The number holder (NH) was domiciled in North Caroline at the time the Claimant filed for benefits; therefore, we look to the North Carolina law to determine whether the Claimant would be considered the NH’s wife for Title II and Medicare purposes. The Claimant and NH alleged that they entered into a common-law marriage in Ohio in 1976. Ohio has prohibited common-law marriages since October 10, 1991, but common-law marriages occurring prior to that date and not terminated by death, divorce, dissolution, or annulment remain valid. Based on the evidence provided, the agency could conclude that the Ohio courts would find that the Claimant and the NH have a valid common-law marriage that began in August 1976 in Ohio and; therefore, the agency can conclude that North Carolina courts would recognize their marriage as valid. Thus, the agency can determine that the Claimant is NH’s spouse for Medicare and Title II purposes.

QUESTION PRESENTED

Based on our conversation and the documentation provided, you asked whether North Carolina would consider J~ (Claimant) and S~, the number holder (NH), validly married based on a purported Ohio common-law marriage for determining Claimant’s entitlement to Medicare and any social security benefits on NH’s earnings record.

SHORT ANSWER

Claimant and NH are validly married under North Carolina law for determining Claimant’s entitlement to Medicare and any social security benefits on NH’s earnings record.

BACKGROUND

According to the information provided, Claimant and NH allege that they entered into a common-law marriage in Ohio on August XX, 1976. Claimant and NH provided a notarized contract that they both signed on that date. The contract sets forth the legal requirements for common-law marriage in Ohio at that time and indicates that Claimant and NH acknowledged that their marriage, as defined by the common law of the State of Ohio, and that they understood the contract would continue for their joint lives and could be dissolved only by law or the death of one of the parties.

Claimant and NH also both provided Statements of Marital Relationship. Claimant and NH stated that they began living together as husband and wife in August 1976 in Ohio and had lived together continuously since that time in Ohio, West Virginia, and North Carolina. Claimant and NH reported that they had an understanding of their relationship reflected in the contract discussed above, that the understanding never changed, and that they understood that they would live together “until death do us part.” Claimant and NH also reported that they believed living together made them legally married, there was no promise of a later ceremonial marriage, and that two children were born of the relationship. Claimant and NH further reported that they filed federal and state tax returns together from 1977 to the present showing each other as the other’s spouse, that they held joint bank accounts from approximately 1989 to the present showing each other as the other’s spouse, and that they introduced each other as husband and wife. Claimant and NH identified several friends who knew of their relationship and they identified and gave contact information for relatives who knew of their relationship. Claimant and NH also remarked that they had wills, trusts, and powers of attorney established since 1991.

DISCUSSION

Medicare is a federally subsidized health insurance program for individuals age sixty-five or older and certain qualified individuals under age sixty-five. See Social Security Act (Act) § 1801-1899B. An individual is eligible for Hospital Insurance Benefits (Medicare Part A) if they are age sixty-five or older and entitled to monthly insurance benefits under the old-age and survivors insurance benefit program in Title II of the Act, including spouse’s benefits. See Act § 1811; 42 C.F.R. § 406.5(a) (2018)^[1] ; Program Operations Manual System (POMS) HI 00801.006(A)(1), (B). An individual is eligible for Supplemental Medical Insurance Benefits (Medicare part B) if he or she is entitled to Medicare Part A, is age sixty-five or older, and is a resident and United States citizen or lawful permanent resident who continuously resided in the United States during the previous five years. See Act § 1836; 42 C.F.R. § 407.10(a); POMS HI 00805.005(A). Thus, if a claimant is entitled to spouse’s benefits under Title II of the Act, the claimant may also be entitled to Medicare Parts A and B if the claimant meets the other requirements for Medicare entitlement.

Claimant and NH allege a common-law marriage and do not contend they entered or intended to enter into a ceremonial marriage. In relevant part, a claimant is the spouse of an insured individual for purposes of benefits under Title II of the Act 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 . . . .” Act § 216(h)(1)(A)(i); see 20 C.F.R. § 404.345. Therefore, we look to North Carolina law to determine whether Claimant would be considered NH’s wife for Title II and Medicare purposes.

The POMS states that North Carolina does not recognize common-law marriages. See POMS GN 00305.075(B); State v. Alford, 265 S.E.2d 242, 247 (N.C. 1979). Although the POMS provision does not indicate that North Carolina will recognize common-law marriages validly entered into in other states as some other state entries on the list do, see POMS GN 00305.075(B), North Carolina case law provides that the State will recognize such marriages. If the relationship between two individuals suffices to constitute a valid marriage in another state, North Carolina will recognize such a marriage. See Garrett v. Burris, 224 S.E.2d 414, 416 (N.C. Ct. App. 2012) (holding that North Carolina will recognize as valid a common-law marriage if the acts alleged to have created it took place in a state in which such a marriage is valid) (internal quotations and citations omitted). Therefore, the determination here turns on whether Claimant and NH had established a valid common-law marriage in Ohio.

Ohio has prohibited common-law marriages since October 10, 1991, but common-law marriages occurring prior to that date and not terminated by death, divorce, dissolution, or annulment remain valid. See Ohio Rev. Code Ann. § 3105.12(B); POMS GN 00305.075B. Common-law marriages are disfavored in Ohio and are recognized as lawful only when they meet certain requirements. See Ohio Rev. Code Ann. § 3105.12(B)(3); Nestor v. Nestor, 472 N.E.2d 1091, 1094 (Ohio 1984) (adopted as Social Security Ruling 88-14). The elements of a common-law marriage in Ohio are: (1) an agreement to marry at the present time; (2) cohabitation as husband and wife; and (3) the treatment and reputation as being husband and wife in the community and circle in which the couple resides. See Nestor, 472 N.E.2d at 1094; DeCarlo v. Estate of Maxwell, 854 N.E.2d 230, 233 n.2 (Ohio Ct. App. 2006). The essential element of a common-law marriage claim is the agreement to marry at the present time,that is, the parties agree to take each other as spouses at the time they purportedly entered into marriage. See Nestor, 472 N.E.2d at 1094 (“The fundamental requirement to establish the existence of a common law marriage is a meeting of the minds between the parties who enter into a mutual contract to presently take each other as man and wife”).

The agreement to marry at the present time may be proven either by direct evidence of the agreement or “by way of proof of cohabitation, acts, declarations, and the conduct of the parties and their recognized status in the community in which they reside.” Id. Where there is direct evidence concerning the formation of the contract of marriage at the present time, the evidence of long-time cohabitation and reputation of living together as man and wife should be given even greater weight to further strengthen the inference of marriage. SeeNestor, 472 N.E.2d at 1094-95. However, without the threshold element of an agreement to marry at the present time, a common-law marriage cannot be established, regardless of cohabitation or reputation as a couple. See id. The party alleging a common-law marriage has the burden of proving all of the elements by clear and convincing evidence. See Estate of Everhart v. Everhart, 14 N.E.3d 438, 446 (Ohio Ct. App. 2014) (citing Nestor, 472 N.E.2d at 1094) (other citations omitted). “Clear and convincing evidence is that degree of proof which produces in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established.” Id.

In this case, Claimant and NH did not submit the regulatory preferred evidence of a common-law marriage because they did not provide a Statement Regarding Marriage from a blood relative of each spouse. See 20 C.F.R. § 404.726(b)(1); POMS GN 00305.065(B)(1). Claimant and NH provided only their own Statements of Marital Relationship. However, Claimant and NH did provide direct evidence concerning the formation of the contract of marriage at the present time in the form of a notarized contract signed by Claimant and NH. The contract states that they acknowledged a common-law marriage as defined by Ohio law and understood it continued for their joint lives and could only be dissolved by law or death of one of the parties. Because there is direct evidence concerning the formation of the contract of marriage at the contemporaneous time, evidence of long-time cohabitation and reputation of living together as spouses should be given even greater weight to further strengthen the inference of marriage here. SeeNestor , 472 N.E.2d at 1094-95.

Claimant and NH stated that they have lived together as husband and wife continuously since August 1976, that they have wills, trusts, and powers of attorney together, that they have filed federal and state tax returns together since 1977, and that they have had joint bank accounts since 1989. Claimant and NH also stated that they have introduced each other as husband and wife since the date they entered the common-law marriage contract, and they provided contact information for relatives and the names of friends who knew of their relationship. Moreover, Claimant and NH reported that two children were born of the relationship. Based on the above evidence, we agree that the field office could determine there is conclusive proof that Ohio would find Claimant and NH established a valid common-law marriage in Ohio. See POMS GN 00305.065(B)(2) (noting that the agency does not require attempts to obtain the preferred evidence if other evidence conclusively proves the establishment of a common-law marriage).

CONCLUSION

The agency could conclude that Ohio courts would find that Claimant and NH have a valid common-law marriage that began in August 1976 in Ohio and, therefore, the agency can conclude that North Carolina courts would recognize their marriage as valid. Thus, the agency can determine that Claimant is NH’s spouse for Medicare and Title II purposes.

 

When determining who is a widow for purposes of entitlement to benefits, the Agency will look to the law of the state where the insured had a permanent home at the time the application was filed, or at the time of the insured’s death. Here, the number holder (NH) died in Ohio; therefore, we look to the Ohio law to determine whether the claimant was the widow of the NH. Ohio has not recognized common law marriage since October 1991. The Ohio Supreme Court has held that the essential element of a common law marriage claim is the agreement to marry. The agreement to marry in praesenti may be proven either by direct evidence of the agreement or by way of proof of cohabitation, acts, declarations, and by the conduct of the parties and their recognized status in the community in which they reside.

Prior to the ceremonial marriage in June 2015, the file does not contain any direct evidence of an agreement between the claimant and the NH to marry. Based on the evidence the claimant provided, the claimant and the NH did not have a valid common law marriage under the Ohio law. While it is apparent that the claimant and the NH were in a relationship, we find that the evidence does not establish a common law marriage between them for purposes of the claimant’s entitlement to Widow’s Insurance Benefits.

QUESTION

You asked whether claimant D~ and number holder E~ were parties to a valid common law marriage for purposes of claimant’s entitlement to Widow’s Insurance Benefits based on E~’s earning record. We conclude that the claimant and the number holder did not have a common law marriage under Ohio law at the time of E~’s death.

BACKGROUND

Agency records show that number holder E~ (“NH”) was approved for Disability Insurance Benefits (“DIB”) with an initial month of entitlement of February 2005. On the NH’s DIB application, he stated that he was not married and had never had a marriage that lasted ten years or more.

According to Agency records, the NH began living in Lima Manor, an assisted living facility, on November XX, 2014. Initially, the claimant applied for Retirement Insurance Benefits (“RIB”) on her own record on November XX, 2014. In her application for RIB, the claimant asserted that she was not married and had never had a marriage that lasted ten years or more. The Agency approved her application for RIB with an initial month of entitlement of March 2015.

Later that same year, on August XX, 2015, the claimant applied for both a Lump Sum Death Payment (“LSDP”) and Widow’s Insurance Benefits (“WIB”) on the record of the NH. During the interview for benefits, the claimant asserted that she and the NH had a ceremonial marriage on June XX, 2015, less than two months^[2] prior to the NH’s death on July XX, 2015. The claimant disclosed that she and the NH decided to marry prior to his death “so that she could apply for benefits on his record.” At that time, the NH was still residing full time in Lima Manor. Claimant’s LSDP and WIB claims were denied at the initial level on August XX, 2015 and at reconsideration on January XX, 2016 due to the short duration of the ceremonial marriage and the fact that Agency documentation demonstrated that both the claimant and the NH answered “no” to the question of currently being married or ever being married.

On February XX, 2016, less than a month after the reconsideration denials of her LSDP and WIB claims, the claimant refiled a claim for WIB, this time alleging that she and the NH had been in a common law marriage in Ohio since July XX, 1987. In support of her claim, she submitted a Statement of Marital Relationship, asserting that she and the NH referred to each other as husband and wife in the community. However, the claimant also disclosed that she did not believe that living with the NH made her legally married. The claimant also submitted Statements Regarding Marriage from the NH’s brother and the claimant’s son from a prior relationship. The claimant’s son from a prior relationship and the NH’s brother both asserted in their statements that the parties were generally known as husband and wife. There was no additional evidence or documentation offered in support of the claim.

DISCUSSION

An individual is entitled to WIB as a surviving widow if they meet the relationship requirements of the Social Security Act. See 20 C.F.R. § 404.335; see also POMS RS 00207.001. When determining who is a widow for purposes of entitlement to benefits, the Agency will look to the law of the state where the insured had a permanent home at the time the application was filed, or at the time of the insured’s death. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345. Here, the NH died in Ohio. Thus, we look to Ohio law to determine whether the claimant was the widow of the NH.

To the extent that a state recognizes common law marriage, this will suffice to establish that a claimant is the widow of a deceased number holder. POMS GN 00305.005. Here, Ohio has not recognized common law marriage since October 1991. Ohio Rev. Code § 3105.12(B)(1). The Ohio Supreme Court has stated that common law marriages are disfavored in Ohio and are recognized as lawful only when they meet certain requirements. See Nestor v. Nestor, 472 N.E. 2d 1091, 1094 (Ohio 1984) (adopted SSR 88-14); see also Smith-Wilkins v. Sec’y Health & Human Servs., 880 F.2d 864, 866 (6th Cir. 1989). The elements of a common law marriage are: (1) an agreement of marriage in praesenti; (2) cohabitation as husband and wife; and (3) the treatment and reputation as being husband and wife in the community and circle in which the couple resides. See Nestor, 472 N.E. 2d at 1094; DeCarlo v. Estate of Maxwell, 854 N.E. 2d 230, 233 n.2 (Ohio Ct. App. 2006)(citation omitted). The Ohio Supreme Court has held that the essential element of a common law marriage claim is the agreement to marry in praesenti. See Nestor, 472 N.E.2d at 1094 (“The fundamental requirement to establish the existence of a common law marriage is a meeting of the minds between the parties who enter into a mutual contract to presently take each other as man and wife”). The party alleging a common law marriage has the burden of proving all of the elements by clear and convincing evidence. See id. Clear and convincing evidence is “that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established.” Cross v. Ledford, 120 N.E. 2d 118, 123 (Ohio 1954).

