TN 19 (06-19)

PR 05805.007 Colorado

A. PR 19-074 Relationship of Same-Sex Spouse to NH Based on Common Law Marriage

1. Syllabus

The number holder (NH) died in Colorado: therefore, we look to the Colorado law to determine if the NH and Claimant had a valid common-law marriage. 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. We believe the available evidence is sufficient to establish a common law marriage in Colorado between the NH and the Claimant. Therefore, we believe the agency would be justified in finding that the Claimant should be considered the NH’s widow for purposes of determining entitlement to widow’s benefits on the NH’s record.

2. Opinion

Question Presented

You have asked us to determine if a valid same-sex common law marriage existed in Colorado between the number holder, G~ (NH), and the claimant, D~ (CL), such that the CL is eligible to receive widow’s benefits[1] and a lump sum death payment under the Social Security Act. [[1] ]

Answer

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 since February 1998. Accordingly, we believe the agency would be justified in finding that the CL could be considered the NH’s widow for purposes of determining her entitlement to widow’s benefits and the lump sum death payment on the NH’s record.

Background

According to the CL, she and the NH began living together in Colorado in February 1998 and resided together continuously in Colorado until the NH’s death in March 2018 (Supporting Evidence pp. 3, 4). The CL applied for widow’s benefits and a lump sum death payment in March 2018. See Application Summary for Lump-Sum Death Payment (March xx 2018). In support of that application, she submitted a “Statement of Marital Relationship,” as well as third‑party statements from family and friends, discussed in more detail below (pp. 4-14). The CL also submitted tax returns and lease agreements (pp. 15‑72).

Discussion

Federal Law

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[2] . 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.

State Law

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 valid only if the parties were 18 years of age or older[3] 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 valid only 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 Relationship

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.[4] 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.” Crandell v. Resley, 804 P.2d 272, 276 (Colo. App. 1990) (citing Radovich v. Radovich, 269 P. 22 (Colo. 1928)). In Crandell, 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).[5]

Analysis

Here, the NH and the CL were of sufficient age in 1998 when their common law marriage was alleged to have begun, and there is no evidence of prior undissolved marriages. In addition, we think a factfinder could find preponderant evidence that the NH and the CL mutually agreed to be married, and subsequently assumed a marital relationship.

The CL provided a signed and dated SSA-754 Statement of Marital Relationship in which she stated that she and the NH lived together as a common law married couple from 1998 until the NH’s death in March 2018 in Colorado (p. 4). The CL attested to the fact that she and the NH had made a conscious decision to be a family of wife, wife, and child until “death do us part” (pp. 5, 8). In doing so, the family established a “family anniversary” of February x with the NH’s sonWhen the CL and the NH moved in together in 1998, they established a “family anniversary” for themselves and the NH’s son. To do so, the CL and the NH cut up a calendar and had the son pick a day and a month out of a hat. He picked February and nxxx, so the CL and the NH determined that the family’s anniversary was February xx, 1998 (p. 8).[6] (p. 8). The CL further attested that while they knew they could not be legally married when their relationship began, the CL and the NH felt they were every bit as married as their heterosexual counterparts (p. 8). This belief led them to share rent, bills, highs, lows, joys, and sorrows as a married couple (p. 8). The CL further indicated that she introduced the NH to friends and family as her wife (pp. 6, 8). The NH was more private and only introduced the CL as her partner to close friends (p. 8). However, given the NH’s adult son’s comments, below, that he always believed the couple to be married, we understand that the NH believed herself to be married (p. 12).

Although the CL also indicated that she did not believe that living together made them married, and that she and the NH hoped to have a ceremonial marriage in the future (p. 8), these statements merely reflect the existing legal landscape at the time the CL and the NH moved in together—when same sex marriage was prohibited—and do not undermine the otherwise strong evidence of the parties’ mutual agreement to be married. Further, the CL noted that when the law changed and she and the NH could have married, they were told that the NH would lose access to Medicaid if they were married and therefore they were waiting to ceremonially marry until the CL was collecting Social Security, which did not happen before NH’s death (p. 8).

The CL provided additional corroborating statements regarding marriage from the NH’s son and the CL’s sister:

  • The CL’s sister confirmed that the couple had been together for about 20 years and referred to themselves as spouses/married at gatherings. She added that “[t]hey took care of each other just like ‘traditional’ couples.” She also referred to herself as the NH’s sister-in-law (p. 9).

  • The NH’s adult son, who lived with the couple growing up, indicated that the couple lived together; he considered them to be spouses because they always referred to each other that way; and, the couple had been dating and living together as long as he could remember (p. 12).

These statements corroborate that the parties cohabitated and openly presented themselves as spouses—the “two factors that most clearly show an intention to be married” under Colorado’s case law. Lucero, 747 P.2d at 664; see also POMS GN 00305.065(B)(3) (preferred evidence when one spouse is deceased consists of a statement from the surviving spouse, a statement from a blood relative of the surviving spouse, and a statement from two blood relatives of the deceased spouse). The field office wrote a report of contact that the NH had no other living relatives (p. 1).

The CL provided further corroborating evidence, including two leases, from July 2002 and July 2017, to demonstrate that she and the NH lived together in the same residence (pp. 65-72). The CL also provided a 2017 tax return, which showed that the couple had filed both federal and state income taxes married filing jointly. Although these returns were filed after the NH’s death,[7] the CL signed the forms, reporting that she was the NH’s “surviving spouse” (pp. 23, 32, 35). In addition, the NH’s certificate of death listed the CL as her spouse (p. 3).

As discussed above, Colorado cases make clear that the required proof of a common law marriage need not take any specific form, and testimonial evidence, if believed by the factfinder, can suffice. Indeed, in Lucero, the only proffered evidence was testimony from a single witness, the purported common law wife; the court concluded that such testimony, “if believed, would have established the existence of a common law marriage.” Lucero, 747 P.2d at 665. Here, there are compelling statements from the CL and other witnesses, plus additional supportive documents.

We also reviewed available evidence from SSA records, which includes some contrary evidence. When the NH applied for retirement insurance benefits in September 2016—that is, at a time when same-sex marriage was no longer prohibited—she still stated that she had never been married. See Application Summary for Retirement Insurance Benefits (Sept. xx, 2016). However, given that a ceremonial marriage had never been performed, it is not particularly surprising, or probative, that the NH would not think to identify herself as married when dealing with a government agency. Further, and as already noted above, the witness statements and other evidence uniformly demonstrate that the NH and the CL shared a life together and considered themselves married even when the law would not recognize them as such.

Overall, the evidence tends to demonstrate a mutual intention to live as a married couple, notwithstanding the existing law that prohibited a legal marriage. We think there is sufficient evidence to support a finding that a common law marriage did exist given the preponderance of evidence standard that applies in Colorado. In light of the statements from the CL, her sister, and the NH’s son, and the remaining corroborating evidence described, we think a Colorado court would likely conclude that the NH and the CL established a common law marriage.

Conclusion

We believe the available evidence is sufficient to establish a common law marriage in Colorado between the NH and the CL from February xx, 1998 until the NH’s death on March xx, 2018. 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.

