The number holder (NH) resided in the state of Florida at the time of his death. Therefore, the agency must determine whether Florida courts would consider the Claimant and the NH validly married at the time of the NH’s death or whether theClaimant would be deemed the NH’s widow for intestate succession. The Claimant alleged she and the NH were married via common law marriage in the state of Kansas, but they did not legally or ceremonially marry in Florida. Based on the evidence supplied by the Claimant, we do not believe the Claimant has established she is the NH’s widow. However, if the Claimant supplies additional evidentiary support, we believe the Florida courts would recognize that the Claimant is the NH’s widow based on their common-law marriage entered into in the state of Kansas, which is relevant for determining Claimant’s eligibility for WIB.

QUESTION

Whether D~ (Claimant) is the widow of L~, the number holder (NH), under Florida law, based on their alleged common-law marriage in the state of Kansas, for purposes of determining Claimant’s entitlement to WIB on NH’s earnings record.

ANSWER

Based on the evidence supplied by Claimant, we do not believe Claimant has established is NH’s widow. However, if Claimant supplies additional evidentiary support, we believe the Florida courts would recognize that Claimant is the NH’s widow based on their common-law marriage entered into in the state of Kansas, which is relevant for determining Claimant’s eligibility for WIB.

BACKGROUND

On April x, 2019, Social Security Administration (SSA or the agency) denied Claimant’s application for WIB and a lump-sum death payment on NH’s account. On May xx, 2019, Claimant made a request for redetermination of the decision. In a letter accompanying her request for reconsideration, Claimant stated that she was “legally married” to the NH, as she and the NH were married “via [c]ommon-law marriage” on June xx, 1978 in the state of Kansas. Claimant reported that she and the NH were living together in the state of Florida at the time of his death, in October of 2018.

As proof of her common-law marriage to the NH, Claimant provided the agency with the birth certificates of four of their children, which Claimant signed using either the name “D~ or “D~” She also provided a May xx, 1998 residential rental agreement from Tampa, Florida that listed occupants “L~” and “D~” and signed by NH and “D~.” Claimant also provided correspondence dated between 1993 and 1996 from Hillsborough County, Florida school district related to the education of their children addressed to Mr. and Mrs. L~. In addition, Claimant submitted a statement from a joint bank account, which Claimant and NH opened when they moved to Tampa, Florida in 1992. However, the statement lists Claimant as a joint account holder, not NH’s spouse.

In addition, three of Claimant and NH’s children submitted SSA-753 Forms, Statements Regarding Marriage. Ms. R~ indicated that Claimant and NH, her parents, lived as husband and wife continuously as long as she had known them. She stated that Claimant and NH shared a bed in the same room, had conceived six children together, and had not spent more than twenty-four hours apart, “unless for work,” for as long as she had known them. Ms. H~reported that Claimant and NH referred to each other as husband and wife and introduced themselves to others as husband and wife. In Ms. H~ opinion, Claimant and NH maintained a home and lived together as husband and wife in Topeka, Kansas, from June of 1978 through July of 1985, and in Gulfport, Mississippi, from July of 1985 through August of 1987. Ms. H~ stated that the couple also lived together in Acworth, Georgia from August of 1987 through September of 1991; in Lamont, Florida from October of 1991 through April of 1992; in Tampa, Florida from April of 1992 through December of 2015; and in Center Hill, Florida from January of 2016 through October of 2018. Finally, Ms. H~ stated that NH was previously married to D~ and they reportedly divorced on November x, 1975 in Kane County, Illinois.

In her SSA-753 Form, J~ stated that Claimant and NH were generally known as husband and wife and that she considered them husband and wife. She stated that the couple always referred to themselves as husband and wife to others and celebrated anniversaries annually. Ms. ~confirmed some of the locations where the couple had resided together, and the time periods, set out by Ms. H~. She also noted the NH’s divorce from D~ in 1975.

In his SSA-753 Form, J~ stated that Claimant and NH were generally known as husband and wife. He considered them husband and wife, as they lived together, they introduced each other as husband and wife, and they “were faithful to each other.” Mr. T~also confirmed some of the locations Claimant and NH had resided, and the time periods, set out by Ms. H~, as well as the NH’s divorce from D~ in 1975.

Finally, Claimant completed an SSA-754 Form, a Statement of Marital Relationship. Claimant reported that she began living together in a husband and wife relationship with NH in June of 1978 in Topeka, Kansas. Claimant and NH had lived together continuously since that time, in various locations, set out in her form and listed above in Ms. H~ SSA-753 Form. Claimant stated that she had an understanding when she and the NH began living together that they would live together as husband and wife until “death do us part.” She said that she had an understanding that their relationship could only be ended by death. Claimant wrote that she believed that living together made her and the NH legally married because the state of Kansas recognized common-law marriage and that the state of Florida would “honor[] it.”

In the form, Claimant said that she and the NH chose to use their birth names as their legal names, even after their marriage, but she did use the name D~or D~ on occasion. Claimant stated that she and the NH introduced themselves to relatives, friends, neighbors, and business acquaintances as husband and wife. Claimant listed the following individuals as the closest relatives, other than her children, who knew of her relationship with NH: R~, Claimant’s brother; V~, Claimant’s sister; G~, NH’s brother; and E~, NH’s sister. Claimant indicated that NH was married D~ in an August 1968 ceremonial marriage and they divorced in November 1975.

