The number holder (NH) was domiciled in Idaho when the Claimant filed the application for spouse’s benefits. Therefore, we look to Idaho law to determine if the Claimant is the NH’s spouse. We believe that Idaho courts would find that the Claimant and the NH established a valid common-law marriage under Colorado law that began in June 2005, when they moved to Colorado and where they lived for the next ten years, and that they remain validly married even after moving to Idaho in 2015. There is legal support for the agency to find that the Claimant is the NH’s spouse for purposes of determining entitlement to spouse’s insurance benefits on the NH’s record.

QUESTION

For purposes of P1~’s (Claimant’s) application for spouse’s insurance benefits under Title II of the Social Security Act (Act) on the record of the number holder M1~ (NH) as her spouse, you asked whether the Claimant and the NH had a valid Colorado common-law marriage that would be recognized by Idaho, where the couple currently resides.^[1]

ANSWER

We believe Idaho courts would find that the Claimant and the NH established a valid common-law marriage under Colorado law that began on June XX, 2005, when they moved to Colorado and where they lived for the next ten years, and that they remain validly married even after moving to Idaho in 2015. Thus, there is legal support for the agency to find that the Claimant is the NH’s spouse for purposes of determining his entitlement to spouse’s insurance benefits on the NH’s record.

BACKGROUND

On September XX, 2022, the Claimant filed an application for spouse’s insurance benefits on the NH’s record claiming that he is validly married to the NH and is the NH’s spouse. The agency obtained the Form SSA-754 Statement of Marital Relationship from the NH and the Claimant, which they both completed on April XX, 2019. They both listed their address as Coeur d’Alene, Idaho. They both reported that they began living together as spouses in July 1991 in California. They both reported that they have continuously lived together as spouses from 1991 to 2005 in California, 2005 to 2015 in Colorado, and 2015 to the present in Idaho. When they began living together in 1991, they agreed to “a lifelong commitment.” They bought a home together in 1993. They believed that they were common-law married in Colorado. They both reported that they filed joint tax returns, opened a family trust in 2008, and held joint bank accounts, credit cards, and insurance. They introduced one another as husband and wife. The NH had a prior marriage that ended in divorce in 1989.

The agency obtained the Form SSA-753 Statement Regarding Marriage from 3 of the NH’s relatives:

• J~, the NH’s father, completed the Form SSA-753 in January 2019 and again in May 2019. He reported that the NH and the Claimant were generally known as a married couple, he considered them a married couple, and he heard them refer to one another as spouses. He reported that they lived together continuously for 30 years and held all assets, including homes, jointly. He believed that they maintained a home and lived together continuously as a married couple in California from 1991 to 2005, Colorado from 2005 to 2015, and Idaho from 2015 to present.

• M2~, the NH’s brother, completed the Form SSA-753 in May 2019. He reported that the NH and the Claimant were generally known as a married couple, he considered them a married couple, and he heard them refer to one another as spouses. He reported that they lived together continuously for 28 years, filed taxes as married, owned real estate together, and always referred to one another as husband and wife. He stated that his sister, the NH, would talk about common-law marriage in Colorado and how she was considered to be married to the Claimant. He believed that they maintained a home and lived together continuously as a married couple in California from 1991 to 2005, Colorado from 2005 to 2015, and Idaho from 2015 to present.

• C1~, the NH’s sister, completed the Form SSA-753 in May 2019. She reported that the NH and the Claimant were generally known as a married couple, she considered them a married couple, and she heard them refer to one another as spouses. She wrote: “We as a family have witnessed [the NH and the Claimant] as a married couple. They have lived together for 30+ years and have acted as such. My kids have always considered them as married.” She believed that they maintained a home and lived together continuously as a married couple in California from 1991 to 2005, Colorado from 2005 to 2015, and Idaho from 2015 to present.

The agency obtained the Form SSA-753 Statement Regarding Marriage from 5 longtime friends:

• C2~, a longtime friend, completed the Form SSA-753 in January 2019. She reported that the NH and the Claimant were generally known as a married couple, she considered them a married couple, and she heard them refer to one another as spouses. She wrote: “They’ve lived together for almost 30 years, purchased real estate jointly, and they only see the future together.” She believed that they maintained a home and lived together continuously as a married couple in California from 1995 to 2005, Colorado from 2005 to 2015, and Idaho from 2015 to present.

• P2~, a longtime friend and the NH’s co-worker, completed the Form SSA-753 in May 2019. He reported that the NH and the Claimant were generally known as a married couple, he considered them a married couple, and he heard them refer to one another as spouses. He wrote: “[The NH and the Claimant] have owned homes together since I met [the Claimant] and they refer to each other as husband and wife.” He believed that they maintained a home and lived together continuously as a married couple in California from 1991 to 2005, Colorado from 2005 to 2015, and Idaho from 2015 to present.

• S1~, a longtime friend and the NH’s co-worker, completed the Form SSA-753 in May 2019. She reported that the NH and the Claimant were generally known as a married couple, she considered them a married couple, and she heard them refer to one another as spouses. She wrote: “They have been together since they met and lived together as husband and wife in 1991.” She believed that they maintained a home and lived together continuously as a married couple in California from 1991 to 2005, Colorado from 2005 to 2015, and Idaho from 2015 to present.

• S2~, a longtime friend and the NH’s co-worker, completed the Form SSA-753 in May 2019. She reported that the NH and the Claimant were generally known as a married couple, she considered them a married couple, and she heard them refer to one another as spouses. She wrote: “I have never known [the Claimant and the NH] as anything but a married couple which is also how my children have always known them. They have always conducted their lives as a married couple and I daresay a successful and loving marriage in every way.” She believed that they maintained a home and lived together continuously as a married couple in California from 1991 to 2005, Colorado from 2005 to 2015, and Idaho from 2015 to present.

• M3~, a longtime friend and the NH’s co-worker, completed the Form SSA-753. She reported that the NH and the Claimant were generally known as a married couple, she considered them a married couple, and she heard them refer to one another as spouses. She wrote: “In addition to cohabitating since the early ‘90s,’ [the NH and the Claimant] have invested and worked on several real estate projects together always sharing ownership as a married couple. Although they have no children, they have treated each other’s extended families as their own and have always parented an evolving menagerie of beloved pets.”