B. PR 19-041 Validity of Same-Sex Common Law Marriage in Colorado

1. Syllabus

The number holder (NH) was domiciled in Colorado at the time of her death; therefore, the 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. Based on the information provided, the NH and the CL began living together as spouses in October 1978, following a Rite of Holy Union. Following the legalization of same-sex marriage, the NH and the CL had a second marriage ceremony in June 2017. We believe the available evidence is sufficient to establish a common law marriage in Colorado between the NH and the CL from October 1978, until the NH’s death in July, 2017. We believe the agency would be justified in finding that the CL could be considered the NH’s widow for purposes of determining entitlement to widow’s benefits on the NH’s record.

2. Opinion

Question Presented

You have asked us to determine if a valid same-sex common law marriage existed in Colorado between the number holder, L~ (NH), and the claimant, T~ (CL), such that the CL is eligible to receive widow’s benefits and a lump-sum death payment under the Social Security Act.

Answer

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 since October XX, 1978, the date the CL alleges that a 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 NH’s record.

Background

Based on the information provided, the NH and the CL began living together as spouses on October XX 1978, following a Rite of Holy Union performed at the Xetropolitan Xommunity Church of theXockies. See, e.g., Form SSA-754-F4, Statement of Marital Relationship; Form SSA795, Statement of Claimant; Certificate of Holy Union (Oct. XX, 1978). Following the legalization of same-sex marriage, the NH and the CL had a second marriage ceremony in June 2017. See State of Colorado, Marriage License. They resided in Colorado for the entirety of their relationship; the NH died in Colorado on July X, 2017. See Form SSA-754-F4; State of Colorado, Certificate of Death.

The CL filed for widow’s benefits and a lump-sum death payment in July 2017. As discussed in more detail below, she submitted evidence in support of that application, including two marriage certificates, a copy of their wedding invitation from 1978, a bank statement, a timeshare buyer statement, and third-party statements from relatives of both the NH and the CL.

Discussion

Federal Law

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.[1] 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.

State Law

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 valid only if the parties were 18 years of age or older[2] 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 valid only 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 Relationship

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.[3] 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).[4]

Analysis

Because the NH died just a month after the parties’ legally-valid 2017 marriage ceremony, that ceremonial marriage, standing alone, does not meet the durational requirement needed to establish the CL’s entitlement to widower’s benefits. However, the durational component can also be met by evidence showing that the parties had previously established a common law marriage under Colorado law. Here, there is no evidence that the NH and CL’s marriage was prohibited under the common law or by statute—that is, there is no evidence of prior undissolved marriages or that the NH and CL were closely related.[5] Further, there is ample evidence demonstrating their mutual agreement to be married followed by the open assumption of their marital relationship. The supportive evidence includes:

  • Written statements from the CL, in which she reported that she and the NH lived together continuously since 1978; considered themselves to be married following a religious ceremony held in October 1978; and married once again following the legalization of same-sex marriage. See Form SSA-754-F4; Form SSA-795.

  • A Certificate of Holy Union indicating that the CL and NH joined together in a Rite of Holy Union on October XX, 1978, as well as a copy of the invitation regarding the ceremony.

  • A Marriage License issued by the State of Colorado in June 2017.

  • Statements Regarding Marriage from the NH’s sister and her sister’s adult son, both of which indicated that the NH and the CL were spouses and referred to each other as such. The NH’s sister also attended their 1978 marriage ceremony. Both relatives described the CL as an “in-law,” indicating their understanding of a familial relationship through marriage. See C.P.’s Form SSA-753; S.P.’s Form SSA-753.

  • A Statement Regarding Marriage from the CL’s son, who also identified himself as the NH’s step-son. See B.L.’s Form SSA-753.

  • A final buyer statement from 1999, showing that the CL and the NH jointly purchased a timeshare in Hawaii.

  • A 2016 Xellco Credit Union statement, addressed to both the NH and the CL.

The parties’ 1978 marriage ceremony and 2017 Colorado marriage license provide 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). Additional corroborating evidence was also presented, as the parties maintained a joint bank account and jointly purchased a timeshare property. This is the type of evidence that Colorado courts consider to be probative. See Lucero, 747 P.2d at 664-65.

However, the record does contain some contrary evidence. In a November 2005 application for SSI, the CL stated that she was unmarried, rented a room in a private home, lived alone, and maintained a separate household from the landlord.[6] The CL repeated those statements in January 2007 as part of a continuing eligibility review. But viewed in context, these statements do not meaningfully detract from the otherwise significant and uniform evidence that the parties considered themselves married and acted accordingly in the community. Notably, these statements predated 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 9, 2014); Burns v. Hickenlooper, 2014 WL 3634834 (D. Colo. July 23, 2014); see also Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) (Utah). It is not surprising, and not particularly probative, that the CL would describe herself as unmarried in a government document. Further, the home address provided by the CL in those applications is the same address listed as the shared residence of the CL and the NH in other documentation provided by the CL. Consequently, the evidence remains 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.[7]

Conclusion

We believe the available evidence is sufficient to establish a common law marriage in Colorado between the NH and the CL from October XX, 1978, until the NH’s death on July X, 2017. Therefore, we believe the agency would be justified in finding that the CL could be considered the NH’s widow for purposes of determining entitlement to widow’s benefits on the NH’s record.[8]

[1] For widow’s benefits, the claimant must also show that she meets one of the following conditions:

(1) her relationship to the insured as a wife lasted for at least 9 months immediately before the insured died;

(2) her relationship to the insured as a wife did not last for at least 9 months but another qualifying condition is satisfied;

(3) she and the insured had a child together; or

(4) the month before marrying the insured, she was entitled to or could have been entitled to certain benefits or payments.

20 C.F.R. § 404.335; see also Social Security Act, § 202(c). For the lump-sum death payment,

(cont.)

in addition to establishing that she is the NH’s widow, the claimant must also (1) apply for the payment within two years of the insured’s death, and (2) have been living in the same household as the insured at time of his death. 20 C.F.R. § 404.391.

[2]Prior to September 1, 2006, the common law age of consent for marriage applied—which was 14 for a male and 12 for a female. In re Marriage of J.M.H. & Rouse, 143 P.3d 1116, 1120 (Colo. App. 2006).

[3] In Lucero, the trial court was presented with testimony from the respondent’s purported common law wife, who testified that she considered herself to be married to the respondent; they held themselves out to friends as being married; and the respondent agreed with her conclusion that they were married. Id. at 662. The Colorado Supreme Court concluded that this testimony, “if believed, would have established the existence of a common law marriage.” Id. at 665.

[4] We are aware of one Colorado probate court that recognized a same-sex common law marriage notwithstanding Crandall. See A Probate Judge Finds Same Sex Common Law Marriage in Colorado, http://denverelderlaw.org/same-sex-common-law-marriage-ruling-in-colorado (last visited April 27, 2018).

[5] According to the CL’s statement, she previously married in 1968, but the marriage was annulled a few months later. See Form SSA-754-F4.

[6] Plaintiff was awarded SSI benefits that same month.

[7] While this contrary evidence does not ultimately impact our assessment that the CL and NH have established a common law marriage by a preponderance of the evidence, to the extent inconsistent representations have been made to the agency and those representations affect SSI eligibility or payment amount, they should be addressed according to existing procedures.

[8] If recognition of the marriage affects the CL’s SSI eligibility or benefit amount, please follow the instructions related to reopening and overpayments as detailed in POMS SI 04070.010(F)(5) and EM-16013 REV 3.