DISCUSSION

A. Federal Law

A claimant may be eligible for WIB if she is the widow of an individual who died fully insured. See Social Security Act (Act) § 202(e)(1); 20 C.F.R. § 404.335(a) (2021);^[1] Program Operations Manual System (POMS) RS 00207.001A.1.b.1. A claimant may qualify as the widow of an insured individual if the courts of the state where the insured was domiciled when he died would find: (1) the claimant and insured were validly married when the insured died; or (2) the claimant had the same status as a widow with respect to taking the insured individual’s personal property through intestacy. See Act § 216(h)(1)(A); 20 C.F.R. §§ 404.335(a), 404.345; POMS GN 00305.001A.2.a; POMS RS 00207.001A.1.a.1.

SSA defines a common-law marriage as “one considered valid under certain State laws even though there was no formal ceremony. It is a marriage between two persons free to marry, who consider themselves married, live together as man and wife, and, in some States, meet certain other requirements.” 20 C.F.R. § 404.726(a); see POMS GN 00305.060.A. Here, NH resided in the state of Florida at the time of his death. Therefore, the agency must determine whether Florida courts would consider Claimant and NH validly married at the time of NH’s death or whether Claimant would be deemed the NH’s widow for intestate succession, despite the fact that the couple did not legally or ceremonially marry in Florida.

B. Florida Law on Common-law marriage

Florida does not recognize the validity of common-law marriages contracted in the state after 1968. Fla. Stat. § 741.211 (1969); see also Anderson v. Anderson, 577 So.2d 658, 660 (Fla. Dist. Ct. App. 1991) (reversing trial court decision where the trial court did not consider the validity of a common-law marriage established in the state of Georgia). However, “Florida will respect a common[-]law marriage when entered into in a state which recognizes common[-]law marriages.” Anderson, 577 So.2d at 660 (citing Johnson v. Lincoln Square Properties, 571 So.2d 541 (Fla. Dist. Ct. App. 1991)). Florida has always determined the validity of a marriage in accordance with the laws of the place where the marriage occurred. Johnson, 571 So.2d at 542 (citing Goldman v. Dithrich, 179 So. 715 (Fla. 1938)). In Johnson, the court noted that the Attorney General opined that section 741.211 of the Florida Statutes did not change the state’s established principle that the validity of a marriage is determined by the place where the marriage occurred. Id. at 543 (holding, as a matter of first impression, that section 741.211 was limited to marriages occurring in Florida and was never intended to affect persons lawfully married outside of Florida).

C. Kansas Law on Common-law marriage

Kansas recognizes common-law marriage. In re Estate of Antonopoulos, 268 Kan. 178, 192, 993 P.2d 637, 647 (Kan. 1999); see also POMS PR 05605.019A (discussing whether Massachusetts would recognize an opposite-sex, common-law marriage contracted in Kansas in awarding spousal benefits). “The essential elements of a common-law marriage are: (1) capacity of the parties to marry; (2) a present marriage agreement between the parties; and (3) a holding out of each other as husband and wife to the public.” Estate of Antonopoulos, 993 P.2d at 647. The party asserting common-law marriage bears the burden of proof. Furthermore, substantial evidence must support a district court’s finding the existence of a common-law marriage. See id. at 647-48. In addition, each element must co-exist to establish a common-law marriage. See Thompson v. Barnhart, Case No. 04-2080, 2005 WL 23347, at *2 (D. Kan. Jan. 5, 2005) (internal citation omitted).

Essential to proving a valid Kansas common-law marriage is the existence of a mutual present agreement to the marriage. See Schrader v. Schrader, 207 Kan. 349, 484 P.2d 1007, 1009 (1971), disapproved on other grounds by Eaton v. Johnston, 235 Kan. 323, 329, 681 P.2d 606, 611 (1984); Cain v. Cain, 160 Kan. 672, 165 P.2d 221, 223 (1946). Since Kansas does not require a particular form to satisfy this element, the acts and conduct of the parties may evidence the present agreement. In re Estate of Keimig, 215 Kan. 869, 872-73, 528 P.2d 1228, 1230-31 (1974); Cain, 165 P.2d at 223. For instance, the Kansas Supreme Court held that a common-law marriage was established—despite the statement that “we have not got [sic] married, not because we don’t want to.” The Court determined this statement meant that no formal ceremony had occurred—because the same individual also testified that she had been living with the man she considered her common-law husband for fourteen years and they called each other husband and wife. In re Adoption of X.J.A., 284 Kan. 853, 878, 166 P.3d 396, 411 (2007).

Holding out as husband and wife can include cohabitation, otherwise living together as husband and wife, publicly acknowledging each other as husband and wife, assuming the rights, duties, and obligations of marriage, and a general reputation as husband and wife in the community. See Schuchart v. Schuchart, 61 Kan. 597, 60 P. 311, 312 (1900). There is no durational requirement to establish a common-law marriage in Kansas. Once the parties meet the requirements for a common-law marriage, a legally recognizable marriage contract exists. Cain, 165 P.2d at 223.

D. Analysis

Applying Kansas law to the common-law marriage allegedly entered into by Claimant and NH in 1978, we believe a Florida court could conclude Claimant has not yet established a valid common-law marriage. However, we believe Claimant may prove a common-law marriage if she supplies additional evidence as required by Kansas’ three-prong standard, discussed above. Because there is no indication that the couple lacked the legal capacity to marry in 1978, we turn to the second and third elements needed to establish a common-law marriage in Kansas.

Claimant provided some evidence of a present marriage agreement between the parties but not enough to meet the second element under Kansas law. Specifically, Claimant’s SSA-754 statements regarding her understanding of her relationship with NH provide evidence of a present agreement between the parties to marry while living in Kansas.

