QUESTION PRESENTED
The Social Security Administration (agency) awarded surviving child’s insurance benefits
to B~ (as a natural child) and H~ (as a stepchild) on the deceased number holder R’s
(NH’s) record. The agency also awarded B2~ mother’s insurance benefits based on having
the NH’s child in her care and the lump sum death payment (LSDP) on the NH’s record
as his widow based on a Texas common-law marriage. You asked whether evidence the
agency received after awarding these benefits, specifically a November 2015 Texas
Rule 11 and Family Settlement Agreement (Family Settlement Agreement) in which B2~
waived all claims of her status as the NH’s common-law spouse, a November 2015 state
court Judgment Declaring Heirship stating that P~ is the NH’s sole heir, and a deoxyribonucleic
acid (DNA) test showing greater than 99 percent probability that another man is B~’s
biological father, provides a basis for the agency to reopen and revise the agency’s
determinations awarding benefits to B~, H~, and B2~ and to deny and terminate their
benefits
ANSWER
We believe that this evidence does not provide good cause as new and material evidence
for the agency to reopen and revise the agency’s determinations. As to the agency’s
award of the LSDP and mother’s benefits to B2~ as the NH’s widow under the Social
Security Act (Act), neither the Family Settlement Agreement nor the Judgment Declaring
Heirship overcome the preferred evidence of witness statements, or the other evidence,
including a joint tax return, death certificate, and obituary, upon which the agency
relied in determining the NH and B2~ entered into a valid common-law marriage under
Texas law. Likewise neither the Family Settlement Agreement nor the Judgment Declaring
Heirship bind the agency because they were entered in 2015 after the agency’s 2014
award of benefits, adverse parties do not appear to have actually challenged them,
and we cannot determine what evidence the court relied upon in issuing them. Thus,
we believe that even considering this subsequent evidence, the agency’s prior determination
awarding the LSDP and mother’s benefits to B2~ was correct.
Further, as to the agency’s award of child’s benefits to B~ as the NH’s natural child
based on her inheritance rights as the NH’s presumed child born during the marriage
of the NH and B2~ under Texas law, the DNA test results do not establish a proper
chain of custody and are unreliable and inadmissible to determine paternity under
Texas law. There is also no DNA test that excludes the NH as B~s father. Further,
for the reasons noted above, the agency is not bound by the Family Settlement Agreement
or the Judgment Declaring Heirship. Finally, the agency’s award of child’s benefits
to H~ as the NH’s stepchild remains proper given B2~’s valid common-law marriage to
the NH. Thus, we believe that even in light of this subsequent evidence, the agency’s
prior determinations awarding child’s benefits to B~ and H~ were correct.
In summary, we believe that the new evidence does not provide a sufficient basis for
the agency to reopen and revise the prior agency determinations awarding surviving
child’s benefits to B~ and H~ and mother’s benefits and the LSDP to B2~ on the NH’s
record. We recommend that the agency not reopen and revise these determinations to
terminate benefits based upon this newly provided evidence.
BACKGROUND
A. B~’s and H~’s Applications for Surviving Child’s Benefits as the NH’s
Children
On December XX, 2013, the NH died while domiciled in Texas. On January XX, 2014, B2~
filed an application on the NH’s earnings record for surviving child’s benefits on
B~’s behalf as the NH’s child. She stated that B~ was born on April XX, 2003, during
the common-law marriage between she and the NH, and that B~ was the NH’s natural,
legitimate child.
B2~ also filed an application for surviving child’s benefits on H~’s behalf as the
NH’s dependent stepchild. H~ was born to B2~ on March XX, 2001, before B2~’s common-law
marriage to the NH.[50]
B. B2~'s Application for Mother’s Benefits and the LSDP as the NH’s Widow
On January XX, 2014, B2~ filed an application on the NH’s earning record for mother’s
benefits and the LSDP as the NH’s widow. B2~ stated she and the NH entered into a
common-law marriage on November XX, 2002, in Texas.
C. Evidence Provided to the Agency with the Applications for Benefits
As proof of her marital relationship with the NH, B2~ submitted the following as the
agency’s preferred evidence of a common-law marriage:
B2~ completed an SSA-754-F4 form. She stated she and the NH began living together
as husband and wife in Texas on November XX, 2002. She stated they separated from
December 2006 to May 2007, but then reunited and lived together in A~, Texas, until
the NH’s death on December XX, 2013.[51] B2~ stated she and the NH called each other husband and wife and agreed to live together
until one of them would die. She stated she believed they were legally married because
they lived as husband and wife, filed income tax returns as married, and presented
to others as married. B2~ stated she and the NH were going to formalize the marriage
with a ceremony on May XX, 2014, but the NH died before they could. She stated one
child, B~, was born during the marriage.
D~, B2~’s mother, completed an SSA-753 form. She stated she heard B2~ and the NH introduce
themselves as husband and wife and heard them refer to each other as husband and wife.
She stated the couple maintained a home in A~, Texas, from 2002 to 2013, but were
separated from December 2006 to May 2007.
R2~, B2~’s sister, completed an SSA-753 form. She stated B2~ and the NH lived together
as husband and wife, filed taxes jointly, and introduced themselves as husband and
wife. She stated she heard them refer to each other as husband and wife.
B3~, the NH’s father, completed an SSA-753 form. He stated the NH and B2~ were generally
known as husband and wife, and he considered them husband and wife. B3~ stated the
NH and B2~ had a common abode and raised children together. He stated he heard them
refer to each other as husband and wife.
D2~, the NH’s mother, completed an SSA-753 form. She stated the NH and B2~ were generally
known as husband and wife, and she considered them husband and wife. D2~ stated the
NH and B2~ had children, lived together, and maintained a home together. She stated
she heard them refer to each other as husband and wife.
See 20 C.F.R. § 404.726; Program Operations Manual System (POMS) GN 00305.065.B.3.
It is our understanding that B2~ submitted to the agency the following additional
documentation in support of the applications (not all of this evidence was provided
to us with this legal opinion request):
Internal Revenue Service (IRS) forms
A 2002 IRS form 1040A Income Tax Return stamped “COPY ONLY DO NOT FILE.” The IRS form
1040A is from the first year of B2~ and the NH’s purported marriage and shows a filing
status of married filing jointly for B2~ and the NH. The tax form was prepared by
H & R Block, and includes an authorization to efile under B2~’s and the NH’s pin numbers.