Finally, the Claimant provided documents to support their marriage and time in Colorado.

• Bank statements from 2012, 2013, 2014, and 2015 were addressed to both the NH and the Claimant as joint account holders living at the same address in Colorado.

• A “Trust Agreement Creating the Family Trust” signed and executed by the NH and the Claimant before a notary public on May XX, 2008, establishes a family trust and states: “We, P1~ and M1~, are married to each other. While we did not engage in a civil marriage within the meaning of Title 14 of the Colorado Revised Statutes, we have resided together as husband and wife for seventeen years, and we consider ourselves married to each other.” The Trust Agreement states that they were residents of Colorado.

• A Land Title Guarantee Company “Statement of Settlement - Purchasers” for a home in Durango, Colorado shows that the NH and the Claimant bought the home together on July XX, 2005. A Land Title Guarantee Company “Statement of Settlement - Sellers” for this home in Colorado shows that the NH and the Claimant, as trustees through the Family Trust, sold the home on February XX, 2015.

• Mortgage Interest Statements for 2011 and 2013 were addressed to both the NH and the Claimant in Durango, Colorado.

• A La Plata County Treasurer property tax receipt shows that the Family Trust paid property taxes on real property in Durango, Colorado in 2009.

• 2011 and 2015 tax documents show that the Claimant listed the NH as his spouse and that their filing status was married filing jointly.

• 2009-2010 USAA car insurance documents show that the NH and the Claimant were co-insureds of two cars and that they were living at the same address in Colorado.

ANALYSIS

A. Federal Law: Entitlement to Spouse’s Insurance Benefits as a Spouse^[2]

Under Title II of the Act, a claimant may be entitled to spouse’s insurance benefits on an insured individual’s record if, among other things, he or she is the spouse of the insured individual entitled to old-age or disabled insurance benefits and their marital relationship has lasted at least one year before the date the claimant filed the application for benefits. See 42 U.S.C. §§ 402(b), (c), 416(a)(1), (b), (f); 20 C.F.R. § 404.330(a); see also Program Operations Manual System (POMS) RS 00202.001.B (the claimant meets the one year marriage duration requirement if he or she has been married to the insured individual for at least one continuous year immediately before the day the claimant files the application; this duration requirement “may be met on the basis of an application actually filed before the first anniversary of the marriage as long as the one-year anniversary occurs prior to adjudication” of the claim).

The agency will find a claimant to be an insured individual’s spouse if the courts of the State in which the insured individual was domiciled at the time the claimant filed the application would find that the claimant and the individual were validly married at the time the claimant filed the application, or if, under application of that State’s intestate succession laws, the claimant would be able to inherit a spouse’s share of the insured’s personal property. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. It is our understanding that the NH was domiciled in Idaho when the Claimant filed the application for spouse’s benefits. Therefore, we look to Idaho law to determine if the Claimant is the NH’s spouse.

B. State Law: Valid Marriage

1. Idaho’s Recognition of Valid Out-of-State Common-Law Marriages

The Claimant and the NH moved to Idaho in 2015 where they are presently living. The Idaho Legislature abolished common-law marriages within Idaho effective January 1, 1996. See Dire v. Dire-Blodgett, 102 P.3d 1096, 1097-1098 (Idaho 2004); Idaho Code Ann. § 32-201. Thus, after January 1, 1996, a couple must obtain a marriage license and have their marriage solemnized in accordance with the law in order to have a valid marriage under Idaho’s laws. Id. The Claimant and the NH do not claim to have entered into a valid ceremonial marriage in Idaho; rather, they claim to have entered into a common-law marriage while living in Colorado from 2005 to 2015.

Although a couple cannot enter into a common-law marriage in Idaho, Idaho will recognize a valid out-of-state common-law marriage. See Idaho Code Ann. § 32-209 (“All marriages contracted without this state, which would be valid by the laws of the state or country in which the same were contracted, are valid in this state, unless they violate the public policy of this state.”); Morrison v. Sunshine Mining Co., 127 P.2d 766, 769 (Idaho 1942) (“Having assumed and entered into the marital relationship with appellant in Montana, the status thus established followed Morrison to Idaho and could not be shed like a garment on entering this state.”); Huff v. Huff, 118 P. 1080, 1084 (Idaho 1911) (“[i]f the marriage of respondent and M4~ was valid under the laws of Missouri, then such marriage was valid in this state”); Hilton v. Stewart, 96 P. 579, 583 (Idaho 1908) (“any contract which is a valid marriage according to the law of the place where the contract is made is valid everywhere”); State v. Orozco, 2015 WL 4456239, at *2 (Idaho Ct. App. July 21, 2015) (“a valid common law marriage in [another state or country] … should be recognized by Idaho … as Idaho law provides for recognition of foreign or out-of-state marriages”). Thus, we consider whether the Claimant has proven a valid Colorado common-law marriage entered into in Colorado before the NH and the Claimant moved to Idaho.

2. Valid Common-Law Marriage under Colorado Law

While the Claimant and the NH allege that they began their common-law marriage on July XX, 1991 in California, California does not recognize common-law marriages within the State. See Elden v. Sheldon, 758 P.2d 582, 587 (Cal. 1988) (noting that California abolished common-law marriage in 1895). The couple then moved to Colorado on June XX, 2005, where they lived for ten years until May XX, 2015, when they moved to Idaho. The Claimant and the NH believed that they were common-law married in Colorado. As explained in detail below, Colorado recognizes common-law marriage, which can be established by “the mutual consent or agreement of the couple to enter the legal and social institution of marriage, followed by conduct manifesting that mutual agreement.” Hogsett v. Neale, 478 P.3d 713, 715, 723-724, 727 (Colo. 2021)^[3] ; see also Colo. Rev. Stat. § 14-2-104(3).

a. Burden of Proof: Preponderance of the Evidence

Unlike some other States which impose a higher burden of proof on claimants who seek to prove the existence of a common law marriage, the burden of proof for establishing a common-law marriage in Colorado is by a preponderance of the evidence.^[4] 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); People v. Lucero, 747 P.2d 660, 664 n.6 (Colo. 1988) (abrogated on other grounds by Hogsett) (clarifying that earlier case law stating evidence concerning a common-law marriage “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)). “A fact is established by a preponderance of the evidence when, upon consideration of all the evidence, the existence of the fact is more probable than its nonexistence.” People v. Garner, 806 P.2d 366, 370 (Colo. 1991). No specific form of evidence is required, but parties must present more than vague claims unsupported by competent evidence.^[5] Lucero, 747 P.2d at 663-65 & n.6. “A determination of whether a common law marriage exists turns on issues of fact and credibility.” Lucero, 747 P.2d at 665.

