Question
J~ (Claimant) filed applications for widow’s benefits and the lump sum death payment
(LSDP) on the record of the deceased number holder (NH) T~. The Claimant alleges a
common-law marriage to the NH beginning in March 1986 in Texas and ending with the
NH’s death in May 2018 in California. You asked whether a valid common-law marriage
existed between the NH and the Claimant under Texas law such that the Claimant is
the NH’s surviving spouse, or widow(er), under Title II of the Social Security Act
(Act).[1] If so, you also asked when the common-law marriage was effective.
Answer
We believe that Texas courts would find that the Claimant has proven that she was
in a valid common-law marriage with the NH under Texas law from March XX, 1986 until
the NH’s death on May XX, 2018, and that California courts would recognize this valid
Texas common-law marriage. This marriage meets the Act’s nine-month marriage duration
requirement. In addition, the evidence shows that the Claimant was living in the same
household with the NH at the time of his death. Accordingly, we believe there is support
for the agency to find that the Claimant is the NH’s widow for purposes of determining
her entitlement to widow’s insurance benefits and the LSDP.
Background
On June XX, 2018, the Claimant filed applications with the Social Security Administration
(SSA or agency) for widow’s insurance benefits and the LSDP on the NH’s record. On
her applications, the Claimant stated that she and the NH entered into a common-law
marriage on March XX, 1986 in Houston, Texas and that the marriage ended when the
NH died on May XX, 2018 in Ojai, California.[2] His obituary lists the Claimant as
his wife.[3]
Agency records related to prior applications for both the Claimant and the NH provide
some documentation of their relationship. You advised that on June XX, 1993, the Claimant
filed an application with the agency for Supplemental Security Income (SSI) benefits
and listed the NH as her holding out spouse. On December XX, 1993, the agency added
the NH to the Claimant’s SSI record as her spouse. You also advised that on January
XX, 2011, the NH filed for retirement benefits, but did not list a marriage to the
Claimant. However, the NH reported he was living with the Claimant at the time he
applied for retirement benefits and the agency’s remarks concerning his application
indicate that his “spouse” contacted the agency to reschedule his appointment.
In support of her current applications for widow’s benefits and the LSDP, the Claimant
provided a written statement describing her 32-year relationship with the NH (the
first five years of which were spent in Texas) in the Form SSA-754, Claimant’s Statement
of Marital Relationship, which she completed on July XX, 2018. In this written statement,
the Claimant said that she and the NH began living together in Houston, Texas in March
1986. It appears that they lived in Texas until moving to California in late 1991
as she reported that they lived together in different cities in California starting
in September 1991 where they remained until the NH’s death on May XX, 2018.[4] The
Claimant explained that she and the NH never divorced because they could not afford
it.
The Claimant checked the box on the Form SSA-754 representing that she and the NH
had an understanding as to their relationship when they began living together, explaining
that they had two daughters together and “said we were common law married.” This understanding
never changed. In addition, the Claimant and the NH did not have an understanding
as to how long they would live together, nor did they have an understanding as to
how their relationship could be ended. She believed that living together made them
legally married because a California welfare office told them that if they filed taxes
together, they were married. The Claimant and the NH also had an agreement that a
ceremonial marriage would be performed in the future, but it was never performed because
too many traumatic events occurred in their lives
The Claimant reported that they introduced themselves as husband and wife and that
tax returns and bank accounts show them as husband and wife. She reported that she
began using the NH’s last name N~ after the birth of their daughters and that mail
was addressed to them as “Mr. and Mrs. N.” The Claimant listed the names of four relatives,
two of her sisters and two of the NH’s sisters, who knew of their relationship.
The Claimant also reported on the Form SSA-754 that she and the NH had two daughters
together while living in Texas, K~ born in December 1988 and K2~ born in August 1990.
The agency obtained the children’s birth certificates, confirming their daughters
were both born in Houston, Texas during those years. Both birth certificates identify
the Claimant and the NH as the parents and list the children with the NH’s last name
(N~). The birth certificates require that the Claimant list her maiden name, but a
portion of K~’s December 1988 birth certificate lists the Claimant as the informant
and shows that she was using the NH’s last name (N~). K~’s December 1988 birth certificate
also shows the Claimant’s address as E in Cypress, Texas,[5] and K3~’s 1990 birth
certificate shows the Claimant’s address as R in Houston, Texas. Neither birth certificate
lists the NH’s address because the form did not provide a space to do so.