Here, the evidence in the file does not appear to establish by clear and convincing evidence the first element of common law marriage, the agreement to marry in praesenti. The agreement to marry in praesenti may be proven either by direct evidence of the agreement or "by way of proof of cohabitation, acts, declarations, and the conduct of the parties and their recognized status in the community in which they reside." Cross, 120 N.E. 2d at 123. Prior to the ceremonial marriage in June 2015, the file does not contain any direct evidence of an agreement between the claimant and the NH to marry in praesenti. Rather, in various Agency documents dated 2005 to 2014, both the NH and the claimant denied that they were married. Moreover, in her Statement of Marital Relationship dated March 2016, the claimant also answered “no” to the question of whether she believed that living together with the NH made her legally married. These statements contradict the claimant’s assertion that she has been in a common law marriage with the NH since 1983.

Furthermore, the evidence in the file does not appear to establish by clear and convincing evidence that the parties held themselves out as a married couple. The claimant’s son from a prior relationship and the number holder’s brother both asserted in their statements that the claimant and the NH referred to each other as husband and wife and were generally known as such in the community. However, apart from these familial statements, there is no documentation establishing that the claimant and NH held themselves out as a married couple. The claimant has not presented proof of a joint bank account, joint credit cards, a co-signed mortgage or rental agreement, a joint tax return, or any documentation where the claimant is referred to as Mrs. or the wife of the NH. See Nestor, 472 N.E. 2d at 1095-96 (the parties shared “household duties” and “worldly goods,” registered as husband and wife in public accommodations and received cards addressed to “Mr. and Mrs.”); see also State v. DePew, 528 N.E. 2d 542, 549 (Ohio 1988) (evidence of joint tax returns and signed leases in the record, but parties represented themselves as single on other documented occasions). Thus, while it is apparent that the claimant and the NH were in a relationship, we find that the evidence does not establish a common law marriage between them for purposes of claimant’s entitlement to WIB.

CONCLUSION

For the reasons discussed above, we conclude that the claimant and the NH did not have a valid common law marriage under Ohio law.

The Claimant alleged that she and the number holder (NH) entered into a common law marriage in 1998 in Texas. According to the Claimant, they lived together in Texas until sometime in 2000. The Claimant and NH then moved to Ohio sometime in 2000. In February 2015, the Claimant and the NH underwent a legal ceremonial marriage, and lived together as husband and wife in Ohio until the NH’s death in July 2015. The relationship between the claimant and the NH satisfied all of the elements of common law marriage because there is evidence of a present agreement to be married, cohabitation as husband and wife, and representations to others that they were married while they lived in Texas from 1998 until 2000. We conclude that the claimant and the NH were validly married under Ohio law at the time of the NH’s death. Therefore, the claimant is entitled to mother’s benefits as a widow.

You asked whether claimant K~ and number holder S~ were parties to a valid common law marriage for purposes of claimant’s entitlement to Mother’s Benefits based on S~’s earning record. We conclude that the claimant and the number holder were validly married under Ohio law at the time of S~’s death.

BACKGROUND

The claimant alleged that she and the number holder entered into a common law marriage in 1998 in Texas. The parties reportedly lived together in Texas until sometime in 2000^[3] , when they moved to Ohio. On February XX, 2015, the parties underwent a legal ceremonial marriage, and lived together as husband and wife until the number holder’s death five months later in July XX, 2015.

The claimant applied for Mother’s Benefits based on the claim that she and the deceased number holder were parties to a valid common law marriage. In support of her claim, she submitted a Statement of Marital Relationship, asserting that she and the number holder referred to each other as husband and wife in the community and cohabitated with an understanding of exclusivity. The claimant also submitted Statements Regarding Marriage from the number holder’s father and the claimant’s son from a prior marriage. The claimant’s son from a prior marriage and the number holder’s father both asserted in their statements that the parties were generally known as husband and wife.

In addition, the claimant submitted a 1998 joint tax return for “S~ & K~” signed by the number holder and referring to the claimant as the number holder’s spouse. The claimant and the number holder had three children together. A birth certificate for their second child, V~, born in June 1998, refers to the parties as “Mr. and Mrs. S2~.” The claimant’s name was changed to S2~ in her Numident File and various other documents refer to her as S2, including an automotive repair order from January 1998 and a letter from MDM Electronics dated January 1999. Moreover, an undated FastCash Filing Agreement signed by the number holder lists “K~” as his spouse.

DISCUSSION

An individual is entitled to mother’s benefits as a surviving widow if they meet the relationship requirements of the Social Security Act. See 20 C.F.R. § 404.339, citing 20 C.F.R. 404.335(a); see also POMS RS 00207.001. When determining who is a widow for purposes of entitlement to benefits, the Agency will look to the law of the state where the insured had a permanent home at the time the application was filed, or at the time of the insured’s death. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345. Here, the number holder died in Ohio. Thus, we look to Ohio law to determine whether the claimant was the widow of the number holder.

To the extent that a state recognizes common law marriage, this will suffice to establish that a claimant is the widow of a deceased number holder. POMS GN 00305.005. Here, however, Ohio has not recognized common law marriage since October 1991. Ohio Rev. Code § 3105.12(B)(1). Yet, Ohio does recognize common law marriages that came into existence in another state in accordance with all relevant aspects of the law of that state. Ohio Rev. Code § 3105.12(B)(3). Thus, if the parties did enter into a valid common law marriage in Texas, Ohio would likely recognize that marriage.

Texas recognizes common-law marriages. See Russell v. Russell, 865 S.W.2d 929, 931-33 (Tex. 1993) (“[c]ommon law marriages have been recognized in Texas since 1847”); Tex. Fam. Code Ann. § 2.401(a) (statutory recognition of common-law marriage and proof required to show such marriage). Texas statutory law provides that a man and woman may prove a valid common law marriage through evidence of a properly executed Declaration and Registration of Informal Marriage, or by showing the following: (1) an agreement to be married; (2) cohabitation in Texas as husband and wife; and (3) proof of representation to others that they are married. Tex. Fam. Code Ann. §§ 2.401(a), 2.402; see also Russell, 865 S.W. 2d at 931-33; Claveria’s Estate v. Claveria, 615 S.W.2d 164, 166 (Tex. 1981). The claimant alleges that she and the number holder were parties to a common law marriage entered into in 1998, and that they moved to Ohio sometime in 2000, therefore Section 1.91 of the Texas Family Code now recodified as Section 2.401 applied. However, like the current Section 2.401(a), Section 1.91 similarly provided that an informal marriage could be shown by evidence of a Declaration of an Informal Marriage, or by showing an agreement to be married, that the parties lived together in Texas as husband and wife, and that they represented to others that they were married. Tex. Fam. Code Ann. § 1.91(a) (Vernon 1994) (repealed 1997); Russell, 865 S.W. 2d at 932-933.

Based upon the information provided, the claimant and the number holder never executed a Declaration of Informal Marriage. Therefore, the claimant must prove that during the time in which they lived together in Texas, she and the number holder agreed to be married, lived together in Texas as husband and wife, and represented to others at that time that they were married. See Tex. Fam. Code Ann. § 2.401(a)(2); see also Russell, 865 S.W. 2d at 931-33. The party seeking to prove the existence of a common law marriage holds the burden of proof by a preponderance of the evidence, which Texas law defines as “the greater weight and degree of credible evidence.” See Farrell v. Farrell, 459 S.W.3d 114, 117 (Tex. App. – El Paso 2015, no pet.); Nguyen v. Nguyen, 355 S.W.3d 82, 88-89 (Tex. App. – Houston [1st Dist.] 2011, pet. denied). Therefore, we must determine if the claimant has shown, by a preponderance of the evidence, that she and the number holder had a common law marriage. Russell, 865 S.W. 2d at 933 (although a declaration of informal marriage constitutes prima facie proof of informal marriage, the parties need not make the declaration to have a valid common law marriage).

Regarding the first element of an agreement to be married, the party seeking to prove a common-law marriage must prove that the couple intended to have “a present, immediate, and permanent marital relationship and that they did in fact agree to be husband and wife.” Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App. – Houston [1st Dist.] 2001, pet. denied). Direct or circumstantial evidence may establish an agreement to be married. See Russell, 865 S.W.2d at 931. Circumstantial evidence of cohabitation and representations to others may show an agreement to be married. See Lee v. Lee, 981 S.W.2d 903, 906 (Tex. App. – Houston [1st Dist.] 1998, pet. denied) (“Proof of cohabitation and representations to others may constitute circumstantial evidence of an agreement to be married.”). The parties may show an agreement to be husband and wife with proof that they intended to create an immediate and permanent marital relationship, not merely a cohabitation that either party may end at any time. Perales v. Flores, 147 S.W.2d 974, 176 (Tex. Civ. App – San Antonio 1941, writ ref’d). Additionally, present cohabitation together with a future agreement to marry does not satisfy this requirement. Gary v. Gary, 490 S.W.2d 929, 932 (Tex. Civ. App. – Tyler 1973, writ ref’d n.r.e.).

The second element of cohabitation requires that the couple “live together in [Texas] as husband and wife,” but courts have not required the living arrangement to be continuous. See Small v. McMaster, 352 S.W.3d 280, 284 (Tex. App. – Houston [14th Dist.] 2011, pet. denied) (“[c]ohabitation need not be continuous for a couple to enter into a common-law marriage”); Bolash v. Heid, 733 S.W.2d 698, 699 (Tex. App. – San Antonio 1987, pet. denied) (sufficient cohabitation when husband visited infrequently from Nigeria).

Finally, as to the third element, representation of the marriage to others is synonymous with the judicial requirement of “holding out to the public,” which the parties may show through their conduct and actions. Eris, 39 S.W.3d at 715 (the focus is upon whether the couple had a reputation in the community for being married); Winfield v. Renfro, 821 S.W.2d 640, 648-651 (Tex. App. – Houston [1st Dist.] 1991) (occasional introductions as husband and wife are not enough); see also POMS SI 00501.152 (Determining Whether Two Opposite-Sex Individuals are Holding Themselves out as a Married Couple). A common law marriage does not exist until a party meets all three elements. Winfield, 821 S.W.2d at 645.

Here, the relationship between the claimant and the number holder satisfied all of the elements of common law marriage because there is evidence of a present agreement to be married, cohabitation as husband and wife, and representations to others that they were married while they lived in Texas from 1998 until 2000. See Lee, 981 S.W.2d at 906; Eris, 39 S.W.3d at 715. The submitted documents, such as the joint tax return filed in 1998 from “S~” and “K~” and referring to the claimant as the number holder’s spouse, demonstrate that both parties held themselves out as a married couple. Additionally, a birth certificate states that V~was “born to Mr. and Mrs. S~” in June 1998. The claimant’s maiden name is listed on the birth certificate as “K~.” The claimant also changed her last name to S2~ in her Numident File, and she is referred to as S2~ in various records, including an automotive repair order from January 1998 and a letter from MDM Electronics dated January 1999. An undated FastCash Filing Agreement signed by S~ lists “K~” as his spouse. Finally, the claimant’s son from a prior marriage and the number holder’s father both asserted in their statements that the parties were generally known as husband and wife. ^[4] Thus, we find that the greater weight and degree of credible evidence establishes a Texas common-law marriage. “[O]nce [common-law marriage] exists, it, like any other marriage, may be terminated only by death or a court decree.” Claveria’s Estate, 615 S.W.2d at 167.

CONCLUSION

For the reasons discussed above, we conclude that the claimant and the number holder had a valid common law marriage under Ohio law, and thus the claimant is entitled to mother’s benefits as a widow.

Under Gray v. Richardson, SSA is not bound by the nunc pro tunc order when all requirements have not been met. The declaratory judgment was not genuinely contested, thus the second Gray factor is not met. No one with opposing interests appeared in court. The evidence in our records does not appear to establish the first element of a commom-law marriage.

You submitted an Ohio state court's nunc pro tunc judgment that the claimant, K~, and the deceased number holder (NH), A~, had a common-law marriage. You asked whether the Agency should recognize this state court judgment, for purposes of determining whether the claimant is entitled to an underpayment as the NH's widow. For the reasons discussed below, we conclude that the Agency is not bound by the nunc pro tunc judgment.

BACKGROUND

The NH died on May XX, 2005. At the time of his death, the NH was domiciled in Ohio.

On August XX, 2006, the claimant filed in the Columbiana County Court of Common Pleas, Probate Division, a complaint for declaratory judgment, seeking a declaration of the validity of a common-law marriage with the NH allegedly entered into in or about September 1990.

On November XX, 2006, the probate court entered a nunc pro tunc judgment, in which it found by clear and convincing evidence that the claimant and the NH became common-law husband and wife in or about September 1990, and remained so until the NH's death. In the judgment entry, the court stated that it had held a hearing, at which the claimant and four defendants, who were siblings of the NH, appeared; one defendant did not appear. The court further stated that it inquired of each of the defendants who appeared at the hearing; they all acknowledged that the claimant's allegations were true, and none of them objected to the court's determination of a common-law marriage.