We consider whether the Claimant has proven that a valid common-law marriage with the NH is more probable than not. As explained below, we believe Idaho courts would find that the Claimant has proven by a preponderance of the evidence that he and the NH had a valid common-law marriage under Colorado law beginning on June XX, 2005 and that such marriage continues as it has not been terminated by divorce. See LaFleur v. Pyfer, 479 P.3d 869, 888 (Colo. 2021) (Boatright, concurring) (“parties who enter into licensed or common law marriages remain married until they legally divorce, regardless of their conduct”).

b. Age Requirement and Prohibited Marriages

Colorado law regarding common-law marriage sets forth an age requirement and prohibits certain marriages. Common-law marriages entered into on or after September 1, 2006, are only valid: (1) if the parties are 18 years of age or older,^[6] and (2) if the marriage is not prohibited as provided in section 14-2-110 (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;^[7] see also POMS GN 00305.075B (digest of state laws regarding the recognition of common-law marriages). Even prior to September 1, 2006, some marriages were similarly prohibited under Colorado’s common law.^[8] 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). However, once the legal impediment is removed, a finding of a common-law marriage may be warranted. See Rocky Mountain Fuel Co. v. Reed, 130 P.2d 1049 (Colo. 1942).

Here, the NH and the Claimant were of age and their marriage was not prohibited by statute. There is no indication that either had any prior undissolved marriages or that the NH and the Claimant were closely related.

c. Mutual Consent or Agreement to Enter the Legal and Social Institution of Marriage, Followed by Conduct Manifesting that Mutual Agreement

A common-law marriage requires “the mutual consent or agreement of the couple to enter the legal and social institution of marriage, followed by conduct manifesting that mutual agreement.” Hogsett, 478 P.3d at 715, 723-724, 727. The key question is “whether the parties intended to enter a marital relationship – that is, to share a life together as spouses in a committed, intimate relationship of mutual support and obligation.” Id. (emphasis in original). In assessing whether a common-law marriage has been established, weight should be given to evidence reflecting the couple’s express agreement to marry. Id. at 715, 727. Absent such evidence, the parties’ agreement to enter a marital relationship may be inferred from their conduct. Id. The conduct identified in connection with the old (Lucero) standard for determining a common-law marriage can still be relevant to that inquiry: the parties’ cohabitation, reputation in the community as spouses, maintenance of joint banking and credit accounts, purchase and joint ownership of property, filing of joint tax returns, and use of one spouse’s surname by the other or by children raised by the parties. Hogsett, at 715, 724-725, 727. Other factors that should be considered include evidence of shared financial responsibility, such as leases in both partners’ names, joint bills, or other payment records; evidence of joint estate planning, including wills, powers of attorney, beneficiary and emergency contact designations; symbols of commitment, such as ceremonies, anniversaries, cards, gifts, and the couple’s references to or labels for one another; and the parties’ sincerely held beliefs regarding the institution of marriage. Id. at 725. A party’s behavior when a relationship ends may also be instructive. Id. at 725.

Further, “the manifestation of the parties’ agreement to marry need not take a particular form.” Hogsett, at 715, 724. But the parties’ conduct “must be assessed in context; the inferences to be drawn from [their] conduct may vary depending on the circumstances.” Id. at 715, 724, 727. There is no longer any assumption that the presence of a particular factor necessarily supports a finding of marriage, or that its absence necessarily weighs against a finding of marriage. Id. at 725. “[T]he significance of a given factor will depend on the individual, the relationship, and the broader circumstances, including cultural differences.” Id.; see also In re Estate of Yudkin, 478 P.3d 732, 737 (Colo. 2021) (“The purpose of examining the couple’s conduct is not to test the couple’s agreement to marry against an outdated marital ideal, but to discover their intent.”).

Last, 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. Thus, ordinarily, where a legal impediment prevents an otherwise valid marriage (e.g., where one of the parties is already married to another person), the effective date of the common-law marriage would not occur until the impediment is removed since parties could not evince the state of mind needed to “mutually consent” to enter into a valid common-law marriage. Id. at 276.

Here, we believe Idaho courts, in applying Colorado law, would find that there is ample evidence demonstrating the mutual consent or agreement of the NH and the Claimant to enter into the legal and social institution of marriage at least as of June XX, 2005, when they began living together in Colorado, followed by sufficient conduct manifesting that mutual agreement to satisfy the preponderance of the evidence standard of proof. The supportive evidence includes statements from the NH, the Claimant, and 8 friends and relatives, as well as documentary evidence.

Both the NH and the Claimant are asserting that they entered into a common-law marriage under Colorado’s laws. The NH and the Claimant both reported in the SSA-754 that they have continuously lived together as spouses from 1991 to 2005 in California, 2005 to 2015 in Colorado, and 2015 to the present in Idaho. When they began living together in 1991, they agreed to “a lifelong commitment.” They believed that they were common-law married in Colorado. They introduced one another as husband and wife. They both reported that they filed joint tax returns, opened a family trust in 2008, and held joint bank accounts, credit cards, and insurance. They provided bank statements from 2012, 2013, 2014, and 2015 to corroborate that they held joint bank accounts and were living together in Colorado during this time. They provided a Trust Agreement that they established together in 2008 while in Colorado in which they declared: “We, P1~and M~, are married to each other. While we did not engage in a civil marriage within the meaning of Title 14 of the Colorado Revised Statutes, we have resided together as husband and wife for seventeen years, and we consider ourselves married to each other.” Documents show that they bought a house together in Colorado in July 2005 and sold this home in February 2015. Property tax records and mortgage interest statements confirm their home ownership together in Colorado. Car insurance documents show that they were co-insureds on two cars while living together in Colorado. Tax return documents from 2011 and 2015 show that the Claimant listed the NH as his spouse and that their filing status was married filing jointly. Thus, the documents corroborate their statements in the SSA-754 as to their common-law marriage.