The NH had $38,287 in income and had $5,008 in taxes withheld. However, the supporting
IRS form W-2 from Core-Mark showed the withholding was based upon a filing status
of single with no dependents.
A copy of a 2013 IRS form 1040A Income Tax Return showing filing status of married
filing jointly for B2~ and the deceased NH. The form was prepared by H & R Block after
the NH’s death. The form also lists H~ and B~ as their daughters. The supporting IRS
form W-2 from S S. does not indicate how the withholding was calculated. However,
with reported income of $34,765.55, and withholding of $4,794.69, the withheld amount
suggests the withholding was based upon a filing status of single with no dependents.
A wedding chapel rental agreement signed by B2~ on October XX, 2013. The date of the
wedding event was to be on May XX, 2014.
A pension fund letter from Central States Pension Funds, which is addressed to the
Family of R~, but does not identify any particular family members by name. The letter
advises the family that the NH was not vested for benefits, so no lump-sum death benefit
or surviving spouse pension would be payable.
B~s Texas birth certificate. This document was not included in the information you
provided us with this legal opinion request, but we assume it shows the NH as B~’s
father.
The NH’s Texas death certificate, listing the date of death as December XX, 2013.
The death certificate shows his marital status as married and lists B2~ as the surviving
spouse. B2~ provided the information for the death certificate.
The NH’s funeral announcement. The obituary in the announcement indicates that the
NH’s survivors include his wife, B2~ (B2~), and daughters, H~, B~, and P~, as well
as three stepchildren.[52]
An Application to Declare Heirship in the cause of In the Estate of R~,
Deceased. The application is unsigned and does not have a cause number, but indicates the
application was to be filed in the Probate Court of P~, Texas. B2~ is the applicant
and describes herself as the NH’s wife and the personal representative of the NH’s
estate. The application states that at the time of the NH’s death, the NH was informally
married to B2~. The application states the NH and B2~ lived together as husband and
wife from October 2002 until the NH’s death, held themselves out as married, and filed
income tax returns each year as married filing jointly. In addition, the application
lists B~ and P~ as the NH’s children.
D. The Agency’s Determinations Awarding Mother’s Benefits, the LSDP, and Child’s
Insurance Benefits
In 2014, based upon the applications and evidence summarized above, the agency found
the NH and B2~ entered into a common-law marriage in Texas on November XX, 2002, which
ended with the NH’s death in 2013.[53] Thus, the agency determined that B2~ was the NH’s widow under the Act. The agency
determined that because B~ was
on April XX, 2003, she was born during their marriage and could inherit as the NH’s
presumed child under Texas intestate succession law. Thus, the agency determined B~
was the NH’s natural child under the Act. The agency found that H~, who was born to
B2~ on March XX, 2001, was the NH’s dependent stepchild under the Act because B2~
married the NH in 2002 after H~’s birth and the NH provided one-half support for H~.
As a result, in determinations issued in 2014, the agency awarded B~ child’s insurance
benefits on the NH’s record as his natural child, awarded H~ child’s insurance benefits
on the NH’s record as his stepchild, and awarded B2~ mother’s benefits and the LSDP
as the NH’s widow with the NH’s children (who are entitled to child’s insurance benefits)
in her care.
E. Evidence Received Subsequent to the Agency’s Determinations Awarding
Benefits
In April 2016, the agency received additional evidence, which casts doubt on the marital
relationship between the NH and B2~ as well as the parent-child relationship between
the NH and B~ and H~.
An August XX, 2015 DNA Test Report. DNA Diagnostics Center (the Laboratory) performed
a DNA test on B2~, B~, and an alleged father, T~. The DNA Test Report indicates a
99.999999996% probability of paternity and a combined paternity index of 29,137,283,388.
The American Association of Blood Banks (AABB), among other accreditation organizations,
accredits the Laboratory. The Laboratory director signed the DNA Test Report, and
the signature was sworn before a notary public. The genetic specimens are identified
by name of donor, test number, and date collected, but there is no chain of custody
information for the specimen and no photographs identifying the test subjects.
Court documents from the case, In the Estate of R~, Deceased, Civil Action No. 15-0270, in the P, Texas, County Court at Law No. 2:
A Family Settlement Agreement between B2~ and J~, as Natural Guardian of P~ (the NH’s
adjudicated child), approved by the Presiding Judge in this case on November XX, 2015.
The Family Settlement Agreement identifies B2~ as the “longtime paramour” of the NH
and describes P~ as the NH’s “sole heir.” Under the terms of the Family Settlement
Agreement, B2~ received an immediate payment of $20,000 from a wrongful death insurance
policy paid to P~, a future payment of $15,000 at the time P~ received payment of
judgment in a civil action related to the NH’s death, and the right to reside in the
NH’s home for six months. In exchange, B2~ waived all claims regarding her status
as the NH’s common-law wife, all claims she may have regarding the NH’s death, and
all claims that B~ was the NH’s heir.
A Judgment Declaring Heirship entered in this case on November XX, 2015. The Presiding
Judge found the parties were represented and the court had jurisdiction of the subject
matter and all parties. The Presiding Judge concluded the evidence presented fully
and satisfactorily proved that the NH’s “sole and only heir” was P~.
A Trust was established on March, 2016, as ordered by the Presiding Judge in this
case, for P~’s benefit. Life insurance proceeds from Sedgwick funded the Trust, and
the trustee was given the authority to effectuate payment of the Family Settlement
Agreement regarding the “disputed probate of [the NH].” The payment authorized was
“$11,000.00 made payable to B2~ as per the Family Settlement Agreement and the Contract
dated February XX, 2016 to be paid within 5 business days of receipt of the initial
life insurance proceeds.”
F. The Agency’s Reopening of the Determinations Awarding Benefits to B2~, B~, and
H~
After receiving the evidence subsequent to the Agency’s 2014 benefits award to B2~,
B~, and H~ on the NH’s record, on April XX, 2016, the agency reopened the 2014 determinations
based on new and material evidence, citing POMS GN 04010.030 (reopenings for new and material evidence) and GN 01010.480.B (reopening erroneous awards). The agency made a special determination that B2~,
B~, and H~ should never have been entitled to benefits on the NH’s record. The agency
concluded the DNA Test Results established B~ was never entitled to benefits as the
NH’s natural legitimate child; B2~ was not the NH’s common-law spouse because she
waived all claims as the NH’s common-law spouse in the Family Settlement Agreement;
and H~ was not eligible for stepchild benefits because the NH and B2~ were never married.