SSA records contain documents dated 1991 to 2003, in which the NH denied being married to the claimant, and the couple referred to each other as "boyfriend" and "girlfriend." For example, in March 1992, the claimant reported to the Agency under penalty of law that the NH was her "boyfriend."

On December XX, 2007, the claimant filed a claim for the underpayment of the NH's Title II disability benefits as the NH's widow. The claimant reported that she was living with the NH at the time of his death.

DISCUSSION

Under the Agency's regulations, if an individual to whom an underpayment is due dies before receiving payment, such underpayment may be distributed to:

The deceased individual's surviving spouse as defined in section 216(c), (g), or (h) of the Act who was either:

1. (i)  

   Living in the same household (as defined in §404.347) with the deceased individual at the time of such individual's death, or

2. (ii)  

   Entitled to a monthly benefit on the basis of the same earnings record as was the deceased individual for the month in which such individual died.

20 C.F.R. § 404.503(b). Section 216(h)(1)(A)(i) of the Act, in turn, states that the Agency will determine that an applicant is the widow of an insured individual:

• •

  if the courts of the State in which such insured individual is domiciled at the time such applicant files an application, or, if such insured individual is dead, the courts of the State in which he was domiciled at the time of death…would find that such applicant and such insured individual were validly married at the time such applicant files such application or, if such insured individual is dead, at the time he died.

See also 20 C.F.R. § 404.345. Thus, the Act directs the Agency to look to state law to determine the relationship of the claimant to the insured NH. In this case, we need to determine whether the claimant is the widow of the NH. The question, then, is whether the Agency should recognize the Ohio probate court's nunc pro tunc judgment that a common-law marriage existed between the claimant and the NH.

Although the Commissioner is not bound by the decision of a state trial court in a proceeding to which he was not a party, he is also 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. See SSR 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973)). Pursuant to Gray, the Commissioner is bound by a state court determination only where: (1) an issue in a claim for Social Security benefits has been determined by a state court of competent jurisdiction; (2) the issue was 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 id.

Based on the information provided to us, it appears that the second Gray factor is not satisfied in this case, because it does not appear that the nunc pro tunc declaratory judgment was genuinely contested in the Ohio probate court. To be genuinely contested, an issue must be disputed by parties with opposing interests. See, e.g., 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); 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). Here, although a hearing was held, no one with opposing interests appeared to contest the claimant's complaint. The NH, who was deceased, obviously did not appear. According to the court's judgment entry, four of the NH's siblings appeared as defendants at the hearing (and one other defendant did not appear). The defendants who were present all acknowledged that the claimant's allegations were true, and did not object to the court's determination that a common-law marriage existed. Thus, rather than the proceeding being adversarial, it appears that the court merely rubberstamped the claimant's complaint based on the lack of objection by the defendants.

As you noted, evidence contained in SSA records contradicts the Ohio probate court's finding. There is no indication in the court's judgment entry that this evidence was presented to the court. As discussed below, had the court seen this evidence, it likely would have changed the outcome of the case, i.e., the court would not have found that the claimant and the NH entered into a common law marriage in or about September 1990.

Common-law marriages have been prohibited in Ohio since October 10, 1991, but common-law marriages occurring prior to that date remain valid. See Ohio Rev. Code § 3105.12(B). The Ohio Supreme Court has stated that common-law marriages are disfavored in Ohio and are recognized as lawful only when they meet certain requirements. See Nestor v. Nestor, 472 N.E.2d 1091, 1094 (Ohio 1984) (adopted as SSR 88-14); see also Smith-Wilkins v. Sec'y of Health & Human Servs., 880 F.2d 864, 866 (6th Cir. 1989). The elements of a common-law marriage are: (1) an agreement of marriage in praesenti; (2) cohabitation as husband and wife; and (3) the treatment and reputation as being husband and wife in the community and circle in which the couple resides. See Nestor, 472 N.E.2d at 1094; DeCarlo v. Estate of Maxwell, 854 N.E.2d 230, 233 n.2 (Ohio Ct. App. 2006) (citation omitted). The Ohio Supreme Court has held that the essential element of a common-law marriage claim is the agreement to marry in praesenti. See Nestor, 472 N.E.2d at 1094 ("The fundamental requirement to establish the existence of a common law marriage is a meeting of the minds between the parties who enter into a mutual contract to presently take each other as man and wife."). The party alleging a common-law marriage has the burden of proving all of the elements by clear and convincing evidence. See id. Clear and convincing evidence is "that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established." Cross v. Ledford, 120 N.E.2d 118, 123 (Ohio 1954).

Here, the evidence in the file does not appear to establish by clear and convincing evidence the first element of a common-law marriage. The agreement to marry in praesenti may be proven either by direct evidence of the agreement or "by way of proof of cohabitation, acts, declarations, and the conduct of the parties and their recognized status in the community in which they reside." Id. The file does not contain any direct evidence of an agreement between the claimant and the NH to marry in praesenti. To the contrary, as you indicated, in various Agency documents dated 1991 to 2003, the NH consistently denied that the claimant was his wife, and referred to her only as his "girlfriend." And, in March 1992, the claimant also reported to the Agency under penalty of law that the NH was her "boyfriend." If the Ohio probate court had been presented with this contrary evidence, it seems unlikely that it would have credited the claimant's allegations at the hearing.

Thus, because the court's declaratory judgment was not genuinely contested, the second Gray factor is not satisfied. Consequently, the Agency is not bound by the Ohio probate court's nunc pro tunc judgment of common-law marriage, and need not recognize this state court determination.

CONCLUSION

For the reasons discussed above, we conclude that the Agency is not bound by the Ohio probate court's nunc pro tunc judgment of common-law marriage.

The agency is bound by an Ohio court's ruling that the claimant for divorced spouse's benefits and the NH had a valid common-law marriage and were granted a divorce. The decision on the claimant's prior application for wife's benefits is final and binding, and cannot be reopened. However, her current application can be given an earlier protective filing date based on an SSI predetermination. The award of benefits to the claimant does not affect the entitlement of the woman with whom the NH entered into a ceremonial marriage (who is the NH's deemed spouse).

INTRODUCTION

I~, a current recipient of Supplemental Security Income (SSI), has twice applied for benefits on the account of the wage-earner, D~. Her first application for wife's benefits was denied by an Administrative Law Judge (ALJ), who found that I~ had not established a valid common-law marriage under Ohio state law. In her current application, I~ alleges entitlement as a divorced spouse, and she relies upon new evidence: a decision from an Ohio state court finding that she had a valid common-law marriage to D~ and granting her a divorce.

You asked for our advice on a number of questions. (1) Is the agency bound by the state court's decision on the common-law marriage and subsequent divorce? (2) If the agency is bound by the decision, what date should the agency recognize as the date of the marriage of I~ and D~? (3) Can the decision on I~'s prior application be reopened and revised to allow benefits to be paid retroactive to July 1992? (4) Does the Ohio court decision affect the entitlement of V~, a woman whom D~ ceremonially married in 1964?

As we explain, it is our opinion that, for purposes of the current application, the agency is bound by the Ohio state court decision that D~ and I~ were validly married from 1955 until September 18, 1996. The agency's decision on the prior application cannot be reopened under the principles of administrative finality. However, because I~ completed an SSI redetermination in July 1994, that date can be used as a protective filing for her current application. Furthermore, under section 216(h)(1)(B) of the Social Security Act, V~ is deemed to be validly married to D~ and therefore remains entitled to benefits on his account, even though her marriage was apparently invalid as a result of a legal impediment.

FACTS

From our review of the claims folder, we understand that, in an application for retirement benefits filed on March XX, 1986, D~ reported only a ceremonial marriage to V~ that took place on January XX, 1964, and continued. In August 1989, V~ applied for wife's benefits on D~'s account. D~ completed an SSA-3 "Marriage Certification," in which he again stated that his marriage to V~ was his only marriage.

In her July XX, 1992, application for wife's benefits on D~'s account, I~ stated that she was currently married to D~ and that she had been ceremonially married to him in 1954 in Cleveland, Ohio. Questions were raised concerning this marriage, apparently because D~'s previous application had not mentioned I~ and local SSA personnel were unable to obtain proof of the ceremonial marriage. I~'s application was initially denied by a notice dated October XX, 1992, on the grounds that she did not meet the "marriage requirement" of the law. Also in July 1992, she apparently applied for SSI and was found entitled as an aged individual.

During the development of I~'s wife's benefits claim, the agency obtained documentary evidence (income tax returns, property mortgages, insurance papers, and commercial papers) that I~ and D~ lived together and held themselves out to the public as husband and wife. In a Report of Contact, however, D~ denied being married to I~.

The Agency determination that I~ was not "married" to D~ was upheld on reconsideration and after a hearing before an ALJ. The ALJ found in particular that even though D~ and I~ had held themselves out to the public as husband and wife, they did not establish a valid common-law marriage because they did not produce clear and convincing evidence of any present intent to marry as required by Ohio law. The Appeals Council denied a request for review, and I~ did not seek judicial review.

In June 1995, I~ sued D~ for divorce in the Court of Common Pleas for Washington County, Ohio. According to documents in the claim file, D~ contested the divorce and a trial took place in July 1996. In September 1996, the court issued a decision finding that the parties had established a valid common-law marriage commencing in 1955. The court granted I~ a contested divorce on September XX, 1996.

On April XX, 1997, I~ filed her current application for wife's benefits on D~'s account and also requested reopening of the decision on the 1992 application. She submitted the state court documents that she had been married to D~ and that she was divorced from him in September 1996.

DISCUSSION

We identify and discuss five issues: (1) the agency can consider I~'s current application because res judicata does not apply; (2) the agency is bound by the Ohio court's ruling that I~ and D~ had a valid marriage; (3) nonetheless, the decision on I~'s prior application is final and binding, and the decision cannot be reopened; (4) I~'s current application, however, can be given a protective filing date of July 1994 based on an SSI redetermination; and (5) the award of benefits to I~ does not affect the entitlement of V~.

1. The agency can consider I~'s current application because res judicata does not apply.

Under the POMS, an adjudicator may apply res judicata to deny a subsequent application where the facts and issues are the same. POMS GN 03101.160; GN 04040.010. But res judicata should not be applied if there are new facts or evidence submitted with the subsequent application. Id.

Here, I~'s new evidence (the state court judgment that she had a valid marriage to D~ and granting her a divorce) is relevant to her status as a spouse for purposes of Social Security benefits. Therefore, under the POMS standard, res judicata does not apply and the agency must adjudicate her current application.

2. The Agency is bound by the state court determination of I~'s marital status.

Under the Social Security Act, the agency determines questions of family status by applying the law of the state in which the insured is domiciled. 42 U.S.C. § 416(h)(1)(A). Since D~ was domiciled in Pennsylvania when I~ filed her application, Pennsylvania law would control the family status determination. However, because the alleged common-law marriage took place in Ohio and I~ was domiciled in Ohio, Ohio courts had jurisdiction to determine the issues of marriage and divorce. The courts of Pennsylvania, in turn, would accord "full faith and credit" to the Ohio court's determination that the parties were married and granting them a divorce.

In Social Security Ruling 83-37c, which adopts the Sixth Circuit Court of Appeals decision in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), the agency explains when it is bound by state court decisions on family law issues. See 20 C.F.R. § 402.35(b)(1). In Gray, the Social Security Administration had denied benefits to an illegitimate child, finding that the child had not proven her relationship to the insured. The court of appeals found that substantial evidence in the record supported the Agency's findings, but the Agency was nonetheless required to follow the holding of a state court that had ruled that the wage earner was the father of the child. The court of appeals ruled that the state court's decision must be followed where: (1) an issue in a claim for social security benefits has been determined by a state court of competent jurisdiction; (2) the issue was 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.

Under these criteria, the agency is bound by the Ohio state court's determination that I~ and D~ were validly married. The state court was competent to determine the D~'s marital relationship and marital relationship is at issue in the current application. We believe that the issue was genuinely contested; the trial court's ruling so states, and a trial was held. We would expect D~ to contest the divorce since it would presumably affect his current ceremonial marriage to V~. The issues of marriage and divorce are within the category of domestic relations law. The trial court weighed the evidence differently than did the ALJ but the court's decision is generally consistent with Ohio law because the court applied the clear and convincing evidence test and considered whether the parties had a present intent to enter into a common law marriage. See Nestor v. Nestor, 472 N.E.2d 1091 (1984) (adopted as Social Security Ruling 88-14). Because the Ohio state court's decision satisfies the Gray criteria, SSR 83-37 provides that the state court's decision should be binding on the Agency. The Agency should, therefore, award divorced spouse's benefits to I~ based on her current application.

3.The prior decision is not subject to reopening and revision.

Even though on the current application the agency is bound by the state court decision, in our view the agency cannot reopen the prior decision under the agency's rules concerning administrative finality. I~'s first application for wife's benefits filed on July XX, 1992, was denied at all administrative levels, and the ALJ's decision became final when I~ did not seek judicial review. See 20 C.F.R. § 404.955. Although the regulations allow under certain circumstances a final and binding decision to be reopened and revised, 20 C.F.R. § 404.987, none of these circumstances is present here.

Under 20 C.F.R. § 404.988(b), a decision can be reopened within four years from the date of the initial determination if there is "good cause," which includes new and material evidence. While the state court judgment is new and material evidence, the reopening was not requested within four years of October XX, 1992, the date of the initial determination on her claim. Therefore, the new evidence cannot justify a reopening under this regulation.

