Identification Number:
GN 00305 TN 53
Intended Audience:See Transmittal Sheet
Originating Office:ORDP OISP
Title:Proof of Marital Relationship
Type:POMS Transmittals
Program:All Programs
Link To Reference:
 

PROGRAM OPERATIONS MANUAL SYSTEM
Part GN – General
Chapter 003 – Evidence
Subchapter 05 – Proof of Marital Relationship
Transmittal No. 53, 07/07/2020

Audience

PSC: BA, CA, CS, ICDS, IES, ISRA, PETE, RECONR, SCPS, TSA, TST;
OCO-OEIO: CC, CR, CTE, ERE, FCR, FDEC;
OCO-ODO: BET, BTE, CCE, CR, CST, CTE, CTE TE, DEC, DSE, PETE, PETL;
FO/TSC: CS, CS TII, CS TXVI, CSR, CTE, DRT, FR, OA, OS, RR, TA, TSC-CSR;

Originating Component

OISP

Effective Date

Upon Receipt

Background

This is a Quick Action Transmittal. These revisions do not change or introduce new policy or procedure. Deleting the archived link and adding the new link.

 

Summary of Changes

GN 00305.060 Common-Law Marriage -- General

Subsection A. 5

We updated the hyperlink from the archived reference GN 00307.255 with the current reference to GN 00307.257

 

GN 00305.065 Development of Common-Law (Non-Ceremonial) Marriages

Subsection A. 2nd sentence

We updated the hyperlink from the archived reference GN 00307.255 with the current reference to GN 00307.257

 

GN 00305.075 State Laws on Validity of Common-Law Non-Ceremonial Marriages

Subsection B.

We updated the hyperlink from the archived reference GN 00307.255 with the current reference to GN 00307.257

GN 00305.060 Common-Law Marriage -- General

CITATIONS:

Act-Sec. 216(h)(l)(A), Regulations No. 4-Secs. 404.344, 404.345, 404.726

A. Policy -- requirements for a common-law marriage

1. Basic Requirements

In some States a valid marriage may be created without a formal ceremony; these marriages are called common-law marriages. Individual States' laws may vary slightly regarding the requirement to establish a common-law marriage; generally, the requirements are:

  1. a. 

    the marriage is entered into by mutual consent of the parties to become husband and wife from that time on and is not solemnized by a ceremony (see GN 00305.060A.2.a.);

  2. b. 

    the parties must have the intent to marry;

  3. c. 

    the parties must consider themselves husband and wife;

  4. d. 

    both parties must be legally capable of entering into a valid marriage;

  5. e. 

    the marriage must be contracted in a State where common-law marriages are recognized (see GN 00305.075); and

  6. f. 

    in some States, the parties must cohabit and hold themselves out to the public as husband and wife (see GN 00305.060A.3.).

2. Agreement to Marry

An agreement to marry must:

  1. a. 

    contemplate a permanent union exclusive of all others;

  2. b. 

    be in the present tense; and

  3. c. 

    contemplate a marital status that cannot be terminated at will but can be terminated only in the same manner as a ceremonial marriage, i.e., death, divorce or annulment.

3. Cohabitation

  1. a. 

    Cohabitation means living together as husband and wife.

  2. b. 

    Some States require cohabitation after an agreement to be husband and wife; the cohabitation need not be in the State where the agreement was made.

4. Sojourn

In some States a common-law marriage can arise from a temporary stay or sojourn within a State's borders, if accompanied by holding out as husband and wife, even though the parties were never domiciled in that State. Check the appropriate States' laws.

5. Common-Law Marriages Outside the U.S.

See GN 00307.257 for information on specific countries; they are generally not recognized.

B. Policy - termination of benefits

A common-law marriage may also be established (in a State that recognizes such marriages) for termination of benefits. Establish the same factors as those mentioned in GN 00305.060A.1. Difficulty may be encountered in developing the couple's intent to marry due to the possible adverse results. However, develop all the necessary factors and make a determination on the facts obtained.

NOTE: Develop a common-law marriage only if there is some indication that one exists.

GN 00305.065 Development of Common-Law (Non-Ceremonial) Marriages

A. Making common-law marriage determinations

We make common-law marriage determinations in accordance with state law. Some states allow for establishment of common-law marriages. Other states may not allow for establishment of common-law marriages but will recognize common-law marriages established in another state or country. When making determinations on the existence of a common-law marriage, follow documentation procedures in GN 00305.065B in this section, in conjunction with application of state law criteria, as explained in GN 00305.075 through GN 00305.076. To decide which state law to apply when more than one state is involved, follow procedures in GN 00305.005B.1.