The agency recommended reopening under the new and material evidence standard because
the new evidence showed that the prior award was clearly erroneous. As a result, the
agency terminated their benefits. After B2~ requested reconsideration of the termination
of benefits for herself, B~, and H~, you submitted the present legal opinion request
asking whether the agency should reopen and revise the 2014 determinations awarding
benefits in light of the new evidence.
ANALYSIS
A. Federal Law: Reopening and Revising an Agency Determination for Good Cause Based
on
New and Material Evidence
The agency may reopen and revise a determination, which is otherwise final and binding,
within 12 months of the date of the notice of the initial determination for any reason;
within 4 years of the date of the notice of the initial determination if the agency
finds good cause to reopen the case; or at any time if the determination was obtained
by fraud or similar fault. 20 C.F.R. §§ 404.987, 404.988. Because it has been longer
than 12 months but shorter than 4 years since the agency issued its 2014 determination,
we will examine whether there is good cause for the agency to reopen the claim. See 20 C.F.R. § 404.988(b).[54] The regulatory definition of “good cause” includes when new and material evidence
is furnished to the agency. See 20 C.F.R. § 404.989(a)(1). The POMS further defines “new and material evidence” as
any evidence that:
(1) Was not a part of the claims, disability or earnings discrepancy file when the
final determination or decision was made; but
(2) Relates back to the date of the original determination or decision; and
(3) Shows facts that would result in a conclusion different from that originally reached
had the new evidence been introduced or available at the time of the original determination.
See POMS GN 04010.030.A. The POMS also instructs that the agency should never reopen a correct determination
and explains that a determination that was correct when made is still correct even
if there is a subsequent change in the factual situation. See POMS GN 04001.070. New and material evidence “can only be used to reopen and revise incorrect determinations,
i.e., determinations which were never correct, but appeared to be correct based on
the evidence before the adjudicator at the time the determination was made.” See
id.
Here, the new evidence was not part of the original claims file when the agency made
the original determinations and appears to relate back to the date of the original
determination. See POMS GN 04010.030.A. The primary issue then is whether the new evidence “shows facts that would result
in a conclusion different from that originally reached had the new evidence been introduced
or available at the time of the original determination.” Id. In other words, does the new evidence show facts that would have resulted in a different
determination and that render the original determination incorrect. As we explain
below, we believe that it does not.
B. B2~’s Applications – Federal Law: Entitlement to the LSDP as the NH’s Widow and
to
Mother’s Benefits as the NH’s Widow with the NH’s Entitled Child in Care
Under Title II of the Act, a claimant is eligible for the LSDP if she is the widow
of an insured individual and she was living in the same household as the insured at
the time of the death (or satisfies other criteria if not living in the same household).
See 42 U.S.C. § 402(i), 20 C.F.R. §§ 404.390 - 404.392. Under the Act, a claimant is eligible
for mother’s benefits if, among other things, she is the surviving spouse, or widow,
of an insured individual and she has in-care a child of the deceased number holder
entitled to child’s insurance benefits. See 42 U.S.C. §§ 402(g)(1), 416(a)(2), (c); 20 C.F.R. § 404.339. Thus, for both, the claimant
must establish she is the insured individual’s widow.
The agency will find that a claimant is an insured individual’s widow if the courts
of the State in which the insured individual resided at the time of death “would find
that such applicant and such insured individual were validly married” at the time
such insured individual died, or if, under application of that State’s intestate succession
laws, the applicant would be able to inherit a spouse’s share of the insured’s personal
property. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. Here, the evidence showed
that the NH resided in Texas at the time of his death. The agency determined B2~ was
the NH’s surviving spouse, or widow, based upon a valid common-law marriage under
Texas law. As detailed below, the agency also found that B~ was the NH’s child, that
B~ was entitled to child’s insurance benefits, and that B~ was in B2~’s care. Thus,
the agency awarded B2~ mother’s benefits and the LSDP as the NH’s widow.[55]
We apply Texas law in weighing all of the evidence (including the newly received Family
Settlement Agreement and Judgment Declaring Heirship) to determine whether there is
a valid common-law marriage, or whether this new evidence proves no valid common-law
marriage such that the agency’s original determination was incorrect.
C. B2~’s Applications – State Law: Texas Common-Law Marriage Between the NH and B2~
and
B2~ Status as the NH’s Widow
1. Texas Law: Common-Law Marriage Elements and Burden of Proof
Texas law authorizes common-law marriage. See Tex. Fam. Code Ann. § 2.401; Russell v. Russell, 865 S.W.2d 929, 931-33 (Tex. 1993) (“[c]ommon law marriages have been recognized
in Texas since 1847”). Once established, a Texas common-law marriage produces the
same legal consequences as a ceremonial marriage. Whaley v. Peat, 377 S.W.2d 855, 857 (Tex.Civ.App.--Houston 1964, writ ref’d n.r.e). It is treated
with the same dignity as a ceremonial marriage, and may only terminate by death, divorce,
or annulment. Estate of
Claveria v. Claveria, 615 S.W.2d 164, 165, 167 (Tex. 1981). There is no common-law divorce in Texas. Id. Texas law requires proof of three elements to establish a common-law marriage: (1)
an agreement to be married, (2) cohabitation in Texas as husband and wife, and (3)
representation to others that the couple is married. Tex. Fam. Code Ann. § 2.401(a);
Estate
of Claveria, 615 S.W.2d at 166; Ex parte Threet, 333 S.W.2d 361, 364 (Tex. 1960); see also Van Hooff v. Anderson, 2016 WL 193172, at *3 (Tex. App. – Amarillo Jan. 14, 2016, no pet.) (“Other than
terminology used, the common law marriage requirements and the statutory requirements
for an informal marriage are the same.”). A common-law marriage does not exist until
a party meets all three elements, which courts determine on a case-by-case basis and
on the specific facts presented. Estate of Claveria, 615 S.W.2d at 166; Nguyen
v. Nguyen, 355 S.W.3d 82, 88-89 (Tex. App. – Houston [1st Dist.] 2011, pet. denied).