In addition to the Claimant’s statements on the Form SSA-754, the NH’s sisters (A~
and C~) and the NH’s and the Claimant’s daughter (K2~) provided statements as to their
marital relationship in the Form SSA-753, Statement Regarding Marriage, as follows:
-
•
Their daughter K2~, who completed the form in July 2018, wrote that the Claimant and
the NH lived together as husband and wife from 1986 to 1991 in Houston, Texas and
from 1991 to 2018 in Ojai, Ventura, and Oxnard, California. She said that they separated
for a short time, but never divorced. To her knowledge, the NH and the Claimant were
generally known as husband and wife and she believed they were husband and wife. She
wrote: “My parents have lived together my whole life, raised my sister and I together
and ran a household together since before I was born.” She also reported that they
referred to one another as husband and wife, stating: “All of my life they’ve always
referred to each other as husband and wife.”
-
•
The NH’s sister, A~, wrote that the Claimant and the NH lived together continuously
as husband and wife in Oxnard/Ventura, California beginning in approximately 1991.
She did not provide dates as to when they lived together in Texas, though she did
report that they moved to California from Texas. A~ wrote that she met the Claimant
when the Claimant and the NH moved from Texas to California (in 1991) and she described
the Claimant as her sister in law by common-law marriage. A~ said that she saw the
NH on holidays and several times per month for dinner until he got sick. She saw the
Claimant several times per year and on birthdays and holidays. To her knowledge, the
NH and the Claimant were generally known as husband and wife, and she considered them
to be husband and wife. She wrote: “I have always thought of [the Claimant] as his
wife because he has always taken care of her and his children. He performed the everyday
duties in their household. They have lived together as husband and wife in the same
household for many many years.” She heard them refer to each other as husband and
wife “often throughout the years.”
-
•
The NH’s sister, C~, who completed the form in July 2018, said that the Claimant and
the NH lived together as husband and wife in Houston, Texas from 1986 to 1991 and
in Ojai, California from 1991 to the present. C~ wrote that she had known the Claimant
for 30 years; she described the Claimant as her sister-in-law; and she said that she
saw the Claimant and the NH on a yearly basis and on holidays. To her knowledge, the
NH and the Claimant were generally known as husband and wife, and she considered them
to be husband and wife. C~ believed they were married because the NH “has been with
[the Claimant] and raised 2 beautiful daughters.” She also reported hearing them refer
to one another as husband and wife “always.”
Analysis
A. Federal Law: Widow(er) under the Act for Widow(er)’s Insurance
Benefits and the LSDP
Under Title II of the Act, a claimant may be entitled to widow(er)’s insurance benefits
on a deceased insured individual’s account if, among other things, the claimant is
the widow(er) of the insured individual and their marriage lasted nine months before
the insured individual died.[6] See Act § 202(e)(1), (f)(1), 42 U.S.C. § 402(e)(1),
(f)(1); Act § 216(a)(2), (c), (g), 42 U.S.C. § 416(a)(2), (c), (g); 20 C.F.R. § 404.335.
To be entitled to the LSDP under Title II of the Act, a claimant must establish that
he or she is the widow(er) of an individual who died fully or currently insured, and
he or she was living in the same household as the insured at the time of his or her
death.[7] See Act § 202(i), 42 U.S.C. § 402(i); 20 C.F.R. §§ 404.390, 404.391.
The agency will find that a claimant is an insured individual’s widow(er) 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 Act § 216(h)(1)(A), 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344,
404.345. Here, the evidence shows that the NH resided in California at the time of
his death. We therefore look to California law to determine whether the Claimant is
the NH’s widow(er).[8]
B. California State Law: Recognition of Common-Law Marriages
Validity Created In Other States[9]
The Claimant does not allege a ceremonial marriage, rather, she alleges that she and
the NH had a common-law marriage that began in Texas in March 1986. She reported that
they moved to California in September 1991, and that their marriage ended with the
NH’s death in California in 2018. In California, only ceremonial marriages may be
contracted. See Cal. Fam. Code § 300(a); POMS GN 00305.075(B). However, California recognizes common-law marriages validly created in states
such as Texas that allow such marriages. The California Family Code provides that
“[a] marriage contracted outside this state that would be valid by the laws of the
jurisdiction in which the marriage was contracted is valid in California.” Cal. Fam.