For claims involving allegations that a common-law (or non-ceremonial) marriage was established outside the U.S., follow the documentation process concerning the application of foreign law in GN 00305.065B in this section, in conjunction with instructions on common-law marriages outside the United States in GN 00307.257.

B. Procedures for the development of common-law marriages

1. Preferred evidence when the husband and wife are living

Secure the following:

  • SSA-754-F4 (Statement of Marital Relationship) from each spouse; and

  • SSA-753 (Statement Regarding Marriage) from a blood relative (i.e., a person related by blood, not by marriage or adoption) of each spouse.

If . . .

Then . . .

you cannot get an SSA-753 from a blood relative of one spouse

secure one from another blood relative of the other spouse.

you cannot secure an SSA-753 from any blood relatives or you can secure an SSA-753 from only one blood relative

get a written explanation from the claimant and, for each SSA-753 not obtained from a blood relative, get an SSA-753 from another person who knows the facts.

Exclude the SSA-754-F4 or SSA-753 from the electronic documentation process. (For instructions about excluding these forms from documentation on EVID, see GN 00301.286E.3.b.) For instructions about retention of paper material after using the Non Disability Repository for Evidentiary Documents (NDRed), refer to GN 00301.322.

2. Other evidence when the husband and wife are living

If you cannot obtain the SSA-753s as discussed, obtain other evidence. Although completion of the SSA-753 might prove embarrassing, that is not reason enough for not obtaining it. If the claimant explains satisfactorily in writing why use of the SSA-753 would actually be detrimental to the parties or to children born of the relationship, accept other evidence of equal value per the instructions on secondary proof of ceremonial marriage in GN 00305.025B.2.

We do not require an SSA-753 if other evidence, in addition to the SSA-754s, conclusively proves the establishment of a common-law marriage. Document why you did not obtain each of the SSA-753s by using a Report of Contact (RPOC), Development Worksheet (DW03), or similar screen.

3. Preferred evidence when one spouse is deceased

Secure the following:

  • SSA-754-F4 from the surviving spouse,

  • SSA-753 from a blood relative of the surviving spouse, and

  • SSA-753s from two blood relatives of the deceased spouse.

4. Other evidence when one spouse is deceased

If a state administrative, judicial, or other proceeding already proved the common-law marriage, use it as other evidence. For policy and examples on applying state law time limits to common-law (non-ceremonial) marriages, refer to GN 00305.076A.

NOTE: We must consider an adjudication of a state trial court if the claimant meets the criteria in Gray vs. Richardson (adopted as Social Security Ruling (SSR) 83-37C ). Under this SSR, although the agency is not bound by the decision of a state trial court in a proceeding on an issue to which he or she was not a party, the agency is not free to ignore an adjudication of a state trial court with the following prerequisites:

  1. a. 

    the adjudication is by a state court of competent jurisdiction;

  2. b. 

    the issue was genuinely contested before the state court by parties with opposing interests;

  3. c. 

    the issue falls within the general category of domestic relations law; and

  4. d. 

    the resolution of the issue by the state trial court is consistent with the law enunciated by the highest court in the state.

If you cannot obtain each of the SSA-753s, request a written explanation from the claimant. For each SSA-753 not obtained from a blood relative, get an SSA-753 from a person who knows the facts or obtain other evidence for the SSA-753.

C. Development of evidence of a common-law marriage

When you develop evidence of a common-law marriage, follow these steps:

  • Develop each form independently of the others.

  • Answer all items on each form fully but concisely and in the person's own words.

  • Clarify all ambiguous answers and reconcile all conflicts. Explain any ambiguous answers on a report of contact form or Report of Contact (RPOC) screen.

  • Get a supplemental statement over the person’s signature, as needed.

  • Obtain corroborating evidence (e.g., mortgage or rent receipts, insurance policies, medical records, bank records) to substantiate the fact that the couple considered and held themselves out as husband and wife.

NOTE: This list is not all-inclusive, and there may be other acceptable evidence. Also, the types of evidence are examples, and it is not necessary to obtain all of the examples listed.

See Details:

1. Using legal opinions as precedents

If the state law entry in the Digest of State laws does not contain sufficient information for you to adjudicate an issue concerning the validity of a common-law marriage, use a legal opinion in PR 05600.000 as a precedent if the issue is the same, in the same state, and the facts are similar. Document the legal opinion used. For details on legal precedent opinions, see GN 01010.810. If you need to submit a legal opinion for submission to the Regional Chief Counsel (RCC), follow the procedures in GN 01010.815.

CAUTION: See individual state law statutes in GN 00305.075.

2. Prepare a special determination

Prepare an informal special determination on the RPOC screen in all cases, ensuring that the conclusion is consistent with existing policy and precedents. Where there is conflicting evidence, document how you resolved the conflict (i.e., why you accepted evidence supporting one position and rejected evidence supporting another position).