To meet the second prong of the standard, Claimant needs to submit additional corroborative statements from two of NH’s blood relatives. See 20 C.F.R. §404.726(b)(2) (stating that the preferred evidence of a common-law marriage when one of the parties is deceased is the signed statement of the living spouse and signed statements from two blood relatives of the deceased person); POMS GN 00305.065. The additional statements should corroborate specifically that Claimant and NH made a present agreement to marry while living in the state of Kansas. The statements should not be generic statements that the couple intended to be married throughout the course of their lives, as they lived in various states during their lives together, not all of which recognize common-law marriage.

The third element of establishing a common-law marriage in Kansas is a holding out of each other as husband and wife to the public. As noted above, this can include living together as husband and wife; publicly acknowledging each other as husband and wife; assuming the rights, duties, and obligations of marriage; and generally being reputed as husband and wife in the community. See Schuchart, 61 Kan. at 597, 60 P. at 312. There is significant evidence that the couple continuously satisfied this element at least since they begin living in Florida. Specifically, Claimant at times used NH’s surname; the couple had 6 children together; and the couple lived together and shared a marital bed for their entire alleged common-law marriage. In addition, the couple rented property jointly; the couple shared a joint bank account since at least 1992; the couple consistently referred to themselves as husband and wife; and Claimant and NH introduced themselves to others as husband and wife. However, none of the evidentiary statements produced show that the couple held themselves out as husband and wife during the time they lived in Kansas. While we view the couple’s subsequent actions as providing ample support for this third element, we still believe it is necessary that Claimant provide statements that she and the NH held out as husband and wife while in living in Kansas. See 20 C.F.R. §404.726(b)(2); POMS GN 00305.065.

Based on the foregoing, we recommend the agency request additional evidence to show a present agreement to be married in Kansas and evidence that the couple held themselves out as a married couple during the period they lived in the state of Kansas. See 20 C.F.R. § 404.726(b)(2). If Claimant provides such evidence, there would be sufficient proof of a valid common-law marriage in Kansas, such that a Florida court would recognize the marriage, which is relevant to determining her entitlement to WIB under the Act.

CONCLUSION

Based on the evidence supplied by Claimant, we do not believe Claimant has established is NH’s widow. However, if Claimant submits additional evidentiary support, we believe the Florida courts would find that Claimant is the NH’s widow based on their common-law marriage entered into in the state of Kansas, which is relevant for determining Claimant’s eligibility for WIB.

The claimant alleges that he and the NH entered a common-law marriage on a one-night trip, in June 1967, to the state of Kansas, where such marriages are recognized.  When the claimant applied for spousal benefits, the NH resided in Massachusetts, therefore, the agency looks to Massachusetts law to determine whether, at the time the claimant filed his application, the Commonwealth would have found him to be validly married to the NH. Common-law marriages cannot be formed in Massachusetts, but Massachusetts follows the general rule that the validity of a marriage is governed by the law of the state where the marriage was contracted. The state of Kansas does recognize common-law marriage. In Kansas, the essential elements of a common-law marriage are: (1) capacity of the parties to marry; (2) a present marriage agreement between the parties; and (3) a holding out of each other as husband and wife to the public. The party asserting common-law marriage bears the burden of proof and a district court’s decision of the existence of a common-law marriage must be supported by substantial evidence. Although there is no durational component for establishing a common-law marriage in Kansas, the agency recognizes that, depending on state law, common-law marriage can arise from a temporary stay or sojourn, if accompanied by holding out as husband and wife, even if the parties were never residents of that state.

In this case, in applying Kansas law, we believe a Massachusetts court could conclude that a common-law marriage was established, but that additional evidence must be provided to adequately support the claim. If the claimant can provide additional evidence to show a present agreement to be married in Kansas and a holding out as husband and wife while in that State, we believe that the Massachusetts courts would likely conclude that the couple entered a valid, common-law marriage during their one-night stay in Kansas

1. I.  

   Question Presented

   B~ (the claimant) applied for spousal benefits on the earnings record of M~, the insured number holder (NH). The claimant alleges that he and the NH entered a common-law marriage during on a one-night trip, in June 1967, to the state of Kansas, where such marriages are recognized. The question presented is whether the agency should consider the claimant to be the NH’s “spouse” in determining his entitlement to spousal benefits under Title II of the Social Security Act (the Act).

2. II.  

   Short Answer

   Yes, but the claimant must first provide additional evidentiary support. Although Massachusetts does not recognize common-law marriage, we believe a Massachusetts court would likely consider this marriage valid if the claimant provides additional evidence that support each of the common-law marriage elements under Kansas law.

3. III.  

   Background

   On March XX, 2014, the claimant applied for spousal benefits on the earnings record of the NH. The claimant alleges that a common-law marriage resulted from a one-night trip in the state of Kansas, where common-law marriage is recognized. The couple has never resided in Kansas. They were residents of Missouri at the time of the Kansas trip, then later moved from Missouri to Massachusetts in 1967, where they continued to reside until the claimant applied for benefits.

   On June XX, 2014, the claimant completed the SSA-754 form, Statement of Marital Relationship, and both the claimant and the NH provided additional signed statements supporting the claim of marriage under common law. The claimant alleges that the couple entered into a common-law marriage in June 1967 in Kansas, which was followed by a “honeymoon” in Colorado. The couple reportedly spent one night in Lawrence, Kansas. The couple indicated that they returned to Missouri after their “honeymoon” in Colorado, before moving to Massachusetts later that year.

   The claimant indicated in his SSA-754 form that the couple began living together in a husband and wife relationship in June 1967 in Lawrence, Kansas, although they resided in Columbia, Missouri. In his supplemental signed statement, the claimant stated, “We left for Colorado on a honeymoon and stayed overnight in Lawrence[,] Kansas (where [his] parents got married). Since we had no money we vowed to be together from that time on.” The claimant indicated that they have lived together continuously since June 1967.