Unlike some other States, which impose a higher burden of proof on claimants who seek
to prove the existence of a common law marriage, in Texas the party seeking to prove
the existence of a common-law marriage holds the burden of proof by a preponderance
of the evidence.[56] See Tompkins v. State, 774 S.W.2d 195, 208 (Tex. Crim. App. 1987); Farrell
v. Farrell, 459 S.W.3d 114, 117 (Tex. App. – El Paso 2015, no pet.); Nguyen, 355 S.W.3d at 88-89. Texas law defines that standard as the greater weight and degree
of credible evidence that would create a reasonable belief in the truth of the claim.
See Herrera v. Stahl, 441 S.W.3d 739, 741 (Tex. App. – San Antonio 2014, no pet.).[57] In other words, has the claimant proven that it was more probable than not that she
and the purported spouse had a common-law marriage. See Upjohn Co. v. Freeman, 847 S.W.2d 589, 591 (Tex. App. – Dallas 1992, no writ) (“Preponderance of the evidence
means the greater weight and degree of credible evidence” and the court of appeals
considers whether the “trier of fact could reasonably conclude that the existence
of a fact is more probable than not”).
Under Texas law, statements alone can be sufficient to meet the preponderance of the
evidence burden. See Small v. McMaster, 352 S.W.2d 280, 283-284 (Tex. App. – Houston [14th Dist.] 2011, pet. denied). Indeed,
a claimant’s statements can constitute direct evidence of the elements of a common-law
marriage. See Omodele v. Adams, 2003 WL 133602, at *2 (Tex. App. – Houston [14th Dist.] 2003, no pet.); Martinez v. Lopez, 2011 WL 2112806, at *5-6 (Tex. App. – Houston [14th Dist.] 2011, no pet.); Winfield v.
Renfro, 821 S.W.2d 640, 645 (Tex. App. – Houston [1st Dist.] 1991, writ denied). In addition,
circumstantial evidence can prove the requisite elements of common-law marriage. Russell, 865 S.W.2d at 933. “A fact is established by circumstantial evidence when the fact
may be fairly and reasonably inferred from other facts proved in the case.” Id. (quoting Dallas Co. Flood Control v. Cross, 815 S.W.2d 271, 279-80 (Tex. App. – Dallas 1991, writ denied)). The Texas Supreme
Court has stated that, “proof of common-law marriage may be shown by the conduct of
the parties, or by such circumstances as their addressing each other as husband and
wife, acknowledging their children as legitimate, joining in conveyances as spouses,
and occupying the same dwelling place.” Estate of Claveria, 615 S.W.2d at 166. “[T]he circumstances of each case [as to the elements of a common-law
marriage] must be determined based upon its own facts.” Id. We now consider whether B2~ has proven a common-law marriage by a preponderance of
the evidence.
2. A Preponderance of the Evidence Supports a Valid Common-Law Marriage between the
NH
and B2~ Under Texas Law
As noted, the first element for a valid common-law marriage requires an agreement
to marry. See Tex. Fam. Code Ann. § 2.401(a)(2). The parties must prove by a preponderance of the
evidence that they had 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). The parties
show an agreement to be married with proof that they intended to create an immediate
and permanent marital relationship, not merely a cohabitation or temporary association
that either party may end at any time and not an agreement to marry in the future.
See Van Hooff, 2016 WL 193172, at *3; Gary v. Gary,
490 S.W.2d 929, 932 (Tex. Civ. App. – Tyler 1973, writ ref’d n.r.e.); Perales v.
Flores, 147 S.W.2d 974, 976 (Tex. Civ. App – San Antonio 1941, writ ref’d). However, the parties’
intent to marry ceremonially in the future does not necessarily negate an inference
that the parties believe that they are already informally or common-law married. Aguilar v.
State, 715 S.W.2d 645, 648 (Tex. Crim. App. 1986). As explained above, direct or circumstantial
evidence may establish an agreement to be married. Russell, 865 S.W.2d at 931. Evidence of cohabitation and representations to others that the
parties are married may show circumstantial evidence of an agreement to be married.
See Lee v. Lee, 981 S.W.2d 903, 906 (Tex. App. – Houston [1st Dist.] 1998, pet. denied).
Here, the uncontroverted witness statements all consistently support the finding that
the NH and B2~ had a permanent agreement to be married, as opposed to a temporary
cohabitation that could be ended at any time, and that they lived together and represented
to others that they were married for over 11 years. B2~ reported to the agency that
she and the NH began living together as husband and wife in Texas on November XX,
2002, that they separated for a period of time in 2006 and 2007, but reunited and
continued to live together as husband and wife until the NH’s death on December XX,
2013. She stated that they planned to formalize their marriage with a ceremony in
2014 (consistent with the wedding chapel receipt provided), but the NH died before
they could. She provided an income tax return from 2002 showing that they filed jointly
as a married couple. The NH’s Texas death certificate identifies him as married and
identifies B2~ as his spouse. The funeral announcement identifies B2~ as the NH’s
surviving wife. B2~’s mother and sister and the NH’s mother and father all advised
the agency that the NH and B2~ were known as spouses, lived together and maintained
a home together as spouses, and raised children together. We believe that a Texas
court would find that the greater weight and degree of credible evidence supports
a reasonable belief in the truth of the claim that they had an agreement to marry.
Thus, we believe the agency could reasonably find that B2~ provided a preponderance
of the evidence to support the first element for a valid common-law marriage. See Small, 352 S.W.2d at 283-284 (the wife’s testimony and the testimony of other witnesses
was sufficient evidence of an agreement to be married); Omodele, 2003 WL 133602, at *2 (the wife’s uncontroverted testimony that she and the husband
had an agreement to be married was alone sufficient to show an agreement to be married;
testimony established that the parties lived together for almost two years and that
they purchased a home and insurance together as husband and wife).