See Details:

GN 01010.360 Special Determinations for Claims Adjudication

PR 05600.000 Marital Relationship – Common-Law Marriages

GN 00305.075 State Laws on Validity of Common-Law Non-Ceremonial Marriages

A. Glossary of terms used in Common-Law (Non-Ceremonial) marriages

The table lists definitions or cross-references for some of the terms used in this section.

Term

Definition

Bigamy

Bigamy is the act of entering into a marriage while still married to another person.

Change of Position (COP)

Change of position (COP) occurs when a policy or legal precedent we previously followed to adjudicate cases changes as the result of subsequent court decisions, other applicable legal precedents, or new policy considerations.

Clear and convincing

Clear and convincing is a standard of evidence that is strong and persuasive.

Cohabitation

Cohabitation means the parties live(d) together as husband and wife.

Common-Law Marriage

Common-law marriage is a non-ceremonial marriage. The criteria (and recognition of a common-law marriage) depend on individual state or foreign law. For general details of common-law marriage, see GN 00305.060.

Contract/Contracted

Contract/Contracted means the parties enter(ed) into a legally binding agreement.

Holding Out

Holding out means the parties live(d) together as husband and wife and present(ed) themselves to others as being married.

NOTE: In all claims, this definition applies when the state recognizes common-law marriages; however, in Title XVI claims, we may find couples to be “holding out” using criteria not linked to specific state law. For details on determining whether a man and woman are holding themselves out as husband and wife, see SI 00501.152.

Natural law

Natural law is law that stems from a shared human morality.

Pending claim

A pending claim is an unadjudicated application. The filing date may be based on a protective filing, open application, or reopening of a prior claim under administrative finality. For details on protective filing, see GN 00204.010. For details on open applications, see GN 00204.025.

Positive law

Positive law refers to man-made laws.

Preponderance of evidence

Preponderance of evidence is evidence that, when fairly considered, produces the stronger impression and is more convincing as to its truth when weighed against the evidence in opposition. This does not mean that a certain number of pieces of evidence must be present to constitute preponderance. It is possible that one piece of evidence is so convincing that, when weighed in opposition to any other evidence, it conveys the stronger impression of truth.

Prima facie

Prima facie means at first view or glance.

Putative marriage

A putative marriage is a relationship in which, under the laws of some states, a party to a void marriage may acquire inheritance rights as a spouse. For details on putative marriage, see GN 00305.085.

Sojourn

Sojourn means a short stay at a place. In some states a common-law marriage can arise from a temporary stay within the state’s borders, if accompanied by holding out as husband and wife, even though the parties were never domiciled in that state. Check the appropriate states’ laws to determine whether the state of sojourn recognizes common-law marriage. Then determine whether the facts of the sojourn establish a common-law marriage. It may be necessary to submit the case for an RCC opinion following the procedures in GN 01010.815.

Void marriage

A void marriage is a marriage that is legally nonexistent from the beginning under state law (i.e., the parties to the marriage are considered never to have been husband and wife).

Voidable marriage

A voidable marriage is a marriage that is defective and can be judged void (annulled) but is considered valid unless and until declared void as a result of court action on its validity.

B. Exhibit of the Digest of State laws on validity of common-law (non-ceremonial) marriages

The following exhibit is a digest of state laws regarding the recognition of common-law marriages. Undated entries reflect current state laws. For states in which laws have changed, the entries indicate the effective date of change.

The applicable policy on the recognition of common-law marriages outside the U.S. is in GN 00307.257. Some states recognize common-law marriages validly entered into in other nations. For specific information on which nations recognize common-law marriage, see GN 00307.257.

Alabama

Alaska

American Samoa

Arizona

Arkansas

California

Colorado

Connecticut

Delaware

District of Columbia

Florida

Georgia

Guam

Hawaii

Idaho

Illinois

Indiana

Iowa

Kansas

Kentucky

Louisiana

Maine

Maryland

Massachusetts

Michigan

Minnesota

Mississippi

Missouri

Montana

Nebraska

Nevada

New Hampshire

New Jersey

New Mexico

New York

North Carolina

North Dakota

Commonwealth of the Northern Mariana Islands (CNMI)

Ohio

Oklahoma

Oregon

Pennsylvania

Puerto Rico

Rhode Island

South Carolina

South Dakota

Tennessee

Texas

Utah

Vermont

Virginia

Virgin Islands

Washington

West Virginia

Wisconsin

Wyoming

State

Common-Law (Non-Ceremonial) Marriage Laws

Alabama

Beginning January 1, 2017, no common-law marriages may be entered into in Alabama. See Ala. Code § 30-1-20(a) (2016). However, common-law marriages entered into before January 1, 2017 are recognized and continue to be valid. See Ala. Code § 30-1-20(b).The elements of a valid common-law marriage in Alabama entered into before January 1, 2017 are:

  1. 1. 

    the capacity to marry;

  2. 2. 

    present agreement or mutual consent to enter into the marriage relationship;

  3. 3. 

    public recognition of the existence of the marriage; and

    public assumption of marital duties and cohabitation. See Gray v. Bush, 835 So. 2d 192, 194 (Ala. Civ. App. 2001).