C. PR 19-040 Validity of Same-Sex Common Law Marriage in Colorado

1. Syllabus

To determine if a current childhood disability benefits (CDB) beneficiary and a current recipient of supplemental security income (SSI) have a valid same-sex common law marriage, we look to the Colorado state law, where the coupled have lived since 2010. The couple began living together in February 2007 and have considered themselves common law married since June xx, 2015, when the United States Supreme Court recognized same-sex marriage. We think the evidence submitted is more than sufficient to satisfy the preponderance of evidence standard and a Colorado court would likely conclude that the couple had a common law marriage as of June XX, 2015.

2. Opinion

Question

You have asked us to determine if a valid same-sex common law marriage exists in Colorado between L~ (L), a current childhood disability benefits (CDB) beneficiary, and V~ (V) a current recipient of supplemental security income (SSI). A valid marriage between L. and V. would terminate L.’s entitlement to CDB.

Short Answer

Yes. We believe that State courts in Colorado would find that a valid same-sex common law marriage exists between L. and V. under Colorado law since June xx, 2015.

Background

According to the available information, L. and V. began living together in February 2007 and have considered themselves common law married since June XX, 2015, when the United States Supreme Court recognized same-sex marriage inObergefell v. Hodges, 135 S. Ct. 2584 (2015). They currently reside in Colorado and appear to have done so since at least 2010. The documentation considered includes marriage statements from L. and V., as well as from L.’s daughter and mother and V.’s mother and sister. They have also provided car insurance identification cards and a car dealership invoice that list both of their names, a mailing addressed to both of them at the same address, and a typed letter from a woman who states she has worked as their real estate agent. L. and V. have not had a ceremonial marriage. According to information provided by L., they have agreed or promised that a ceremonial marriage will occur in the future, but have not yet had a ceremonial marriage for “financial reasons.” See Form SSA-754-F4, Statement of Marital Relationship. However, the parties consider themselves to have a common law marriage. See, e.g., id.; Form SSA-795 (L. S., dated 5//16); Forms SSA-795 (V. P., dated 5//16 & 8//16).

Discussion

Federal Law

As relevant here, an individual’s entitlement to child’s benefits ends “[w]ith the month before the month you marry.”[1] 20 C.F.R. § 404.352(b)(4); POMS RS 00203.035. In order to determine whether L. is married, we look to state law. See 20 C.F.R. § 404.723; POMS GN 00305.001.

State Law

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 valid only if the parties were 18 years of age or older[2] 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 valid only 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 Relationship

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.[3] 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).[4]

Analysis

It appears that L. and V. have established a common law marriage under Colorado law. They are of age, their marriage is not prohibited by statute or common law,[5] and, as noted above, they both consider themselves married. On this last point, V. has provided a form in which she edited a prior certification stating they were not married to instead read: “I do consider myself married to [L.]. I consider her to be my wife. We do hold ourselves out to the public as married.” Form SSA-795, Statement of Claimant (Aug. , 2016); see also Form SSA-795, Statement of Claimant (May , 2016) (stating the same). Likewise, L. completed a Statement of Marital Relationship in which she identified V. as her wife and also a Statement of Claimant or Other Person in which she noted she considered herself common law married after the Supreme Court decision recognizing same-sex marriages. See Form SSA-754-F4; Form SSA-795.

With respect to the final element—demonstration of a mutual and open assumption of a marital relationship—the additional documentation provided is sufficient to show that they hold themselves out as a married couple. Most significantly, immediate family members on both sides completed marital statements attesting that L. and V. consider themselves to be spouses, and introduce themselves as such to others. For instance:

  • V.’s sister stated that L. and V. live together and support and raise their children together. See Form SSA-753, Statement Regarding Marriage (K A. P).

  • V.’s mother said that the couple “share everything,” and noted that V. has taken on a parental role in raising L.’s children as if they were her own. See Form SSA-753, Statement Regarding Marriage (J M. P).

  • L’s mother provided a statement indicating that L. and V. are generally known as spouses and she has heard them refer to each other as such “everywhere.” See Form SSA-753, Statement Regarding Marriage (C A. S).

  • L’s daughter provided a statement in which she considered herself to be V.’s stepdaughter, said V. has raised her as a child of her own, and indicated that L. and V. “always” referred to each other as “wife.” See Form SSA-753, Statement Regarding Marriage (S C M).

Consequently, we think the evidence is more than sufficient to satisfy the preponderance of evidence standard, and a Colorado court would likely conclude that L. and V. had agreed to a common law marriage as of June xx, 2015. The conclusion that L. and V. are common law married is further buttressed by the additional documentation provided, which includes evidence of cohabitation and co-insurance on automobiles. See Lucero, 747 P.2d at 664-65; see also 20 C.F.R. § 404.726(b)(1) (stating the preferred evidence to establish a common law marriage where both spouses are living is a signed statement from each party and those of two blood relatives).

Conclusion

We believe the available evidence is sufficient to establish a common law marriage in Colorado between L. and V. beginning June xx, 2015.[6]

[1] Marriage will not terminate benefits if the individual is eighteen or older, disabled, and marries a person entitled to child’s benefits based on disability or a person entitled to old-age, divorced wife’s, divorced husband’s, widow’s, widower’s, mother’s, father’s, parent’s, or disability benefits. See 20 C.F.R. § 404.152(b)(4). Marriage to an individual receiving SSI benefits only does not fall within this exception. POMS RS 00203.035.

[2]Prior to September 1, 2006, the common law age of consent for marriage applied—which was 14 for a male and 12 for a female. In re Marriage of J.M.H. & Rouse, 143 P.3d 1116, 1120 (Colo. App. 2006).

[3] In Lucero, the trial court was presented with testimony from the respondent’s purported common law wife, who testified that she considered herself to be married to the respondent; they held themselves out to friends as being married; and the respondent agreed with her conclusion that they were married. Id. at 662. The Colorado Supreme Court concluded that this testimony, “if believed, would have established the existence of a common law marriage.” Id. at 665.

[4] We are aware of one Colorado probate court that recognized a same-sex common law marriage notwithstanding Crandall. See A Probate Judge Finds Same Sex Common Law Marriage in Colorado, http://denverelderlaw.org/same-sex-common-law-marriage-ruling-in-colorado (last visited April 27, 2018).

[5] L. was previously married, but indicated the relationship ended in divorce in 1997. See Form SSA‑754-F4, Statement of Marital Relationship.

[6] If recognition of the marriage affects V’s SSI eligibility or benefit amount, please follow the instructions related to reopening and overpayments as detailed in POMS SI 04070.010(F)(5) and EM-16013 REV 3. With respect to any overpayment attributable to the termination of L’s CBD benefits, existing agency procedures should be followed.

D. PR 19-039 Relationship of a Same-Sex Spouse to the NH Based on a Common Law Marriage in Colorado – NH

1. Syllabus

The number holder (NH) was domiciled in Colorado when he died; therefore, we use the Colorado law to determine if the claimant (CL) is entitled to widower’s benefits and the lump sum death payment on the NH’s record. The burden of proof for establishing a common law marriage in Colorado is by a preponderance of the evidence We believe the available evidence is sufficient to establish a common law marriage in Colorado between the NH and the CL. 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 from February 1972 until the NH’s death in October 2013. Accordingly, the agency would be justified in finding that the CL should be considered the NH’s widower for purposes of determining entitlement to widower’s benefits and lump sum death payment on the NH’s record

2. Opinion

Question

You have asked us to determine if a valid same-sex common law marriage existed in Colorado between the number holder, R~ (NH), and the claimant, M~ (CL), such that the CL is eligible to receive widower’s benefits and a lump sum death payment under the Social Security Act.