The second element for a valid common-law marriage requires that the couple live together
in Texas as spouses, but the cohabitation need not be continuous for a couple to prove
a common-law marriage. See Tex. Fam. Code Ann. § 2.401(a)(2); Small, 352 S.W.2d at 284. As noted, B2~ reported that after they began their marriage in
November 2002, they had a brief period of separation in 2006 and 2007, but reunited
and remained together until the NH’s death in December 2013. Thus, their relationship
spanned an 11-year period. The witness statements all consistently report that the
NH and B2~ lived together and maintained a home together in Texas as spouses. We believe
that a Texas court would find the greater weight and degree of credible evidence supports
a reasonable belief in the truth of the claim that they lived together as spouses
in Texas. Thus, we believe that the agency could reasonably find that B2~ provided
a preponderance of the evidence to support the second element for a valid common-law
marriage. See Romano v. Newell
Recycling of San Antonio, LP, 2008 WL 227974, at *5 (Tex. App. – San Antonio 2008, no pet.) (finding “extensive
evidence of cohabitation” where witnesses testified that the couple lived together
for around nine years and it did not appear that the husband left the wife for more
than a month or two at a time and that he left only during times the couple was fighting).
The third element for a valid common-law marriage requires that the couple held out
to the public, or represented to others while living in Texas, that they were married.
See
Tex. Fam. Code Ann. § 2.401(a)(2). Representation of the marriage to others, or holding
out to the public as being married, can be shown through the “conduct and actions
of the parties.” Eris, 39 S.W.3d at 715. Spoken words are not necessary to prove this element; rather,
the focus is upon whether the couple had a reputation for being married. Id.
Occasional introductions as husband and wife are not enough to satisfy the holding
out requirement, and there is no such thing as a secret common-law marriage. Threet, 333 S.W.2d at 364; Winfield, 821 S.W.2d at 648-51. Instead, Texas law requires that the couple “consistently
[conduct] themselves as husband and wife in the public eye or that the community [view]
them as married.” Van Hooff, 2016 WL 193172, at *5. “[T]he jurisprudence in Texas strictly construes the holding
out element and has held that marriage is more than a contract; it is a ‘status’ in
the community, a general reputation, a public and open holding out that the parties
are man and wife.” Id. at *6. As described in the witness statements, B2~ and their relatives all consistently
reported that the NH and B2~ were generally known as husband and wife, that they considered
them husband and wife, and that they represented to others that they were husband
and wife. The funeral announcement identifies B2~ and the NH’s surviving spouse. The
death certificate identifies the NH as married and B2~ as his surviving spouse. The
IRS income tax return from 2002 shows that they filed as a married couple. We believe
that a Texas court would find the greater weight and degree of credible evidence supports
a reasonable belief in the truth of the claim that they represented to others that
they were married. Thus, we believe that the agency could reasonably find that B2~
provided a preponderance of the evidence to support the third element for a valid
common-law marriage. See In re Estate of
Giessel, 734 S.W.2d 27, 30-31 (Tex. App. – Houston [1st Dist.] 1987, writ ref’d n.r.e.) (the
couple had lived together as husband and wife for 20 years, the husband represented
to many people in the community that the woman was his wife, and the couple had a
reputation in the community for being married); Tatum v. Tatum, 478 S.W.2d 629, 630 (Tex. Civ. App. – Fort Worth 1972, writ dismissed) (filing joint
tax returns, opening a joint checking account, designating a spouse on life insurance
policy, and holding themselves out to their community as being married all constituted
sufficient evidence of a common-law marriage).
Although the statement in the Family Settlement Agreement that B2~ was the NH’s long-term
paramour suggests B2~ was not married to the NH, such a statement does not constitute
evidence sufficient to conclude that the common-law marriage never existed. See Estate of
Claveria, 615 S.W.2d at 167 (“once the marriage exists, the spouses’ subsequent denials of
the marriage, if disbelieved, do not undo the marriage”). As stated, there is no common-law
divorce; rather a common-law marriage may only terminate by death, divorce, or annulment.
Id. The wording of the Family Settlement Agreement is at best ambiguous and does not
clearly repudiate the earlier statements B2~ made to the agency that she and the NH
had a common-law marriage. The Family Settlement Agreement states, “B2~ will waive
all claims of her status as the common law wife of Decedent.” Although in its special
determination, the agency read the Family Settlement Agreement as stating B2~ waived
her claim to be the NH’s common-law spouse, the Family Settlement Agreement does not
clearly state that. Instead, the Family Settlement Agreement seems to acknowledge
B2~’s status as the NH’s common-law spouse, but indicates she will waive her legal
claims associated with that status. The wording of the Family Settlement Agreement
seems to be B2~’s waiver of the right to receive her spouse’s share of the NH’s intestate
estate, rather than a waiver of her status as the NH’s common-law spouse. On the other
hand, the Family Settlement Agreement also refers to B2~ as the NH’s longtime paramour,
which is possibly contrary to a statement that B2~ was the NH’s common-law spouse.
However, for reasons explained above, we believe that the agency reasonably found
that B2~ had proven a valid common-law marriage to the NH under Texas law, and a later
ambiguous statement cannot dissolve the established marriage or establish that a valid
common-law marriage never existed.
In summary, other than the statement in the Family Settlement Agreement identifying
B2~ as the NH’s long-term paramour, very little evidence refutes the common-law marriage
between the NH and B2~. In other words, we do not believe the statement alone would
tip the scale such that the preponderance of the evidence no longer supported the
existence of the common-law marriage between the NH and B2~. See In re Estate of Giessel, 734 S.W.2d at 31 (the wife’s representations in documents that she was single went
“to the weight of the evidence” and did not “negate a marriage, as a matter of law”).
Thus, we believe that it is reasonable for the agency to conclude that a Texas court
would find that B2~ established a common-law marriage to the NH by a preponderance
of the evidence despite her later waiver of all claims related to her status as the
NH’s common-law spouse in the Family Settlement Agreement.
Furthermore, we note that B2~ provided the agency with preferred evidence of a common-law
marriage. See 20 C.F.R. §§ 404.709 (explaining the agency’s consideration of preferred and other
evidence), 404.726(b)(2) (the agency’s preferred evidence of a common-law marriage
when one spouse is dead is a signed statement from the living spouse and signed statements
from two blood relatives of the deceased spouse); POMS GN 00305.065.B.3 (the agency is instructed to obtain a Form SSA-754-F4 from the surviving spouse
and a Form-753 from two blood relatives of the deceased spouse and from a blood relative
of the surviving spouse). The regulations provide that “[i]f you give us the type
of evidence we have shown as preferred in the following sections of this subpart, we will generally find it is convincing
evidence.” 20 C.F.R. § 404.709.