Code § 308; see People v. Badgett, 895 P.2d 877, 897 (Cal. 1995) (discussing and applying
Family Code § 308 to determine validity of purported common law marriage in Texas);
Etienne v. DKM Enterprises, Inc., 136 Cal. App. 3d 487, 489 (Cal. Ct. App. 1982) (similar).
Thus, in order to determine whether a California court would accept the Claimant’s
and the NH’s non-ceremonial marriage as valid, we must determine whether the Claimant
and the NH had a valid common-law marriage under Texas law while living in Texas from
1986 to 1991.
C. Texas State Law: Common-Law Marriage
1. Overview of the Elements of Common-Law Marriage
The elements of a valid common-law, or informal, marriage under Texas law are:
(1) an agreement to be married,
(2) cohabitation in Texas as spouses, and
(3) representation, or holding out to others that they are married.
See Tex. Fam. Code Ann. § 2.401(a); Estate of Claveria v. Claveria, 615 S.W.2d 164,
166 (Tex. 1981); 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).
2. Burden of Proof: Preponderance of the Evidence [10]
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.[11] 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.)[12]
Thus, the Claimant must prove by a preponderance of evidence that she and the NH agreed
to be married, lived together in Texas as spouses, and represented to others that
they were married.
In terms of the type of evidence offered to meet this burden, the Claimant provided
her own statement, a statement from her biological daughter with the NH, and statements
from two of the NH’s sisters to support her claim of a valid common-law marriage.
In addition, she provided the Texas birth certificates of their two daughters born
during their time in Texas. Under Texas law, even statements alone can be sufficient
to meet the preponderance of the evidence burden. See Small v. McMaster, 352 S.W.3d
280, 283-284 (Tex. App. – Houston [14th Dist.] 2011, pet. denied) (the wife’s testimony
and the testimony of other witnesses was sufficient evidence of an agreement to be
married); see also Ranolls v. Dewling, 223 F.Supp.3d 613, 624-25 (E.D. Tex. 2016)
(in rejecting defendant’s claim that the same-sex partner could not demonstrate that
she and the deceased were informally married under Texas law, the court found that
affidavits describing the same-sex relationship raised a genuine issue of material
fact as to the couple’s marital status under Texas law).[13] Indeed, a spouse’s statements
can constitute direct evidence of the elements of a common-law marriage. See Martinez
v. Lopez, 2011 WL 2112806, at *5-6 (Tex. App. – Houston [14th Dist.] 2011, no pet.)
(finding that the wife’s uncontroverted testimony that they represented themselves
as married to others supported the element of holding out to others, and the fact
that the wife was not mentioned in financial documents was not direct proof that the
couple did not represent themselves as husband and wife;); Omodele v. Adams, 2003
WL 133602, at *2 (Tex. App. – Houston [14th Dist.] 2003, no pet.) (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 [14]
together for almost 2 years and that they purchased a home and insurance together
as husband and wife); Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex. App. – Houston
[1st Dist.] 1991, writ denied) (finding that the wife’s testimony was direct evidence
of their agreement to be married).
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 provided examples of
circumstantial evidence, explaining 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.
Therefore, we next consider whether the greater weight and degree of credible evidence
provided in the Claimant’s statements, their relatives’ statements, and their daughters’
Texas birth certificates supports a reasonable belief in the truth of the Claimant’s
assertion that they agreed to be married, lived together as spouses, and represented
to others that they were married. See Herrera, 441 S.W.3d at 741. In other words,
we consider whether the Claimant has proven that it was more probable than not that
she and the NH had a common-law marriage during their time in Texas from 1986 until
1991. 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”). As addressed below,
we believe that she has.
3. Application of Elements of a Common-Law Marriage to the
Claim
i. Elements
a. Agreement to Marry
The first element for a valid common-law marriage is 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. Testimony of one of the parties to the marriage as to
their agreement to be married constitutes some direct evidence of the parties’ agreement
to be married. Small, 352 S.W.3d at 283-284. 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 Claimant’s statements provide direct evidence that she and the NH had an
agreement for a permanent marital relationship that began in March 1986 in Texas and
continued for approximately five years in Texas and a total of 32 years before the
NH died in May 2018. In her Form SSA-754, the Claimant provided that they lived together
as husband and wife in Texas from March 1986 to September 1991, when they moved to
Oxnard, California. The Claimant also said that she and the NH had an understanding
as to their relationship when they began living together in Texas, explaining that
two daughters were born of their relationship in Texas (in 1988 and 1990) and they
told others they were “common law married.” This understanding was not later changed.