Short Answer

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 since February XX 1972. Accordingly, we believe the agency would be justified in finding that the CL could be considered the NH’s widower for purposes of determining entitlement to widower’s benefits and the lump sum death payment on the NH’s record.

Background

According to statements from both the NH and the CL, they began living together in Colorado in February 1972, and resided together continuously in Colorado until the NH’s death in October 2013 (Supporting Evidence pp. 2, 5).

The CL applied for widower’s benefits and a lump sum death payment in 2014 (p. 54). In support of that application, he submitted a notarized letter from the NH signed in December 2012, prior to his death (pp. 2-3). In the letter, the NH stated that “If, we cannot be married in the eyes of the law, I consider myself as your legal spouse/husband. And, you, as my legal spouse/husband.” The CL also submitted a “Statement of Marital Relationship,” as well as third‑party statements from family and friends, discussed in more detail below (pp. 5-18). Although additional supporting documents were requested (such as tax returns, bank statements, rent receipts, insurance policies, etc.), no such documents were provided (pp. 19-20).

Both the CL and NH had previously applied for disability benefits and provided relevant information contemporaneous to those claims, which is also discussed in more detail below (pp. 21-141).

Discussion

Federal Law

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.[1] 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 he died, Colorado law applies.

State Law

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 valid only if the parties were 18 years of age or older[2] 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 valid only 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 Relationship

  • 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.[3] 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).[4]

Analysis

Here, the NH and CL were of sufficient age in 1972 when their common law marriage was alleged to have begun, and there is no evidence of prior undissolved marriages. In addition, we think a fact-finder could find preponderant evidence that the NH and CL mutually agreed to be married, and subsequently assumed a marital relationship.

Significantly, the NH executed a notarized letter ten months before his death, in which he clearly and unambiguously expressed his belief that he and the CL were married (pp. 2-3):

Colorado law unfortunately does not allow you and me to be legally married. So, it is my intent that upon my demise, I want you to be able to receive all of my military benefits. Also my social security, Medicare, and veteran benefits.

If, we cannot be married in the eyes of the law, I consider myself as your legal spouse/husband. And, you, as my legal spouse/husband.

As you know . . . we started living together, February , 1972. We have been together ever since.

The NH’s statement is clear and direct, making it particularly compelling. The CL similarly reported that he and the NH lived together continuously since February 1972 and that he referred to the NH as his “spouse,” “husband,” or “other half.” Although the CL also indicated that he did not believe that living together made them married, and that he and the NH planned a ceremonial marriage in the future, these statements merely reflect the existing legal landscape prior to the NH’s death—when same sex marriage was prohibited—and do not undermine the otherwise strong evidence of the parties’ mutual agreement to be married.

The CL provided additional corroborating statements regarding marriage from three of the NH’s relatives (nieces) and the NH’s employer:

  • A niece confirmed that the couple had been together for more than 40 years and called each other “endearing names” and “always referred to themselves as married to each other.” She added that “[t]hey have been through the same ups and downs that any husband and wife have, i.e., death of parents, finances, home ownership, etc.” (p. 9).

  • A niece (by marriage) indicated that the couple lived together; she considered them to be spouses; and, to her knowledge, the couple was generally known to others as spouses. She noted that when she first met the couple, they were introduced as “my uncle Ron & his wife Merlin” and that they addressed each other as “husband & wife” or “my significant other” (p. 12).

  • Another niece indicated that she had known the couple for more than 40 years, saw them together at family gatherings; confirmed that they lived together; and expressed that “[t]hey loved each other very much.”

  • A former employer indicated that the couple lived together, “did everything together,” and “always acted like life partners.” He also heard them refer to one another as spouses, and thought they were generally known to others as such (p. 14).

These statements corroborate that the parties cohabitated and openly presented themselves as spouses—the “two factors that most clearly show an intention to be married” under Colorado’s case law. Lucero, 747 P.2d at 664; see also 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). Although the CL was unable to provide additional corroborating documents, like joint bank accounts or joint property purchases, such evidence is not required under Colorado law. As discussed above, Colorado cases make clear that the required proof of a common law marriage need not take any specific form—and that testimonial evidence, if believed by the fact-finder, can suffice. Indeed, in Lucero, the only proffered evidence was testimony from a single witness, the purported common law wife; the court concluded that such testimony, “if believed, would have established the existence of a common law marriage.” Lucero, 747 P.2d at 665. Here, there are compelling statements from both parties to the purported marriage, as well as several witnesses.

We also reviewed available evidence from SSA records, and found some corroborating information as well as a few inconsistencies. Specifically, SSA records demonstrate:

  • In 2004, the NH applied for SSI (p. 21-22). He reported being unmarried, but living with the CL, who he described as an “other relative.” He also reported owning a vehicle, with the CL (described as “my brother”) also on the title. The NH reported no other resources (suggesting he had no bank account).

  • In 2011, the CL applied for SSI (pp. 28-29). He reported being unmarried, but living with the NH, described as an “other relative.” He reported that he and the NH co-owned a vehicle, and that he had no bank account.

  • In 2012, the CL again applied for SSI (pp. 37-38). The CL reported being unmarried, but living with the NH, whom he described as a “non-relative.” He again reported co‑ownership of a vehicle with the NH and no bank account. The CL began receiving SSI as of September 2012, as indicated in an April 2013 Notice of Award.

  • In a 2011 disability report, the CL described the NH as a “friend” (p. 59). In a 2012 disability report, he described the NH as “brother” (p. 68).

  • At a December 2011 medical appointment, the CL described himself as “married” (p. 91).

  • In August 2012, the NH signed as a “witness” on the CL’s medical release form (SSA‑827), noting “P.O.A.” [presumably a reference to power of attorney] (p. 113).

  • In an April 2013 review of his SSI eligibility (p. 46), the CL reported living alone, though he again reported co-ownership of a vehicle with the NH.

With the exception of CL’s April 2013 report (discussed further below), SSA records corroborate that the NH and CL lived together. SSA records also reflect that the NH and CL did not have bank accounts (which could explain why CL did not have evidence of joint accounts), but did own vehicles jointly. Further, SSA records generally suggests the couple had a close, familial relationship—often describing one another as “brother” or “relative.” These statements all pre‑dated Obergefell, during which period the NH and CL could not legally represent themselves as married, and they might have used brother or relative as a way to express that they had a very close relationship. Overall, this evidence tends to corroborate the NH’s and the CL’s statements regarding their mutual intention to live as a married couple, notwithstanding the existing law that prohibited a legal marriage.

The CL’s April 2013 report that he lived alone does detract somewhat from the overall body of evidence, but we do not think is it so overwhelming that a fact-finder could not find a preponderance of evidence supporting the marriage. There could be a reasonable explanation for the discrepancy, such as the NH’s temporary absence from the household.[5] Even without such an explanation, though, we think there is sufficient evidence overall to support a finding that a common law marriage did exist given the preponderance standard that applies in Colorado. Particularly in light of the clear and direct statement from the NH, and the remaining corroborating evidence described, we think a Colorado court would likely conclude that the NH and the CL established a common law marriage.