   The claimant’s SSA-754 responses indicate that the couple had an understanding when they began living together that “[i]t was a vow [they] made to each other forever,” that this understanding never changed between the two of them, and the couple understood they would live together forever. The claimant stated he believed that living together made him legally married to the NH because their “love was stronger than a piece of paper.”

   The couple opened a joint bank account in 1967, identifying themselves as husband and wife, and obtained a mortgage together in 1971, again identifying themselves as husband and wife. In 1970, the claimant started a business and he named the business after himself and his “wife.” The claimant reported that the couple introduced themselves as B~ and M~. The claimant stated that their neighbors and employers “only know of [them] as a married couple.” The couple reportedly never discussed the status of their relationship with others, including their closest relatives, as they never “needed to[ ].” In the claimant’s form, he indicated that the couple objected to the agency contacting their employers about the status of their relationship, as “no one kn[ew]” about the status of any marriage. In his supplemental statement, the claimant stated, “No one has knowledge of our marriage as such, not even our children, neighbors, [or] relatives. There has been no reason to discuss it.”

   The NH changed her surname from M~ to R~ in April 1968 in Massachusetts. A document indicating the reason for the change of name was not required at that time. In April 2000, the NH updated her social security number to show her status as a naturalized citizen. The SS-5 shows the Naturalization certificate issue date of December XX, 1968. The surname given on the SS-5 is R~, which was her legal name at the time.

   In addition to their statements, the claimant and the NH submitted the following documentation to support the claim: (1) a Form 1040 U.S. Individual Tax Return for year 1980, identifying the NH as the claimant’s spouse; (2) a 2013 Form 8879 for the IRS e-file Signature Authorization, showing the NH as the claimant’s spouse; (3) a 2014 real estate tax bill from the Town of Chelmsford, MA, showing the NH and the claimant as joint owners of real property; (4) a joint policy for automobile insurance; (5) a joint bank account, with debit cards, at Enterprise Bank; and (6) the identification of the couple’s two children, listing the NH and the claimant as their parents. The claimant also indicated that he started an engineering consulting company in 1970 (where he still works), named B~, which he explained incorporated the names B~ and M~.

4. IV.  

   Applicable Law

   1. A. 

      Federal Law

      To qualify for spousal benefits under the Act, a claimant must show, among other things, that he is the insured’s husband. See 42 U.S.C. §§ 402(c), 416(f); see also 20 C.F.R. § 404.330(a). Under the Act:

      An applicant is the . . . husband . . . of a fully or currently insured individual for purposes of this title if the courts of the State in which such insured individual is domiciled at the time such applicant files an application . . . would find that such applicant and such insured individual were validly married at the time such applicant files such application . . .

      42 U.S.C. § 416(h)(1)(A)(i); see also 20 C.F.R. § 404.345.

      Here, when the claimant applied for spousal benefits, the NH resided in Massachusetts. Therefore, the agency must determine whether the courts of Massachusetts would consider the claimant and the NH to be validly married at the time the application was filed.

   2. B. 

      Massachusetts Law on Common-Law Marriage

      Common-law marriages cannot be formed in Massachusetts. See, e.g., Collins v. Guggenheim, 417 Mass. 615, 617 (1994); Sutton v. Valois, 66 Mass. App. Ct. 258, 262 (2006). However, the Commonwealth still recognizes common-law marriages validly formed in other states. See, e.g., Craddock’s Case, 37 N.E.2d 508, 510-12 (Mass. 1941); Boltz v. Boltz, 92 N.E.2d 365, 367-68 (Mass. 1950). Massachusetts follows “the general rule that the validity of a marriage is governed by the law of the State where the marriage is contracted,” Cote-Whiteacre v. Dept. of Public Health, 844 N.E.2d 623, 636 (Mass. 2006) (Spina, J., concurring), and will “ordinarily extend recognition to out-of-state marriages under principles of comity, even if such marriages would be prohibited here, unless the marriage violates Massachusetts public policy, including polygamy, consanguinity and affinity.” Elia-Warnken v. Elia, 972 N.E.2d 17, 20 (Mass. App. 2012); Mass. Gen. Laws Ann. ch. 207, §§ 1, 2, 4. The principles of comity require Massachusetts “to concede that . . . our sister States, even when they reach a different decision than we would have, are endowed with an equal measure of wisdom and sympathy.” Delk v. Gonzalez, 658 N.E.2d 681, 683-84 (Mass. 1995).

      There are few Massachusetts cases analyzing the validity of out-of-state, common-law marriages and none that apply Kansas law. In 1941, the Supreme Judicial Court applied Pennsylvania law to conclude that a common-law marriage was established where the couple lived together in Pennsylvania and were regarded as husband and wife. Craddock’s Case, 37 N.E.2d at 510-12. In another case, decided two years later, the same court held that a New York common-law marriage was created during a small window of time—between December 13, 1918 and December 17, 1918 (or until the end of December of that year)—while a couple was living together in New York. Boltz, 92 N.E.2d at 366-67. The court based its ruling on different factors, including that: (1) the couple held a marriage ceremony on June 18, 1918 (which, although invalid because the man was still married to another woman, still served as “strong evidence that they intended the petitioner was to become a wife and not merely a mistress.”); (2) the couple continued to live together from the date of the invalid ceremony until December 1918; (3) a daughter was born to the couple in November 1918; and (4) the respondent testified that “he always held the petitioner out as his wife.” Id. In a footnote, the Court also indicated that the couple “had children, owned property together, including one parcel held as tenants by the entirety, and continuously held themselves out as husband and wife for twenty-nine and one half years.” Id. at 728, n.1.