Additionally, the NH’s father, brother, and sister all provided statements on the SSA-753 supporting the NH’s common-law marriage to the Claimant. Similarly, five longtime friends of the couple provided statements supportive of their common-law marriage. All eight witnesses reported that the NH and the Claimant were generally known as a married couple, that each witness believed they were married, and that the couple referred to one another as spouses. All eight witnesses believed that they maintained a home and lived together continuously as a married couple in California, then in Colorado for ten years from 2005 to 2015 and continuing in Idaho where they presently live. The NH’s sister wrote: “We as a family have witnessed [the NH and the Claimant] as a married couple. They have lived together for 30+ years and have acted as such. My kids have always considered them as married.” One friend, S2~, described their relationship as follows: “I have never known [the Claimant and the NH] as anything but a married couple which is also how my children have always known them. They have always conducted their lives as a married couple and I daresay a successful and loving marriage in every way.” Another longtime friend, M3~, stated: “In addition to cohabitating since the early ‘90s,’ [the NH and the Claimant] have invested and worked on several real estate projects together always sharing ownership as a married couple. Although they have no children, they have treated each other’s extended families as their own and have always parented an evolving menagerie of beloved pets.”

In summary, this is not a case of deficient or conflicting evidence. Considering the totality of the evidence, we believe Idaho courts, applying Colorado law, would conclude that the NH and the Claimant established a common-law marriage by a preponderance of the evidence beginning on June XX, 2005, when they moved to Colorado and where they lived for the next ten years, and that their marriage continued even after their move to Idaho. Thus, we believe Idaho would recognize their valid Colorado common-law marriage.

CONCLUSION

We believe Idaho courts would find that the Claimant and the NH established a valid common-law marriage under Colorado law that began on June XX, 2005, when they moved to Colorado and where they lived for the next ten years, and that they remain validly married even after moving to Idaho in 2015. Thus, there is legal support for the agency to find that the Claimant is the NH’s spouse for purposes of determining his entitlement to spouse’s insurance benefits on the NH’s record under Title II of the Act.

The claimant for mother's benefits cannot qualify as the NH's putative spouse under Colorado law because she lacked a good faith belief that she and the NH were legally married. She knew of his prior marital relationship with another woman and encouraged him to take legal action to dissolve it. The other woman can qualify as the NH's common-law spouse because she and the NH lived together and held themselves out to the community as married in a mutual and open assumption of a marital relationship. The Commissioner is not bound by the order issued by the District Court stating that the claimant and the NH had a putative marriage. The issue of her spousal status does not appear to have been genuinely contested under SSR 83-37c, and the Colorado Supreme Court would not find that the meets the legal definition of a putative spouse under Colorado law.

You requested an opinion concerning whether a putative marriage existed between Andrea K~ and deceased number holder Michael R~ for purposes of determining spousal benefit eligibility when her "good faith" remains questionable but an Adams County District Court order declares her a putative spouse.

FACTS

The facts in this case are extensive. Michael D. R~ (Mr. R~) (~) and Cynthia L. S~ (Ms. S~) began living together in September of 1984 in Arvada, Colorado. (Cynthia S~'s Statement of Marital Relationship, April xx, 2002.) Ms. S~ was still married to Donald S~ at the time. (Colorado Divorce Detail of Cindy S~.) Ms. S~ claims that Mr. R~ knew that the divorce was not final from the time they began living together and was with her in court when the decree was entered on April xx 1987. (Cynthia S~'s Statement of Marital Relationship.)

In January of 1985, Mr. R~ provided Ms. S~ with a diamond ring and began calling her "his wife." See id. Although there was never a formal ceremony, Ms. S~ claims that the two of them agreed to do this eventually. See id. Ms. S~ had a daughter from the previous marriage named B~, and Mr. R~ always referred to her as "his daughter." See id. Ms. S~ introduced Mr. R~ to acquaintances as her "husband." See id.

Sometime in 1985, they purchased a car together. (Cynthia S~'s Statement of Marital Relationship.) Later in 1990 or 1991, they purchased a piece of land in Grand Lake (Grand County Clerk and Recorder Details, April xx, 2003) where they planned to retire together. (Cynthia S~'s Statement of Marital Relationship.) They purchased another vehicle, a 1969 Ford Mustang, in 1995, and the bill of sale listed them as "Mike and Cindy R~." (Bill of Sale, September xx 1995.)

Over the course of their 14-year relationship, Mr. R~ and Ms. S~ included their names on documents jointly as husband and wife. In 1992, they filed both federal and State joint income tax returns as married. (Individual Income Tax Returns, 1992.) In 1989, Ms. S~ also claimed Mr. R~ as a dependent spouse on her health insurance policies with Met Life and Metropolitan Insurance Companies. (Insurance Enrollment Form, December xx, 1989.) She included coverage for a spouse on her J.C. Penney Life Insurance Policy dated July xx, 1993. (J.C. Penney Life Insurance Company, Certificate of Insurance, July xx, 1993.)

According to Ms. S~, their friends and family considered them married. (Cynthia S~'s Statement of Marital Relationship.) Various people and entities referred to Mr. R~ and Ms. S~ as married. A wedding invitation in 1994 was addressed to "Mr. & Mrs. Mike R~."

The relationship went sour in January of 1998. Although the couple did not plan to end the relationship, they planned a 6-month separation. (Cynthia S~'s Statement of Marital Relationship.)