In her Form SSA-754, the Claimant checked a box indicating that she and the NH had
an agreement or promise that a ceremonial marriage would be performed in the future.
However, as noted, the parties’ intent to marry ceremonially in the future does not
necessarily negate an inference that the parties believed that they already had a
common-law marriage. SeeAguilar, 715 S.W.2d at 648; McIlveen v. McIlveen, 332 S.W.2d
113, 117 (Tex. Civ. App. – Houston 1960, no writ) (holding no inconsistency in testimony
regarding desire to marry in Catholic ceremony and existence of common-law marriage);
Trammell v. Trammell, 196 S.W.2d 209, 210 (Tex. Civ. App. – San Antonio 1946, no writ)(“The
fact that the parties were to live together as husband and wife in accordance with
their agreement to do so, and at some time in the future, when their affairs made
it feasible or practical they would solemnize their relation by engaging in a lawful
ceremony, cannot be construed into a modification of the marriage agreement, rendering
it void and condemning them to a life of unlicensed sin.”). As noted above, the Claimant
and the NH told others they were “common law married” after they began living together
in Texas in 1986. Thus, despite her claim that they intended to marry ceremonially
in the future, the Claimant also asserts that she and the NH believed they already
had a common-law marriage in Texas beginning in 1986.
In addition to her statements, their conduct in having two children together while
in Texas in 1988 and 1990 – as corroborated by the children’s Texas birth certificates
- provides some circumstantial evidence supportive of this element of an agreement
for a permanent marital relationship. Their children’s Texas birth certificates identify
the Claimant and the NH as the parents and list the children with the NH’s last name
(N~). K~’s 1988 birth certificate also identifies the Claimant using her maiden name
and the NH’s last name (N~). Their conduct in having two children together during
their time in Texas supports an agreement for a permanent marital relationship. See
Lewis v. Anderson, 173 S.W.3d 556, 562 (Tex. App. – Dallas 2005, rehearing of pet.
denied) (the couple’s long cohabitation and adoption of children was evidence supportive
of an agreement to be married); In re Marriage of Hallgarth, No. 07-01-0013-CV, 2001
WL 574833, at *2 (Tex. App. – Amarillo 2001, no pet.) (the decision to have children
together, among other things, supported the element of an agreement to be married);
Flores Gonzales v. Viuda de Gonzales, 466 S.W.2d 839, 841 (Tex. Civ. App. – Dallas
1971, writ refused n.r.e.)(the couple’s recognition and support of their child, among
other evidence, was sufficient and relevant evidence to raise the issue of an agreement
to be married); see also Estate of Claveria v. Claveria, 615 S.W.2d 164, 166 (Tex.
1981) (conduct of the parties, such as acknowledging their children as legitimate,
can support a common-law marriage).
Their relatives’ statements corroborate the Claimant’s statements as to a common-law
marriage and provide circumstantial evidence to support this element of an agreement
to be married. For example, the Claimant’s sister C~ stated that the Claimant and
the NH lived together continuously as husband and wife in Texas from 1986 to 1991.[14]
C~ wrote that she had known the Claimant for 30 years (since approximately 1988, when
the Claimant and the NH were living in Texas), and she described the Claimant as her
sister-in-law. C~ said that the Claimant and the NH had always referred to each other
as husband and wife and she believed that they were husband and wife because they
raised two daughters (born in Texas) together.
In addition, the Claimant’s and the NH’s daughter K2~ (born in 1990 in Texas) provided
some statements describing their relationship in Texas. K2~ wrote that they lived
together as husband and wife in Texas from 1986 to 1991, raised her and her sister
(born in 1988 in Texas) together, and ran a household together even before she was
born. K2~ presumably based these statements on information received from others, as
opposed to her personal knowledge, as she was not born until 1990, just one year before
the Claimant and the NH moved to California in 1991. Nonetheless, when viewed in combination
with the previously discussed statements from the Claimant and the NH’s sister C~,
K2~’s statements further support an agreement to be married. SeeIn re Marriage of
Hallgarth, 2001 WL 574833, at *2 (finding that 15 years of cohabitation, use of the
same last name, and representations to third parties that they were married constituted
sufficient evidence of an agreement to be married); Gonzalez, 466 S.W.2d at 841 (finding
an agreement to be married where the couple lived together, held themselves out as
husband and wife, and recognized and supported their children); Lee, 981 S.W.2d at
906 (representations to others can constitute circumstantial evidence of an agreement
to be married).