The regulations also allow reopening "at any time" for certain reasons. The district office processing I~'s current application suggested that POMS GN 04020 (entitled "Unrestricted Reopening--AN ADVERSE CLAIM HAS BEEN FILED AGAINST THE SAME EARNINGS RECORD(E/R)") might apply to allow a reopening if I~'s entitlement nullified V~'s entitlement. In our view, the applicable regulation and the POMS apply only to and allow reopening only of claims that have been awarded. These authorities do not apply to situations where, as here, the prior claim has been denied. Under 20 C.F.R. § 404.988(c)(2), a decision can be reopened at any time if "[a]nother person files a claim on the same earnings record and allowance of the claim adversely effects your claim." And the POMS provision applies where "adverse" awards of claims are involved; that is, there is an earlier award to a claimant and a current award to a new claimant that defeats the entitlement of the prior claimant. POMS GN 04020(A). The POMS further provides that the claim to be reopened is the earlier claim that "gave rise to the earlier entitlement of the earlier claimant." The "earlier claim" here would be the award to V~, not the denial of I~'s claim. In short, nothing in the POMS provision or the regulation supports the view that I~'s prior claim can be reopened "at any time." Therefore, reopening is not available.

4. Entitlement should be established based upon a July 1994 SSI redetermination.

Even though the prior decision cannot be reopened, we have considered whether I~ can be found entitled earlier based on her entitlement to SSI. The SSI query in the claim file demonstrates that I~ has been entitled to SSI as an aged individual since August 1992, when she attained age 65. (Her application for SSI in July 1992 was likely the catalyst for her first spousal application.) Normally, an SSI application can serve as an application for benefits under title II. See POMS GN 00204.020. Such an open application can be "closed out" by an adjudication of the title II application. See POMS GN 00204.027. Here, in July 1992, I~ applied concurrently for SSI and title II wife's benefits, and her wife's benefits application was denied by ALJ decision dated May XX, 1994. That ALJ decision covers I~'s entitlement to spousal benefits through that date and closes out any implied application based on the 1992 SSI filing.

However, an SSI redetermination may also be construed as a protective filing for title II benefits. See POMS GN 00204.010(A)(4); GN 00204.015. According to the POMS, a redetermination should be used to infer intent to file for title II benefits when a signed redetermination form is obtained. See POMS GN 00204.015. The dates on an SSI computer printout can be used to establish our receipt of a signed redetermination form. See POMS GN 00204.015(B)(3). The claims file includes an SSID dated May XX, 1997. That SSID indicates that I~ had redeterminations in November 1993, July 1994, and February 1995. We believe that the July 1994 redetermination is the only one that suffices as a written intent to file for this claim.

The November 1993 redetermination should not be considered a written intent to file because the July 1992 wife's benefits claim was still pending at that point. The ALJ issued a decision in May 1994, and his decision covers I~'s entitlement through that date. 42 U.S.C. § 416(i)(2)(G). Because the ALJ's decision adjudicates I~'s eligibility through May 1994, any potential eligibility based on the November 1993 redetermination form can be considered adjudicated.

The July 1994 redetermination occurred after the ALJ had issued his decision, although before the Appeals Council had denied review. Under the regulations, however, when the Appeals Council denied review, the Council did not adjudicate the merits of I~'s application. 20 C.F.R. §§ 404.955(a), 404.981. Instead, the Council's action left the ALJ's adverse decision as the final agency decision on the claim. 20 C.F.R. § 404.981. Therefore, because the July 1994 redetermination can be presumed to be a written intent to file for title II benefits, and because there was no subsequent adjudication of entitlement to title II benefits, that date is the earliest that can be used as a protective filing date for I~'s claim for spousal benefits.

5. An award of benefits to I~ does not affect the entitlement of V~.

I~'s current application should be considered as filed in July 1994. At that point, by virtue of the September 1996 state court decision she was the wife of D~. Assuming that she satisfies the other elements of entitlement, her claim as a wife and, effective September 1996 as a divorced wife, can be awarded. This award should have no impact on V~'s entitlement as a deemed wife.

V~ is entitled to benefits as the wife of D~. The determination of entitlement was made effective in December 1989, and that determination is subject to administrative finality. Even if it were subject to revision, V~ would be a "deemed spouse."

The Social Security Act, as amended, allows a "deemed spouse" to be entitled to benefits. 42 U.S.C. § 416(h)(1); see also 20 C.F.R. §§ 404.331, 404.346. A deemed spouse is one who in good faith went through a marriage ceremony with the insured that would have resulted in a valid marriage except for a legal impediment which results because a prior marriage had not yet ended. 20 C.F.R. § 404.346. Here, the record indicates that V~ and D~ went through a marriage ceremony in 1964. It appears, by virtue of the 1996 state court order, that this marriage was invalid because of a legal impediment - D~ was still part of a common-law marriage to I~. Nonetheless, we see nothing in the record that V~ and D~'s marriage ceremony was in anything other than good faith, and, as of the most recent printout in the file, they continue to be living at the same address. Therefore, V~ is qualified for benefits as the "deemed spouse" of D~.

V~, a deemed spouse, is entitled to benefits, and with respect to monthly benefits payable after December 1990, her entitlement continues even after a legal spouse becomes entitled to benefits on the earnings record. 42 U.S.C. 416(h)(2); POMS GN 00305.055. The regulations concerning the family maximum computation establish that V~ and D~'s benefits are calculated without considering the entitlement of I~, the legal spouse. The relevant regulation provides as follows:

In any case where more than one individual is entitled to benefits as the spouse . . . of a worker for the same month, and at least one of those individuals is entitled based on a marriage not valid under State law . . . , the benefits of the individual whose entitlement is based on a valid marriage under State law will not be reduced pursuant to this section. The benefits of all other individuals entitled on the same record . . . will be determined under this section as if such validly married individual were not entitled to benefits. 20 C.F.R. § 404.403(a)(4). Because only V~, D~, and I~ are entitled on D~'s earnings record, and because the regulation provides that I~s entitlement is not counted toward the family maximum, there should be no impact on V~'s benefits.

CONCLUSION

For the foregoing reasons, we believe that I~ should be found entitled to wife's benefits based on an application date of July 1994, and to divorced wife's benefits beginning in September 1996, when the state court declared her and D~ divorced. This decision should have no impact on the entitlement or benefit amount of V~, who is technically a "deemed" wife of D~.

Because the claimant's proxy marriage to the NH appears to comport with the 1945 statutory requirements of Oklahoma, and because it offends no public policy of Iowa (the resident State at the time of the marriage) or Ohio (the State in which the NH died domiciled), the marriage must be considered valid. Even if the formal proxy marriage would not be upheld, the couple would be considered to have had an informal common-law marriage.

This memorandum is in response to your request for our legal opinion as to whether the 1945 proxy marriage between Wendell C. T~, the now-deceased wage-earner (DWE), and Adyline L. C~ T~ would be considered valid. The information accompanying your request indicates that the parties, by and through their respective proxies, obtained in Oklahoma marriage license, and delivered a duplicate contract of marriage in the presence of witnesses and before Honorable James P. M~, Judge of the County Court of Tulsa County, Oklahoma on March XX, 1945. Neither Wendell nor Adyline was present in Oklahoma at the time the marriage was solemnized; instead each was represented by a proxy because Adyline resided in Iowa, and Wendell, a U.S. Army Officer, was stationed in Europe. For reasons that will be discussed more fully below, we conclude that under the relevant law, this marriage would be considered valid.

Although proxy marriage is considered to be unusual in contemporary American society, it is not unknown. Proxy marriage has been defined as an attempt to comply with the statutory formalities of marriage. The single distinguishing feature is that one or both of the parties is absent and is represented by an agent or proxy who has the authority to act on behalf of his/her principle in the marriage ceremony. 52 Am Jur. 2d MARRIAGE 13. During times of war, as was the case here, this type of marriage proved useful to men who were away in the service when they could not contract a valid marriage in any other way. Note, The Validity of Absentee Marriages of Servicemen, 55 YALE L.J. 735 (1946). Indeed, during World War II Minnesota enacted a statute expressly authorizing proxy marriages upon proof that the woman was pregnant. MINN. STAT. ANN. sec. 517.09. Although proxy marriages are still only recognized by many churches, the Roman Catholic Church, in Canons 1089 and 1091, expressly provides for solemnization of marriage by proxy where the proxy is authorized by the absentee. Whether such a marriage will be considered valid in American law, however, depends upon whether the state where one of the parties resides permits such marriages to be performed within its jurisdiction or, if not, whether the resident state will recognize such a marriage if performed in a jurisdiction where it is allowed, even if not permissible in the resident state. Therefore, the threshold question in this case is whether Iowa, the resident state of Adyline at the time of the proxy marriage, would either permit proxy marriage or recognize such a marriage performed elsewhere.

We found no Iowa cases which discuss the legality of proxy or absentee marriage in that jurisdiction. Indeed, there is remarkably little case authority on the validity of proxy marriages contracted anywhere in the United States. Several law review articles have been written on the subject, however. With respect to Iowa, one commentator wrote that the validity of proxy marriage had not been tested in Iowa, but found it significant that nothing in the Iowa statues [of that time or earlier] would militate against proxy marriage by requiring the presence of the marriage partners at the ceremony. 1 DRAKE L.REV. 43, 44 (1952). Another commentator noted that nine states honor proxy marriages formed within their borders: Florida, Idaho, Iowa, Kentucky, Montana, Nebraska, Oklahoma, Nevada, and New Mexico. Moore, Case for Marriage by Proxy, 11 CLEVELAND-MARSHALL L.REV.313, 318 ( ).

It is also noteworthy that no state has failed to recognized a proxy marriage contracted in a jurisdiction which permits this form of marriage. See e.g. Barrons v. United States, 191 F.2d 92 (9th Cir. 1951) (all states which have passed on the question have recognized the validity of proxy marriages validly performed elsewhere). But see: Respole v. Respole, 70 N.E.2d 465 (Ohio Com. Pl. 1946) in which the court held the proxy marriage invalid because it was never consummated. One commentator wrote that "probably the greatest single factor compelling the use of proxy marriage is that of legitimizing children." 25 S. CAL. L. REV. 181 (1951).

Consequently in light of these interpretations of Iowa law by legal writers of the period, it is reasonable to assume that it may have been possible to contract a proxy marriage in Iowa. If that is so, then it follows that Iowa clearly would recognize a proxy marriage validly performed elsewhere. Since the marriage in question was performed in Oklahoma, it is necessary to examine Oklahoma law to determine whether there was any obstacle to solemnization of a proxy marriage in that state.

Proxy marriages were contracted frequently in Oklahoma during World War II although the statutes of the state did not specifically provide for such marriage. Howery, Marriage By Proxy and Other Informal Marriages, 13 U. KAN. CITY L. REV. 48 (1944). In that article, the commentator noted that the National Association of Legal Aid Committees named Oklahoma as the only state in the nation where a marriage could be legally performed without either the bride or groom being present. Id. at p. 92. According to Howery, there were no apparent objections of a practical nature which would militate against statutory marriages by proxy in Oklahoma, because "such marriages have taken place with more frequency in this state than in any other jurisdiction, with the possible exception of the state of Kansas". Id.

As Howery correctly observed, marriage in Oklahoma is based upon a contract, the two parties being married from the time they agree to be married regardless of whether or not they ever live together. Id. See also: Tice v. Tice, 672 P.2d 1168, 1171 (Okla. 1983).

Under Oklahoma law, marriage is defined as:

[A] personal relation arising out of a civil contract to which the consent of parties legally competent of contracting and of entering into it is necessary, and the marriage relation shall only be entered into, maintained, or abrogated as provided by law.

OKLA. STAT. ANN. tit. 43, §1.

At the time of the marriage in question, Oklahoma permitted a marriage license to issue on the affidavit of any responsible person with knowledge of the parties. OKLA. STAT. ANN. tit. 43, §5 (1945). There was no statutory requirement of the parties' presence; and prior to 1945, no health certificate was required. OKLA. STAT. ANN. tit. 43, §31 et seq. Although a health certificate was necessary after 1945, the requirement could be waived by a judge of a County Court under certain circumstances. OKLA. STAT. ANN. tit. 43, §32. (1945).

The application for marriage license signed by Norma W~, who was proxy and attorney-in-fact for Adyline, is in the material you sent for our review. On its face it appears to meet the requisites of Oklahoma law. The marriage license, also in the file, authorized the marriage of Wendell C. T~ and Adyline L.C~. Finally, as discussed previously, the Certificate of Marriage, which is signed by James P. M~, Judge of the County Court of Tulsa, and which bears the official State seal, attests that Wendell, by James B. Diggs, Jr., his proxy and attorney-in-fact, and Adyline, by Norma M~, her proxy and attorney-in-fact, executed, acknowledged, and delivered a written contract of marriage, in his presence. In our view, this attestation of the judge is the same as a judgment which is valid on its face, and which could have been collaterally attacked only in the manner provided by law. Fowler v. Goldfeder, 418 P.2d 317 (Okla. 1966). Hence, it appears that the proxy marriage met the statutory requisites of Oklahoma in 1945.

It is important to note, however that even if the marriage did not meet the statutory requisites, it would be considered only voidable, not void. _11See e.g., Respole v. Respole, supra. In that case, the husband brought suit against the wife to annul a marriage performed in West Virginia in 1943 while the husband was in India. The court held the marriage invalid because the wife would not live with the husband upon his return to the United States; in face the marriage was never consummated. The court said that then result would have been different if the marriage had been consummated since then it would have been recognized as a common law marriage in Ohio, the residence of the husband.

In a New York case, Ferraro v. Ferraro, 77 N.Y.S. 2d 246 (1948), the court held valid a proxy marriage, solemnized in Washington, D.C. In that case, as in the case under review here, the statutes were silent regarding proxy marriage. The court reasoned that since the license was validly obtained and a ceremonial marriage is presumed to be valid, unless the presumption is overcome, the Ferraro marriage would be considered valid under the law of the place of celebration and therefore valid elsewhere.