Conclusion

We believe the available evidence is sufficient to establish a common law marriage in Colorado between the NH and the CL from February , 1972 until the NH’s death on October , 2013. Therefore, we believe the agency would be justified in finding that the CL should be considered the NH’s widower for purposes of determining entitlement to widower’s benefits on the NH’s record.[6]

[1] For widower’s benefits, the claimant must also show that he meets one of the following conditions:

(1) his relationship to the insured as a husband lasted for at least 9 months immediately before the insured died;

(2) his relationship to the insured as a husband did not last for at least 9 months but another qualifying condition is satisfied;

(3) he and the insured had a child together; or

(4) the month before marrying the insured, he was entitled to or could have been entitled to certain benefits or payments.

20 C.F.R. § 404.335; see also Social Security Act, § 202(c). For the lump-sum death payment,

(cont.)

in addition to establishing that he is the NH’s widower, the claimant must also (1) apply for the payment within two years of the insured’s death, and (2) have been living in the same household as the insured at time of his death. 20 C.F.R. § 404.391.

[2]Prior to September 1, 2006, the common law age of consent for marriage applied—which was 14 for a male and 12 for a female. In re Marriage of J.M.H. & Rouse, 143 P.3d 1116, 1120 (Colo. App. 2006).

[3] In Lucero, the trial court was presented with testimony from the respondent’s purported common law wife, who testified that she considered herself to be married to the respondent; they held themselves out to friends as being married; and the respondent agreed with her conclusion that they were married. Id. at 662. The Colorado Supreme Court concluded that this testimony, “if believed, would have established the existence of a common law marriage.” Id. at 665.

[4] We are aware of one Colorado probate court that recognized a same-sex common law marriage notwithstanding Crandall. See A Probate Judge Finds Same Sex Common Law Marriage in Colorado, http://denverelderlaw.org/same-sex-common-law-marriage-ruling-in-colorado (last visited April 27, 2018).

[5]To the extent inconsistent representations have been made to the agency and those representations affect SSI eligibility or payment amount, they should be addressed according to existing procedures.

[6] If recognition of the marriage affects the CL’s SSI eligibility or benefit amount, please follow the instructions related to reopening and overpayments as detailed in POMS SI 04070.010(F)(5) and EM-16013 REV 3.

E. PR 19-022 Validity of Same-Sex Common Law Marriage in Colorado

Date: November 5, 2018

1. Syllabus

The number holder (NH) was domiciled in Colorado at the time of death; therefore, we look to the Colorado law to determine whether the claimant would be considered the NH’s spouse for Title II benefits purposes. The claimant alleges that he lived continuously with the NH in Colorado as life partners beginning in May 1992. Absent significant contrary evidence, we believe that the evidence presented is more than sufficient to meet the preponderance of the evidence standard to establish a common law marriage under Colorado law. Therefore, the claimant should be considered the NH’s widower for purposes of determining entitlement to widower’s benefits on the NH’s record.

2. Opinion

Question Presented

You have asked us to determine if a valid same-sex common law marriage existed in Colorado between the number holder, E~ (NH), and the claimant, T~ (CL), such that the CL is eligible to receive widower’s benefits and a lump-sum death payment under the Social Security Act.

Short Answer

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 since May 1992, when the NH and the CL began living together. Accordingly, we believe the agency would be justified in finding that the CL should be considered the NH’s widower for purposes of determining entitlement to widower’s benefits on the NH’s record.

Factual Background

Based on the information provided, the NH and the CL began living together in May 1992, and considered themselves spouses at that time. See, e.g., Form SSA-754-F4, Statement of Marital Relationship. In April 2016, the NH and the CL had a ceremonial wedding. See State of Colorado, Marriage License. They resided in Colorado for the entirety of their relationship; the NH died in Colorado on July xx, 2016. See Form SSA-754-F4; State of Colorado, Certificate of Death.

The CL filed for widower’s benefits and a lump-sum death payment in December 2016. As discussed in more detail below, he also submitted additional evidence in support of that application, including a marriage license, a mortgage statement, a 2011 affidavit of spousal equivalency, and third-party statements from family and friends.

Discussion

Federal Law

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.[8] 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 he died, Colorado law applies.

State Law

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 valid only if the parties were 18 years of age or older[9] 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 valid only 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 Relationship

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.[10] 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).[11]

Analysis

Because the NH died just a few months after the parties’ 2016 ceremonial marriage, that marriage, standing alone, does not meet the durational requirement needed to establish the CL’s entitlement to widower’s benefits. However, the durational component can also be met by evidence showing that the parties had previously established a common law marriage under Colorado law. Here, there is no evidence that the NH and CL’s marriage was prohibited under the common law or by statute—that is, there is no evidence of prior undissolved marriages or that the NH and CL were closely related. Further, there is ample evidence demonstrating their mutual agreement to be married followed by the open assumption of their marital relationship. The supportive evidence includes:

  • A Statement of Marital Relationship from the CL in which he reported that he and the NH lived together continuously since 1992, considered themselves to be “life partners,” and had a ceremonial marriage after same-sex marriage became legal. See Form SSA‑754-F4.

  • A 2011 City and Council of Denver Affidavit of Spousal Equivalency, signed by both the NH and the CL, completed in conjunction with establishing the CL as a dependent on the NH’s health insurance coverage. The parties attested to the following facts:

    • Each was 18 years of age or older;

    • They shared an exclusive, committed relationship and held themselves out as committed partners;

    • They lived together, sharing basic living expenses with the intent for the relationship to last indefinitely;

    • They were mentally competent to consent to contract to their partnership when it began; and

    • They had no other spousal equivalent at the time.

  • A Statement Regarding Marriage from the NH’s lone sibling, a sister, indicating that she considered the NH and the CL to be spouses and that they had lived together as a couple since 1992. See J.R.’s Form SSA-753. She also described herself as the CL’s “sister in law.”

  • Additional Statements Regarding Marriage from the CL’s cousin, the NH’s co-worker, and a friend of the couple, all of which indicated that the NH and the CL had been in a long-term relationship and held themselves out as spouses:

    • The NH and the CL “lived together in a close and loving monogamous relationship for 25 years until [the NH’s] death on 7/30/2016.” See B.M.’s Form SSA-753.

    • “At work [the NH] often spoke of [the CL] as his spouse. He talked about their home, their dogs, their budget, their travels—always in a manner consistent w/being married.” See B.B.’s Form SSA-753.

  • A July 2016 letter from US Bank, addressed to both the NH and the CL, regarding their mortgage payment.

The parties’ 2011 affidavit of spousal equivalency, combined with the ceremonial marriage in 2016 following the legalization of same-sex marriage, 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 even prior to the 2016 ceremony. 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). Additional corroborating evidence was also presented, which showed that the CL received health insurance coverage through the NH’s employer and that the parties shared a mortgage loan. 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 CL completed a statement in which he noted that, when he applied for retirement benefits in 2012, he did not list himself as married. But, as the CL also notes, he completed that paperwork at a time when same-sex marriage was still illegal in Colorado. See CL’s Form SSA-795; see alsoBrinkman v. Long, No. 13-cv-32572 (Colo. Dist. Ct. July xx, 2014); Burns v. Hickenlooper, 2014 WL 3634834 (D. Colo. July xx, 2014). It is not surprising, and not particularly probative, that the CL made a statement consistent with the state of the law on these types of formal legal documents. In this context, such 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.