Considering the totality of the evidence presented in these uncontroverted statements,
we believe a Texas court would find that the greater weight and degree of credible
evidence supports a reasonable belief that they had an agreement for a permanent marital
relationship, as opposed to a temporary cohabitation or association that could be
ended at any time. Indeed, all four statements explain that their marriage lasted
in total 32 years until the NH’s death on May XX, 2018. Thus, we believe that Texas
courts would find the Claimant satisfied the first element of a common-law marriage
to the NH. As such, we believe the agency could reasonably conclude that the Claimant
has proven the first element for a valid common-law marriage under Texas law.
b. Cohabitation as Spouses
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.3d at
284.
Here, the Claimant and the NH’s sister C~ both reported to the agency that the Claimant
and the NH lived together continuously as husband and wife in Texas from 1986 to 1991
prior to their move to California in September 1991.[15] Further, while presumably
based on information received from others, as opposed to her personal knowledge given
her age, the Claimant’s and the NH’s daughter K2~ also wrote that the Claimant and
the NH lived together continuously as husband and wife in Texas from 1986 to 1991.
In her Form SSA-754, the Claimant wrote that she was not sure of the exact address,
but that they began living together in Houston, Texas in March 1986. Additionally,
both daughters were born in Houston, Texas, as evidenced by their 1988 and 1990 Texas
birth certificates. In addition, while the children’s birth certificates do not have
a space to reflect the NH’s address, they list the Claimant’s address as Houston,
Texas in 1988 and Cypress, Texas in 1990, both in Harris County, Texas. Thus, the
children’s Texas birth certificates provide some corroboration to the statements that
the NH and the Claimant lived together in Texas from 1986 until September 1991. See
Tex. Fam. Code Ann. § 2.401(a)(2) (“they lived together in this state as husband and
wife and there represented to others that they were married”) (emphasis added).
[15]Under Texas law, the Claimant must prove the elements of a common-law marriage
while living in Texas. See Williams v. Home Indem. Co., 722 S.W.2d 786, 788 (Tex.
App. – Houston [14th Dist.] 1987, no writ) (living together and holding out in another
state does not satisfy the requirements for common-law in Texas); Tex. Fam. Code Ann.
§ 2.401(a)(2) (“they lived together in this state as husband and wife and there represented
to others that they were married”) (emphasis added). Thus, although they may have
also lived together in California, we must examine their relationship while living
in Texas.
Thus, we believe that Texas courts would find that the Claimant has proven by a preponderance
of the evidence that she and the NH lived together continuously for five years in
Texas as spouses. Therefore, we believe the agency could reasonably conclude that
the Claimant has proven the second element for a valid common-law marriage under Texas
law.
c. Representation to Others as Married
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.
Here, the Claimant, the Claimant and the NH’s daughter K2~, and the NH’s sister C~
provided statements indicating that while living in Texas, the Claimant and the NH
represented to others that they were husband and wife.[16]
In the Form SSA-754, the Claimant stated that in introducing themselves to others,
she and the NH referred to one another as “my husband” and “my wife” and they told
others they were “common law married.” The Claimant reported that they were shown
as husband and wife on tax returns and bank accounts. She reported that she began
using the NH’s last name N~ after the birth of their daughters and that mail was addressed
to them as “Mr. and Mrs. N~.” The Claimant listed the names of four relatives, two
of her sisters and two of the NH’s sisters, who knew of their relationship. As explained,
the Claimant and the NH also had two children together in 1988 and 1990 while living
in Texas, and the children’s Texas birth certificates identify them as the parents
and list the children with the NH’s last name (N~). See Estate of Claveria, 615 S.W.2d
at 166 (proof of common-law marriage shown by such circumstances as occupying the
same dwelling, acknowledging their children as legitimate, and addressing each other
as husband and wife). In addition, K~’s 1988 birth certificate identifies the Claimant
using both her maiden name and the NH’s last name (N~). The Claimant’s statements
and the children’s birth certificates in general are supportive of this element of
representing to others that they are married.