In our view the same rationale should be applied to the T~ marriage. As earlier discussed, the license appears to have been legally obtained, the contract was duly entered into by and through authorized agents, and the marriage was certified by a judge. As in most jurisdictions, Oklahoma law presumes that a ceremonial marriage is valid. Hale v. Hale, 135 P. 1143 (Okla. 1913). This presumption is one of the strongest in law, and is grounded in public policy favoring morality, marriage and legitimacy. The presumption increases in strength with time, recognition, and acknowledgment of the marriage by others, and with the birth of children. Marcum v. Zaring, 405 P.2d 970 (Okla. 1965)

Finally, it should be noted that both Iowa, the domicile of Wendell and Adyline at the time the proxy marriage was celebrated, and Ohio, their domicile at the time of his death, recognize common law marriage. Thus, in our opinion, even if, for some procedural irregularity, the formal proxy marriage would not be considered valid, it is clear that Wendell and Adyline would be considered married at common law since the requisites of an informal common law marriage were met: they intended to be married, they held themselves out as married, and they cohabitated as husband and wife for thirty years.

In summary, because the T~ proxy marriage appears to comport with the 1945 statutory requirements of Oklahoma, and because it offends no public policy of Iowa, the resident state at the time of the marriage, or Ohio, the state in which the wage earner died domiciled, we believed the marriage must be considered valid. Even if the formal proxy marriage would not be upheld, however, it is our view that the couple would be considered to have had an informal common law marriage of long standing. Therefore, in our opinion, Adyline, L. C~ T~ is entitled to widow's benefits on Wendell's wage record.

_11 A voidable marriage, the imperfection of which can only be inquired into during the lives of both of the parties, is valid for all civil purposes until annulled in a direct proceeding. A void marriage is a nullity and may be impeached at any time.

MARRIAGE -- COMMON-LAW MARRIAGE -- OHIO

OHIO -- Recognition of Common-Law Marriage

While common-law marriages have been traditionally recognized in Ohio, such marriages are not favored by Ohio courts. Three elements must be demonstrated by clear and convincing evidence: (1) the parties agree in praesenti to be husband and wife; (2) the parties cohabit for an extended period of time; and (3) the parties hold themselves out to be husband and wife. If any of the elements is found to be missing, Ohio law will not recognize the relationship in question as a common-law marriage. (M~ James F., ~ -- RAV (Jackson), to ARC, Programs, 11/12/87.)

This is in regard to your memorandum asking whether Ohio law would recognize the relationship between James F. M~ ("the wage earner") and Betty D~ ("the claimant") as a common law marriage. The resolution of your question depends upon whether the claimant can clearly and convincingly demonstrate that she and the wage earner had an agreement in praesenti to be married.

The facts are as follows: In 1939, the claimant married Frank. In 1946, the wage earner married Audrey. In 1948, the claimant divorced Frank and the wage earner separated from Audrey. In 1949 or 1950, the claimant and the wage earner began living together. In 1951, the wage earner obtained a divorce from Audrey. The claimant and the wage earner continued to live together until 1959, when, without notice to the claimant, the wage earner moved to Florida.

According to the claimant, during the time that she and the wage earner lived together they neither discussed marriage, nor agreed upon the length of time they would live together, or how their relationship could be terminated. Statements from the wage earner indicate that he expected to marry the claimant some time in the future and that he believed that they were not legally married. It appears that the claimant and the wage earner had at least one child together, that they often introduced each other as husband and wife, and that they obtained a mortgage loan and purchased a house as husband and wife. While they never sought a legal termination of their relationship with each other, after 1959 both the claimant and the wage earner lived with and married other people. On November XX, 1986, the wage earner died.

Section 216(a) of the Social Security Act provides that a claimant may receive widow's benefits based upon the earnings record of a fully insured deceased wage earner where she demonstrates that she is the deceased wage earner's surviving spouse. This issue is controlled by the laws of the state in which the wage earner was domiciled when he died. Therefore, Florida law initially controls the issues herein, since the deceased wage earner died while he was domiciled in Florida.

However, Florida courts recognize the validity of common law marriages contracted in another State. Ervin K~, A/N ~~ RA V (Moscow) to ARC-Programs (Washington)SSA V (07/19/83). Indeed, Florida follows the general rule in conflict of law questions, namely, that the laws of the state with the most significant relationship to the matter controls. Manley v. Engram, 755 F.2d 1463 (11th Cir. 1985); Catlett v. Chestnut, 107 Fla. 498, 146 So. 241 (1933). Therefore, the ultimate issues herein are determined under Ohio law.

Common law marriages are disfavored by Ohio courts. However, Ohio courts will recognize a relationship as a common law marriage where three elements are met: (1) the parties agree in praesenti to be husband and wife; (2) the parties cohabit for an extended period of time; and (3) the parties hold themselves out to be husband and wife. Nestor v. Nestor, 15 Ohio St. 3d 143, 472 N.E.2d 1091 (1984). The proponent of a common law marriage must demonstrate each of these elements by clear and convincing evidence. Id. Therefore, whether the claimant and the deceased wage earner's relationship would be recognized as a common law marriage in Ohio depends upon whether the claimant clearly and convincingly demonstrated all three of the required elements. For the reason outlined below, we conclude that the claimant has failed to demonstrate clearly and convincingly that she and the deceased wage earner had an agreement in praesenti to be husband and wife, despite their extended cohabitation and repute.

The claimant and the deceased wage earner began cohabitating at a time when the wage earner was separated from, but legally married to, another woman. 1/ However, the claimant and the deceased wage earner continued to cohabit for eight years after the deceased wage earner obtained a divorce from his first wife. During this eight year period, the claimant and the deceased wage earner introduced each other as husband and wife, they had children together, and they obtained a mortgage loan and purchased a home as husband and wife. Still, the claimant and the deceased wage earner did not undergo a ceremony, intended to get married some time in the future, and understood themselves never to be legally married.

A common law marriage is "the marital joinder of a man and an woman without the benefit of formal papers or procedures." Nestor v. Nestor, 15 Ohio St. 3d 143, 472 N.E.2d 1091, 1094 (1984). While common law marriages have been traditionally recognized in Ohio, such marriages are not favored by Ohio courts. Id. Thus, the claimant herein, as the proponent of a common law marriage, must prove by clear and convincing evidence the existence of each of the following three facts: (1) that she and the deceased wage earner agreed in praesenti to be husband and wife; (2) that she and the deceased wage earner cohabitated for an extended period of time; and (3) that she and the deceased wage earner held themselves out to be husband and wife. Id. We agree that the evidence is sufficient to demonstrate that the claimant and the deceased wage earner satisfied the latter two elements and, thus, we direct our analysis herein to the issue of whether the claimant sufficiently demonstrated that she and the deceased wage earner entered an agreement to marry in praesenti.

In Nestor, the Ohio Supreme Court held that an "agreement to marry in praesenti is the essential element of a common law marriage." 472 N.E.2d 1091, 1094 (1984); see, James D~, A/N ~ RA-V (Gilbert) to (Washington))[ARC-Programs SSA V (4/5/85). Absent proof of such an agreement, no common law marriage will be found despite the fact that the parties may have demonstrated cohabitation and repute. Id.; see, Young v. Secretary of Health and Human Services, (6th Cir. l986)(upholding the Secretary's decision that the claimant was not the surviving spouse of the deceased wage earner where the Secretary correctly found that the claimant failed to prove an agreement to marry the deceased wage earner in praesenti).

The Nestor court noted that an agreement to marry in praesenti can be demonstrated in one of two ways: "either by way of direct evidence which establishes the agreement, or by way of proof of cohabitation, declarations, and the conduct of the parties and their recognized status in the community in which they reside." 472 N.E.2d at 1094 (1984). Still, the claimant will satisfy her burden only where she demonstrates an agreement to marry in praesenti by clear and convincing evidence. The "clear and convincing standard is defined by Ohio courts as: "that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established...It does not mean clear and unequivocal." Markley v. Hudson, 143 Ohio St. 163, 54 N.E.2d 304 (1944); Jolley v. Jolley, 46 Ohio Misc. 40, 347 N.E.2d 557, 560 (1975). It is our opinion that the claimant has not sufficiently demonstrated an agreement to marry the deceased wage earner in praesenti in either of the two ways outlined by the Nestor court.

Significantly, both the claimant and the deceased wage earner admitted that there was no "direct evidence" of an agreement to marry in praesenti. The claimant stated that she and the deceased wage earner-lived together, but that they never discussed marriage, except as a future event. This statement was confirmed by the deceased wage earner, who stated that he expected to marry the claimant some time in the future, but that they "never got around to it" and that he never thought they were married. Moreover, there was no evidence of an explicit agreement between the claimant and the deceased wage earner to be husband and wife. Therefore, there was no "direct evidence" which could clearly and convincingly demonstrate that the claimant and the deceased wage earner entered into a common law marriage.

The Nestor court also held that an agreement to marry in praesenti will be found were such can be clearly and convincingly demonstrated by the conduct of the parties. 472 N.E.2d at 1094 (1984). We have found that this standard has a logical and necessary corollary, namely, that an agreement in praesenti also may be disproven as a result of the parties conduct. See, James D~ , A/N ~, RA V (Gilbert) to (Washington) ARC-Programs SSA V (4/5/85). In the instant case, it is the corollary which controls and proves fatal to claimant's claim that she and the deceased wage earner entered into a common law marriage based upon their conduct.

Here, three facts are particularly telling. First, the claimant did not assert that she and the deceased wage earner entered a common law marriage until twenty-eight years after she and the deceased wage earner terminated their relationship when it became financially beneficial for her to do so. While the claimant maintains that she did not learn that common law marriages were valid until after another relationship ended in 1973, this fact is not persuasive. During the subsequent twelve years (i.e., between 1973 and 1985), the claimant made no attempt to have her relationship with the deceased wage earner declared to be a common law marriage. Similarly, the wage earner made no attempt to have their relationship legally terminated prior to marrying other women.

Second, despite the fact that the claimant and the deceased wage earner had children together, that they introduced each other as husband and wife, that they signed a mortgage agreement as husband and wife, and that they were listed on a deed as husband and wife, the claimant and the deceased wage earner did not treat their relationship as if it were a marriage. 2--/ By their own admissions, the claimant and the deceased wage earner never agreed upon the length of their relationship or how it could be terminated. Indeed, when the deceased wage earner decided that he wanted to terminate his relationship with the claimant, he simply moved to Florida without even informing the claimant. Moreover, while he was in FLorida, the deceased wage earner underwent a ceremonial marriage, presumably without prior notice to the claimant. These facts make it patently obvious that at the very least the deceased wage earner did not want to be married to the claimant.

Finally, after their relationship with each other had terminated each of the parties herein felt free to enter into other relationships. In the case of the deceased wage earner, he entered two ceremonial marriages, one of which ended in divorce and the other which terminated upon the death of his wife. With regard to the claimant, she entered into a common law marriage and she obtained a legal divorce. From these facts two inferences can be drawn: (1) both the claimant and the wage earner understood how to form and terminate a valid marriage well after the termination of their relationship with each other; and (2) that even though they understood how to form and terminate a valid marriage, neither thought it necessary to examine their relationship with each or to determine whether their relationship constituted a valid marriage. While these inferences alone are not pivotal, when considered with the remaining actions of the parties herein, such inferences further demonstrate a complete lack of present intent to be married as well as an implied understanding that the parties herein did not consider themselves to be married at the time of their relationship.

In reaching this determination, we are aware of the opinion presented by the office of the Assistant Regional Commissioner of Programs in Barbara P~ A/N ~~ to GLPSC Washington) SSA V (6/29/82). However, we feel that the facts in this case are easily distinguished from the facts presented there. First, in P~ the parties expressly agreed that they would live together "for good." Second, in P~ there was an abundance of evidence that the parties held themselves out as husband and wife: the parties filed joint income tax returns; they had two insurance policies, one of which listed the claimant as the mother of the deceased wage earner's child from a previous marriage; they had a mortgage loan as husband and wife; they had a checkbook showing them as husband and wife co-owners of a checking account: they had a Sears credit card as husband and wife; and the wage earner stated on a form SSA 754 that he and the claimant were "husband and wife except for certificate." Moreover, in P~ the parties did not enter subsequent marital relationships.

By contrast, in the case at bar the parties felt free to enter subsequent, more legally binding relationships. Also, here, unlike in P~, the parties never agreed upon the length of time they would be together, or how their relationship would be terminated. Indeed, the wage earner thought so little of his relationship with the claimant that he felt he could move to Florida and get married without notice to the claimant. Finally, unlike in P~ , the claimant and the wage earner in the case at bar did not believe they were married at the time they were together, they never discussed marriage--except as a possible future event, and, for at least twenty years after their relationship was terminated they never thought they were actually married. Accordingly, we are of the opinion that the wage earner and the claimant were never legally married to each other.

1/ We have previously advised that a deceased wage earner may not enter into a valid contract before the legal termination of that existing marriage. See, Lester R. B~, A/N ~ to Director, MAMPSC, 1/24/80. Therefore, it is not necessary to address this issue here.

2/ We also note some important contradictions in the statements made by the claimant and the deceased wage earner regarding the paternity of the children. It appears that the claimant had five children: Bruce, Jimmy, Thomas, Donnie and Ted M~ While the claimant only listed Bruce, Jim and Tom as the issue of their relationship, the deceased wage earner's statement listed all five children as issue of their relationship. Curiously, the claimant stated that Bruce, Jimmy and Thomas were born between 1951 and 1954, while the deceased wage earner's statement represented that the children were born between 1959 and 1966 when he was in Florida. Significantly, only the birth certificates of Bruce and Jimmy list the deceased wage earner' as the father. Moreover, the statement filed on behalf of the deceased wage earner must be questioned in light of the fact that it was prepared within thirty days of his death and while he was apparently very ill.