Soon thereafter, Mr. R~ entered into a relationship with another woman. Andrea K~ claims that Mr. R~ began living with her in March 1999. (Andrea K~'s Statement of Marital Relationship, April xx, 2002.) She claims that they lived together as "man and wife," and planned a formal ceremony that never came to fruition because Mr. R~ became ill. See id. Mr. R~ died on October xx, 2000, of respiratory problems from sepsis. (Death Certificate of Michael R~, October xx, 2000.)

Mr. R~ and Ms. K~ structured several accounts and transactions indicative of a marital relationship. Available evidence indicates that they held a joint account with First Nationwide Mortgage. (Monthly Mortgage Statement, October xx, 2000.) Mr. R~, a member of the International Brotherhood of Electrical Workers (IBEW), named Ms. K~ as a beneficiary spouse on his pension records. (Beneficiary Designation Card of Michael R~, October xx, 1999; see also Letter from the Trust for the IBEW Pension Benefit Fund, June xx, 2000.) Subsequent correspondence and a death claim check from the IBEW Pension Fund were addressed to her as "Andrea R~." (Letter from the Trust for the IBEW Pension Benefit, November xx, 2000.) Another life claim letter and check from the Line Construction Benefit Fund were addressed to Andrea M. K~-R~. (Letter from LINECO, October xx, 2000.) Mr. R~ included Ms. K~ on his HealthOne insurance policy. (HealthOne Medical Record, July xx, 2000.) They received a warranty deed as joint tenants on some property in Clear Creek County on December xx, 1999. (Warranty Deed, December xx, 1999.) In addition, they executed a warranty deed on their home in Thornton on February xx, 1999 (Warranty Deed, February xx, 1999.) They held joint accounts at Horizons North Credit Union. (Account Statement, June xx, 2001.) They did not, however, file joint tax returns, but rather, Mr. R~ filed as "single" and Ms. K~ as "head of household" in both 1999 and 2000. (Individual Income Tax Returns for both 1999 and 2000.) Ms. K~ maintains that she was not aware of a possible common law marriage between Mr. R~ and Ms. S~ until after Mr. R~'s death. (Andrea K~'s Statement of Marital Relationship.)

Following Mr. R~'s death, conflict arose between Ms. S~ and Ms. K~ over which was his legal spouse. The first death certificate issued on October xx, 2000, for Mr. R~ listed Ms. K~ as his spouse. (Death Certificate of Michael R~.) An amended death certificate issued on December xx, 2000 listed Ms. S~ as the spouse. (Amended Death Certificate of Michael R~.)

Ms. K~ applied for mother's benefits in November of 2000. She also filed for child's benefits on behalf of her two children, J~ and M~, alleging they were stepchildren to Mr. R~. These claims were denied for failure to establish entitlement as a spouse, resulting in no stepchild relationships being established.

In July 2001, Ms. K~ obtained a court "stipulation to Spousal Status" from Adams County District court, declaring her the putative spouse of Mr. R~ as of the date of his death. (Adams County Court Order Approving Stipulation to Spousal Status, July xx, 2001 (hereinafter "Adams County Court Order").) The order was issued subsequent to an agreement between Ms. S~ and Ms. K~ in the settlement of Mr. R~'s estate. (Settlement Agreement Between Cynthia L. S~ and Andrea K~, June xx, 2001.) The order recognized Ms. S~ as the legal spouse on the date of death. (Adams County Court Order.) It also stated that Ms. K~ was a putative spouse and therefore entitled to claim all benefits available to her under the law arising from Mr. R~'s death. See id. Ms. K~ applied again for mother's benefits and child's benefits on April xx, 2002, and has protective filing to August 2001. (Application for Benefits, April xx, 2002.) In her application under penalty of perjury, she stated that she always knew about Ms. S~ and was always pushing Mr. R~ to do something legal to terminate that relationship. See id.

Upon further investigation, the district office where Ms. K~'s claims were taken discovered that Margaret R~, mother of the deceased number holder, did not consider Ms. K~ to be the spouse of her son. (Report of Contact with Margaret R~, April xx, 2002). She also states that Mr. R~ didn't either. See id.

DISCUSSION

Section 202 of the Social Security Act provides that a surviving spouse of an individual who dies insured may be eligible for mother's benefits. See 42 U.S.C. § 402(g)(1)._11 The applicant must (1) not be married, (2) not be entitled to a surviving spouse's insurance benefit or old age benefits, (3) file an application, and (4) have a child of the deceased wage earner in his or her care. See 42 U.S.C. § 402(g)(1)(A)-(F); see also 20 C.F.R. § 404.339._22 A "surviving spouse" is defined as a "widow," or surviving wife of the wage earner who was married to him for at least one year before the application. See 42 U.S.C. § 416(b)-(c). Likewise, the Act provides benefits for children, if, among other things the child for who benefits are applied for (1) was the insured person's child and (2) the child was dependent on a deceased wage earner. See 42 U.S.C. § 402(d)(1); see also 20 C.F.R. § 404.350. The definition of "child" includes those children who were stepchildren of the deceased wage earner for at least one year before an application for child's benefits is filed. See 42 U.S.C. § 416(e). Stepchildren are eligible for benefits only if the natural parent was legally married to the insured. See 20 C.F.R. § 404.357.

In deciding whether a claimant was legally married to an insured person, we look to the laws of the State where the insured had a permanent home when he or she died. See id. § 404.345; see also 42 U.S.C. § 416(h)(1)(A)(i) (applicant is wife of deceased insured individual if the courts of the State where applicant was domiciled at the time he died would find that such applicant and deceased insured individual were validly married at the time that he died); see also Warren v. Sec'y of Health & Human Servs., 868 F.2d 1444, 1447 (5th Cir. 1989) (stating that "the courts" refers to the highest court of that State in a proceeding contested by parties with opposing interests). "Permanent home" means the "true and fixed home" or legal domicile of a person, or the place that they intend to return whenever he or she is absent. See 20 C.F.R. § 404.303. In this case, no dispute exists as to whether Mr. R~ had a permanent home in Colorado when he died.