Further, the witness statements corroborate this holding out element. Their daughter
K2~ and the NH’s sister C~ similarly stated that the Claimant and the NH referred
to each other as husband and wife, they were generally known as husband and wife,
and they considered them to be husband and wife. K2~ wrote that her parents lived
together her whole life, raised her and her sister together, and ran a household together
even before her birth in 1990. C~ described the Claimant as her sister in law, she
said that she saw the Claimant and the NH on a yearly basis as well as on holidays,
and she believed that they were married because they raised two daughters together.
We also note that while it does not directly bear on their relationship in Texas from
March 1986 to September 1991, when the Claimant filed for Supplemental Security Income
(SSI) in June 1993, she represented to SSA that the NH was her holding out spouse.
In December 1993, SSA added the NH to the Claimant’s SSI record as her spouse. The
Claimant’s representation to SSA given close in time to the relevant period (March
1986-September 1991) supports the other statements provided.
Considering this uncontroverted evidence in statements from the Claimant, the Claimant’s
and the NH’s daughter K2~, and the NH’s sister C~, corroborated by the children’s
Texas birth certificates, we believe a Texas court would find that the greater weight
and degree of credible evidence supports a reasonable belief that over the course
of their five-year relationship in Texas, living together and having two children
together, the Claimant and the NH held themselves out to others as being in a committed
and dedicated marital relationship. 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 following evidence
supported the holding out element: 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);
cf.Martinez, 2011 WL 2112806, at *5-6 (finding that the wife’s uncontroverted testimony
that they represented themselves as married to others supported the element of holding
out to others).
Thus, we believe that Texas courts would find that the Claimant has proven by a preponderance
of the evidence that they represented to others that they were in a committed marital
relationship while living in Texas. Accordingly, we believe the agency could reasonably
conclude that the Claimant has proven the third element for a valid common-law marriage
under Texas law.
ii. The Totality of Evidence
In summary, the statements provided by the Claimant and relatives, as corroborated
by the children’s birth certificates, present an overall consistent depiction of the
Claimant’s and the NH’s relationship as a common-law marriage during their time in
Texas. In applying the preponderance of the evidence standard of proof, we believe
Texas courts would find that the greater weight and degree of credible evidence supports
a reasonable belief that in March 1986, the Claimant and the NH agreed to be in a
permanent marital relationship and began living together in Texas and representing
to others that they were married. Once a common-law marriage exists, it, like a ceremonial
marriage, may be terminated only by death or a court decree of divorce or annulment.
SeeEstate of Claveria , 615 S.W.2d at 167. Thus, moving to another state does not
terminate a Texas common-law marriage. The evidence indicates that while living in
California, the Claimant and the NH temporarily separated between 2008 or 2009 and
2017. However, the Claimant admitted that they never divorced and indeed, there is
no evidence of a divorce decree or annulment, and thus, based on the information available,
the agency could reasonably conclude that they were still married at the time of the
NH’s death in California in May 2018.[17]. Therefore, we believe the agency could
reasonably conclude that Texas courts would find that the Claimant has proven a common-law
marriage to the NH under Texas law that began in 1986 in Texas and ended with the
NH’s death in 2018 in California.
CONCLUSION
In summary, we believe that Texas courts would find that the Claimant has proven that
she was in a valid common-law marriage with the NH under Texas law from March XX,
1986 until the NH’s death on May XX, 2018, and that California courts would recognize
this valid Texas common-law marriage. See Act § 202(e)(1), (f)(1), (i), 42 U.S.C.
§ 402(e)(1), (f)(1), (i); Act § 216(a)(2), (c), (g), (h)(1)(A), 42 U.S.C. § 416(a)(2),
(c), (g), (h)(1)(A); see also 20 C.F.R.
Footnotes:
[1]The Act defines the term surviving spouse to mean a widow or widower. See Act §
216(a)(2), (c), (g), 42 U.S.C. § 416(a)(2), (c), (g).
[2] Although there are some statements from the Claimant and their relatives regarding
their time living in California, evidence concerning the Claimant’s and the NH’s relationship
after they moved to California in September 1991 is not determinative of the issue
relevant to this legal opinion - whether the Claimant and the NH met all three elements
for a common-law marriage under Texas law while living in Texas.
[3]See https://www.legacy.com/obituaries/name/thomas-nelson-obituary?pid=189180019 (last visited August 19, 2019).
