QUESTION PRESENTED
W1~ (Claimant) filed an application for widow’s insurance benefits under Title II
of the Social Security Act (Act) on the record of the deceased number holder (NH)
C~, as his widow. The NH died domiciled in South Carolina. You asked whether the Claimant
and the NH had a common-law marriage under South Carolina law such that the Claimant
is the NH’s widow for Title II benefit purposes.
ANSWER
We believe South Carolina courts would find that the Claimant and the NH had a valid
common-law marriage under South Carolina law from 1984 until the NH’s death in 2010.
Thus, we believe South Carolina courts would find the Claimant was validly married
to the NH at the time of his death on May XX, 2010. As such, there is legal support
for the agency to find that the Claimant is the NH’s widow under the Act for purposes
of determining her entitlement to widow’s insurance benefits on the NH’s record.
BACKGROUND
You advised that the NH died on May XX, 2010, domiciled in South Carolina. The Claimant
filed an application for widow’s insurance benefits on the NH’s record claiming she
and the NH were common-law marriage.
An agency report of contact reflects the following information obtained from the Claimant.
The Claimant alleged that she and the NH were living together as common-law spouses
at the time he died on May XX, 2010. She alleged that they had been living together
in South Carolina as spouses since 1991 and lived together until his death. She acknowledged
that when they each filed earlier applications for benefits with SSA, neither reported
that they were married. She also acknowledged that they never filed taxes as a married
couple. She also stated that the NH proposed to her several times, but they never
married. The Claimant’s SSI application that she filed in 2015 showed her address
South Carolina and agency records show this to be the same residence address for the
NH when he was living.
The Claimant completed the Form SSA-754 Statement of Marital Relationship on July
XX, 2023. She reported that she and the NH began living together as spouses in February
1984 and continuously lived together in South Carolina for 26 years until the NH’s
death in 2010. She reported that they “assumed the same relationship as husband and
wife” and they “lived and did everything a married couple did.” She identified neighbors,
friends, and relatives who knew of their relationship.
The Claimant provided the following documents to support her common-law marriage claim:
• A life insurance policy from Life Insurance Company of Georgia identifies the NH
as the insured person and states that the policy was issued in March 1998. In the
application for this life insurance policy, the NH identifies the Claimant as the
beneficiary and the relationship is listed as his “CLW” (presumably common-law wife).
The NH signed and completed this application in 1998.
• The Claimant similarly applied for life insurance. Her application for life insurance
is signed and dated by the Claimant in 2003, and she identifies the NH as her beneficiary
and the relationship is listed as her “CLH” (presumably common-law husband). •
A copy of the NH’s obituary states that the NH was survived by “his wife, [the Claimant].”
•
A “certificate of appointment” filed July XX, 2010, in the probate case for the NH
upon his death (In the Matter of C~, Marion County, South Carolina, Probate Court)
named the Claimant as the NH’s personal representative.
• A “deed of distribution” filed May XX, 2011, in the probate case for the NH upon
his death for property at South Carolina released the property to the Claimant.
• A Marion county property tax receipt for 2011 shows both the NH and the Claimant
as owners of the house at South Carolina.
Two of the NH’s relatives provided statements to the agency in support of the Claimant’s
common-law marriage with the NH, as follows:
• The NH’s sister, W2~, provided a statement on the Form SSA-795 on May XX, 2023,
that the Claimant and the NH lived together for 26 ½ years and “she was his wife to
him and is my family.” The NH’s sister also completed the Form SSA-753 Statement Regarding
Marriage on July XX, 2023. She reported that the NH and the Claimant were generally
known as a married couple and she considered them married, noting that they lived
together for over 26 ½ years and she would always treat the Claimant like a sister.
She always heard the NH and the Claimant refer to one another as spouses. In her opinion,
they maintained a home and lived together continuously as a married couple in South
Carolina from 1984 until the NH’s death in 2010.
• The NH’s stepmother, J~, provided an identical statement on the Form SSA-795 on
May XX, 2023, that the Claimant and the NH lived together for 26 ½ years and “she
was his wife to him and is my family.” The NH’s stepmother also completed the Form
SSA-753 Statement Regarding Marriage on July XX, 2023. She reported that the NH and
the Claimant were generally known as a married couple and she considered them married.
She wrote: “they lived together for over 26 ½ years” and the Claimant “will always
be part of the family.” She heard the couple refer to each other as spouses. In her
opinion, they maintained a home and lived together continuously as a married couple
in South Carolina from 1984 until the NH’s death in 2010.