Where a marriage (ceremonial or common-law) is contracted while an impediment exists, cohabitation as a married couple of the parties in good faith after removal of the impediment establishes a valid common-law marriage as of the day the impediment is removed. This is true even if the parties at the time the marriage was contracted were aware of the impediment, but they nevertheless manifest or demonstrate their desire to live as a married couple (i.e., conduct themselves and their affairs as would a married couple). Continued cohabitation as a married couple after the removal of the impediment raises a presumption that a valid common-law marriage arises immediately upon removal of the impediment.

Alaska

Recognized from 03/07/1939 through 12/31/1963; a marriage license was required, but solemnization was not mandatory; however, there must have been a marriage contract. Not recognized after 12/31/1963.

American Samoa

Not recognized since at least 2007. If a common-law marriage is alleged, submit to the regional chief counsel (RCC) for a legal opinion.

Arizona

Not recognized.

For the possibility that a putative marriage may have been created, see GN 00305.085B. If persons, while domiciled in Arizona, contract a common-law marriage in a state where common-law marriages can be contracted, the marriage is not recognized as valid in Arizona if the parties intended by their actions to evade Arizona's laws.

Arkansas

Not recognized.

California

Not recognized. However, for the possibility that a putative marriage may have been created, see GN 00305.085C.

Colorado

Recognized.

A common-law marriage does not require any kind of ceremony but only the agreement of the parties, followed by the mutual and open assumption of a marital relationship.

A temporary stay by nonresidents does not establish a common-law marriage. The State statute provides that a common-law marriage entered into on or after 09/01/2006 is not recognized as valid unless, at the time the common-law marriage is entered into:

  1. 1. 

    each party is 18 years of age or older; and

  2. 2. 

    the marriage is not prohibited, as provided by statute.

For the possibility that a putative marriage may have been created, see GN 00305.085D.

Connecticut

Not recognized.

Delaware

Not recognized.

District of Columbia

Recognized.

An express mutual agreement to enter into a present marriage, and cohabitation after the agreement, are required.

If there is a legal impediment to a marriage, but a couple agrees to marry and live together as a married couple, a common law marriage begins when 1) the legal impediment is removed, AND 2) they continue to live together as a married couple. To demonstrate a common law marriage, the individuals must have had an exchange of words that made it clear they both consented to marry and continue to live together as a married couple.

Florida

Recognized before 01/02/1968.

The elements of a common-law marriage were:

  • legal capacity to contract marriage;

  • mutual agreement of the parties to become husband and wife presently; and

  • consummation of the agreement by cohabitation.

If the relationship was not valid in the beginning because one party had a prior undissolved marriage, their cohabitation as husband and wife, after removal of the impediment and before 01/02/1968, created a common-law marriage; no new agreement of marriage after removal of the impediment had to be established.

If a purported common-law marriage occurred before 01/02/1968, and such marriage was not valid because of an impediment, but such impediment was removed after 01/01/1968, then a common-law marriage did not arise.

Georgia

Recognized before 01/01/1997. Common-law marriages entered into on or after 01/01/1997 are not recognized and are not valid.

To establish a valid common-law marriage prior to 01/01/1997, the parties must have:

  • been able to contract;

  • agreed to live together as man and wife; and

  • consummated the agreement.

An agreement of marriage may be inferred from cohabitation and reputation (i.e., holding themselves out to the world as husband and wife) unless there is other evidence indicating that such an agreement was not present. At least one party must have shown good faith to establish a common-law marriage by cohabitation and reputation.

Consummation of agreement may be inferred by an express agreement of present intention to be man and wife.

Where parties entered into a ceremonial marriage that was not valid because of an impediment, and one of the parties believed in good faith that the marriage was valid, their continued cohabitation as husband and wife after the impediment was removed is sufficient to establish a valid common-law marriage.

Guam

Not recognized since at least 1948. If common-law marriage is alleged, submit to the RCC for a legal opinion.

Hawaii

Not recognized.

Idaho

Recognized before 01/01/1996.

Illinois

Not recognized. In 2005, Illinois abolished common-law marriages contracted after June 30, 1905.

