You have asked whether Montana State law requirements are met to establish common
law marriage after an impediment was removed.
We believe Montana State law requirements may have been met to establish a lawful
common law marriage once an impediment was removed. However, we think it advisable
that the case be further developed and that "preferred evidence" discussed in the
Program Operations Manual System (POMS) be obtained. We also believe that SSA may
be justified in pursuing administrative and criminal sanctions in light of the inconsistencies
in this case.
Federal Law, Regulation, and Policy A claimant "may be entitled to benefits as the
widow . . . of a person who was fully insured when he . . . died . . if . . . [the
claimant is] the insured's widow . . . based upon a recognized relationship." 20 C.F.R.
§ 404.335(a) (2000). The law of the state where the insured had a permanent home when
he died will be applied to determine the relationship between the claimant and the
insured. See 20 C.F.R. §§ 404.344, 404.345; see
also POMS §§ GN 00305.001(A)(3), GN 00305.005(B)(1) ("The validity of a marriage is ordinarily determined by the law of the place
where it occurred; if valid in that jurisdiction, it is usually held valid in other
places"). The relationship requirement will be met if under state law the claimant
would be able to inherit a wife's or widow's share of the insured's personal property
if intestate. 20 C.F.R. § 404.345; see also POMS § GN 00305.001(A)(1).
"A common-law marriage is one considered valid under certain State laws even though
there was no marriage ceremony"; it is between two people who are free to marry; these
people consider themselves married; and they live together as man and wife. See 20 C.F.R. § 404.726. In the case where either the husband or wife is dead, preferred
evidence of a common law marriage is "the signed statements from the living claimant
and two blood relatives of the deceased person." See id. § 404.726(b)(2). If preferred evidence of a common law marriage cannot be obtained
then an individual should explain why and submit other "convincing evidence" of a
common law marriage. See id. § 404.726(c). Montana Law In the State of Montana, a marriage entered into prior
to the dissolution of an earlier marriage of one of the parties is prohibited. See MONT. CODE ANN. (MCA) § 40-1-401 (2000). However, parties to a prohibited marriage
"who cohabit after removal of the impediment are lawfully married as of the date of
the removal of the impediment." Id. § 40-1-401(2). It is well established that common law marriages are recognized as
valid in Montana. See, e.g., MCA § 40-1-403; In re Estate
of Alcorn, 868 P.2d 629, 630 (Mont. 1994); In re Estate of
Schanbacher, 595 P.2d 1171, 1175 (Mont. 1975); Memorandum, Validity of Common Law Marriage in
Montana, RA VIII (Blair) to RC VIII August 22, 1985. To establish a common law marriage
in Montana, the party asserting that a common law marriage exists has the burden on
proving: (1) that the parties were competent to enter into a marriage; (2) that the
parties assumed a marital relationship by mutual consent and agreement; and (3) that
the parties confirmed their marriage by cohabitation and public repute. In re Estate of Hunsaker, 968 P.2d 281, 285 (Mont. 1998); Alcorn, 868 P.2d at 630 (quoting In
re Marriage of Geertz, 755 P.2d 34, 37 (Mont. 1988)); Memorandum, Validity of Common Law Marriage in Montana,
supra. The party asserting the existence of a common law marriage must prove all three
elements. Hunsaker, 968 P.2d at 285. The existence of the marriage must be proved by a preponderance
of the evidence. Miller v. Townsend Lumbar Company, 448 P.2d 148, 152 (Mont. 1968). Public policy generally favors the finding of a
valid marriage. Geertz, 755 P.2d at 37.
FACTS
The claimant, Eunice E. M~ (Eunice) filed an application for Widow's Insurance Benefits
in December 2000. She claimed she was the widow of David E. M~ (M~), who died in Montana
on October 28, 2000.
Eunice and M~ were ceremonially married on August 22, 1988 in Pocatello, Idaho.
Apparently, Eunice was already married at the time she "married" M~. Eunice had been
married to Guy T. Vance from January 1956 until, she claimed, April 1, 1978. She married
Benny J. J~ (J~) on August 15, 1978. J~ divorced Eunice on December 8, 1989, one year
and four months after she "married" M~.
M~ was also already married at the time he "married" Eunice. He married Rita M. M~
(Rita) on September 5, 1969. Rita divorced M~ on November 10, 1997, nine years and
three months after M~ "married" Eunice. M~ also may have been married to Peggy H~
(H~) at the time he "married" Eunice.
In an August 1994 application for Social Security disability benefits, M~ indicated
he married H~ in February 1978 and the marriage had not ended as of such date. Eunice
stated that she was unaware of this marriage. Further, M~ did not claim Eunice as
his wife in the application. M~ also indicated that he was married to Kay W. R~ from
November 1950 to January 1963.