3. Social Security Ruling 83-37c: The Family Settlement Agreement and Judgment Declaring
Heirship Does Not Bind the Agency
We next consider whether the Family Settlement Agreement and Judgment Declaring Heirship
bind the agency. A state court judgment does not bind the agency if it involves a
proceeding to which the agency was not a party. See Social Security Ruling (SSR) 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973)); see also POMS GN 00305.065B.4 (providing that when determining the existence of a common-law marriage and the evidence
includes a state court decision on the issue, the agency is not necessarily bound
by the decision but must consider the decision if the claimant meets the criteria
of Gray); POMS GN 00306.001.C.3 (providing the same policy for determining a child’s relationship). Pursuant
to SSR 83-37c, state court determinations on domestic relations matters are entitled
to deference and bind the agency only when certain specific factors are satisfied.
The agency should defer to state court determinations when (1) a state court of competent
jurisdiction previously determined an issue in a claim for Social Security benefits;
(2) parties with opposing interests genuinely contested the issue before the state
court; (3) the issue falls within the general category of domestic relations law;
and (4) the resolution by the state trial court is consistent with the law enunciated
by the highest court in the state. See Gray, 474 F.2d at 1373; SSR 83-37c. The Fifth Circuit has similarly recognized that the
agency is not bound by ex parte orders of state courts, but emphasized that the agency
should disregard such orders only where the agency is convinced the decision is in
conflict with what the state supreme court would hold were the issue presented to
it (the fourth Gray factor). See Garcia v.
Sullivan, 883 F.2d 18, 20 (5th Cir. 1989); Warren v. Sec'y of Health & Human
Servs., 868 F.2d 1444, 1446-47 (5th Cir. 1989). As explained below, the Family Settlement
Agreement and Judgment Declaring Heirship meet the third Gray factor, in that the case In the Estate of R~, Deceased. involved an issue within the general category of domestic relations. However, as
explained below, the documents do not clearly meet the first, second, or fourth Gray factors.
a. State Court of Competent Jurisdiction Previously Determined an Issue in a Claim
for
Social Security Benefits
On the first factor, the Family Settlement Agreement was signed by the parties and
approved by the presiding judge in the P. County, Texas, County Court at Law. The
same judge signed the Judgment Declaring Heirship declaring P~ to be the NH’s sole
and only heir. The P. County Court at Law is a state court of competent jurisdiction
for probate and heirship matters. Tex. Estates Code Ann. §§ 33.004, 202.005. However,
the Parker County Court at Law approved the Family Settlement Agreement and issued
the Judgment Declaring Heirship on November XX, 2015. Although you did not advise
us of the date the agency determined the relationships of B2~, B~, and H~ to the NH,
we believe it to have been in March 2014. As such, the Family Settlement Agreement
and Judgment Declaring Heirship are not previous determinations of a state court of
competent jurisdiction, but rather determinations issued after the agency had already
issued its own final determination finding B2~ the NH’s common-law spouse, B~ the
NH’s natural, legitimate daughter, and H~ the NH’s stepchild.
Furthermore, as to the Family Settlement Agreement and B2~tatus as the NH’s common-law
spouse in particular, we believe that a court-approved settlement agreement between
the parties does not appear to be the equivalent of a state court determination following
the weighing of any evidence. A family settlement agreement is ‘“an alternative method
of [estate] administration in Texas that is a favorite of the law.”’ Webb v. Livingston, -- F.3d --, 2017 WL 2118969 (S.D. Tex. May 16, 2017) (slip copy) (citing Shepherd v. Ledford, 962 S.W.2d 28, 31-32 (Tex. 1998)). It is premised upon the concept that when a person
dies without a will, the estate passes immediately to the decedent’s heirs, who then
have standing to enter into an agreement for how the estate property will be distributed.
Id. And, as we noted above, the wording of the Family Settlement Agreement seems to be
B2~'s waiver of B~’s claims as the NH’s heir and her claims as the NH’s common-law
spouse, rather than a waiver of her status as the NH’s common-law spouse or a waiver
of B~’s status as his child. This Family Settlement Agreement does not indicate that
the court made any findings or determinations upon a weighing of evidence and legal
arguments that B2~ is not the NH’s common-law spouse and B~ is not the NH’s presumed
child. Thus, for all of these reasons, the first Gray factor is not clearly met.
b. Parties with Opposing Interest Genuinely Contested the Issue before the State
Court
On the second factor, it is not clear whether parties with opposing interests genuinely
contested the issues before the state court. The parties settled the action In the Estate of
R~, Deceased with P~ agreeing to pay B2~ a portion of the proceeds of a non-probate wrongful death
insurance policy and a portion of judgment in a civil action that P~ was pursuing.
The parties to the Family Settlement Agreement are listed as B2~ and J~, P~’s guardian.
The Judgment Declaring Heirship lists B2~ as the applicant, P~ as the living heir,
and the NH’s living heirs whose names and whereabouts are unknown as defendants. Although
we assume B2~ and B~ had opposing interests in the action to P~, it is unclear to
what degree those interests were genuinely contested. It seems possible B2~ and B~’s
settlement was premised on maximizing their economic gain through obtaining a share
of non-probate assets they would not have otherwise been entitled, and not in establishing
their relationship to the NH. Thus, it is again unclear whether the second Gray factor is met.
c. The Issue Falls Within the General Category of Domestic Relations Law
As to the third factor, we believe that the Settlement Agreement and Judgment Declaring
Heirship pertain to matters within the general category of domestic relations law.
Thus, this third Gray factor is met.
d. The State Court Order is Consistent with the Law as Enunciated by the State’s Highest
Court
On the fourth factor, we are unable to determine whether the resolution by the state
trial court is consistent with the law enunciated by the highest court in the state.
The presiding judge stated the evidence presented to the court fully and satisfactorily
proves each and every issue presented to the court. However, we are unable to determine
what evidence the court relied upon in making its finding. While it is proper for
the court to accept a Family Settlement Agreement as evidence in a Judgment to Declare
Heirship (Shepherd, 962 S.W.2d at 31-32), as we addressed above, it is ambiguous whether B2~ agreed
she was not the NH’s common-law spouse.