For the possibility that a putative marriage may have been created, see GN 00305.085E.

Illinois does not recognize the common-law marriages of its domiciliaries that arise out of brief sojourns in common-law marriage States.

However, where parties reside in another state at the time of contracting a common-law marriage that was valid in that state, such marriage is considered valid upon their move to Illinois.

Effective 10/01/1977, a ceremonial marriage that is prohibited because it was entered into prior to the dissolution of a prior marriage becomes valid when the impediment is removed and the parties continue to cohabit. If the parties did not cohabit subsequent to 09/30/1977, this statute is not applicable, and the marriage is not validated.

Indiana

Recognized before 01/01/1958.

Prior to that date, if parties attempted to contract a marriage in which there was an impediment, but both parties believed in good faith they were validly married, a valid common-law marriage was created by their having lived together in Indiana as husband and wife after removal of the impediment. If either party knew of the impediment before its removal, there must have been an agreement or ceremonial marriage after removal of the impediment to establish a valid marriage.

The elements necessary to establish a common-law marriage were:

  • the parties must have entered into a present contract to become husband and wife;

  • the contract must have been consummated;

  • the parties must have had contractual capacity;

  • there must have been mutual assent and mutuality to the contract;

  • there must have been an express contract, either written or oral;

  • there must have been matrimonial intent, good faith, and pure and just motives;

  • the parties must have held themselves out as a married couple in the community and been regarded as such; and

  • they must have cohabited.

A common-law marriage must have been proven by clear and convincing evidence.

Indiana recognizes common-law marriages validly entered into in other states.

Iowa

Recognized.

Evidence of cohabitation of the parties after the agreement to be husband and wife is not required.

Kansas

Recognized.

Evidence of cohabitation of the parties after the agreement to be husband and wife is not required.

In the absence of proof to the contrary, an agreement to be husband and wife may be implied where the parties cohabited as husband and wife and were reputed to be such.

Where a marriage is contracted while an impediment exists, cohabitation of the parties in good faith after removal of the impediment establishes a valid common-law marriage.

Kentucky

Not recognized.

Louisiana

Not recognized.

For the possibility that a putative marriage may have been created, see GN 00305.085F.

While a common-law marriage, valid where entered into, is ordinarily recognized, a relationship originally bigamous and known to be such by the parties is not recognized as a common-law marriage in the absence of a new ceremonial marriage or specific marital agreement, even though continued cohabitation after removal of the impediment constitutes a common-law marriage under the laws of the state where entered into.

Maine

Not recognized.

Maryland

Not recognized.

Massachusetts

Not recognized.

However, by statute, if parties domiciled in Massachusetts enter into a ceremonial marriage while one party is barred from remarrying by a Massachusetts divorce, and one party entered into the marriage in good faith, a valid marriage arises upon removal of the impediment if the parties are domiciled in Massachusetts at that time. A new ceremonial marriage is not required.

Michigan

Recognized before 01/01/1957.

If the parties agreed to be husband and wife in a state not recognizing common-law marriage, their mere cohabitation as husband and wife in Michigan would have established a valid common-law marriage.

Even though there was no evidence of an express agreement to be husband and wife before 01/01/1957, it is possible to infer such an agreement. This inference can be based on long cohabitation of the parties during which time they consistently held themselves out to friends, relatives, and to the public as husband and wife.

Michigan recognizes common-law marriages validly entered into in other states.

A common-law marriage must be proven by clear and convincing evidence.

Proof of a common-law marriage includes:

  • the agreement to take each other as husband and wife;

  • cohabitation; and

  • holding themselves out to the world as husband and wife.

Notoriety is the most important element necessary to establish a common-law marriage.

Minnesota

Recognized before 04/27/1941. For the possibility that a putative marriage may have been created, see GN 00305.085G.

While Minnesota does not recognize common-law marriages that arise out of brief sojourns in common-law States, it does recognize a common-law marriage if the couple takes up residence (but not necessarily domicile) in another state that allows common-law marriages and the parties establish the public reputation in that state of having assumed the marital relationship as well as other elements of a common-law marriage applicable in that state.

Mississippi

Recognized before 04/05/1956.

Missouri

Not recognized.

Montana

Recognized.

Under Montana case law, the party wishing to establish the existence of a common-law marriage must prove, by a preponderance of the evidence, that:

  1. 1. 

    the parties were competent to enter into a marriage;

  2. 2. 

    the parties assumed a marital relationship by mutual consent and agreement; and

  3. 3. 

    the parties confirmed their marriage by cohabitation and public repute.

Short periods of cohabitation and holding out as husband and wife are insufficient to establish the “public repute” required by the third element. See PR 05605.029 for an opinion with an example of short periods of cohabitation in Montana. If you still question whether a short period of cohabitation is sufficient to establish public repute, submit to the RCC for a legal opinion.