ANALYSIS
A. Federal Law: Entitlement to Widow(er)’s Insurance Benefits as a Widow(er) [1]
Under Title II of the Act, a claimant may be entitled to widow(er)’s insurance benefits
on a deceased insured individual’s record if, among other requirements, the claimant
is the widow(er) of the insured individual and their marriage relationship lasted
at least nine months before the insured individual died.[2] See 42 U.S.C. §§ 402(e), (f), 416(a)(2), (c), (g); 20 C.F.R. § 404.335.
The agency will find a claimant to be an insured individual’s widow(er) if the courts
of the State in which the insured individual was domiciled at the time of death would
find that the claimant and the insured individual were validly married at the time
the insured individual died, or if, under application of that State’s intestate succession
laws, the claimant would be able to inherit a spouse’s share of the insured individual’s
personal property. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. It
is our understanding that the NH was domiciled in South Carolina when the NH died
in 2010. Therefore, we look to South Carolina law to determine if the Claimant is
the NH’s widow.
B. South Carolina State Law: Valid Marriage or Inheritance of a Spouse’s Share under
Intestate Succession Law
1. South Carolina Law Regarding Common-Law Marriage
a. Common-Law Marriage Entered into Prior to July 24, 2019
South Carolina recognizes common-law marriages entered into in the State before July
24, 2019. See Stone v. Thompson, 833 S.E.2d 266, 267, 269-270 (S.C. 2019) (abolishing
common-law marriage in South Carolina, stating “from this date forward—that is, purely
prospectively—parties may no longer enter into a valid marriage in South Carolina
without a license”).
b. Burden of Proof: Clear and Convincing Evidence
The South Carolina Supreme Court in Stone not only abolished establishment of new
common-law marriages in South Carolina prospectively from the date of the decision,
but also “update[d] the standards courts are to apply in future common-law marriage
litigation.” Stone, 833 S.E.2d at 270. The South Carolina Supreme Court held that
the heightened burden of proof of clear and convincing evidence now applied where
courts had previously applied a preponderance of the evidence burden of proof. Id.
at 267, 269-271. Additionally, prior South Carolina case law provided that cohabitation
and a reputation in the community as being married created a rebuttable presumption
that a common-law marriage existed, but the South Carolina Supreme Court in Stone
held that courts should no longer apply such presumptions. Id. at 271 (“Courts may
continue to weigh the same circumstantial factors traditionally considered, but they
may not indulge in presumptions based on cohabitation, no matter how apparently matrimonial.”).
We recognize that prior to Stone, there had been some inconsistencies among South
Carolina courts in the standard of proof applied to determine a common-law marriage
where one party to the purported marriage was deceased (which is the case in a claim,
such as the present one, for surviving spouse’s benefits where the NH is deceased).
See In re Estate of Duffy, 707 S.E.2d 447, 450 (S.C. Ct. App. 2011) (in a probate
court case, the court explained that because the plaintiff sought to establish the
existence of a common-law marriage after the death of the decedent, section 62-2-802(b)(4)
of the South Carolina Code required proof by clear and convincing evidence); Barker
v. Barker, 499 S.E.2d 503, 507 (S.C. Ct. App. 1998) (in a probate court case, the
court stated that the claimant had the burden of proving a common-law marriage by
a preponderance of the evidence); see also Williams v. Saul, 2020 WL 1303146, at *2
n.2 (D.S.C. March 19, 2020) (in affirming the Commissioner’s final decision denying
the claim for widow’s benefits, the court found the ALJ properly applied the preponderance
of the evidence standard of proof in considering whether the claimant had proven a
common-law marriage under South Carolina law). However, the Court in Stone made clear
that for “future common-law marriage litigation” involving living litigants alleging
a common-law marriage and those alleging a common-law marriage in which one purported
spouse is deceased, the standard of proof is clear and convincing evidence.