MARRIAGE -- COMMON-LAW MARRIAGE -- OHIO

The principle in Gray v. Richardson, 474 F.2d 1370 (6th Cir.* 1973) that the Secretary is not free to ignore a ruling of a State Court of Competent Jurisdiction in resolving certain issues relative to relationships and inheritance rights where certain criteria are met applies to a decision of the Court rendered after an initial determination of an issue by the Secretary, if the Court decision was submitted within the time limit for reopening the determination by the Secretary, on the basis that the Court decision constitutes "new and material evidence." (D~, James L. , ~ -- RAV(W~ ), to ARC 04/05/85.)

On January 11, 1985, you referred to us a request for a legal opinion from the Director, GLPSC. In this particular case, SSA determined that a valid common law marriage existed between the deceased wage earner (DWE), James L. D~ , and claimant Flora D~. On the basis of that determination, SSA awarded survivor's benefits to claimant and her children, and accordingly reduced similar benefits to a prior claimant, the DWE's ex-wife, Carolyn D~, and their son.

After the time for reconsideration and appeal, and for reopening as of right, had expired, Carolyn D~ submitted a state probate court ruling that there was no valid common law marriage between the DWE and Flora. She asked that SSA rescind the award to Flora and restore full benefits to her and her son.

You raise two issues. First, you ask whether SSA must accept the state court determination under the decision in Gray v. Richardson, adopted as SSR 83-37c (C.B. 1983). The state court decision here meets all of the Gray criteria except that of having been decided prior to the initial determination made by SSA. SSA has recently adopted a policy that Gray v. Richardson should be applied where a state court decision is rendered after SSA's determination becomes administratively final, if the state court decision is submitted within the four year period allowed for reopening. 20 C.F.R. 404.988. SSA has adopted this position on the basis that a state court decision that satisfies Gray, is "new and material evidence." See 20 C.F.R. 404;989. This policy disposes of your first question and your second, which asks whether the state court decision in this case is "new and material evidence" if Gray were to not apply.

We explain below the basis for our opinion and why we agree that the state court ruling meets the other Gray v. Richardson criteria.

Background Facts

After the DWE's death in March XX, 1982, Carolyn D~ and her son, James D~ , were awarded mother's and child's insurance benefits. Later, Flora D~ also applied for benefits, claiming that she was the common law wife of the DWE, and SSA agreed. SSA also awarded benefits to Derell D~ Flora's son whose May, 1982 birth certificate had been signed by the DWE as his father, and to Steven D~, Flora's son by her former husband. Steven's entitlement was as the DWE's stepchild. SSA based its determination about Steven on the determination of a common law marriage and the child's residence with Flora and the DWE; support of Steven by the DWE was deemed on that basis. 1/

Flora dates her "marriage" to the DWE as July, 1980, "after my divorce." Her divorce and that of the DWE are documented, so both were at that time competent to marry. Per POMS GN 00305.245, SSA repeatedly sought statements about 'the marriage from the DWE's relatives, who refused to cooperate. One relative, his sister, is recorded as "upset" when she refused to give a statement about D~.

SSA decided that a common law marriage existed based on documents and corroborating statements. Flora and the DWE signed a July, 1980 rental application and agreement as husband and wife. 2/ A March, 1983 letter to Flora from the DWE's employer refers to the DWE--as her husband, and offers condolences on his death and information about life insurance benefits. A neighbor, Karen A~ gave a statement covering the period from December, 1981 until the DWE's death, which supports that the couple cohabited and held themselves out as husband and wife. A second statement from Flora's sister provides similar support with regard to an unspecified six month period when the couple lived with her in Mobile, Alabama. 3/

The award on Flora's claim was made on August 11, 1983. As a result of the award to Flora and to Steven D~ , the amount of benefits received by Carolyn and James Jr. was reduced, effective April and May, 1983 respectively 4/. 42 U.S.C. 4(13(a). In April and May, 1983, Carolyn and James Jr. had received notice of the impending change and were given an opportunity to file a protest. They did not. On August 25, 1984, they were notified of the initial determination in Flora's favor, and advised of their right to appeal within 60 days. Although Carolyn D~ acted on another matter addressed in the August notice, by requesting a waiver of the overpayment which resulted from the retroactive reduction, she did not timely appeal the determination of a common law marriage.

Over a year later, on October XX, 1984, Carolyn submitted a September 26, 1984 state probate court ruling 5/ that Flora was not the DWE's common law wife. She requested that her benefits and those to James Jr. therefore be increased. The court ruled in a case brought by Flora to declare her an heir of the DWE on the basis that she was his common law wife. 6/ As summarized in the court's findings, the evidence in that case presents' a different picture than that before SSA.

According to the judgment, Flora testified in support of her claim, and we assume she repeated at least the same statements she gave to SSA. The judgment cites one item of evidence from Flora's side, the testimony of Karen A~, the neighbor on whose statement SSA relied. She is quoted, however, only as saying that in late 1982 the DWE told her of his intent to pick out an engagement ring, and that he and Flora would be married. 7/ The judgment, moreover, mentions that there were other witnesses on Flora's behalf who "failed to testify as to the reputation in the community .... [or] lived in the community." The judgment makes no express mention of the rental application and agreement, the condolence letter from the DWE's employer, the birth certificate signed by the DWE or Flora's sister.

Against a common law marriage, the judgment cites documents not available to SSA: a 1981 welfare application by Flora in which she gave her last name as D~ and her marital status as single, and the 1980-1982 tax returns of the DWE in which he gave his status as single or as a head of household but with only one dependent, his son James Jr. 8/ Flora testified that she did not file her own returns in those years but also that she did not sign joint return's with the DWE.

The court determined that Flora had established none of the elements of a common law marriage. Due to the divergence of the court ruling from the evidence before SSA, we contacted the attorney for Flora, Sheldon S~ He advised us that Flora's case included eight witnesses, that Karen A~ gave the same testimony that she gave to SSA and that her testimony about the DWE's plans to marry was merely that the couple planned "to make it formal," and that the court did consider the rental agreement evidence. He also reported that the testimony against Flora's case consisted of two witnesses, one of which was the DWE's father who both gave testimony against a common law marriage and "refused to acknowledge his own grandson" (D~).

With regard to Flora's welfare application, the attorney did not attempt to explain Flora's conduct. He reacted to the tax returns by saying that the DWE was a strange man, adding that he sometimes went to stay with his parents for extended periods. He also reported that an insurance company had paid life insurance proceeds to Flora, which suggests that the DWE designated her as the beneficiary; whether the designation specifically used the term "wife" is not known.

The lawyer also stated that he felt the court's ruling was incorrect and ignored substantial holding out and reputation evidence supporting the common law marriage. He reported that he had strongly recommended to Flora that she appeal the ruling but that she did not, giving an inability to pay legal fees as the reason.

Discussion

In Gray v. Richardson, 474 F.2d 137(1 (6th Cir. 1973) the Court of Appeals for the Sixth Circuit 'held that although the Secretary is not bound by a state trial court decision in a proceeding to which she was not a party, she is not free to ignore it in making Social Security determinations if four requirements are met: 1) an issue involved in a claim for social security benefits has been previously determined by a court of competent jurisdiction; 2) the issue was genuinely contested before the court by parties with opposing interests; 3) the issue falls within the category of domestic relations law; and 4) the state court ruling is consistent with the law as enunciated by the state's highest court. SSR 83-37c; Tony M~, ~ , RA V (Weinstein/Gilbert) to ARC-Programs (Washington) SSA V (12/12/83), and prior opinions cited therein.

Although the trial court decision in this matter was not one "previously determined," SSA has recently as a matter of policy chosen to apply Gray v. Richardson to final SSA determinations if the state court decision is submitted within four years of the initial determination. Director, OPSC (Overs) to Director, Mid-America PSC (Mings), "When the Social Security Administration (SSA) in Bound by a State Court Decision," (9/17/84) (copy attached). SSA based this choice on the principle that a state court decision meets the definition of "new and material evidence." See 20 C.F.R. 404.988(b), 4I)4.989(a)(1). Accord, SSR 67-22 (C.B. 1967) (where SSA rejected claim for child's benefits because presumption of legitimacy had not been rebutted, the child having been born while the mother was married to a man other than the DWE, submission within four years of state court ruling that presumption was rebutted, after SSA's denial was upheld by federal district court, required reopening as new and material evidence because the decree "materially affected the status of the child for social security purposes."); Merle J. D~, , Oswald C~ , ~ OGC (Altman)to Division of Claims Policy, BOASI (6/25/59)

where widow's benefits were terminated because of remarriage, state court annulment ab initio (from the beginning) of remarriage was new and material evidence submitted within four years that permitted reopening).

The decree in this matter is within these precedents, and therefore need not meet the "previously determined" criterion of Gray. 9/ We concur with your view that the decree otherwise meets the requirements of Gray, and thus "would permit entitlement if a new claim were filed." 9/17/85 OPSC memorandum, supra. The issue of whether a common law marriage existed between Flora and the DWE falls within the general category of domestic relations law, it was decided by a state court of competent jurisdiction, and the matter was genuinely contested by parties with opposing interests: Flora, seeking to be declared an heir of the DWE, was plaintiff; James D~ , the DWE's son by Carolyn, was a defendant and was declared the DWE's sole heir.

Finally, the resolution by the state trial court is consistent with the law enunciated by the highest court in the State. We have previously addressed the requirements under Ohio law to establish a common law marriage. 10/ The Ohio Supreme Court recently reaffirmed these principles but also reaffirmed that common law marriages are not favored by public policy. Nestor v. Nestor, 472 N.E.2d 1091 (1984). The elements that must be shown are an agreement of marriage per verba de praesenti, which is a mutual contract to then take each other as man and wife, made by parties competent to marry, followed by cohabitation, a holding out as husband and wife, and a reputation in the community as being husband and wife. Each element must be established by "clear and convincing evidence." Id.; Roland I~ ,~, RA V (Cordek) to Reg. Rep. BSRI, GLPSC (Berman) (1/20/76). The State trial court expressly applied these requirements.

Under Ohio law, "clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal." Cross v. Ledford, 161 Ohio St. 469, 477 (S.Ct. lg59). In our opinion, the trial court's determination that Flora had not shown the elements of a common law marriage by clear and convincing evidence is legally supportable.

The critical element is an agreement de verba de praesenti (in the present) by the parties that they will be henceforth married. This element, however, need not be proven by direct evidence. That is, it may be inferred from the conduct and statements of the parties, including their cohabitation and holding out. Nestor v. Nestor, supra, 472 N.E.2d at 1094.

SSA's initial determination was not inconsistent with Ohio law. Flora alleged the couple's agreement to marry, by virtue of their respective divorces the two were competent to marry, and the rental agreement, employer's condolence letter, and the statements of the neighbor and the sister establish both that the couple cohabited and held themselves out and had a reputation as husband and wife. The July 1980 rental application and agreement are probative as well of an agreement to marry since the couple appears to have signed them as husband and wife contemporaneously with the alleged agreement to marry and live together as husband and wife.

However, the principle that an agreement to marry may be inferred from the conduct of the parties has an obvious corollary: the element may also fail to be satisfactorily proved because of other conduct by the parties. If conduct inconsistent with the proposition that the couple considered themselves to be married is sufficient to prevent the trier of fact from having a "firm belief or conviction" that there was an agreement to marry, or that another element such as holding out is met, then a common law marriage is not established. We think the trial court could reasonably conclude that it lacked a firm belief or conviction that Flora and the DWE had entered into a common law marriage.

The welfare application and tax returns cited by the court are consistent with the inference that the parties did not consider themselves married, and, thus, that there had been no agreement to marry. This evidence also weighs against the conclusion that they were cohabiting or that they held themselves out and had a reputation as married. The parties held themselves out in these documents as single; in addition, the tax returns are inconsistent with cohabitation, since the DWE failed to claim as a dependent not only Flora, but her son Steven and their son Derell, who were supposedly living with him, while claiming James Jr., who was not. As a general matter, it would likely have been to the DWE's financial advantage to list additional dependents.

The court also emphasized the testimony that the DWE in late 1982 discussed plans to buy an engagement ring and marry Flora. This evidence of a future intent to marry is inconsistent with a past agreement to marry in praesenti in 1980. Although there might have been testimony explaining this as simply a plan to make the marriage formal, 11/ the trial court might well have found the DWE's contemporaneous conduct of filing his 1982 tax return as single or without listing Flora as a more reliable guide to whether the DWE's plan was to reaffirm a past agreement or to marry Nora for the first time. 12_/ The conclusion that the plan represented a future intent to marry is also supported by Flora's 1981 welfare application and the DWE's earlier tax returns.

Under Nestor v. Nestor, .supra, the inference from conduct in which a couple acts as married to the existence of prior agreement to marry in praesenti is stronger if the length of time the couple were together is substantial. Id. In Nestor, the Court found a common law marriage with regard to a couple who lived and acted as married, even if not always consistently, for twelve and one-half years. There was an unchallenged finding of direct evidence to prove an agreement in praesenti. In such cases, the Court held, the direct evidence of an agreement in praesenti itself lends greater weight to the evidence of cohabitation and reputation to support the overall inference of marriage.