4] Of their time in California, she stated that they lived in Oxnard, California from
September 1991 to March 1992; in Ventura, California from June 1992 to June 1993;
and in Ojai, California from June 1994 until the present. The Claimant explained that
they were homeless at times while living in California and they did not live together
continuously from October 2008 to June 2017 because the NH was abusive and the Claimant
left. The NH was also “in and out some of this time due to his homelessness.”
[5] Cypress is an unincorporated community in Harris County, Texas, located completely
inside the extraterritorial jurisdiction of the city of Houston and approximately
24 miles northwest of downtown Houston. See https://en.wikipedia.org/wiki/Cypress,_Texas (last visited August 20, 2019).
6 The marriage must have lasted for at least nine months immediately before the day
the insured individual died. See 20 C.F.R. § 404.335(a); POMS GN 00305.100.
[7] “Living in the same household” means that the claimant and the insured individual
“customarily lived together as husband and wife in the same residence.” 20 C.F.R.
§ 404.347; see also POMS RS 00210.035(A)(3) (the couple “must have shared a temporary or permanent residence for at least
part of a day following the beginning of the marital relationship”).
8] In addition to proving that she is the insured individual’s widow(er) whose marriage
lasted nine months (for widow’s benefits) and that she was living in the same household
as the insured (for the LSDP), the Claimant must satisfy other criteria that are outside
the scope of this legal opinion request. See Act § 202(e), (f), (i), 42 U.S.C. § 402(e),
(f), (i); Act § 216(c), (g), 42 U.S.C. § 416(c), (g); 20 C.F.R. §§ 404.335, 404.390,
404.391.
[9] On September 25, 2019, OGC Region 9 reviewed and concurred with our discussion
of California law provided in this opinion.
10] The regulations explain that a person who applies for Social Security spousal
benefits, such a widow’s benefits, on a number holder’s record, must provide evidence
of the marriage to the number holder and sets out the agency’s preferred evidence
of marriage. See 20 C.F.R. §§ 404.704, 404.709, 404.723 – 404.726. We note that the
Claimant did not provide the agency’s preferred evidence of her common-law marriage
with the NH under the regulations. See 20 C.F.R. § 404.726(b)(2). Although two the
NH’s blood relatives provided statements (sisters A and C), these statements were
not entirely supportive of a common-law marriage while living in Texas from 1986 to
1991 as A reported only on their relationship while in California beginning in 1991.
Thus, we consider whether the Claimant provided “other convincing evidence” of the
common-law marriage that satisfies Texas’s preponderance of the evidence standard
of proof. See 20 C.F.R. §§ 404.704 (“When evidence is needed to prove your eligibility
or your right to continue to receive benefit payments, you will be responsible for
obtaining and giving the evidence to us.”), 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 SSA-753 from two blood relatives of the deceased spouse and from a blood
relative of the surviving spouse). The regulations explain that “[i]f preferred evidence
is not available, we will consider any other evidence you give us” and determine whether
this other evidence is “convincing evidence.” 20 C.F.R. § 404.709. As to evidence
of a common-law marriage in particular, the regulations state that “[i]f you cannot
get preferred evidence of a common-law marriage, we will ask you to explain why and
to give us other convincing evidence of the marriage. We may not ask you for statements
from a blood relative or other person if we believe other evidence presented to us
proves the common-law marriage.” 20 C.F.R. § 404.726(c).
[11] Because of the States’ differing burdens of proof, other States applying a higher
burden of proof may have an outcome different from the one in this case.
[12] Parties to a common-law marriage may execute a declaration of informal marriage
on a form prescribed by the bureau of vital statistics and provided by the county
clerk, which affirms the elements of a common-law marriage and constitutes prima facie
evidence of the marriage. Tex. Fam. Code Ann. §§ 2.402, 2.404(d); Russell , 865 S.W.2d
at 931; Rodriguez v. State , 2018 WL 3372637, at *15 (Tex. App. – El Paso July 11,
2018, no pet.); Van Hooff , 2016 WL 193172, at *3. There is no such declaration of
informal marriage in the present case, however. Therefore, the Claimant must prove
the three elements of a common-law marriage by a preponderance of the evidence.
