last
breath. . . . They co-owned a house, shared a bed, and commingled all their resources.
They loved each other.”
o “I was present for their joining ceremony in 2002. They were devoted to each other,
lived together, and were each other’s legal beneficiaries.”
o “[They] introduced themselves to me as a married couple when I met them in 2003.
Some time later . . . I saw photos of their wedding ceremony and their signed commitment
document. These hung in their home.”
o “They presented in every way as a married couple. They lived together, they had
a commitment ceremony, they referred to themselves as married. . . . They were known
and admired for their long, committed relationship. They had the symbols of marriage
(rings, houses, commitments, language) and lived as a married couple.”
o “Because it was illegal to marry, they had a commitment ceremony. They lived together
& shared expenses, as well as a bed, until [the NH’s] death. . . . They were a model
for a successful, loving, committed marriage.”
o “The depth of their love, their loyalty and devotion to one another, their willingness
to stay at each other’s side no matter what—these are extremely rare qualities in
the world of relationships.”
o “I have seen their wedding photo & heard about their courtship & ceremony. . . .
They live together just as any other married couple in my experiencing—sharing finances,
o “They lived together in a committed, monogamous relationship for the entire time
I knew them.”
Additional financial, insurance, and medical documents showing that the NH and the
CL bought a home together, shared a bank account, listed each other as the primary
beneficiary on various accounts, and that the CL was covered as a domestic partner
on the NH’s health insurance from 2002 through her death in 2013.
The parties’ commitment ceremony, which was witnessed by multiple family members and
friends, is convincing and direct evidence of the express agreement to marry as well
as the open assumption of the marital relationship. All witnesses (including blood
relatives of both the NH and the CL) uniformly indicated that the parties cohabited
and publicly presented themselves as spouses. See 20 C.F.R. § 404.726(b)(2) (statements from two blood relatives of the deceased are
preferred evidence of common law marriage); POMS GN 00305.065(B)(3). Witnesses also confirmed the existence of marriage accoutrements, such the
wearing of rings and public display of wedding photos and commitment document; and
two witnesses indicated they provided the couple with relationship counseling/therapy.
Additional corroborating evidence was also presented, as the parties maintained joint
bank accounts, purchased property jointly and provided for one another through health
insurance benefits and wills. This is the type of evidence that Colorado courts consider
to be probative. See Lucero, 747 P.2d at 664-65.
The only potentially contrary evidence is not significant. The NH applied for disability
benefits in February 2013 indicating she was never married; the NH’s April 2013 death
certificate indicates she was never married; and the NH’s 2013 tax return (completed
after her death) reflects a filing status of single. But these statements must be
viewed in context. All of the statements pre-dated Obergefell, as well as the earliest decisions specifically addressing Colorado’s same-sex marriage
ban (which were issued in July 2014). See Brinkman v. Long, No. 13-cv-32572 (Colo. Dist. Ct. July xx, 2014); Burns v. Hickenlooper, 2014 WL 3634834 (D. Colo. July xx, 2014); see also Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) (Utah). It is not surprising, and not particularly
probative, that the parties made statements consistent with the state of the law on
these types of formal legal documents. In this context, the statements do not detract
from the otherwise significant and uniform evidence that the parties considered themselves
married and acted accordingly in the community. Consequently, we think the evidence
is more than sufficient to satisfy the preponderance of evidence standard, and a Colorado
court would likely conclude that the NH and the CL had established a common law marriage.
We believe the available evidence is sufficient to establish a common law marriage
in Colorado between the NH and the CL from at least September XX, 2002, until the
NH’s death on April XX, 2013. Therefore, we believe the agency would be justified
in finding that the CL should be considered the NH’s widow for purposes of determining
entitlement to widow’s benefits on the NH’s record.