      The Massachusetts Supreme Judicial Court found that no common-law marriage was established under Rhode Island law in 1948, because previous illicit relations existed between the parties. Panneton v. Panneton, 82 N.E.2d 595, 596-97 (Mass. 1948) (citing Ibello v. Sweet, 47 R.I. 480, 482 (1926) (where previous illicit relations existed between the parties, in the “absence of clear proof to the contrary, the presumption of law is that such meretricious relation continued.”). In Hatton v. Meade, 502 N.E.2d 552, 554 n.1 (Mass. App. Ct. 1987), the Appeals Court of Massachusetts noted that the plaintiff’s allegation that a common-law marriage resulted from a trip to Pennsylvania followed by cohabitation in Massachusetts was not properly preserved for appeal.

      An evaluation of whether a common-law marriage can be formed under Kansas law would be a question of first impression in Massachusetts.

   3. C. 

      Kansas Law on Common-Law Marriage

      Unlike Massachusetts, the state of Kansas does recognize common-law marriage. In re Estate of Antonopoulos, 268 Kan. 178, 192, 993 P.2d 637, 647 (Kan. 1999). “The essential elements of a common-law marriage are: (1) capacity of the parties to marry; (2) a present marriage agreement between the parties; and (3) a holding out of each other as husband and wife to the public.” See id. The party asserting common-law marriage bears the burden of proof and a district court’s decision of the existence of a common-law marriage must be supported by substantial evidence. See id. at 647-48. In addition, each element must co-exist to establish a common-law marriage. Thompson v. Barnhart, 04-2080, 2005 WL 23347, at *2 (D. Kan. Jan. 5, 2005) (internal citation omitted).

      Essential to proving a valid common-law marriage is the existence of a mutual present agreement to the marriage. Schrader v. Schrader, 207 Kan. 349, 484 P.2d 1007, 1009 (1971) disapproved on other grounds by Eaton v. Johnston, 235 Kan. 323, 329, 681 P.2d 606, 611 (1984); Cain v. Cain, 160 Kan. 672, 165 P.2d 221, 223 (1946). Since no particular form is required to satisfy this element, the present agreement may be evidenced by the acts and conduct of the parties. In re Estate of Keimig, 215 Kan. 869, 872-73, 528 P.2d 1228, 1230-31 (1974); Cain, 165 P.2d at 223. In Anguiano v. Larry’s Electrical Contracting L.L.C., 44 Kan. App.2d 811, 816, 241 P.3d 175, 179 (2010), the Kansas Court of Appeals held that substantial evidence did not support a present marriage agreement because, among other things, the appellant “testified that [the appellee] never stated that the two were actually married but only that he was ‘going to marry her.’” The Kansas Supreme Court also held that a common-law marriage was established—despite the statement that “we have not got [sic married, not because we don’t want to,” which the Court believed was better understood to mean that no formal ceremony had occurred—because the same individual also testified that she had been living with the man she considered to be her common-law husband for fourteen years and they called each other husband and wife. In re Adoption of X.J.A., 284 Kan. 853, 878, 166 P.3d 396, 411 (2007).

      Holding out as husband and wife can include cohabitation, otherwise living together as husband and wife, publicly acknowledging each other as husband and wife, assuming the rights, duties, and obligations of marriage, and generally being reputed as husband and wife in the community. See Schuchart v. Schuchart, 61 Kan. 597, 60 P. 311, 312 (1900). However, where parties hold themselves out as “man and wife only when it [i]s advantageous,” the court will not find that the parties have established the third element, necessary to prove a common-law marriage. Murphy v. Murphy, No. 110,386, 324 P.3d 1154, at *6-7 (Kan. App. May 23, 2014) (unpublished opinion); State v. Johnson, 216 Kan. 445, 449, 532 P.2d 1325, 1329 (1975), overruled on other grounds by State v. Lee, 266 Kan. 804, 977 P.2d 263 (1999).

      There is no durational requirement to establish a common-law marriage in Kansas. Once the parties meet the requirements for a common-law marriage, a legally recognizable marriage contract exists. Cain v. Cain, 160 Kan. 672, 165 P.2d 221, 223 (1946).

1. IV.  

   Analysis

   When the claimant applied for spousal benefits in March 2014, he and the NH resided in Massachusetts. Thus, the agency looks to Massachusetts law to determine whether, at the time the claimant filed his application, the Commonwealth would have found him to be validly married to the NH. 42 U.S.C. § 416(h)(1)(A)(i); see also 20 C.F.R. § 404.345.

   The couple does not allege that they were married under Massachusetts law,^[2] but that they entered into a common-law marriage while in Kansas (when they were residents of Missouri). Massachusetts follows the general rule that the validity of a marriage is governed by the law of the state where the marriage was contracted.^[3] See Damaskinos v. Damaskinos, 89 N.E.2d 766, 767 (Mass. 1950). The question then becomes, did the claimant and the NH form a valid common-law marriage in Kansas? If so, under the principles of comity, Massachusetts would recognize that marriage. See Delk, 658 N.E.2d at 683-84.

   Applying Kansas law, we believe a Massachusetts court could conclude that a common-law marriage was established, but that additional evidence must be provided to adequately support the claim. As noted above, the essential elements of a Kansas common-law marriage are: (1) capacity of the parties to marry; (2) a present marriage agreement between the parties; and (3) a holding out of each other as husband and wife to the public. Estate of Antonopoulos, 993 P.2d at 647. Because there is no indication that the couple lacked the legal capacity to marry, we turn to the second and third elements.