Eunice has received Supplemental Security Income (SSI) benefits since August 1984.
In her application, she did not indicate that she was married or cohabiting with anyone.
She has never modified her Social Security records to include M~ as her husband or
to indicate that he was living with her.
Further, it appears from Eunice's SSI redetermination forms, that she did not have
a spouse or anyone else living with her who was receiving money from the Federal government.
M~ received Social Security disability insurance benefits in August 1993, which were
converted to retirement benefits at age sixty-five. Eunice listed her address for
purposes of her SSI benefits as Post Office Box 67, Whitehall, Montana.
Eunice filed an application for Widow's Insurance Benefits on December 11, 2000, as
M~' widow. In December 2000, she completed a Statement of Marital Relationship claiming
that they lived together in a "husband and wife relationship" from October 1988 until
M~' death in October 2000. In addition, she indicated that they introduced each other
as husband and wife.
In support of her claim for Widow's Insurance Benefits, Eunice provided a number of
documents. In October 1995, on her application for a Montana Driver's License, Eunice
listed her address as Post Office Box 718, Whitehall, Montana. In 1998, Eunice and
M~ both owned a mobile home on which they owed tax. The tax notice was sent to "M~
David & Eunice" at Post Office Box 718, Whitehall, Montana. From September 2000 to
March 2001, M~ and Eunice jointly insured a 1966 Chrysler New Yorker. They indicated
their address was, and the Auto Policy Declarations were sent to "David & Eunice M~"
at Post Office Box 718, Whitehall, Montana. In October 2000, Rocky Mountain Bank-Whitehall
sent an account statement to "David E. M~" and "Eunice M~" at Post Office Box 718,
Whitehall, Montana. On October 31, 2000, a Statement of Death by a Funeral Director
indicated Eunice was M~' wife and her address was Post Office Box 718 Whitehall, Montana.
DISCUSSION
We first consider whether Eunice and M~ were competent to enter into a marriage. Under
MCA § 40-1-401(1)(a), a party may not enter into a marriage prior to the dissolution
of an earlier marriage. Thus, Eunice was not competent to enter into a marriage with
M~, as a matter of law, until her dissolution of marriage with J~ was finalized on
December 8, 1989.
Similarly, M~ was not competent to enter into a marriage with Eunice, as a matter
of law, until his dissolution of marriage with Rita was finalized on November 10,
1997.
Of note, M~ indicated that he "married" H~ in February 1975 while he was married to
Rita, and that his "marriage" to H~ continued as of August 1994. Further development
of the circumstances of this marriage would aid the determination of the nature of
Eunice's and M~' relationship.
Specifically, where were M~ and H~ married? Did they have a common law marriage? Were
they ever divorced? In Montana, this marriage would have been prohibited per MCA §
40-1-401(1)(a). See also POMS § GN 00305.005(B)(1). There is no indication that the "marriage" to H~ met the requirements for
a common law marriage subsequent to M~' dissolution of marriage with Rita on November
10, 1997, because M~ purportedly began living with Eunice on August 31, 1988, after
they were ceremonially married.
Thus, it could be that M~' "marriage" to H~ would not raise an additional impediment
to the alleged marriage in question or bar M~' competency. However, absent further
development of M~' marriage to H~ we cannot give you a definitive answer.
If on the other hand, there was no valid marriage between M~ and H~, then Eunice and
M~ were likely competent to enter into marriage after November 10, 1997, the date
M~' divorce from Rita was finalized.
Assuming this to be true, we consider whether Eunice and M~ established a common law
marriage by mutual consent and agreement. Notably, the mutual consent of the parties
does not need to be expressed in any particular form.
Hunsaker, 968 P.2d at 285; In re Estate of
Slavens, 509 P.2d 293, 295 (Mont. 1973) (quoting Welch v. All
Persons, 278 P.2d 110, 115 (1929)). In addition, mutual consent can be implied from the conduct
of the parties. Hunsaker, 968 P.2d at 285; Miller, 448 P.2d at 151. However, the mutual consent "must always be given with such intent
on the part of each of the parties that marriage cannot be said to steal upon them
unawares." State v. Newman, 213 P. 805, 807 (Mont. 1923).