Colorado recognizes the doctrine of common law marriage. See Klipfel's Estate v. Klipfel, 92 P. 26 (Colo. 1907) (quoting Taylor v. Taylor, 50 P. 1049, 1049 (Colo. App. 1897)). A common law marriage in Colorado requires two elements. First, there must be an agreement to take each other in marriage. See Taylor, 50 P. at 1049. Agreement can be inferred from cohabitation and reputation that the parties "hold themselves out" to the community as husband and wife. Id. at 1049; see People v. Lucero, 747 P.2d 660, 663 (Colo. 1987). Second, there must be mutual and open assumption of a marital relationship. See Clayton Coal Co. v. Indus. Comm'n, 25 P.2d 170 (Colo. 1933). Generally, common law marriage cannot arise while one of the parties is still legally married to another until the legal marriage to the other person is dissolved or other impediment removed. See Crandell v. Resley, 804 P.2d 272, 276 (Colo. App. 1990); see also Clark v. Clark, 229 P.2d 142 (Colo. 1951); see also In re Morrow's Estate, 68 P.2d 36, 39 (Colo. 1937). The party asserting common law marriage carries the burden of proof, which is a preponderance of the evidence but evidence must also be "clear, consistent, and convincing."

Employee' Mut. Liab. Ins. Co. of Wisconsin v. Indus. Comm'n, 234 P.2d 901, 903 (Colo. 1951).

Colorado also adopts the putative spouse doctrine, which allows a person to claim the rights of a marital relationship in the absence of a legal marriage. A putative spouse obtains the rights conferred upon a legal spouse, whether or not the marriage is prohibited, when the person has (1) cohabitated with another to whom (2) he or she is not legally married in (3) the good faith belief that he was married to that person (4) until "knowledge of the fact that he is not legally married terminates his status and prevents acquisition of further rights." Colo. Rev. Stat. § 14-2-111 (2003) (emphasis added). The definition of "prohibited marriage" includes those marriages entered into prior to the dissolution of an earlier marriage of one of the parties. Colo. Rev. Stat. § 14-2-110 (2003). In addition, Program Operations Manual System (POMS) GN 00305.085 clearly states that putative marriage requires continuous good faith belief that the marriage was legal until the worker dies in order to be valid.

Based upon the available facts, after her divorce in April 1987, Ms. S~ could satisfy the elements required for a common law spouse. Common law marriage in Colorado requires cohabitation. See Taylor, 50 P. at 1049; see also Lucero, 747 P.2d at 663. Mr. R~ and Ms. S~ lived together from September 1984 until they separated in January of 1998. Common law marriage also requires "holding out." See id. It also requires a "mutual" and "open" assumption of marital status. See Clayton, 25 P.2d 170. In 1992, Mr. R~ and Ms. S~ filed both State and Federal tax returns jointly. Ms. S~ claimed him as a dependent spouse for health insurance purposes and included coverage for Mr. R~ as her spouse on her life insurance policy. They received a wedding invitation addressed to them as though they were married. These facts evince that Mr. R~ and Ms. S~ were "holding themselves out" to the community as man and wife, and both openly presented themselves as married to each other. Even though Ms. S~ was still married to Donald S~ at the time she began living with Mr. R~, that impediment was removed with finalization of her divorce in April 1987. She and Mr. R~ continued to cohabitate and held themselves out as married until their eventual separation in January of 1998. The evidence of a common law relationship between Mr. R~ and Ms. S~ seems "clear, consistent and convincing." On these facts, Ms. S~ could satisfy the legal requirements as a common law spouse to Mr. R~ under Colorado law.

Ms. K~ cannot satisfy the legal requirements for a common law marriage to Mr. R~ because Mr. R~ and Ms. S~'s relationship had not legally terminated at the time Ms. K~ began living with Mr. R~. She also cannot satisfy the legal requirements of a putative marriage because she lacked a good faith belief that Mr. R~'s prior relationship to Ms. S~ was legally dissolved.

Two common law marriages cannot exist simultaneously. See In re Morrow's Estate, 68 P.2d at 39; see also Crandell, 804 P.2d at 276. Because Mr. R~'s common law marriage to Ms. S~ had not legally terminated when his relationship with Ms. K~ commenced, he and Ms. K~ could not have a common law marriage even though they arguably held themselves out to the community as married.

As previously stated, a putative spouse must (1) live with another person (2) to whom she is not legally married with (3) good faith belief that she is married to the other person (4) until knowledge of the fact that she is not legally married terminates her status. See Colo. Rev. Stat. § 14-2-111. Also, as mentioned in previous memoranda on this topic, to receive benefits a putative spouse in Colorado must have continuous good faith belief in the validity of the marriage until the worker dies. See Memorandum from OGC Region VIII to RC, Putative Common Law Marriage in Colorado, 3 (1985) (Claimant cannot be putative common law spouse if finder of fact determines that she knew of prior undissolved marriage before worker died); see also Memorandum from OGC Region VIII to RC, Putative Marriage, Colorado (1979) (Putative common law marriage did not arise when putative spouse did not meet the good faith belief requirement of the Colorado statute).

Ms. K~ did not meet the required elements and was not Mr. R~'s "common law putative spouse." First, it is true that Mr. R~ and Ms. K~ lived together. Second, if Mr. R~ was legally married to Ms. S~, he could not have been legally married to Ms. K~. It is also true that they may have held themselves out as married because they held some joint accounts; Ms. K~ was named as a beneficiary spouse on Mr. R~'s union pension, and Ms. K~ was included on Mr. R~'s health insurance policy. However, Ms. K~ fails to meet the elements of a putative spouse because she lacked a good faith belief that she was married to Mr. R~ prior to his death. Specifically, in her application for benefits on April 16, 2002, she acknowledged that she was "aware of Mr. R~'s relationship with Ms. S~ and had asked him several times to take legal action to end the marriage." On these facts, Ms. K~ lacked a good faith belief that Mr. R~ was not married to another and therefore could not have been his putative spouse.