Conclusion

We believe the available evidence is sufficient to establish a common law marriage in Colorado between the NH and the CL from May 1992 until the NH’s death on July xx, 2016. Therefore, we believe the agency would be justified in finding that the CL should be considered the NH’s widower for purposes of determining entitlement to widower’s benefits on the NH’s record.

F. PR 18-124 Relationship of a Same-Sex Spouse to the NH Based on a Common Law Marriage in Colorado

Date: August 15, 2018

1. Syllabus

The number holder (NH) was domiciled in Colorado at the time of death; therefore, we look to the Colorado law to determine whether the claimant would be considered the NH’s spouse for Title II benefits purposes. We believe that the witness statements and corroborating evidence satisfy the preponderance of the evidence standard and is sufficient to establish a common law marriage under Colorado law beginning in 1984 when the NH and claimant began living together in the State. Therefore, the claimant should be considered the NH’s widower for purposes of determining entitlement to widower’s benefits on the NH’s record.

2. Opinion

Question Presented

You have asked us to determine if a valid same-sex common law marriage existed in Colorado between the number holder, T~ (NH), and the claimant, J~(CL), such that the CL is eligible to receive widower’s benefits and a lump sum death payment under the Social Security Act.

Short Answer

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 since 1984, when the NH and CL began living together in Colorado. Accordingly, we believe the agency would be justified in finding that the CL should be considered the NH’s widower for purposes of determining entitlement to widower’s benefits on the NH’s record.

Background

Based on the information provided, the NH and the CL began living together in Utah in August 1979, and considered themselves spouses at that time. See Form SSA-754, Statement of Marital Relationship. In 1984, they moved to Colorado, where they resided until the NH’s death on September xx, 2014. See id; State of Colorado, Certificate of Death.

The CL protectively filed for widower’s benefits and a lump-sum death payment in November 2014. He submitted evidence in support of that application, including a bank statement, a life insurance policy, and third-party statements from family members and a hospice worker, discussed in more detail below.

Discussion

Federal Law

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.[12] See also 20 C.F.R. § 404.345.

State Law[13]

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 valid only if the parties were 18 years of age or older[14] 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 valid only 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 xx, 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 Relationship

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.[15] 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).[16]

Analysis

Here, there is no evidence that the NH and the CL’s marriage was prohibited under the common law (or by statute)—that is, there is no evidence of prior undissolved marriages or that the NH and CL were closely related. Further, there is ample evidence demonstrating their mutual agreement to be married followed by the open assumption of their marital relationship. The supportive evidence includes:

  • A Statement of Marital Relationship from the CL in which he reported that he and the NH lived together continuously since 1979 and considered themselves to be married once they moved in together.

  • A Statement Regarding Marriage from the NH’s sister, indicating that she considered the NH and CL to be spouses and that they were generally known as such. The NH’s sister stated that the NH and the CL “were devoted to one another and [the CL] cared for the [NH] as his health declined.”

  • Statements Regarding Marriage from the CL’s sister and niece, who likewise considered the NH and the CL to be married and noted that they held themselves out as spouses. The CL’s sister also referred to the NH as her brother-in-law.

  • A statement from a hospice social worker, noting that the CL cared for the NH “around the clock” while he was in hospice care.

  • A bank statement listing both the CL and the NH on the account.

  • A life insurance policy listing the CL as the NH’s beneficiary.

We note that the NH’s brother indicated that the CL and the NH were generally known as “companions” rather than spouses; the CL also stated that he introduced the NH as his “partner” or “lover.” However, we do not find these statements inconsistent with a finding that a common law marriage existed. Rather, the statements merely reflect that the parties referred to their relationship using language consistent with the (unconstitutional) legal constraints in place at the time. The witness statements and other evidence uniformly demonstrate the parties had a deeply committed and lifelong partnership equivalent to marriage—even if the word marriage was not always used to describe the relationship. As the NH’s brother explained, he still considered the NH and CL to be spouses, and “while they weren’t legally married, they lived together and contributed to each other’s support—financial, emotional, social.”

In sum, we think the witness statements (which included blood relatives of both the NH and the CL) as well as the additional corroborating evidence (joint bank account, status as life insurance beneficiary) is 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. See Lucero, 747 P.2d at 664-65; see also 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).

Conclusion

We believe the available evidence is sufficient to establish a common law marriage in Colorado between the NH and the CL from 1984 until the NH’s death on September xx, 2014. Therefore, we believe the agency would be justified in finding that the CL should be considered the NH’s widower for purposes of determining entitlement to widower’s benefits on the NH’s record.

G. PR 18-118 Relationship of Same-Sex Spouse to the NH Based on a Common Law Marriage in Colorado

1. SYLLABUS

The number holder (NH) died while domiciled in Colorado; therefore, we look to the Colorado law to determine if the NH and the Claimant had a valid common law marriage. Colorado recognizes common law marriage and the burden of proof for establishing a common law marriage in Colorado is by a preponderance of the evidence. In this case, we believe that State courts in Colorado would find that a valid same-sex common law marriage existed between the NH and the Claimant under the Colorado law since May 1983, the date they allege they held a ceremony at a Denver church and received a “Blessing Certificate.” In sum, we think the evidence is sufficient to satisfy the preponderance of evidence standard, and a Colorado court would likely conclude that the NH and the Claimant had established a common law marriage and would be justified in finding that the Claimant is the NH’s widower for purposes of determining entitlement to widower’s benefits on the NH’s record.

2. OPINION

Question Presented

You have asked us to determine if a valid same-sex common law marriage existed in Colorado between the number holder, R1~(NH), and the claimant, R2~ (CL), such that the CL is eligible to receive widower’s benefits and a lump sum death payment under the Social Security Act.

Short Answer

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 since May XX, 1983 , the date they allege they held a ceremony at a Denver church and received a “Blessing Certificate.”

Accordingly, we believe the agency would be justified in finding that the CL is the NH’s widower for purposes of determining entitlement to widower’s benefits on the NH’s record.

Background

Based on the information provided, the NH and the CL held a marriage ceremony in Denver, Colorado, on May XX, 1983. The CL alleges that they received a “Blessing Certificate” recognizing the marriage, but that the certificate is unavailable because it was lost in a fire. They initially lived together in Denver, then moved to Texas for two years, followed by a move to New Mexico for seven years. They returned to Colorado in 1992, where they remained until the NH’s death on April XX, 2013. See Report of Contact; Statement of Marital Relationship.

The CL protectively filed for widower’s benefits and a lump-sum death payment in January 2015. As discussed in more detail below, he submitted evidence in support of that application, including wills, a jointly-executed lease purchase agreement, and third-party statements from friends and a family member.

Federal Law

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[17] . See also 20 C.F.R. § 404.345.

