QUESTIONS PRESENTED
For purposes of determining eligibility for widow's benefits, you have requested an
opinion on whether a couple domiciled in the State of North Dakota (which does not
permit the establishment of common law marriages) entered into a valid common law
marriage in the State of Montana where the number holder (Darold S~) worked at times
over a 30-year period, and the claimant (Marlys S~) traveled to visit him. You also
requested an opinion as to whether statements provided by Darold's co-workers are
sufficient evidence to show that the couple resided in Montana.
Short Answer
North Dakota law does not permit the establishment of common law marriages in that
State.
Although North Dakota will recognize a common law marriage validly entered into in
another jurisdiction, and Montana recognizes common law marriages, based on the facts
before us, we do not believe there was sufficient cohabitation and repute to establish
a valid common law marriage in Montana.
FACTS
In a "Statement of Marital Relationship" completed by Marlys, she indicated that she
and Darold began living together as husband and wife in North Dakota in 1968. She
indicated in this statement that they lived in different cities in North Dakota from
1968 to the time of Darold's death in 1992. Marlys also indicated in her statement
that she and Darold believed the State of North Dakota considered them legally married
because they were together for seven years.
Marlys also alleges that she and Darold lived together as husband and wife, for some
undisclosed periods of time, while he was working in Sydney, Montana. Evidence from
Darold's co-workers and relatives of the couple indicated that Marlys and the couple's
children would visit for weekends and longer during the summer when Darold was working
in Montana. During these visits, the family would reside in a "5th wheel" camper.
While it appears Darold possibly worked on and off in Montana over a 30-year period,
according to co-workers, he and Marlys always returned "home" to North Dakota.
Legal Analysis
Under the provisions of the Social Security Act (the Act) and the Commissioner's regulations,
a widow is entitled to benefits only if she was married to the number holder for at
least nine months immediately before his death. 42 U.S.C. § 416(c), 20 C.F.R. § 404.335
(2004). The Act and the Commissioner's regulations provide that the laws of the State
where the number holder was domiciled when he died will determine if there was a qualifying
marriage. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345 (2004). ("To decide your relationship
as the insured's widow or widower, we look to the laws of the State where the insured
had a permanent home when he or she died."); see also POMS RS 00207.001 (the validity of the marriage is determined by the laws of the state of the number
holder's domicile at the time of his or her death). In order for a common law marriage
to be valid, it must have been contracted in a state where common law marriages are
recognized. See POMS GN 00305.075.
Common law marriages cannot be formed in the State of North Dakota. See Cermak v.
Cermak, 569 N.W.2d 280, 283 (1997) (citing Schumacher
v. Great Northern Ry. Co. et al., 136 N.W. 85, 86 (1912)) (noting the 1890 legislature clearly intended to abrogate
nonceremonial marriages); see also N.D. Cent. Code § 14-03-01 (providing North Dakota
abrogated common law marriages shortly after statehood; unless the statutory requirements
are met, the fact of cohabitation alone is insufficient to create a legally recognized
marriage.)
To the extent that Marlys alleges that she and Darold entered into a common-law marriage
in the State of Montana during her visits, the law and the facts that you provided
to us do not support her allegation. Under Montana law, in order to establish the
existence of a common law marriage, the proponent of the marriage must show:
1) the parties were competent to enter into a marriage;
2) assumption of such a relationship by mutual consent and agreement; and
3) Marriage of Geertz, 755 P.2d 34, 37 (1988) (citation omitted)); see
also Mont. Code Ann. § 40-1-403. Assuming arguendo that Marlys and Darold satisfied the
first two requirements, we do not believe the evidence you provided demonstrates sufficient
cohabitation and repute in Montana.
Although there is no time requirement that a couple must have residency in Montana
before a common law marriage can be effectuated, the court will look to the parties'
intent in satisfying the elements of a common-law marriage.
See In re Estate of Murnion, 686 P.2d 893, 906 (1984) (although [the parties] made their agreement to be man
and wife while residing in Washington, they did so with the intent of moving to Montana,
and they followed through with that intention by moving to Montana soon thereafter.
All the elements of their common law marriage were fulfilled in Montana by virtue
of their continuing agreement, cohabitation, mutual assumption, of the marital relationship,
and public repute). The Montana Supreme Court has held, however, that short periods
of cohabitation and holding out as husband and wife are insufficient to establish
the reputation required by the third element. See
Miller v. Sutherland, 309 P.2d 322, 328 (1957) (the Court found that a couple who agreed to be husband
and wife, who lived in the same home for more than 10 years, but usually in separate
bedrooms, and who held themselves out as husband and wife when registering at hotels
or lodges, when giving greeting cards, and in executing mutual wills did not establish
the existence of a valid common law marriage).
Here, Marlys only visited Darold while he was working in Montana. Although presumably
they resided in the same camper during these visits, they never intended to make Montana
their home or to move there. See Murnion, 686 P.2d at 899-900. Moreover, the couple entered into contracts, maintained bank
accounts, and filed joint state income taxes all in North Dakota. Thus, we believe
the alleged marital relationship was formed, maintained, and ended in North Dakota.
With regard to the statements provided by Darold's co-workers, as well as the couples'
relatives, at most, they merely reflect that Marlys and Darold made their permanent
home in North Dakota during their entire relationship, that they held themselves out
as a married couple in North Dakota, and that Marlys occasionally visited Darold in
Montana while he was working. We do not believe statements by relatives and co-workers
that they believed Darold and Marlys were married when she visited him at his work
sites in Montana are sufficient to constitute the degree of public repute necessary
to form a valid common law marriage in the State of Montana.
CONCLUSION
Accordingly, because the common law marriages cannot be entered into in North Dakota,
and alternatively, because the evidence you provided does not support the establishment
of a valid common law marriage in Montana, Marlys is not the lawful widow of Darold
for purposes of entitlement to benefits under the Act.
Sincerely,
Deana R. E~-L~
Regional Chief Counsel,
Region VIII, Denver
By _________________________
Carolyn C~