[13] In support of her claim that she was the female decedent’s common-law widow in
Ranolls, the plaintiff provided the court with affidavits, including her own, stating
that she and the deceased lived together since 1996; agreed to be married; wore wedding
bands to symbolize their marriage; raised a son together; presented themselves as
spouses at work events, family gatherings, parties, dinner, and other events; presented
themselves as a married couple in their daily lives; introduced each other as spouses
and their child as their son; and were both listed on school paperwork as the son’s
parents. Ranolls, 223 F.Supp.3d at 624-25. After holding that Obergefell was retroactive
such that plaintiff could legally establish a same-sex marriage prior to the date
of Obergefell , the Court denied defendants’ motion for summary judgment and found
that a genuine issue of material fact existed as to whether there was a same-sex common-law
marriage. Id . The parties subsequently reached a settlement and the case was dismissed
on May 22, 2017.
[14] As discussed in the background portion of this legal opinion, the NH’s sister
A also provided a statement describing the Claimant’s and the NH’s relationship. However,
A~’s statement only described their relationship in California beginning in 1991,
and thus it is not relevant as to whether the Claimant and the NH met all three elements
for a common-law marriage while living in Texas from 1986 to 1991.
[15]Under Texas law, the Claimant must prove the elements of a common-law marriage
while living in Texas. See Williams v. Home Indem. Co., 722 S.W.2d 786, 788 (Tex.
App. – Houston [14th Dist.] 1987, no writ) (living together and holding out in another
state does not satisfy the requirements for common-law in Texas); Tex. Fam. Code Ann.
§ 2.401(a)(2) (“they lived together in this state as husband and wife and there represented
to others that they were married”) (emphasis added). Thus, although they may have
also lived together in California, we must examine their relationship while living
in Texas.
[16] We note that some of the Claimant’s and the NH’s sister C~’s statements do not
distinguish between their relationship from 1986 to 1991 in Texas and their relationship
from 1991 to 2018 in California. However, we recognize that the agency forms do not
make such distinctions either. Thus, we understand such statements to characterize
the entirety of their relationship, which would include their time in Texas. We also
note that because their daughter K2~ was not born until 1990, to the extent that K2~
appears to be describing the Claimant’s and the NH’s relationship in Texas from 1986
to 1991, she presumably based these statements on information she received from others,
as opposed to her personal knowledge.
[17]Your legal opinion request asked whether there is sufficient documentation to
rebut the presumption that a common-law marriage did not exist between the Claimant
and the NH under Texas law if their relationship ended when they temporarily separated
(in 2008 or 2009) and not at the NH’s death in 2018. Texas law provides that if a
party does not bring a proceeding to prove a common-law marriage within two years
from the date the parties “separated and ceased living together, it is rebuttably
presumed that the parties did not enter into an agreement to be married.” Tex. Fam.
Code Ann. § 2.401(b). The Claimant’s statements are unclear as to their separation.
She indicated in the Form SSA-754 that they separated for a period of time while living
in California but also that he was “in and out” during some of this time. Their daughter
K2~ reported in the Form SSA-753 that they “separated for a short period,” and she
reported that her parents “lived together my whole life.” The NH’s sister Alice reported
that they lived together continuously in California, and his sister C~ reported that
they lived together continuously in Texas and California. Thus, the evidence of separation
is unclear. Regardless, this is only a rebuttable presumption that an individual may
rebut with evidence showing that a common-law marriage did in fact exist. See Wilson
ex rel. C.M.W. v. Estate of Williams, 99 S.W.3d 640, 644-45 (Tex. App. – Waco 2003,
no pet.). The Texas Supreme Court has explained that a rebuttable presumption has
“no effect on the burden of persuasion,” that the effect of a rebuttable presumption
“is to shift the burden of producing evidence to the party against whom it operates,”
and that “[o]nce that burden is discharged and evidence contradicting the presumption
has been offered, the presumption disappears” and “[t]he evidence on the issue is
then evaluated as it would be in any case.” General Motors Corp. v. Saenz o/b/o Saenz
, 873 S.W.2d 353, 359 (Tex. 1993); see also Joplin v. Borusheski , 244 S.W.3d 607,
611 (Tex. App. – Dallas 2008, no pet.) (noting that “[t]he effect of a presumption
[under Tex. Fam. Code Ann. § 2.401(b)] is to force the party against whom it operates
to produce evidence to negate the presumption”). Here, we believe that Texas courts
would find that Claimant has proven a common-law marriage, and thus, any presumption
against the agreement to be married based on a period of separation has been rebutted.