State Law

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 valid only if the parties were 18 years of age or older[18] 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 xx, 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 valid only 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 Relationship

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.[19] 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). [20]

ANALYSIS

Here, there is no evidence that the NH and the CL’s marriage was prohibited under the common law (or by statute) — that is, there is no evidence of prior undissolved marriages or that the NH and CL were closely related. Further, there is ample evidence demonstrating their mutual agreement to be married followed by the open assumption of their marital relationship.

As an initial matter, the CL reported that he and the NH had a church ceremony in Denver on May XX, 1983, and received a “Blessing Certificate” documenting their union. See Report of Contact. Although the CL could not produce the “Blessing Certificate” issued in recognition of the ceremony, his explanation, that the document was lost in a fire, is plausible. According to the CL, two of the witnesses who completed statements, J~ and G~, attended the ceremony. See Statement of Marital Relationship. Neither witness mentioned a ceremony in their statements. See Statements Regarding Marriage. However, J~ commented that “they both were always committed to their union ‘til death do us part’ 1983-2013.” See Statement of J~. His use of the phrase “til death do us part” and mention of 1983 (the year of the ceremony according to the CL) is consistent with the CL’s allegation. Another witness mentioned a “belated honeymoon.” See Statement of A~. We view this as some corroboration for the CL’s statement regarding the church ceremony, although not particularly strong. However, a church ceremony and express agreement to marry are not required and there is other convincing evidence of the mutual and open assumption of a marital relationship in this case:

• According to the CL, they cohabitated for 30 years and called each other “husband” or “partner.” See Report of Contact; Statement of Marital Relationship. The record also contains several statements from friends of the NH and the CL, who indicate that they considered the NH and the CL to be married; that they called each other “husband” or “partner”; that they lived together continuously for over 28 years; and that they intended to be legally married after the law changed, but the NH died before that was possible. See Statements Regarding Marriage from T~, W1~, W2~, A~, J~, and G~.

• They purchased property together, as evidenced by a January 2004 lease purchase agreement executed in both of their names.

• Both the NH and the CL executed living wills in 2010, authorizing the other individual to make medical decisions.

• The NH bequeathed his entire estate to the CL in his Last Will and Testament.

There is some contrary evidence. For instance, the CL did not list any blood relatives on his Statement of Marital Relationship. However, he provided a statement explaining that, due to differences in opinion over the NH’s death, he no longer spoke with the NH’s brother or mother. He further explained that he was estranged from his own family and they did not know the NH. See Statement of Claimant. Ultimately, the NH’s brother, R3~, provided a Statement Regarding Marriage in which he wrote that the NH and the CL were “just gay roommates” and were never married because the NH’s brother died before the civil unions law took effect. Another witness, T~, also indicated they were not generally known as married. See Statement of T~.

However, we think it is important to view these statements in the context of the (unconstitutional) legal constraints that existed prior to R1~’s death — i.e., these statements appear to reflect the witnesses’ understanding that the NH and the CL could not legally marry and thus could not legally be known as married. Indeed, despite stating the couple was not generally known as married, both witnesses described a committed relationship — R3~ used the term “significant other” while T~ used the term “life partners.” See Statements Regarding Marriage. Overall, the witness statements and other evidence uniformly demonstrates that the parties had a deeply committed and lifelong partnership equivalent to marriage — even if the word marriage was not always used to describe the relationship.

In a similar vein, we note that one witness stated that the NH and CL’s marriage was known “only to their friends.” See Statement of J~. Although we found no Colorado case law directly addressing how open a couple must be regarding their marital relationship, one Colorado case has recognized a common law marriage where the parties demonstrated open assumption of a marital relationship before family and neighbors. See Employer’s Mut. Liab. Ins. Co. of Wis. v. Indus. Comm’n of Colo., 357 P.2d 929, 931-32 (Colo. 1960); see also Lucero, 747 P.2d at 665 (noting that “general reputation or repute means ‘the understanding among the neighbors and acquaintances with whom the parties associate in their daily life, that they are living together as husband and wife”). When viewed in the social and legal context of same-sex marriage during the NH’s lifetime, the couple’s desire for some privacy regarding the relationship is understandable, and we believe it is sufficient that they openly assumed a marital relationship before close friends.

In sum, we think the evidence is 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. See 20 C.F.R. § 404.726(b)-(c) (statements from blood relatives of the deceased are preferred, but other “convincing evidence” is acceptable to prove common law marriage); Lucero, 747 P.2d at 664-65.

CONCLUSION

We believe the available evidence is sufficient to establish a common law marriage in Colorado between the NH and the CL from May XX, 1983, 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 widower for purposes of determining entitlement to widower’s benefits and the lump sum death payment on the NH’s record.

 

H. PR 18-103 Validity of Same-Sex Common Law Marriage in Colorado

1. SYLLABUS

The number holder (NH) was domiciled in Colorado at the time of death; therefore, 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. Here, there is ample evidence demonstrating their mutual agreement to be married followed by the open assumption of their marital relationship. We believe the available evidence is sufficient to establish a common law marriage in Colorado between the NH and the CL and 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.

2. OPINION

QUESTION

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.

SHORT ANSWER

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 NH’s record.

BACKGROUND

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 Death.

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.

DISCUSSION

Federal Law

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.[21] 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.

State Law

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[22] 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 Relationship

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.[23] 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).[24]

ANALYSIS

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 includes:

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[25] ; 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, etc. etc.”

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.

CONCLUSION

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.


Footnotes:

[1]

 

While you only requested an opinion regarding the lump sum death payment, since the CL applied for all survivor’s benefits, we included widow’s benefits in our analysis.

[2]

 

For widow’s benefits, the claimant must also show that she meets one of the following conditions:

(1) her relationship to the insured as a wife lasted for at least 9 months immediately before the insured died; (2) her relationship to the insured as a wife did not last for at least 9 months but another qualifying condition is satisfied; (3) she and the insured had a child together; or (4) the month before marrying the insured, she was entitled to or could have been entitled to certain benefits or payments.

20 C.F.R. § 404.335; see also Social Security Act, § 202(c). For the lump-sum death payment,in addition to establishing that she is the NH’s widow, the claimant must also (1) apply for the payment within two years of the insured’s death, and (2) have been living in the same household as the insured at time of her death. 20 C.F.R. § 404.391.

[3]

 

Prior to September 1, 2006, the common law age of consent for marriage applied—which was 14 for a male and 12 for a female. In re Marriage of J.M.H. & Rouse, 143 P.3d 1116, 1120 (Colo. App. 2006).

[4]

In Lucero, the trial court was presented with testimony from the respondent’s purported common law wife, who testified that she considered herself to be married to the respondent; they held themselves out to friends as being married; and the respondent agreed with her conclusion that they were married. Id. at 662. The Colorado Supreme Court concluded that this testimony, “if believed, would have established the existence of a common law marriage.” Id. at 665.

[5]

We are aware of one Colorado probate court that recognized a same-sex common law marriage notwithstanding Crandell. See A Probate Judge Finds Same Sex Common Law Marriage in Colorado, http://denverelderlaw.org/same-sex-common-law-marriage-ruling-in-colorado (last visited April 27, 2018).

[6]

When the CL and the NH moved in together in 1998, they established a “family anniversary” for themselves and the NH’s son. To do so, the CL and the NH cut up a calendar and had the son pick a day and a month out of a hat. He picked February and nine, so the CL and the NH determined that the family’s anniversary was February 9, 1998 (p. 8).