Nebraska

Not recognized.

Nevada

Recognized before 03/29/1943.

New Hampshire

Recognized. Persons who are otherwise competent to contract marriage together, who cohabit and acknowledge each other asspouses, and who are generally reputed to be such for three years, and until one of them dies, are deemed legally married. Under New Hampshire law, a marriage is absolutely void where either party to the marriage has a former spouse still living and knows that the former marriage has not been legally dissolved. For further details, see PR 04805.032.

New Jersey

Recognized before 12/01/1939. Evidence of cohabitation of the parties after the agreement to be husband and wife is not required.

New Mexico

Not recognized.

New York

Recognized before 01/01/1902. Not recognized from 1902 through 1907. Recognized from 1908 through 04/28/1933. Not recognized on or after 04/29/1933, unless the common-law marriage was validly contracted in a different state or country, and so long as the marriage does not violate New York positive law or natural law. Whether the marriage was validly contracted in the foreign jurisdiction is determined by the law of the jurisdiction in which the marriage allegedly was established.

New York positive law prohibits the recognition of marriages between:

  1. 1. 

    an ancestor and descendant (e.g., a father and daughter);

  2. 2. 

    a brother and sister of whole or half-blood;

  3. 3. 

    an uncle and niece; or

  4. 4. 

    an aunt and nephew.

A common-law marriage is also void if one of the parties to the marriage had a prior marriage that was not annulled or dissolved.

New York natural law generally prohibits polygamy, incest, and marriages offensive to the public sense of morality to a degree generally regarded with abhorrence.

North Carolina

Not recognized.

North Dakota

Not recognized.

However, North Dakota recognizes common-law marriages validly entered into in other states or nations.

Commonwealth of the Northern Mariana Islands (CNMI)

Recognized until at least 2004. If common-law marriage is alleged, submit to the regional chief counsel (RCC) for a legal opinion.

Ohio

Recognized before 10/10/1991. To contract a common-law marriage before 10/10/1991 the elements of a common-law marriage, which clear and convincing evidence must establish, were:

  1. 1. 

    a mutual contract to take each other presently as man and wife;

  2. 2. 

    cohabitation as man and wife; and

  3. 3. 

    the treatment and reputation as being husband and wife in the community and in the circle in which the couple resides.

A temporary stay by nonresidents is insufficient to establish a recognized common-law marriage.

Common-law marriages established in Ohio on or after 10/10/1991 are not recognized. Ohio recognizes common-law marriages validly entered into in other states or nations.

Oklahoma

Recognized.

To establish a common-law marriage, the parties must:

  1. 1. 

    have an actual and mutual agreement between the spouses to be husband and wife;

  2. 2. 

    have a permanent relationship;

  3. 3. 

    have an exclusive relationship, proved by cohabitation as man and wife; and

  4. 4. 

    hold themselves out publicly as husband and wife.

A temporary stay by nonresidents does not suffice as grounds for establishing a common-law marriage.

Oregon

Not recognized.

A relationship recognized as a marriage in another state where it was consummated is recognized in Oregon, even though such relationship would not be a marriage if the same factors were relied upon to create a marriage in Oregon. For details on surviving spouse under Oregon intestacy law, see GN 00305.086.

Pennsylvania

Recognized on or before 01/01/2005.

To contract a common-law marriage on or before 01/01/2005, Pennsylvania law required clear and convincing evidence that the parties exchanged words in the present tense, spoken with the specific purpose of establishing the legal relationship of husband and wife. Although Pennsylvania did not require the parties to exchange a specific form of words to create a common-law marriage, it was essential that the parties agreed to be husband and wife.

Where one party is deceased, or is otherwise unable to testify about the exchange of words necessary to have created a common-law marriage, Pennsylvania courts presume that a common-law marriage existed if there is sufficient proof that the parties lived together as husband and wife on a constant basis and had a general and broad reputation of being married. This presumption that a common-law marriage existed is rebutted where there is evidence indicating that the parties did not agree to be husband and wife.

Where the evidence shows that, when the relationship began, the parties were simply living together as an unmarried couple, or that one of the parties was already married and, therefore, could not agree to be another person’s spouse, Pennsylvania assumes that the relationship as an unmarried couple continued, until a change in the relationship to a valid common-law marriage is established by clear and convincing evidence, and the change occurred on or before 01/01/2005.

Pennsylvania law may recognize the existence of a common-law marriage where a ceremonial marriage was void because of a legal impediment. For details on void ceremonial marriages and removal of an impediment, see GN 00305.070A.1.