Also, while the Judgment Declaring Heirship states that P~ is the NH’s sole heir,
we are unable to determine on what basis B~ was denied status as the NH’s heir. To
the extent the court denied B~ as the NH’s heir based upon the DNA Test Report showing
another man to be B~’s biological father, we will discuss below that the DNA Test
Report evidence provided to the agency is unreliable evidence in a Texas court proceeding.
Thus, reliance on the DNA Test Report would be inconsistent with the law enunciated
by the highest court in the state.
In summary, because all four Gray factors are not met, neither the Family Settlement Agreement nor the Judgment Declaring
Heirship are binding on the agency as to B2~’s status as the NH’s common-law spouse
and B~’s status as his presumed child born during their marriage. Accordingly, we
believe a Texas court would find that a preponderance of the evidence supports a valid
common-law marriage between the NH and B2~. In the context of reopening and revising,
we believe that the agency’s prior determination was correct and that the new evidence
does not render the prior determination incorrect. We next address whether B~ is entitled
to surviving child’s insurance benefits as the NH’s child.
D. B~’s Application – Federal Law: Entitlement to Surviving Child’s Insurance Benefits
as the NH’s Child
Under the Act, a child may be eligible for surviving child’s insurance benefits if,
among other things, she is the child of a deceased insured individual. See 42 U.S.C. §§ 402(d)(1), 416(e); 20 C.F.R. § 404.350(a)(1). The Act and regulations
define child to include the individual’s natural child. See 42 U.S.C. §416(e)(1); 20 C.F.R. § 404.355. In determining a claimant’s status as
a natural child, the agency must determine whether the claimant could inherit the
insured’s personal property as her child under the intestate succession laws of the
state where the NH was domiciled. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b).
As the NH was domiciled in Texas, the agency determined B~ was the NH’s natural child
because she could inherit from the NH under Texas intestate succession law as a child
born during the marriage of her parents. See Tex. Estates Code Ann. § 201.052(a)(1) (child born during marriage of her parents,
as described in Tex. Fam. Code Ann. § 160.201, has inheritance rights from the father
based on a presumption of paternity). Thus, the agency awarded B~ surviving child’s
insurance benefits as the NH’s natural child.[58]
We apply Texas law in weighing all of the evidence (including the newly received DNA
Test results, Family Settlement Agreement and Judgment Declaring Heirship) to determine
whether B~ could inherit as the NH’s child under Texas intestate succession law. For
reopening and revising, we consider whether this new evidence proves that B~ could
not inherit as his child such that the agency’s original determination was incorrect.
E. B~s Application - State Law: Texas Intestate Succession Law and B~’s Status as
the
NH’s Natural Child
1. Texas Intestate Succession Law
Under Texas intestate succession law for paternal inheritance, a child born during
her parents’ marriage has inheritance rights from the father based on an unrebutted
presumption of paternity. See Tex. Estates Code Ann. § 201.052(a)(1); Tex. Fam. Code Ann. § 160.201(b)(1), 160.204(a)(1).
The agency previously concluded B~ was the NH’s natural child because she was born
during the marriage between the NH and B2~. Because B~ was born during the marriage
of the NH and B2~, the agency concluded she had inheritance rights from the NH’s estate
under Texas law. As explained above, we believe that the evidence supports the agency’s
finding of a valid common-law marriage between B2~ and the NH under Texas law. We
consider whether the DNA Test Report provides evidence to rebut the presumption of
paternity under Texas law such that the agency’s original determination that B~ was
the NH’s child is incorrect.
2. Presumption of Paternity Under Texas Uniform
Parentage Act
To address parent-child relationships, Texas adopted the Uniform Parentage Act (the
Uniform Act) in 2001. See Tex. Fam. Code Ann. §§ 160.001-160.763. The Uniform Act governs every determination
of paternity in Texas. Tex. Fam. Code Ann. § 160.103(a). Under the Uniform Act, a
man is presumed to be the father of a child if he is married to the mother of the
child and the child is born during the marriage. Tex. Fam. Code Ann. § 160.204(a);
see also Dickerson v.
Doyle, 170 S.W.3d 713, 717 (Tex. App. – El Paso 2005, no pet.) (husband of the child’s
mother presumed to be the child’s father, even though another man sometimes lived
and slept with the child’s mother and claimed that he was the child’s father).
The Uniform Act provides that a presumption of paternity that arises in marriage may
be rebutted only by the following:
(1) an adjudication under a proceeding to determine the parentage of a child under
Subchapter G of the Texas Family Code, Sections 160.601-637; or
(2) the filing of a valid denial of paternity by a presumed father in conjunction
with the filing by another person of a valid acknowledgment of paternity as provided
by section 160.305 of the Uniform Act.
See Tex. Fam. Code Ann. § 160.204(b)(1)-(2). The Texas courts have long interpreted the
presumption of paternity that arises in marriage to be strong and very difficult to
rebut. See, e.g., Joplin v. Meadows, 623 S.W.2d 442, 443-444 (Tex. App. – Texarkana 1981, no writ) (the presumption that
a child conceived during marriage is the legitimate child of the husband and wife
is one of the strongest presumptions known to the law and can be rebutted only by
clear and convincing evidence showing the impossibility that the husband fathered
the child); Etchison v. Greathouse, 596 S.W.2d 233, 236 (Tex. App. – Houston 1980, no writ) (the highest consideration
of public policy supplies every reasonable presumption in favor of the legitimacy
of a child born during the marriage of a man and a woman, provided that there is no
clear evidence of non-access or impotency of the man).
As stated, B~ was born during the marriage of the NH to B2~. Thus, the NH is presumed
to be B~’s father. There is no evidence that any court has determined B~’s parentage
in a civil proceeding under the provisions of subchapter G of the Uniform Act concerning
adjudications of parentage. See Tex. Fam. Code Ann. § 160.204(b)(1). Although the Judgment Declaring Heirship stated
P~ is the NH’s sole heir, it did not purport to adjudicate B~’s parentage. Also, the
Judgment Declaring Heirship does not explain what evidence the court considered in
determining that P~ was the NH’s sole heir. There is also no evidence the NH ever
filed a denial of paternity and another person filed a valid acknowledgment of paternity.