In this case, we believe that the evidence could be interpreted as demonstrating that
Eunice and M~ mutually consented and agreed to marriage. For example, Eunice and M~
were ceremonially married and began living together on August 31, 1988. Although they
were not competent to enter into a marriage until after November 10, 1997, Eunice
indicated that they lived in a "husband and wife relationship" after such date, until
M~' death on October 28, 2000. In addition, in October 1995, on her application for
a Montana Driver's License, Eunice listed her address as Post Office Box 718, Whitehall,
Montana, the same address M~ used. A 1998 mobile home tax receipt was addressed to
"M~ David & Eunice" at Post Office Box 718, Whitehall, Montana. In September 2000,
Eunice and M~ jointly insured a 1966 Chrysler New Yorker. They indicated that their
address was, and the Auto Policy Declarations were sent to "David & Eunice M~" at
Post Office Box 718, Whitehall, Montana. In October 2000, Rocky Mountain Bank-Whitehall
sent an account statement to "David E. M~" and "Eunice M~" at Post Office Box 718,
Whitehall, Montana. On October 31, 2000, a Statement of Death by a Funeral Director
indicated that Eunice was M~' wife and that her address was Post Office Box 718, Whitehall,
Montana.
Recognizably, some evidence demonstrates that Eunice and M~ did not mutually consent
and agree to marriage. Specifically, in M~' August 1994 application for Social Security
disability benefits, M~ indicated that he married H~ in February 1978 and the marriage
had not ended as of such date. In addition, he did not claim Eunice as his wife, although
they were ceremonially married six years previously in August 1988, and allegedly
had been living together since such time. Notably, Eunice began receiving SSI in August
1984. However, she never listed a spouse on her record, although she was married to
J~ until December 8, 1989, and ceremonially married M~ on October 31, 1988.
Despite the confusion regarding their marital status while applying for and receiving
Social Security benefits and assuming M~ was not validly married to H~, we believe
that the evidence could be interpreted as demonstrating that Eunice and M~ mutually
consented and agreed to marriage prior to M~' death. The evidence indicated that they
were living together as husband and wife. Notably, they were jointly responsible for
tax on a mobile home and for car insurance, and they had a joint bank account, all
in the name of "Eunice and David M~."
Finally, we consider whether Eunice demonstrated that she and M~ confirmed their marriage
by cohabitation and repute. As to repute, we should consider how the public viewed
the couple. Hunsaker, 968 P.2d at 286; Miller, 448 P.2d at 152. Relevant to this inquiry is whether the couple held themselves
out to the community as husband and wife. See
Alcorn, 868 P.2d at 632. A common law marriage does not exist if the parties have kept their
marital relationship a secret. In re Estate of
Vandenhook, 855 P.2d 518, 520 (Mont. 1993) (citing Miller v.
Sutherland, 309 P.2d 322, 327-28 (Mont. 1957)). As discussed above, we believe that the evidence
could be interpreted as demonstrating that Eunice and M~ cohabitated after the impediment
was removed and before M~' death, although they did not reveal this for the purposes
of Social Security benefits. For example, Eunice stated that she and M~ lived together
and one could assume Eunice and M~ lived in the mobile home they jointly owned. However,
the mere fact that the parties cohabitated is not determinative of marriage, it is
only a factor to consider. Alcorn, 868 P.2d at 357-58; Slavens, 509 P.2d at 294. Therefore, we consider how the public viewed Eunice and M~ and
whether they held themselves out the community as husband and wife. Again, as discussed
above, the evidence indicated that Eunice and M~ were jointly responsible for tax
on a mobile home and for car insurance, and that they had a joint bank account, all
in the name of "Eunice and David M~." In addition, Eunice indicated that they introduced
each other as husband and wife. Thus, we believe that the evidence could be interpreted
as demonstrating that Eunice and M~ cohabitated and held themselves out to the community
as being husband and wife.
CONCLUSION
After reviewing the claims materials submitted to us and pertinent Montana case law,
we believe that the evidence could be interpreted as demonstrating that a valid common
law marriage existed between Eunice and M~ after an impediment was removed assuming
again that there was no valid marriage between M~ and H~. Specifically, we believe
that the evidence could be interpreted as demonstrating that Eunice and M~: (1) had
mutual competency to enter into a marriage after November 10, 1997; (2) assumed a
marital relationship by mutual consent and agreement; and (3) confirmed their marriage
by cohabitation and repute. We note, however, that "preferred evidence" and additional
development such as tax records and state probate records would add much to this interpretation
and possibly change the outcome of this case. In addition, additional development
of M~' "marriage" to H~ is advised.
Finally, we believe that SSA may be justified in pursuing administrative and criminal
sanctions in light of the inconsistencies in this case. See POMS § GN 02604.100. As noted above, Eunice began receiving SSI in August 1984.
However, she never listed a spouse on her record although she was married to J~ until
December 8, 1989, and ceremonially married to and living with M~ since October 31,
1988.
Sincerely,
Deana R. E~-L~
Regional Chief Counsel,
Region VIII, Denver
By _________________________
William T. D~