[7]

The 2017 tax returns were filed on March 28, 2018 and the NH died on March 21, 2018.

[8]

 

For widower’s benefits, the claimant must also show that he meets one of the following conditions:

 

(1) his relationship to the insured as a husband lasted for at least 9 months immediately before the insured died;

(2) his relationship to the insured as a husband did not last for at least 9 months but another qualifying condition is satisfied;

(3) he and the insured had a child together; or

(4) the month before marrying the insured, he was entitled to or could have been entitled to certain benefits or payments.

 

20 C.F.R. § 404.335; see also Social Security Act, § 202(c). For the lump-sum death payment, in addition to establishing that he is the NH’s widower, the claimant must also (1) apply for the payment within two years of the insured’s death, and (2) have been living in the same household as the insured at time of his death. 20 C.F.R. § 404.391.

[9]

Prior to September xx, 2006, the common law age of consent for marriage applied—which was 14 for a male and 12 for a female. In re Marriage of J.M.H. & Rouse, 143 P.3d 1116, 1120 (Colo. App. 2006).

[10]

In Lucero, the trial court was presented with testimony from the respondent’s purported common law wife, who testified that she considered herself to be married to the respondent; they held themselves out to friends as being married; and the respondent agreed with her conclusion that they were married. Id. at 662. The Colorado Supreme Court concluded that this testimony, “if believed, would have established the existence of a common law marriage.” Id. at 665.

[11]

We are aware of one Colorado probate court that recognized a same-sex common law marriage notwithstanding Crandall. See A Probate Judge Finds Same Sex Common Law Marriage in Colorado, http://denverelderlaw.org/same-sex-common-law-marriage-ruling-in-colorado (last visited April 27, 2018).

[12]

 

For widower’s benefits, the claimant must also show that he meets one of the following conditions:

(1) his relationship to the insured as a husband lasted for at least 9 months immediately before the insured died;

(2) his relationship to the insured as a husband did not last for at least 9 months but another qualifying condition is satisfied;

(3) he and the insured had a child together; or

(4) the month before marrying the insured, he was entitled to or could have been entitled to certain benefits or payments.

20 C.F.R. § 404.335; see also Social Security Act, § 202(c). For the lump-sum death payment, in addition to establishing that he is the NH’s widower, the claimant must also (1) apply for the payment within two years of the insured’s death, and (2) have been living in the same household as the insured at time of his death. 20 C.F.R. § 404.391.

[13]

The CL indicated that he and the NH lived together as a married couple in both Utah and Colorado. See Form SSA-754, Statement of Marital Relationship. However, he stated that they left Utah in 1984. Id. Utah did not recognize common law marriage until 1987. See Utah Code Ann. § 30-1-4.5; POMS GN000.000305.075; Whyte v. Blair, 885 P.2d 791, 793 n.2 (Utah 1994) (noting that common law marriages in Utah prior to 1987 were not valid). Thus, for purposes of determining whether the CL and the NH had a valid same-sex common law marriage, only the laws of Colorado will apply.

[14]

Prior to September 1, 2006, the common law age of consent for marriage applied—which was 14 for a male and 12 for a female. In re Marriage of J.M.H. & Rouse, 143 P.3d 1116, 1120 (Colo. App. 2006).

[15]

In Lucero, the trial court was presented with testimony from the respondent’s purported common law wife, who testified that she considered herself to be married to the respondent; they held themselves out to friends as being married; and the respondent agreed with her conclusion that they were married. Id. at 662. The Colorado Supreme Court concluded that this testimony, “if believed, would have established the existence of a common law marriage.” Id. at 665.

[16]

We are aware of one Colorado probate court that recognized a same-sex common law marriage notwithstanding Crandall. See A Probate Judge Finds Same Sex Common Law Marriage in Colorado, http://denverelderlaw.org/same-sex-common-law-marriage-ruling-in-colorado (last visited April 27, 2018).

[17]

For widower’s benefits, the claimant must also show that he meets one of the following conditions:

  1. 1. 

    his relationship to the insured as a husband lasted for at least 9 months immediately before the insured died;

  2. 2. 

    his relationship to the insured as a husband did not last for at least 9 months but another qualifying condition is satisfied;

  3. 3. 

    he and the insured had a child together; or

  4. 4. 

    the month before marrying the insured, he was entitled to or could have been entitled to certain benefits or payments.

20 C.F.R. § 404.335; see also Social Security Act, § 202(c). For the lump-sum death payment, in addition to establishing that he is the NH’s widower, the claimant must also (1) apply for the payment within two years of the insured’s death, and (2) have been living in the same household as the insured at time of his death. 20 C.F.R. § 404.391.

[18]

Prior to September 1, 2006, the common law age of consent for marriage applied—which was 14 for a male and 12 for a female. In re Marriage of J.M.H. & Rouse, 143 P.3d 1116, 1120 (Colo. App. 2006).

[19]

Footenote 3 In Lucero, the trial court was presented with testimony from the respondent’s purported common law wife, who testified that she considered herself to be married to the respondent; they held themselves out to friends as being married; and the respondent agreed with her conclusion that they were married. Id. at 662. The Colorado Supreme Court concluded that this testimony, “if believed, would have established the existence of a common law marriage.” Id. at 665.

[20]

We are aware of one Colorado probate court that recognized a same-sex common law marriage notwithstanding Crandall. See A Probate Judge Finds Same Sex Common Law Marriage in Colorado, http://denverelderlaw.org/same-sex-common-law-marriage-ruling-in-colorado (last visited April 27, 2018).

[21]

. For widow’s benefits, the claimant must also show that she meets one of the following conditions:

(1) her relationship to the insured as a wife lasted for at least 9 months immediately before the insured died;

(2) her relationship to the insured as a wife did not last for at least 9 months but another qualifying condition is satisfied;

(3) she and the insured had a child together; or

(4) the month before marrying the insured, she was entitled to or could have been entitled to certain benefits or payments.

20 C.F.R. § 404.335; see also Social Security Act, § 202(c). For the lump-sum death payment, in addition to establishing that she is the NH’s widow, the claimant must also (1) apply for the payment within two years of the insured’s death, and (2) have been living in the same household as the insured at time of his death. 20 C.F.R. § 404.391.

[22]

. Prior to September 1, 2006, the common law age of consent for marriage applied—which was 14 for a male and 12 for a female. In re Marriage of J.M.H. & Rouse, 143 P.3d 1116, 1120 (Colo. App. 2006).

[23]

. In Lucero, the trial court was presented with testimony from the respondent’s purported common law wife, who testified that she considered herself to be married to the respondent; they held themselves out to friends as being married; and the respondent agreed with her conclusion that they were married. Id. at 662. The Colorado Supreme Court concluded that this testimony, “if believed, would have established the existence of a common law marriage.” Id. at 665.

[24]

. We are aware of one Colorado probate court that recognized a same-sex common law marriage notwithstanding Crandall. See A Probate Judge Finds Same Sex Common Law Marriage in Colorado, http://denverelderlaw.org/same-sex-common-law-marriage-ruling-in-colorado (last visited April 27, 2018).

[25]

. As noted above, this legal impediment does not undermine the intent to be married.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1505805007
PR 05805.007 - Colorado - 04/03/2019
Batch run: 06/07/2019
Rev:04/03/2019