See Tex. Fam. Code Ann. § 160.204(b)(2). Thus, the NH’s presumed parentage of B~ has
not been properly rebutted under Texas law.
However, the agency will not apply a state inheritance law requirement that a court
determination of paternity must be obtained or a requirement that paternity must be
established before the worker’s death. Paternity will be decided using the standard
of proof that the state court would use. 20 C.F.R. § 404.355(b)(2).
Texas courts allow genetic DNA testing as proof to establish paternity, provided the
DNA testing and DNA test report meet specific reliability and authenticity requirements.
See Tex. Fam. Code Ann. §§ 160.503, 160.504, 160.631; see also In re Office
of Atty. Gen., 276 S.W.3d 611, 615 (Tex. App. – Houston [1st Dist.] 2008, orig. proceeding). First,
the DNA testing must take place in a laboratory accredited by the AABB, the American
Society for Histocompatibility and Immunogenetics, or another accrediting body designated
by the Secretary of the United States Department of Health and Human Services. See
Tex. Fam. Code Ann. § 160.503(a). Second, a laboratory designee must sign the DNA
test report under penalty of perjury. See Tex. Fam. Code Ann. § 160.504(a). Third, the report must establish a reliable chain
of custody through testimony or documentation. See Tex. Fam. Code Ann. § 160.504(b). Documentation from the testing laboratory is sufficient
to establish a reliable chain of custody that allows the results of genetic testing
to be admissible without testimony if the documentation includes (1) the name and
photograph of each individual whose specimens have been taken; (2) the name of each
individual who collected the specimens; (3) the places in which the specimens were
collected and the date of each collection; (4) the name of each individual who received
the specimens in the testing laboratory; and (5) the dates the specimens were received.
Id.
If the DNA testing and DNA test report satisfy the reliability and authenticity requirements,
and the testing reveals at least a 99% probability of paternity with a combined paternity
index of at least 100 to 1, a man is rebuttably identified as the father of a child.
See Tex. Fam. Code Ann. § 160.505(a); see also In re Z.L.T., 124 S.W.3d 163, 164 n. 1 (Tex. 2003).
The DNA Test Report evidence as provided to the agency does not meet all of the requirements
for admissibility. Although the DNA testing took place in a laboratory the AABB accredited
and a laboratory designee notarized the DNA Test Report, there is no reliable chain
of custody documentation. In fact, the only documentation is of the names of the individuals
whose specimens were taken and the date the specimens were taken. The documentation
does not contain photographs of the individuals, the names of each person who collected
the specimens, the place the specimens were collected, the name of the person who
received the specimens at the laboratory, or the date the specimens were received.
Also, even though the DNA Test Report shows a greater than 99% probability that another
man is B~’s father, with a combined paternity index exceeding 100 to 1, there is no
evidence that any DNA test has excluded the NH as B~’s father. Accordingly, we conclude
the DNA test would be unreliable evidence to rebut the presumption that the NH was
B~’s father. Given these facts, no one has rebutted the presumption that the NH was
B~’s father.
As explained above in addressing B2~’s marriage to the NH, neither the Judgment Declaring
Heirship nor the Family Settlement Agreement bind the agency because such documents
do not meet all four Gray factors. The agency should decline to accept the state court’s finding in the Judgment
Declaring Heirship because it is inconsistent with the law enunciated by the highest
court in Texas as to reliable evidence to rebut the presumption of paternity. Consequently,
we believe the agency could reasonably conclude that B~ could inherit property through
Texas intestate succession as the NH’s child based on an unrebutted presumption of
paternity. See Tex. Estates Code Ann. § 201.052; Tex. Fam. Code Ann. §§ 160.201, 160.204. In the
context of reopening and revising, we believe that the new evidence does not render
the agency’s prior favorable determination incorrect.
F. H~’s Application – Federal Law: Entitlement to Surviving Child’s Insurance Benefits
as the NH’s Stepchild
Under the Act, a child may be eligible for surviving child’s insurance benefits if,
among other things, she is the child of a deceased insured individual. See 42 U.S.C. §§ 402(d)(1), 416(e); 20 C.F.R. § 404.350(a)(1). The Act and regulations
define child to include the individual’s stepchild. See 42 U.S.C. §416(e)(2); 20 C.F.R. § 404.357. To qualify as the deceased insured individual’s
stepchild, the agency must determine whether after the claimant’s birth, her natural
parent validly married the insured individual and that she was the stepchild for at
least nine months prior to the day the insured individual died. See
42 U.S.C. § 416(e)(2); 20 C.F.R. § 404.357. Thus, H~’s status as the NH’s stepchild
turns upon her mother’s (B2~’s’) status as the NH’s valid common-law spouse under
Texas law.
The agency determined that H~ was the NH’s stepchild based on the fact that she was
born to B2~ in March 2001 before B2~ married the NH in a valid common-law marriage
under Texas law in November 2002. As detailed above, because we believe that the agency
could reasonably conclude that a Texas court would find that the NH had a valid common-law
marriage to B2~ that began in November 2002, we believe that the agency could find
H~ to be the NH’s stepchild. Thus, in the context of reopening and revising, we believe
that the new evidence does not render the agency’s prior favorable determination to
be incorrect.[59]
CONCLUSION
For reopening and revising purposes, we believe that the new evidence does not render
the agency’s prior favorable determinations incorrect. We conclude that neither the
Family Settlement Agreement nor the Judgment Declaring Heirship overcome the preferred
evidence of witness statements, nor the other evidence of a joint tax return, death
certificate, and obituary, upon which the agency relied in determining that the NH
and B2~ entered into a valid common-law marriage under Texas law. The agency is not
bound by the Family Settlement Agreement or the Judgment Declaring Heirship because
they were entered after the agency’s 2014 award of benefits, adverse parties do not
appear to have actually challenged them, and it is not clear what evidence the court
relied upon in issuing the Agreement and Judgment. Finally, the DNA test results do
not establish a proper chain of custody and are unreliable and inadmissible to determine
paternity under Texas law.[60] There is also no DNA test that excludes the NH as B~’s father. Thus, the new evidence
does not establish that the agency’s prior determinations were incorrect. Therefore,
we believe that the new evidence does not provide good cause as new and material evidence
for the agency to reopen and revise the agency’s prior favorable determinations to
terminate benefits to B2~, B~, or H~ on the NH’s record.