   There is evidence to satisfy the second element—present marriage agreement—but a more definitive statement from the NH and other blood relatives might be required. In his Statement of Marital Relationship the claimant reported to SSA that he began living with the NH in a “husband and wife relationship” in June of 1967 in Lawrence, Kansas. When asked whether the couple had an understanding about their relationship when they began living together, the claimant stated that they made a “vow …to each other forever” and that understanding never changed. He also indicated that he believed they were legally married, explaining “[o]ur love was stronger than a piece of paper.” In a separate statement, the claimant wrote that the couple “stayed overnight in Lawrence, Kansas (where [his] parents got married) since we had no money, we vowed to be together from that time on.” The claimant reported that the couple honeymooned in Colorado. He also stated that there was no agreement or promise that a ceremonial marriage would be performed in the future. The NH provided a statement that she and the claimant have been together since meeting in 1966 and were “together and still in love and growing old together.” We believe the claimant’s statements provide evidence of a present agreement between the parties to marry in Kansas—because they suggest that the couple traveled to Kansas expressly for the purpose of entering a common-law marriage—but that a more corroborative statement from the NH and other blood relatives would be necessary to adequately prove a present intent to marry in Kansas. Under agency policy, preferred evidence of a common law marriage includes completion of form SSA-754-F4 (Statement of Marital Relationship) by each spouse, and of form SSA-753 (Statement Regarding Marriage) by a blood relative of each spouse. POMS GN 00305.065. In this case, only the claimant completed the SSA-754-F4 and no blood relatives have provided statements.

   The third element is a holding out of each other as husband and wife to the public. As noted above, this can include living together as husband and wife, publicly acknowledging each other as husband and wife, assuming the rights, duties, and obligations of marriage, and generally being reputed as husband and wife in the community. See Schuchart, 61 Kan. at 597, 60 P. at 312. There is significant evidence that the couple has continuously satisfied this element since the time of their alleged common-law marriage. For example, the NH took the claimant’s surname, they have two children together, they own real property jointly, they have shared a joint bank account since 1967 (when they allegedly became married under common law), they have continuously lived together since 1967, they introduce themselves to others as “B~ and M~,” and others “only know of [them] as a married couple.” There is no statement or other evidence showing that the couple held out as husband and wife during their one-night stay in Kansas. While we view the couple’s subsequent actions as providing ample support for this third element—particularly in light of the short duration of their sojourn—we still believe it is necessary that the couple provide statements that they held out as husband and wife while in Kansas.

   Although there is no durational component for establishing a common-law marriage in Kansas, we also considered whether a one-night stay might be too brief a period to establish a valid union. The agency recognizes that, depending on state law, common-law marriage can arise from a temporary stay or sojourn, if accompanied by holding out as husband and wife, even if the parties were never residents of that state. POMS GN 00305.060A.4. As noted above, time is not a factor in establishing a common-law marriage in Kansas. See, e.g., 1 Kan. Law & Prac., Family Law § 3:8.

   In what appears to be the only OGC opinion applying Kansas (and Iowa) law to determine whether a state (Maine, in this case) would recognize as valid, a common-law marriage formed during a brief sojourn to Kansas and Iowa, OGC concluded that it would. SSA OGC Opinion re: Validity of Marriage - Maine Law, Florence Allen, Region I (March 23, 1991). In that opinion, the couple alleged that they held out as husband and wife “while traveling through, or on a ‘brief sojourn,’ in Kansas and Iowa.” Id. See also HHS-OGC Opinion re: Pete Weldy, Region V (Sept. 8, 1987) (opining that a common-law marriage can be created even where the sojourn was “so short as a train, bus or auto trip through Iowa...[and where] the parties never spent a night in the state.”) (quoting Howard L. U~, A/N ~, RA V (B~) to Manager, OASI (May 15, 1952)); HHS-OGC Opinion re: Theotha Bass, Deceased Wage Earner-D Beatrice Bass Common-law Marriage, South Carolina, Region IV (Jan. 10, 1979) (“It is our opinion that the evidence would support a finding that the cohabitation and relationship between the parties while on any one of various temporary sojourns to the State of South Carolina resulted in a common-law marriage under the laws of that state.”). But see SSA OGC Opinion re: The validity of a common-law marriage in Montana, NH-D. Schlichenmayer, Region IIX (April 5, 2005) (No common-law marriage established by North Dakota couple who cohabited for brief periods in Montana based on Montana Supreme Court holding that short periods of cohabitation and holding out as husband and wife are insufficient to establish one of the elements of common law marriage in Montana).

   Courts have also held that a brief trip to a state that recognizes common-law marriage is sufficient to establish a legal marriage, provided the parties satisfied the elements for a marriage while in the common-law state. See, e.g., In re Estate of Pecorino, 64 A.D.2d 711, 407 N.Y.S.2d 550 (1978) (3-day stay in Pennsylvania sufficient for common-law marriage where couple traveled to Pennsylvania with express purpose of entering common-law marriage); Old Republic Ins. Co. v. Christian, 389 F. Supp. 335, 338-89 (E.D. Tenn. 1975) (“The Court cannot conclude that cohabitation in a nondomicilliary state for a ten day period is an insufficient period of time to create a common[-]law marriage, under the circumstances of this case and assuming that the requirements for a common[-]marriage are otherwise met.”). The Second Circuit affirmed a common-law marriage, applying New York law, where the couple had eight one-night stays in the state of Pennsylvania, a common-law marriage state, even without “proof of words in the present tense establishing a marriage contract while in Pennsylvania,” a requirement under the state’s law. Renshaw v. Heckler, 787 F.2d 50, 52-53 (2d Cir. 1986). The court “held that, even in the absence of a ‘new contract in verba de praesenti’ in Pennsylvania, ‘the subsequent conduct of the parties was equivalent to a declaration by each that they did, and during their joint lives were to, occupy the relation of husband and wife.” Id. at 54 (quoting Sullivan v. American Bridge Co., 176 A. 24, 25 (Penn. 1935)); see also Metropolitan Life Ins. Co. v. Holding, 293 F. Supp. 854, 857-58 (E.D. Va. 1968) (recognizing common-law marriage legally contracted in Florida and Ohio, by brief trips to those states in 1961, where neither “Florida nor Ohio prescribes any minimum or maximum periods of residence as man and wife as a prerequisite to the creation of a common[-]law marriage”).