The Nestor Court found a common law marriage by clear and convincing evidence despite evidence that both parties had prepared documents in which each's marital status had been listed as single. 472 N.E.2d at log7 (dissenting opinion). We believe that the Court reached the conclusion because the weight of the evidence of holding out and other elements was reinforced by the directly proved agreement to marry. The Court's ruling, moreover, is also consistent with the principle that once a common law marriage has been established by an agreement and conduct, it cannot be terminated by later conduct inconsistent with a marriage, but only by formal divorce. See Dibble v. Dibble, 100 N.E.2d 457, 461 (Ct. App. 1950); Jolley v. Jolley, 46 Ohio Misc. 2d 40, 347 N.E.2d 557, 560 (Ct. Corn. Pl. 1975). 13_/

Flora and the DWE were together at most a bit over two and one-half years. The inference from the evidence that supports cohabitation and holding out to an agreement in 198fl to take each other as man and wife is of minimal strength. Flora's direct proof of the 1980 agreement consists solely of her self-serving statements, which are insufficient as clear and convincing evidence. There is not, as in other cases, direct proof of the agreement in praesenti, such as by testimony of witnesses who observed the couple announce their "marriage" and display a "wedding ring." E.g. In re Estate of Soeder, 7 Ohio App.2d 271, 220 N.E.2d 54, 555-557 (1966). See Etter v. Von Aschen, 163 N.E.2d 197, 199 (Prob. Ct. 1959).

Thus, under Nestor, the case for a common law marriage is limited at best, since there is no direct evidence of an agreement in praesenti, and the couple's life together was brief. The trial court's conclusion that the welfare application and tax returns precluded finding a common law marriage by clear and convincing evidence is consistent with other cases decided under Ohio law.

In Estate of Soeder, supra, there was an undisturbed finding of an agreement in praesenti, and evidence of cohabitation, holding out and reputation. 220 N.E.2d at 554-556, 556, 563, 574, 576-578, 581. But the court ruled that the evidence did not establish a common law marriage. It reached this conclusion on a record which established that the "husband" was recorded as stating that he was single in hospital records and on his tax returns, id. at 551, and after it ruled that the trial court improperly excluded two items of evidence: during their time together, the woman listed her status as single to a priest for a church registration form, and the deceased man had told his priest that he had been single all his life. Id. at 567, 572, 574.

In Jolley v. Jolley, supra, the court concluded that there was no common law marriage because there was no evidence to support an agreement in praesenti. Among the evidence cited in the opinion is the fact that the man, who denied the marriage in this divorce proceeding, had often filed separate tax returns listing his status as single.

Messenger v. Finch, CA 69-23 (N.D. Ohio, December 17, 1969), where the federal district court upheld the Secretary's determination of no common law marriage, is similar. The "wife" had used her maiden name and represented herself as unmarried in her personal affairs, including those that involved the DWE. He listed her on a beneficiary form as "friend," and treated her inconsistently on his tax returns, one year filing as unmarried, listing no dependents, another year listing her as a dependent by her maiden name but not as his wife, and still another year listing her as his wife. This evidence was sufficient to support the Secretary's finding, despite the couple's decade together which produced documents (bills, letters) showing them as holding out and regarded as husband and wife, along with supporting testimony from friends and relatives. The evidence of an agreement in praesenti was described as inconsistent in details.

We have found no authority which would lead us to question the weight the trial court gave to the welfare application and tax returns in the D~ case. The wife in Estate of McLaughlin, supra, had filed tax returns in her maiden name. But the court nonetheless found the evidence of cohabitation and holding out over twelve years sufficient, although not undisputed, and it emphasized the wife's credibility and reputation as a deciding factor.

In Spirous v. Gardner, Civ. No. 67-244 (N.D. Ohio, JulyS19, 1968), another federal district court reversed the Secretary's determination that there was no common law marriage. The "husband" had once applied for welfare and listed himself as single. The court dismissed the significance of this evidence:

To relate back this single instance as substantial evidence of an intention not to marry in prasenti... years before, flies in the face of human experience, the conduct of the parties over a period of years and the applicable law .... [S]ome persons, especially laymen, who have entered into valid common law marriages will have doubts as to how the relationship may be regarded by government tribunals and officials ....

Such persons may regard themselves as married in fact, but nonetheless may be quite fearful of so stating on official government forms in the event they have misunderstood the law.

Spirous v. Gardner (Civ. No. 67-244), Court Opinion p. 9-10.

The court also dismissed the significance of evidence that the wife had used her maiden name to apply for welfare, to register to vote and to apply for a social security number. It emphasized that she had not stated that she was single, and her conduct was explained in part by her uncertainty about whether the common law marriage became valid only after a period of time, and by the difficulty she found in having government officers let her use her married name. This couple, moreover, had lived together for seventeen years, and the record contained much evidence of cohabitation and holding out.

We followed Spirous v. Gardner in Frank D~ (Epstein) to Director, Mid Atlantic PSC, BSRI (Sabatini) (8/6/79). There the couple had treated themselves as married on tax returns, insurance papers and similar documents, and there. was evidence to support all elements. The one discrepancy was the wife's statement on an SSA claim form while the husband was alive that she was not married. As with the wife in Spirous, she had the mistaken notion that a certain period of time had to pass before the marriage became valid. We concluded that there was a common-law marriage because awareness of whether the marriage is valid is not a required element, and because the one single denial did not, in light of the explanation and the Spirous court's view of statements on government forms, have much significance, and therefore could not disprove the original agreement in praesenti of several years before.

Both of these cases are unlike the situation in the present matter in which the statements of single status are more substantial and the evidence for a common law marriage far less weighty. The 1981 welfare application, 1980-1982 tax returns, and the 1982 plan to marry present more than isolated conduct. They cover the entire period of "marriage." There is no suggestion of a mistaken impression on Flora's part or that of the DWE to explain away their behavior.

A mistaken impression might not in any event explain the DWE's failure to claim exemptions for dependents to which he was entitled if he in fact supported Flora, Steven or Derell. Moreover, the trial court in this matter stated that there was no testimony as to reputation in the community and that none of Flora's witnesses were from the community. By itself, the lack of reputation testimony precludes finding a common law marriage. Although it is not required that the community be universally aware of the couple's marital status, or that the couple must hold themselves out to all with whom they normally come into contact, there must be a showing of both reputation and holding out with regard to some of those with whom the couple normally comes into contact. Nestor v. Nestor, supra, 472 N.E.2d at 1095.

The court's finding on reputation might seem doubtful given the representation by Flora's attorney that he presented eight witnesses and' that Karen A~ testified consistent with her statements to SSA. Absent a transcript of the proceeding, however, the court's finding must be accepted. Even were a transcript to show reputation testimony, or to suggest that the testimony and evidence before the court of a common law marriage was arguably sufficient, the trial court decision must still be followed. The court might not have found these witnesses credible, and judgments based on credibility and witness demeanor will rarely be disturbed by a reviewing court. Shear v. West American Ins. Co., 11 Ohio St.3d t62, 464 N.E.2d 545 (1984); C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279 (1978).

A higher court would not overturn the trial court's ruling with regard to either the credibility of the witnesses or the controlling weight it gave to the welfare application, tax returns and the DWE's plan to ceremonially marry Flora unless it was against the manifest weight of the evidence. Id.; Jones v. VIP Development Co., 15 Ohio St.3d 9(1, 472 N.E.2d 1046 (1984). For the reasons given in our discussion above, a higher court would not overturn the trial court on this basis. Therefore, the Gray criteria that the ruling be consistent with the law enunciated by the State's highest court is met.

The trial court also held that James D~ , was son and sole next of kin of the DWE. This ruling implies that Derell D~ is not the son and intestate heir of the DWE. SSA awarded Derell benefits on the basis that he was the DWE's legitimate son. The court's finding that there was no common law marriage makes Derell illegitimate. In our opinion, however, the trial court ruling does not affect the benefits to Derell. 14/

The ruling does not satisfy Gray v. Richardson with regard to the paternity and intestate heir status of Derell and the DWE for two reasons. First, it does not appear from the court ruling that the issue of whether Derell is the DWE's son and intestate heir was before the court to be decided. All of the evidence and law discussed is confined to the existence of a common law marriage. Flora is the sole plaintiff listed. Had the proceeding also included a claim that Derell was the DWE's heir, Derell too would more than likely be a named plaintiff. Thus, it does not appear that an issue in a claim for social security benefits -- here, paternity -- has been determined by a state court.

Second, the implied ruling that Derell is not the DWE's son and heir is not consistent with Ohio law. The DWE signed Derell's birth certificate. Derell is therefore presumed to be the DWE's son. POMS GN 00306.135; Tony M~ , , RA V (Gilbert) to ARC Programs V (Washington) (12/12/83); RA V (Gilbert) to ARC Programs V (Washington), "Ohio Entry in...POMS GN 00306.135 .... " (11/8/83). Under Ohio law, the effect of the presumption is to make Derell the legitimate son and intestate heir of the DWE. The presumption invoked by the birth certificate can be rebutted only by clear and convincing evidence. Id.

The appellate courts of Ohio would give reasonable effect to the provisions of Ohio law that confer legitimacy. Unlike common law marriages, the law favors the legitimacy of children. The only relevant evidence discussed by the court is the 1982 tax return, which does not claim Derell as a dependent. This single item is insufficient to rebut the presumption by clear and convincing evidence. It might simply mean that Derell was not a dependent, or that the DWE did not want to risk welfare benefits that Flora was receiving for Derell.

Finally, even were the court ruling to mean that Derell is not the DWE's intestate heir for purposes of 42 U.S.C. 416(h)(2)(A), Derell is still entitled to benefits under the alternative federal tests of 42 U.S.C. 416(h)(3)(C). By signing the birth certificate, the DWE acknowledged Derell as his son in writing before his death. POMS GN 00306.175.

1/ We could find no evidence in the file apart from Flora's claims that Steven lived with the DWE. A July, 1980 rental application indicates no children living with the couple at that time.

2/ That is, the forms call for signatures b either "husband and wife" or "co-tenants." They were signed "James and "Flora D~." SSA also cited a similarly signed December, 1981 rental agreement. However, the file contains no such document. A statement from the landlord indicates that this lease was destroyed to convert to a month to month tenancy, and that the tenants were simply "James and Flora D~."

3_/ The sister's statement is ambiguous as to whether it gives support for a--longer period. In it, she says she knew the DWE for two years and that the couple lived together from December, 1981 until the DWE's death.

4/ A resulting overpayment was waived.

5/ The ruling adopted a .May 1984 report of a court 'referee. Although the findings and analysis discussed appear only in the referee's report, we refer to them as if in the court judgment.

6/ Whether the court was also ruling on whether Derell D~ was the DWE's--heir is not self-evident from the documents. The court judgment states, however, that ,lames Jr. is the son and "sole next of kin" of the DWE. We discuss the possible significance of this question later.

7/ Flora also told SSA that the couple planned to have a ceremonial marriage.

8/ According to both Flora's and Carolyn's applications in the file, it appears that during these years James Jr. lived with Carolyn and never with the DWE.

9/ Moreover, in our opinion the new evidence represented by the decree -- the 1981 welfare application and the 1980-1982 tax returns -- are themselves "material" and would justify reopening.

10/ See RA VIII (Bartman) to ARC Programs, SSA-V "Common Law Marriage - Removal of Impediment - (Ohio" (12/26/84); Frank D~ , ~ RA V (Epstein) to Director, Mid-Atlantic Program Service Center (8/6/79). Both opinions cite Ohio case law and prior RA V opinions.

11/ Flora herself mentioned this plan to SSA.

12/ By itself, the 1980 tax return would not weigh against the common law marriage since federal tax laws permit filing the return for the year in which marriage occurs as if the single status continued for entire tax year. Here, however, it appears as part of pattern of conduct.

13/ The Nestor Court also found no problem in the wife's use of her maiden name for business purposes during the marriage. 472 N.E.2d at 1096. Accord, Sirbello v. McDonald, Case No. 25946 (Ct. App.) cited in In re Estate of Soeder, 7 Ohio App.2d 271, 220 N.E.2d 547, 580 (1966) (dissenting opinion); In re McLaughlin's Estate, 197 N.E.2d 578 (Prob. Ct. 1963), cited as affirmed by Court of Appeals in Estate of Soeder, supra, 220 N.E.2d at 581.

14/ The award of benefits to Derell has not been challenged. Carolyn submitted the state court ruling solely to challenge Flora's entitlement on the basis of a common law marriage. There has been no request to reopen SSA's determination with regard to Derell.

MARRIAGE -- COMMON-LAW MARRIAGE -- OHIO

In order to contract a common-law marriage in Ohio the essential elements namely, an agreement to marry by competent individuals, cohabitation and being treated in the community as husband and wife, must be shown by clear and convincing evidence. Statements by the claimant's mother and baby-sitter are not sufficient to constitute "clear and convincing" evidence of an implied agreement to marry and/or whether or not the parties were reputed to be married in the community. While a prior ceremonial marriage encumbered by the impediment of a prior undissolved marriage and in which no good faith belief in its validity can be established does suggest an agreement between the parties, more evidence is needed to satisfy the requirement of "clear and convincing" evidence. (Common-Law Marriage -- Removal of Impediment -- RAVII (Bartman), to ARC, 12/26/84.)

This is in response to your request for an opinion on whether a valid common law marriage exists between Thelma J. G~ , the claimant, and her alleged husband, Bernard F. G~ , the wage earner. The pertinent facts are as follows.

The claimant married Jerry Otis M~ on August XX, 1951. A decree of divorce terminating this marriage was entered on December 24, 1969. The claimant received benefits on the account of Mr. M~ through March, 1970. 1/ According to your letter, on October 4, 1968, she signed a Statement of Claimant or Other Person, saying that she was still married to Mr. M~. The file contains a Reporting Card, signed by the claimant on May 14, 1970, on which she stated that her "new name" was Thelma J. G~, and .that she had been married on May XX, 1970, in Jellico, Tennessee.