Where only one party to a ceremonial marriage knew it was void because of an impediment, the marriage is valid without a new agreement if the parties continued to live together and continued to hold themselves out as husband and wife, as of 01/01/1954, or the date of removal of the impediment, whichever is later.

Where both of the parties knew the marriage was void because of an impediment, a new agreement was necessary after the removal of the impediment and the parties had to continue to cohabit as husband and wife.

If neither party knew of the impediment to the marriage, mere cohabitation of the parties as husband and wife after removal of the impediment validates the marriage from the date the impediment was removed.

In situations where a common-law marriage contracted on or before 01/01/2005 was void because of a legal impediment to the marriage, request a legal opinion from the RCC to determine whether Pennsylvania law would validate the marriage after the impediment was removed.

Puerto Rico

Not recognized.

Rhode Island

Recognized.

In addition, where parties contracted a bigamous, ceremonial marriage, a valid common-law marriage arises from the parties' cohabitation as husband and wife, after removal of the impediment. No new agreement of marriage is required if the evidence establishes clearly and convincingly that the parties intended at all times to be husband and wife. It is not necessary to contract the bigamous marriage in good faith by either party. However, if a bigamous common-law marriage is involved and the parties were aware of the impediment, a new agreement is necessary.

South Carolina

Recognized.

Where parties contract a bigamous marriage in good faith, and both parties believe they are married, a valid common-law marriage arises if they cohabit as husband and wife after removal of the impediment. However, if either party knew of the impediment, a new agreement of marriage after removal of the impediment, followed by cohabitation as husband and wife, is required to establish a common-law marriage.

South Dakota

Recognized before 07/01/1959.

South Dakota recognizes common-law marriages validly entered into in other states.

Tennessee

Not Recognized.

However, where parties free to marry lived together for a long time and held themselves out to the public as husband and wife, both parties, as well as third parties, are in law not permitted to deny that they were validly married, provided there is an affirmative showing that:

  1. 1. 

    both parties acted in good faith in that they each honestly believed the relationship constituted a valid legal marriage; or

  2. 2. 

    the party seeking benefit of estoppel relied in good faith upon the representation of the other that the relationship constituted a valid ceremonial marriage; or

  3. 3. 

    the cohabitation followed a defective ceremonial marriage, which the parties believed constituted a valid ceremonial marriage.

This relationship, in effect, gives the survivor and children of the marriage inheritance rights in Tennessee; it has no effect outside Tennessee.

Texas

Recognized.

The passage of time and ceasing of cohabitation will not terminate a common-law marriage once it is in existence.

IMPORTANT: A temporary stay in Texas by nonresidents does not establish a common-law marriage.

Prior to 01/01/1970:

Good faith at the inception of the relationship on the part of at least one of the parties, or a new agreement after removal of the impediment, is required. Good faith means intent to marry, together with the belief that there is no impediment to such marriage.

If the parties enter into a relationship and all elements for a valid common-law marriage are present, except there is a prior undissolved marriage known to the parties, there is no need for a new express agreement to give rise to a valid common-law marriage after removal of the impediment. Such agreement may be implied from continued cohabitation of the parties and their holding out to the public that they are husband and wife if, during their relationship, they maintained a continuous matrimonial intent.

Effective for applications filed between 01/01/1970 and 07/31/1994:

If the claimant’s common-law marriage was not valid because there was a prior undissolved marriage, a common-law marriage becomes valid when the prior marriage is dissolved (i.e., by death, annulment, or divorce) if, since that time, the parties lived together as husband and wife and presented themselves to others as being married (commonly referred to as “holding out”).

A claimant applying for benefits based on the existence of a common-law marriage must prove the validity of the marriage by:

  1. 1. 

    Presenting a Declaration and Registration of Informal Marriage that is:

    1. a. 

      on a form prescribed by the Bureau of Vital Statistics (BVS), and

    2. b. 

      signed under oath by both parties, and

    3. c. 

      certified and dated by a county clerk.

    The execution of a Declaration is prima facie evidence of the marriage and affirms the elements of a common-law marriage as shown within this subsection. Further development of the common-law marriage relationship is unnecessary unless other facts indicate that the Declaration may not be valid.

    OR

  2. 2. 

    Providing evidence (for development of evidence instructions, see GN 00305.065B.3.) that the couple agreed to be married and thereafter:

    1. a. 

      cohabited in Texas as husband and wife; and

    2. b. 

      represented to others that they were married (commonly referred to as “holding out”).

NOTE: From 01/01/1970 until 09/01/1989, the couple’s agreement to be married could be inferred if (a) and (b) were proven. Effective 09/01/1989, we can no longer infer an agreement to be married based on proof that the parties to an alleged marriage lived together as husband and wife.