We recognize the Adams County District Court issued an order determining that Ms. K~ was Mr. R~'s putative spouse. However, the Commissioner of Social Security is not bound by the decisions of a State court in a proceeding to which she is not a party. But, she is not free to ignore an adjudication of a State trial court where it is fair and consistent with the law as enunciated by the highest court of the State. The Commissioner must accept the determination made by a State court where (1) an issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction, (2) the issue is genuinely contested before the State court by parties with opposing interests, (3) the issue falls within the general category of domestic relations law, and (4) the resolution by the State trial court is consistent with the law enunciated by the highest court in the State. See Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973) (emphasis added) (citing Legory v. Finch, 424 F.2d 406 (3rd Cir. 1970)); see also Social Security Ruling (SSR) 83-37C (1983). Where the highest court in the State has not spoken on the particular area of law at issue, the Commissioner may follow the decision of the lower court but "is free to disregard that decision if he feels that it is contrary to what the supreme court of that State would rule if presented with the question." Rogers v. Sullivan, 795 F. Supp. 761, 764-65 (E.D.N.C. 1992) (quoting Cain v. Sec'y of Health, Educ. & Welfare, 377 F.2d 55, 57 (4th Cir. 1967); see also Warren, 868 F.2d at 1447 (stating that the Commissioner is obligated by statute to determine the law as would the highest court of the State in a proceeding contested by parties with opposing interests). A lower court decision should be followed if it is "fair and logical and no authoritative decision to the contrary exists." Id., see also Legory, 424 F.2d at 410.

The Adams County District Court order approving stipulation to spousal status involves the issue of Ms. K~'s relationship to Mr. R~, an issue in her claim for benefits, and the issue was determined by a State court of competent jurisdiction. See Colo. Const. Art. 6 § 9 (stating jurisdiction vests in Colorado District Courts to hear matters regarding probate or domestic relations). Thus, the first requirement of the Gray analysis is satisfied. Ms. K~'s status as a putative spouse also arguably "falls within the general category of domestic relations law," satisfying the third step of the Gray analysis.

However, Ms. K~'s spousal status does not appear to have been "genuinely contested" under the meaning of SSR 83-37c. To be genuinely contested, an issue must be disputed by parties with opposing interests. See George v. Sullivan, 909 F.2d 857, 861 (6th Cir. 1990) (a court order did not bind the Commissioner and was not genuinely contested where no evidence was presented or any material controversy resolved); see also Outwater v. Sec'y of Health & Human Servs., 894 F. Supp. 1114, 1120 (E.D. Mich. 1995) (court found that where transcript from the proceeding failed to show that the issue was discussed that it could not have been "genuinely contested" under Gray); Rogers, 795 F. Supp. at 765 (court stated that a proceeding where a jury found that a party was a common law wife was "genuinely contested"); McEvers v. Sullivan, 785 F. Supp. 1321, 1328 (C.D. Ill. 1992) (finding that a court order declaring a marriage invalid after one of the parties died was not "genuinely contested"); Winters v. Sec'y of Health & Human Servs., No. C-3-87-419, 1989 WL 280323 at * 2 (S.D. Ohio Dec. 11, 1989) (State court proceeding is "genuinely contested" when parties are cross examined and evidence is presented in favor and opposition to positions of the parties); Thomasello v. Apfel, No. 97-3701, 1998 WL 597643 at * 2 (7th Cir. Aug. 28, 1998) (stating that where an order is not the product of truly adversarial proceedings, there is good reason to question it's reliability). In this case, the parties did not litigate, but settled, after which stipulations were entered to approve of the settlement agreement and spousal status. In fact, based upon information obtained from the District Court, both a hearing and trial were scheduled but neither was held. Based upon this information, the court order appears to fail the "genuinely contested" inquiry of Gray and SSR 83-37c.

We note previous opinions from this office that take an alternative view on the "genuinely contested" requirement. In particular, we have stated that "to require a genuine contest may be to require the impossible, and that knowing waiver of the opportunity to contest can compensate for the absence of a contest." See Memorandum from OGC Region VIII to Acting ARC, Child's Status under North Dakota Law, 3 (1990) (quoting Memorandum from OGC Region V to ARC, Programs, Mutual Acknowledgement of Paternity in Michigan, (1985)). Ms. K~ might argue that Ms. S~'s agreement to stipulate as to spousal status shows both notice and waiver of the opportunity to contest. While this argument seems compelling, it still does not make the court order binding on the Commissioner because Ms. K~ cannot satisfy the fourth and final requirement that the finding be consistent with the law as enunciated by the highest court in the State if it were to speak regarding this issue.

Based upon the facts, the finding that Ms. K~ was Mr. R~'s putative spouse would probably not be consistent with a holding of the Colorado Supreme Court if they were to speak on this particular area of law. As discussed above, where the State Supreme Court has not spoken on the particular area of law at issue, the Commissioner "is not required to follow a lower court's decision to which she is not a party" but can disregard the decision if she feels that it is contrary to what the Supreme Court of that State would rule if presented with the question. See Rogers, 795 F. Supp. at 764 (quoting Cain, 377 F.2d at 57). There are no reported cases where the Colorado Supreme Court has spoken regarding Colo. Rev. Stat. § 14-2-111 or the elements of putative marriage. But, the statute clearly says that for the person claiming to be a putative spouse, "knowledge of the fact that he is not legally married terminates his status and prevents acquisition of further rights." Colo. Rev. Stat. § 14-2-111. And, in Williams v. Fireman's Fund Ins. Co., the Colorado Court of Appeals held that a putative spouse keeps the rights of a legal spouse if she does not discover the prior undissolved marriage of her spouse until after his death. 670 P.2d 453, 455 (Colo. App. 1983). Likewise, in People v. McGuire, the Colorado Court of Appeals also held that knowledge of a previous marriage "negates any good faith belief" that might be available to a participant in an invalid marriage. 751 P.2d 1011, 1012 (Colo. App. 1988). Ms. K~ cannot be a putative spouse because she knew of the previous legal marriage of Ms. S~ and Mr. R~ prior to his death, which destroyed her good faith. As such, the Supreme Court of Colorado would probably not find Ms. K~ to have satisfied the good faith requirement of Colo. Rev. Stat. § 14-2-111, and she therefore would not qualify as a putative spouse.