   Courts finding no common-law marriage created during a brief sojourn have often based their decisions on the idea that individuals cannot circumvent the laws of their state of residence by visiting another state for the purpose of entering a common-law marriage. See, e.g., In re Mortenson’s Estate, 316 P.2d 1106, 1107 (Ariz. 1957) (“A marriage declared void by our statute cannot be purified or made valid by merely stepping across the state line for purpose of solemnization. We cannot permit the public policy of this state to be defeated by such tactics.”); See Metropolitan Life Ins. Co. v. Chase , 294 F.2d 500, 503 (3d Cir. 1961) (applying New Jersey law, finding “where the parties, while retaining their domicile in one state, pay a temporary visit to another state and there enter into a marriage which would not be recognized by the law of the state of their domicile if entered into therein, the latter state does not always look to the law of the place of the marriage to determine its validity”); Peirce v. Peirce, 379 Ill. 185, 191, 39 N.E.2d 990, 993 (1942) (“common law marriage is void in Illinois, even if performed in some other jurisdiction. The rule, however, is limited to the situation where the parties whose marriage is sought to be upheld in Illinois were, at the time of the marriage, domiciled in Illinois, although the marriage occurred in another State”). But see Lieblein v. Charles Chip’s, Inc., 32 A.D.2d 1016, 1016, 301 N.Y.S.2d 743, 745 (1969) (“It is well established that New York will recognize a common-law marriage entered into in a sister state that recognizes the validity of such marriages, even though it may have been entered into at a time when such marriage would have been invalid in New York.”).

   That is not the case here. The claimant and the NH were not residents of Massachusetts at the time of the alleged common-law marriage. Thus, they did not violate Mass. Gen. Laws Ann. ch. 207, § 10.^[4] The facts here are similar to those in Boltz, where a couple who resided in New York later moved to Massachusetts and asked the Commonwealth to recognize a common-law marriage formed in New York. 92 N.E.2d at 366-67. The Supreme Judicial Court concluded that the couple had not violated the State’s own laws, because “no evidence that the petitioner resided in this Commonwealth in December, 1918, or went into another jurisdiction for the purpose of contracting a marriage which would have been void if contracted here.” Id. Notably, in Boltz, the Court held that the couple’s New York common-law marriage was created in as few as four days (between December 13, 1918 and December 17, 1918). Id.

   In other cases, OGC has opined that no common-law marriage would be recognized after a sojourn because one of the necessary elements was not satisfied. See, e.g., SSA OGC Opinion re: M. Bollett, Region IX (Jan. 28, 1986) (Hawaiian couple who alleged common-law marriage based on periodic sojourns in Pennsylvania not deemed married under common law because they failed to satisfy the intent pre-requisite—there was no evidence that the couple had any idea of entering into a common law marriage when they went to Pennsylvania); SSA OGC Opinion re: Common-Law Marriage -- Sojourn Doctrine -- Herbert O. Gustafson, Region IIX (Feb. 1, 1982) (a Wyoming couple alleged common-law marriage based on trips to Colorado not deemed married because “There is no evidence that any of such trips to Colorado were made for the purpose of changing their domicile or residence to that jurisdiction or contracting a common-law marriage while they were in that State, or that while there any agreement was ever made by them to become husband and wife, or that they ever thought that such was necessary to give their marriage any validity.”); SSA OGC Opinion re: Common-Law Marriage--Sojourn Doctrine-Supplement, Region IIX (May 12, 1981) (“We are unwilling to hold that a man and woman who travel from [Colorado] into a State that recognizes common-law marriages and cohabit for a few days are thereby deemed, in the eyes of the law, to be man and wife, unless there is shown a clear intent to enter into that status.”). We do not believe that reasoning would apply here because the claimant expressly intended to form a common-law marriage in Kansas, where his parents reportedly married.

   Although there is some uncertainty in the law, we believe a Massachusetts court would recognize as valid the couple’s alleged common-law marriage if the claimant produces more evidence to support his claim. Specifically, the agency should request additional evidence to show a present agreement to be married in Kansas and evidence that the couple held themselves out as a married couple during their stay in the state. Since both the husband and wife are alive, the preferred evidence of a common-law marriage would be their signed statements and those of two blood relatives. 20 C.F.R. § 404.726(a). If the claimant and the insured can provide such evidence, we believe there would be sufficient proof of a valid common-law marriage in Kansas, such that a Massachusetts court would recognize the marriage and the claimant would be entitled to spousal benefits under the Act.

2. V.  

   Conclusion

   If the claimant can provide additional evidence to show a present agreement to be married in Kansas and a holding out as husband and wife while in that State, we believe that the Massachusetts courts would likely conclude that the couple entered a valid, common-law marriage during their one-night stay in Kansas in 1967. The additional evidence should include an SSA-754-F4 form completed by the NH, as well as signed statements from the claimant and the NH and, preferably, two blood relatives. If the claimant can produce this evidence, the agency should conclude that he is entitled to spousal benefits under Title II.

Christopher Michaels

Regional Chief Counsel (Acting)

By: _____________

Sarah Choi

Assistant Regional Counsel

The amendment to the Kansas Constitution defining that marriage is a civil contract between one man and one woman and that all other purported marriages are void does not affect the validity of common-law marriages in Kansas.