Ms. G~ filed for Wife's Insurance Benefits on June XX, 1973, as the wife of Bernard F. G~. The file contains a Certificate of Marriage for the G~, which shows that they underwent a ceremonial marriage in Jellico, Tennessee, on June XX, 1968. In a Statement of Marital Relationship, dated December XX, 1983, the claimant stated that she filed for divorce in 1968, and that "I couldn't pay for divorce so Jerry did I did not find out until today that it was filed 12/69."

Your letter further provides that Mr. G~ does not appear to have had a "good faith" belief that the claimant had been divorced when they married in June, 1968, because she was receiving checks and letters from the Social Security Administration as Mr. M~ wife through March, 1970, and because a field representative visited their home on November 4, 1968, to explain when retroactive checks would be paid on Mr. ~ account.

The Social Security Act (Act) provides:

(h) (1) (A) An applicant is the wife . . . 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 ... If such courts would not find that such applicant and such insured individual were validly married at such time, such applicant shall, nevertheless be deemed to be the wife, husband, widow, or widower, as the case may be, of such insured individual if such applicant would, under the laws applied by such courts in determining the devolution of intestate personal property, have the same status with respect to the taking of such property as a wife, husband, widow, or widower of such insured individual.

(B) In any case where under subparagraph (A) an applicant is not (and is not deemed to be) the wife, of a fully currently insured individual, but it is established to the satisfaction of the Secretary that such applicant in good faith went through a marriage ceremony with such individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage, and such applicant and the insured individual were living in the same household at the time of the death of such insured individual or (if such insured individual is living) at the time such applicant files the application, then, for purposes of subparagraph (A) and subsections (b), (c), (f), and (g), such purported marriage shall be deemed to be a valid marriage. The provisions of the preceding sentence shall not apply . . . if the Secretary determines, on the basis of information brought to [her] attention, that such applicant entered into such purported marriage with such insured individual with knowledge that it would not be a valid marriage.

42 U.S.C.A. § 416 (h)(1)(A) and (B).

We agree with your conclusion that neither party in "good faith" went through their marriage ceremony on June XX, 1968, based on the facts you have documented. Thus, in order to make a determination as to Ms. G~ entitlement to Wife's Insurance Benefits under Title II of the Act, we must look to the law of Ohio (where the claimant was domiciled at the time of her application), to determine if the claimant and the wage earner were validly married on the date of her application (June 15, 1973). Id. If she would be found not validly married to the wage earner on that date, under Ohio law, she is nonetheless entitled to benefits if she would be deemed to have the status of the wage earner's wife for purposes of the devolution of intestate personal property.

Common law marriage is recognized in Ohio. Memorandum, Common Law Marriage ... , RA V (Munson), to RA IV, Jan. 30, 1978, citing, In re Estate of Partlow, 105 Ohio Ap. 189, 146 N.E. 2d 147 (1957). Also, devolution of intestate personal property in Ohio, "apparently turns on a determination of family status." Memorandum, Jan. 30, 1978, supra. Thus, under both alternatives set out in § 216(h) (1) (A) of the Act, supra, the question is whether or not the claimant and the wage earner had a valid common law marriage at the time of her applications under Ohio law. Id.

In a previous opinion, the Office of General Counsel (OGC) has stated that, in Ohio, a common law marriage can only be entered into when the parties are competent to contract marriage, "i.e., where no impediment to such marriage [such as a prior marriage] exists." Memorandum, SS - Common Law Marriage in Ohio . . ú , RA V (Cordek), to W.P.C./SSA, Jan. 30, 1976. The claimant's impediment to marry, in the instant case, was removed on December 24, 1969, when she was divorced from her previous husband. 2/

In Ohio, there are certain essential elements that are needed to establish a valid common law marriage:

'[a]n agreement of marriage in praesenti [at the present time], when made by parties competent to contract, accompanied and followed by cohabitation as husband and wife, they being so treated and reputed in the community and circle in which they move ....

Memorandum, Jan. 30, 1978, supra; citing, Gatterdam v. Garterdam, 85 N.E.2d 526, 529 (Ohio App. 1949). All of the elements of a common law marriage must be established by clear and convincing evidence. Memorandum, Jan. 30, 1976, supra. Clear and convincing evidence is evidence "such as to establish a firm belief or conviction as to the facts sought to be established." Id.

The file contains evidence that the claimant and the wage earner were cohabiting on the date she applied for benefits. It also contains a statement from the claimant's mother to the effect that they may have been reputed, in the community and circle in which they moved, as being married. Id. However, there does not appear to be clear and convincing evidence in the file as to whether, on or after the impediment to their marriage was removed (December XX, 1969), they made an agreement of marriage in praesenti. Id.

Although an agreement in praesenti need not be express, and may be inferred, there must be evidence of:

such circumstances as the couple introducing each other as "husband" or "wife," telling friends, neighbors, and relatives that they had recently been married, and tending to each other during periods of illness.

Id., referring to, Markley v. Hudson, 143 Ohio St. 163, 54 N.E.2d 304, 306 (1944). In a precedent opinion finding such circumstances: the couple had lived together for twenty-five years; they had had a child and raised him until adulthood; there was evidence of neighbors and relatives knowing them as husband and wife; and there was evidence that the mortgage on their home, and insurance policies were entered into as man and wife. Memorandum, Jan. 30, 1978, supra.

In the instant case, the evidence does not appear to be as definitive as in that case; rather, it is somewhat conflicting. The claimant signed a statement on October 4, 1968, saying that she was still married to Mr. M~ , when she had in fact been ceremonially married to Mr. G~ on June 9, 1968. She also signed a statement saying she had married Mr. G~ on May 3, 1970. She accepted checks as the wife of Mr. M~ through March, 1970. There are no statements of neighbors, friends, or persons in their community, to the effect that they have been considered to be married, except from the claimant's mother and a babysitter, both of which could be considered self-serving. A mortgage deed under the names of the claimant and the wage earner is undated. A joint life insurance policy was taken out on July 21, 1969, prior to the removal of the impediment, and prior to a statement by claimant that she was still married to Mr. M~ However, there does appear to be evidence that they have, indeed, lived together continuously since 1968, and that they have jointly cared for their children. Also, the fact that they underwent a ceremonial marriage shows that at least at one point in time, they desired to be married.

Therefore, we suggest that you may wish to gather additional evidence (such as the date of the mortgage, or statements from neighbors, friends, pastors, etc.), in order to establish whether there is clear and convincing proof of a valid common law agreement of marriage in praesenti and to accordingly, make a decision based upon such evidence.

1/Because the claimant was only entitled to benefits through November, 1969, the overpayment was recovered from benefits due to her children.

2/There is no evidence in the file, or in your letter, that the claimant ceremonially remarried the wage earner, Mr. G~, her alleged present husband, after December XX, 1969.

MARRIAGE -- COMMON-LAW MARRIAGE -- OHIO

Where the claimant for divorced's mother's benefits entered into a ceremonial marriage with the knowledge of both parties that she was previously married and later obtains a divorce terminating that previous marriage, a subsequent divorce from the wage earner constitutes clear and convincing evidence of an agreement to live together as husband and wife thus fulfilling one of the requirements for the existence of a common-law marriage in Ohio. (A~, Dorman D., ~ -- RAV (Zell), to RC, 07/19/84.)

This opinion is in response to your inquiry concerning the September 6, 1974 divorce between the claimant, Marie A~ , and the wage earner, Dorman A~ ). You questioned whether this divorce constitutes affirmative evidence of a new agreement of present intent between the parties to get married after the removal of the impediment, the claimant's prior marriage.

Dorman A~ and Marie F~ were married on November XX, 1966. The marriage took place in Newport, Kentucky and not Cincinnati, Ohio. We are enclosing a copy of the marriage license. At the time of this marriage Marie was still married to J. Edward S~. Furthermore, the file indicates that both Marie and Dorman knew of Marie's pre-existing marriage. In February 1972, Marie divorced J. Edward S~. She and Dorman continued to live together, but did not remarry. Finally, on September 6, 1974, Marie divorced Dorman in Cincinnati, Ohio. A copy of the divorce decree is enclosed.

Marie D~ has applied for surviving divorced mother's social security benefits. In order to qualify for such benefits on the wage record of Dorman A~, Marie A~ must have had a valid marriage to Dorman A~ . For the reasons below, we find that Marie A~ did have a valid common-law marriage after removal of the impediment of her previous marriage.

A ceremonial marriage is invalid if at the time one of the parties has an existing marriage. Ryan v. Ryan, 84 Ohio App. 139, 86 N.E. 2d 44 (1948).. Where the parties had knowledge of the impediment (the pre-existing marriage), removal of that impediment will not itself cause a valid marriage to arise under Ohio law. Joseph R. P~ , A/N ~ , RA V (Collins) to GC (OASI Div.), 9/25/5F). For a valid marriage to arise, there must be an express new contract to be husband and wife after removal of the impediment between parties competent to marry. Id.; Dirion v. Brewer, 20 Ohio App. 151 N.E. 818, 818-19 (1925); Jonson v. Wolford, ll7 Ohio St. 136, 157 N.E..385, 386 (1927). In Ohio, this new marital contract may be by ceremonial or common-law marriage. Jolley v. Jolley, 46 Ohio Misc. 40, 347 N.E. 2d 557, 559-60 (1975).

Marie F~'s marriage to Dorman A~ on November XX, 1966 was invalid because of Marie's pre-existing marriage to J. Edward S~. Since Marie and Doman knew of this impediment, their relationship did not ripen into a valid marriage upon Marie's divorce from Further, as Marie and Dorman did not have a second marriage ceremony performed, the only way by which they could ever have been validly married is if they had entered into a common-law marriage after Marie's divorce.

'There is some uncertainty whether the only requirement for a common-law marriage in Ohio is an agreement to marry in the present between parties competent to contract or whether the additional conditions of proof of cohabitation and holding out publicly as husband and wife are also necessary. Gatterdam v. Gatterdam, 86 Ohio App. 29, 85 N.E. 2d 526, 527 (1949), app. dism. 86 N.E. 2d 614 (1949). The weight of authority seems to support the rule that all three conditions must occur. See `Jolly v. Jolly supra; Joseph R. P~, A/N.~ , RA V Collins) to GC (OASI Div.), 9/25/58; Fletcher W. H~ , A/N ~, RA V (Urbin) to MATPSC, 10/9/80. However, it has been persuasively argued that the circumstances of publicity in entering into a marital agreement and of cohabitation thereafter as husband and wife are important mainly as evidence of the intent with which the words forming the' agreement to marry in the present were used. See Gatterdam v. Garterdam, supra at 85 N.E. 2d 529 (1949). The person claiming the existence of a common-law marriage has the burden to prove each element by clear and convincing evidence.*/ In re Redman's Estate, 135 Ohio 554, 21 N.E. 2d 659 (1939); Jolley v. Jolley, supra.

The case file contains statements that Dorman and Marie A~ did cohabit after removal of the impediment and hold themselves out publicly as husband and wife. Assuming that you find these statements to be true, the only requirement of a common-law marriage between the parties whose fulfillment remains to be proved is an agreement to marry in the present after removal of the impediment.

The agreement to marry in the present may be implied from the conduct of thee parties or established by circumstantial evidence showing their conduct and status in the community. Dibble v. Dibble, 88 Ohio App. 490, 100 N.E. 2d 451, 459 (1950); Garterdam v. Gatterdam, supra. See Fletcher W. Harris, supra. We have previously discussed the implications of a party's divorce after removal of the impediment. See Joseph R. Pro, A/N ~ , RA V (Collins) to GC (OASI Div.), 9/25/58. In Joseph R. Pickett it was held that proof of a divorce proceeding initiated by a party after removal of the impediment is "convincing evidence" tending to show a change in the relationship of the parties from a meretricious or illicit relation to a valid marriage premised upon words of agreement to marry. Id. The obtaining of a divorce would seem to indicate the party's belief in the existence of a marriage agreement between him or herself and another party. Id. There is, of course, another possible reason for obtaining a divorce other than one's belief in the existence of a marriage. That is the public's belief, though it may be erroneous, that a party is married. Thus, it has been suggested "that one should obtain a formal divorce from one with whom you (sic) have been cohabiting for a number of years because of the possibility of the existence of a common law marriage which might have been created by such a relationship." (Emphasis added) Mackey A. R~ , A/N ~ , Reg. Hearing Rep.--Reg. IV' (Ague) to Reg. Hearing Rep.--Reg. V (Goldstein), 5/5/64. In other words, one could know that the conditions of a common-law marriage have not been met yet still obtain a divorce out of a fear that officials will incorrectly deem one to have been married.

Proof of the existence of a present agreement to marry between Marie and Dorman A~ should be based on the totality of the circumstances surrounding their relationship, conduct, and status in the community. Based on the evidence you submitted, we conclude that the Angel's divorce constitutes clear and convincing evidence of a present agreement to marry and, hence, of a common-law marriage. Since clear and convincing evidence need not be conclusive, the remote possibility may be discounted that Marie Angel instituted the divorce merely as a precautionary measure in case someone later claimed that she had a common-law marriage with Doman. The most likely reason for choosing a "precautionary divorce" over a simple separation would seem to be a desire to remarry. Such a motivation, however, does not seem to exist in Marie A~ 's case.

*/ Clear and convincing evidence is defined as "that degree of' proof, though not necessarily conclusive, which will produce in the mind of the court a firm belief or conviction, or that degree of evidence which is more than a preponderance but less than beyond a reasonable doubt." Jolley v. Jolley, supra at 347 N.E. 2d 560.