Effective for applications filed between 08/01/1994 and 08/31/1995:

A claimant applying for benefits based on the existence of a common-law marriage must prove the validity of the marriage by:

  1. 1. 

    Presenting a Declaration and Registration of Informal Marriage that is:

    1. a. 

      on a form prescribed by the BVS, and

    2. b. 

      signed under oath by both parties, and

    3. c. 

      certified and dated by a county clerk.

    The execution of a Declaration is prima facie evidence of the marriage and affirms the elements of a common-law marriage as shown within this subsection. Further development of the common-law marriage relationship is unnecessary unless other facts indicate that the declaration may not be valid.

    OR

  2. 2. 

    Providing evidence that he or she proved the existence of the common-law marriage in a judicial, administrative, or other proceeding (for examples, see GN 00305.076A) and such proceeding was initiated no later than one year after the date on which the relationship ended (usually separation or death). Such proceedings include filing a Social Security benefit application and providing evidence that the couple agreed to be married and thereafter:

    1. a. 

      Cohabited in Texas as husband and wife, and

    2. b. 

      Represented to others that they were married (commonly referred to as “holding out”).

KEY: One-Year Time Limit:

If a claimant fails to initiate a proceeding proving the validity of a common-law marriage prior to the expiration of the one-year time limit, consider such marriage void. For an explanation of this one-year time limit policy, see GN 00305.076C.

CAUTION: If a claimant attempts to prove that he or she initiated a proceeding to prove a common-law marriage between 08/01/1994 and 09/01/1995, submit the claim to the RCC for a legal opinion following procedures in GN 01010.815.

Effective for applications filed between 09/01/1995 and 01/16/2003:

A claimant applying for benefits based on the existence of a common-law marriage must prove the validity of the marriage. See requirements listed under the previous period 08/01/1994 and 08/31/1995, numbers 1 and 2.

KEY: Two-Year Time Limit:

If a claimant fails to initiate a proceeding proving the validity of a common-law marriage prior to the expiration of the two-year time limit, consider such marriage void. For an explanation of this two-year time limit policy, see GN 00305.076C.

Change of Position effective for applications filed or pending on or after 01/17/2003:

A claimant applying for benefits based on the existence of a common-law marriage must prove the validity of the marriage. See requirements listed under the period 08/01/1994 and before 09/01/1995, numbers 1 and 2.

KEY: Two-Year Time Limit and Rebuttal Presumption:

If a claimant fails to initiate a proceeding proving the validity of a common-law marriage prior to the expiration of the two-year time limit, presume such marriage void. A claimant can rebut this presumption by proving that the criteria for establishment of a common-law marriage occurred by a preponderance of the evidence.

To meet the preponderance of evidence standard, evidence of cohabitation and holding out must prove the establishment of a common-law marriage. If a claimant cannot rebut the presumption in accordance with Texas law, we consider the parties never to have been married. For an explanation of this change of position with respect to the two-year time limit policy, see GN 00305.076C.

References:

Utah

Recognized.

Effective 04/27/1987, a common-law marriage is recognized in Utah if it arises out of a contract between a man and a woman who:

  1. 1. 

    are of legal age and capable of giving consent;

  2. 2. 

    are legally capable of entering a solemnized marriage under Utah law;

  3. 3. 

    have cohabited;

  4. 4. 

    mutually assume marital rights, duties, and obligations; and

  5. 5. 

    hold themselves out as, and have acquired a uniform and general reputation as, husband and wife.

Utah recognizes common-law marriages validly entered into in other states.

The determination or establishment of a marriage by court or administrative order must be initiated during the relationship, or within one year following the termination of that relationship. Evidence of a marriage may be manifested in any form.

For application of the one-year time limit and the effective date, see GN 00305.076D.

Vermont

Not recognized.

Virginia

Not recognized.

Virgin Islands

Recognized before 09/01/1957.

Washington

Not recognized. Washington recognizes common-law marriages validly entered into in other states.

West Virginia

Not recognized.

Wisconsin

Not recognized after 1917.

Wisconsin recognizes common-law marriages validly entered into in other states. If parties enter into a common-law marriage in good faith in a state where such marriages could be contracted during a period when an impediment to their marriage exists, Wisconsin recognizes their marriage as valid if they later live in Wisconsin and cohabit as husband and wife after removal of the impediment. A valid marriage arises without any new agreement of marriage by the parties.

Wisconsin does not recognize a common-law marriage of its domiciliaries that arises out of brief sojourns to common-law marriage States.

Wyoming

Not recognized.

However, Wyoming recognizes common-law marriages validly entered into in other states or nations.


GN 00305 TN 53 - Proof of Marital Relationship - 7/07/2020