You requested advice regarding whether, in light of changes to the Kansas State Constitution, the State of Kansas still recognizes common-law marriages.

Our review shows that the change to the Kansas Constitution did not change the existing law concerning common-law marriages. We advise that because Kansas recognizes common-law marriage, you may continue to follow the policy guidance in Programs Operations Manual System (POMS) GN 00305.075.

Factual Background and Analysis

In Kansas, a common-law marriage is a marriage of two persons, by agreement, in which there is no formal wedding ceremony and no state or county issued wedding license. The essential elements of a common law marriage in Kansas are: (1) capacity of the parties to marry; (2) a present marriage agreement between the parties; and (3) a holding out of each other as husband and wife in public. In re Estate of Antonopoulos, 993 P.2d 637, 647 (Kan. 1999). "Although the marriage agreement need not be in any particular form, it is essential there be a present mutual consent between the parties." Id. In a Kansas court, the burden of proof to show marriage is on the parties asserting that they are married. See id. A common-law marriage obligates the individuals to the same legal obligations and privileges as a more formal marriage, and once the marriage is established a court ordered divorce is needed to end the marriage. See Kansas Bar Association, "Marriage and Divorce," http://www.ksbar.org/public/public_resources/pamphlets (last visited Oct. 4, 2005).

The Kansas Statutes have specified since 1996 that the parties to a marriage must be of the opposite sex. See Kan. Stat. Ann. § 23-101 (2005). Additionally, common-law marriage may not be contracted if either party to the marriage contract is under 18 years of age. See id.; see also In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002) (statute upheld; male to female transsexual still male for the purpose of marriage attempt in Kansas).

Although same-sex marriage was prohibited by statute, the Kansas Constitution was amended following a state-wide election in April 2005. The Kansas Constitution now states that marriage is a civil contract between one man and one woman and that all other purported marriages are void. See Kansas Constitution, Article 15, Section 16(a) (2005). Moreover, the Kansas Constitution now states that no relationship, other than marriage, is recognized which would entitle the parties to the rights or incidents of marriage. See Kansas Constitution, Article 15, Section 16(b). A common-law marriage is still a marriage under Kansas law. Therefore, we believe that this portion of the amendment has no bearing on the status of present or future common-law marriages in Kansas. A common-law marriage must, however, still be comprised of two members of the opposite sex, as is true of all marriages in Kansas. We note that at the time of this writing there have been no reported court cases interpreting the amendment.

CONCLUSION

In Kansas, common-law marriages between members of the opposite sex are permitted. This was not altered by the recent Kansas Constitutional Amendment. In individual fact situations, more specific legal advice may be needed to determine whether any person is in a valid common-law marriage.

Frank V. S~ III

Chief Counsel, Region VII

By__________

Bert W. C~

Assistant Regional Counsel

Once the requirements for a common-law marriage are met, a legal marriage contract exists in Kansas. Any subsequent actions that demonstrate an intent to end the marriage are invalid unless accompanied by a legal dissolution.

However, if a party to a valid marriage enters into a subsequent marriage in good faith, Kansas law will presume the second of the marriages to be valid. The party contesting the marriage must prove that the earlier marriage has not been dissolved by evidence "so cogent as to compel conviction".

You asked for our legal assessment of the following fact situation: A and B have a presumed valid common law marriage in Kansas. They never dissolved the marriage. A subsequently enters into a presumed valid marriage to C. C passes away. What effect does A's subsequent marriage to C have upon the prior common law marriage to B that was never dissolved? Based on an analysis of all of the applicable Kansas case law, A's marriage to C has a presumption of validity. The burden of rebutting the presumption is on the one who seeks to challenge the validity of the marriage between A and C.

Under Kansas law the essential elements of a common law marriage are: (1) the capacity of the parties to marry; (2) a present marriage agreement; and (3) a holding out of each other as husband wife to the public. Chandler v. Central Oil Corporation, Inc., 853 P.2d 649, 652 (Kan. 1993); Hawkins v. Weinberger, 368 F. Supp 896, 899 (D. Kan. 1973). Once the parties meet the requirements for a common law marriage, a legally recognizable marriage contract exists in Kansas. Dixon v. Certainteed Corporation, et al., 915 F. Supp. 1158, 1160 (D. Kan. 1996)(citing Cain v. Cain, 166 P.2d 221, 223 (Kan. 1946)). Any subsequent actions that demonstrate an intent to end the marriage are invalid unless accompanied by a legal dissolution. Id. (citing Burnett v. Burnett, 387 P.2d 196, 1997-98 (Kan. 1963)). Accordingly, without a legal dissolution, the common law marriage would continue to be recognized in Kansas.

However, should a party to a valid marriage enter into a subsequent marriage in good faith, Kansas law will presume the second of the marriages to be valid. "The presumption includes the fact of dissolution of the previous marriage." Hawkins v. Weinberger, 368 F. Supp. at 900. The presumption of validity of the subsequent marriage is stronger than the first and overcomes the presumption of the continuance of the previous marriage. The party who seeks to impeach the subsequent marriage assumes the burden of proving by evidence "'so cogent as to compel conviction'" that the previous marriage had not been dissolved. Chandler v. Central Oil Corporation, Inc., 853 P.2d at 654 (quoting Harper v. Dupree, 345 P.2d 644, 647-48 (Kan. 1959)).

Accordingly, if A is claiming widows benefits under the second marriage, the burden would be upon the party contesting A's marriage to C to prove by evidence "so cogent as to compel conviction" that A's marriage to B had not been dissolved.