CONCLUSION

Accordingly, we advise that:

(1) Ms. S~ could qualify as Mr. R~'s common law spouse because she and Mr. R~ lived together and held themselves out to the community as married in a "mutual" and "open" assumption of a marital relationship.

(2) Ms. K~ could not qualify as Mr. R~'s putative spouse under Colorado law because she lacked a "good faith belief" that she and Mr. R~ were legally married. Ms. K~ knew of his marital relationship with Ms. S~ and encouraged him to take legal action to dissolve it.

(3) The Commissioner is arguably not bound by the order issued by the Adams County District Court because (a) the issue of Ms. K~'s spousal status does not appear to have been genuinely contested under the meaning of Gray v. Richardson and SSR 83-37c, and (b) based upon the facts, we do not believe the Colorado Supreme Court would find she meets the legal definition of a putative spouse under Colorado law.

Yvette G. K~

Regional Chief Counsel, Region VIII

By:_____________________________

Michael A. T~

Assistant Regional Counsel

_11All references to the United States Code (U.S.C.) are to the 2000 edition.

_22All references to the Code of Federal Regulations (C.F.R.) are to the 2003 edition.

MARRIAGE -- Validity -- In General

Where an alleged husband and wife not domiciled in Colorado have visited that State frequently and have held themselves out to be husband and wife but have not expressly agreed to become husband and wife, Colorado Courts would hold that no valid common-law marriage has been contracted.

(L~, Clifford J. - ~ (S~) Region IX to DIR., IPB 3/18/82

By memorandum dated January 12, 1982, you recommended that the Regional Commissioner, SSA, Region IX, forward for our opinion the claims file of Clfford J. L~ ~. 'The issue is whether the courts of Colorado (if presented with the question) would hold that Clifford J. L~ and Freda L~ contracted a common-law marriage in Colorado, based upon their actions while visiting the State.'

A memorandum by the Acting Director, Western Program Service Center, and the accompanying claims file reflect the following facts. Clifford J.. L~ and Freda L~ ~ began. living together in 193?, in Carmel, California. Both state that they agreed to live together as husband and wife "forever", and they have been known as such by their neighbors, children, and other relatives. They have never been ceremonially married. At the time they began living together, and ever since, the L~ have been domiciliaries of California, which does not permit common-law marriages to be contracted in that State. The L~ have visited Colorado "many times" since 1937, and have visited just about every year since 1969, when they, doing business as the L~ Painting Company, Inc., bought a general store in Dry Creek Basin, Colorado, in partnership with their daughter and son-in-law. The store property includes three apartments, one of which is kept vacant for them and in which they stay when visiting, usually for two or three months each year.

Mr. L~ describes Dry Creek Basin as a very small place, with a population of less than 100 persons, and alleges that he and Freda L~ are well known in the area as husband and wife. He states that they never discussed getting married in Colorado, because there was "no reason for us to discuss marriage any more than there would have been for any other married couple." Freda L~ also states that they never expressly agreed to be married while in Colorado for essentially the same reason, elaborating that "we had no way of knowing that our discussing marriage and agreeing to be married while we were in Colorado, when we had already done it before, later would become a point upon which the validity of our marriage would hinge." The L~ have filed Colorado income tax returns as full year nonresidents, showing a filing status of married. Their California and United States income tax returns show the same filing status.

This office has issued several opinions on the general issues-raised in this case.-..See, memoranda re: "Common-Law Marriage--Sojourn Doctrine--Herbert O. G~, SSN ~, RA VIII (S~) to RC, SSA, February X, 1982; "Common-Law Marriage--Sojourn Doctrine--Supplement", RA VIII (S~) to RC, SSA, May XX, 1981, "Common-Law Marriage--Colorado--Sojourn Doctrine", RA VIII (S~) to RC, SSA, June XX, 1980. In those opinions we have consistently. concluded, based upon the authorities cited therein, that if the Colorado courts were ever to face the question whether nonresidents of Colorado have established a common-law marriage in that State, absent an express agreement between the-parties while in-Colorado (together with proof of cohabitation), the Colorado courts would not find they established a common-law marriage based upon "habit and repute".

Although the L~ have substantial contacts with Colorado, the evidence is clear that there has never been any express agreement by them while in Colorado to become husband and wife, and their travels here have not been for the purpose of changing their domicile or residence, or of contracting a common law marriage. Cf., In re Binger's Estate, 63 N.W. 2d 784, 787 (Neb. 1954). Also, both parties expressly deny that their relationship, which was clearly illicit when entered into, was changed as a result of their visits. Cf., Goldin v. Goldin, 426 A.2d 410 (Md. 1980), Walker v. Hildenbrand 410 P.2d 244 (Or 1966), and State ex rel. Smith, 161 P.2d 188 (Wash. 1945). Application of these principles would appear, therefore, to require the conclusion that the Colorado courts, if presented with this question, would hold that Clifford J. L~ and Freda L~ have not contracted a common-law marriage during their visits to Colorado.

In your memorandum soliciting our opinion, you cited In re McKanna's Estate, 106 Cal.App.2d 126, 234 P.2d 673 (1951), which involved a common law marriage between two domiciliaries of California. In that case, unlike the present one, there was evidence that the individuals expressly agreed while in Texas to be husband and wife, followed by cohabitation there (although not as domiciliaries). In reaching the conclusion that the Texas courts would recognize the M~ as husband and wife, the California court distinguished the situation there from those in which the contract of marriage is invalid under the law in the State in which it is made, and the status of the parties is thereafter regarded as meretricious, with that status following them to Texas unless there is a new agreement of marriage made in Texas, followed cohabitation and a public holding-out, or unless they become domiciled in Texas. It appears, therefore, that M~ (although involving the application of Texas law) supports, at least in dictum, the conclusion that the Le N~ did not contract a common-law marriage.