Finally, we emphasize that the Act instructs the agency to determine whether the South
Carolina Supreme Court would find that the Claimant and the NH were validly married
at the time the NH died, or if, under application of South Carolina’s intestate succession
laws, the Claimant would be able to inherit a spouse’s share of the NH’s personal
property. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. Here, the NH
died on May XX, 2010; Claimant applied for widow’s benefits with the agency in 2023;
and the agency is presently adjudicating this claim for benefits. The Claimant is
seeking to establish a common-law marriage entered into prior to July 24, 2019. We
believe that the South Carolina Supreme Court would require application of the post-Stone
clear and convincing standard of proof if the Court were today to determine the marital
status of the couple at the time of the NH’s death on May XX, 2010, particularly given
the Court’s language in Stone explaining why the Court adopted a heightened burden
of proof for common-law marriages entered into prior to July 24, 2019. See Stone,
833 S.E.2d at 271 (“[C]onsistent with our preceding discussion regarding the sanctity
of a marital relationship and our reticence to impose one on those who did not fully
intend it, we believe a heightened burden of proof is warranted. Therefore, we hold
the ‘clear and convincing evidence’ standard utilized in probate matters should also
apply to living litigants.”). Furthermore, application of the clear and convincing
standard of proof to all claims adjudicated by the agency post-Stone ensures consistency
in the agency’s evaluation of similar claims under South Carolina law, which we believe
is also consistent with the South Carolina Supreme Court’s reasoning in the Stone
decision. See id. at 270 (“Our public policy is to promote predictable, just outcomes
for all parties involved in these disputes, as well as to emphasize the sanctity of
marital union. We can discern no more efficacious way to fulfill these interests than
to require those who wish to be married in our State to comply with our statutory
requirements.”).
Thus, under South Carolina law, the party asserting that he or she entered into a
common-law marriage in South Carolina before July 24, 2019, has the burden of proving
the elements of a common-law marriage by “clear and convincing evidence.” Stone, 833
S.E.2d at 271. “This is an intermediate standard—more than a preponderance, but less
than beyond a reasonable doubt—and requires a party to show a degree of proof sufficient
to produce a firm belief in the allegations sought to be established.” Id.
c. Mutual Assent to be Married
Under South Carolina law:
A common-law marriage is formed when the parties contract to be married, either expressly
or impliedly by circumstance. The key element in discerning whether parties are common-law
married is mutual assent: each party must intend to be married to the other and understand
the other’s intent.
Stone, 833 S.E.2d at 270 (internal citations and footnote omitted). In addition:
A party is not required to show his opponent had legal knowledge of common-law marriage;
ignorance of the law remains no excuse. He must demonstrate that both he and his partner
mutually intended to be married to one another, regardless of whether they knew their
resident state recognized common-law marriage or what was required to constitute one.
Id. at 271. In discerning parties’ mutual assent and intent to be married, “[c]ourts
may continue to weigh the same circumstantial factors traditionally considered, but
they may not indulge in presumptions based on cohabitation, no matter how apparently
matrimonial.” Id. Some of the factors relevant in discerning parties’ mutual assent
and intent to be married include such things as cohabitating; introducing themselves
as spouses in public; filing joint tax returns; identifying parties as spouses on
documents filed under penalty of perjury; entering into contracts together; holding
joint bank accounts; and raising children together. See id. at 270, 272-274.
In summary, consistent with the new standards for evaluating common-law marriage claims
under South Carolina law set forth in Stone, “a party asserting a common-law marriage
is required to demonstrate mutual assent to be married by clear and convincing evidence.”
Id. A party can do so through direct evidence of an express contract to be married
or circumstantial evidence. Id. at 270. We next consider whether the Claimant has
provided such clear and convincing evidence – proof sufficient to produce a firm belief
- of a mutual assent to be married between Claimant and NH.
2. Application of the Law to the Claimant’s Common-Law Marriage with the NH
a. Common-Law Marriage Entered Into Prior to July 24, 2019
The Claimant has alleged that her marriage to the NH began in 1984 and continued until
the NH’s death in 2010. The NH’s sister and stepmother corroborated the couple’s 26
years together in South Carolina prior to his death in 2010.[3] This meets the requirement under Stone that the common-law marriage must be entered
into prior to July 24, 2019.
b. Mutual Assent to be Married by Clear and Convincing Evidence
The Claimant has provided her own statement, statements from two of the NH’s relatives,
and documents to support her common-law marriage claim.[4] As we consider whether this evidence establishes mutual assent to be married, we
note again that some factors relevant in discerning parties’ mutual assent and intent
to be married include such things as filing joint tax returns; identifying parties
as spouses on documents filed under penalty of perjury; entering into contracts together;
introducing themselves as spouses in public; holding joint bank accounts; cohabitating;
and raising children together. See Stone, 833 S.E.2d at 270, 272-274.
The Claimant’s statements support a mutual assent to be married. She reported that
she and the NH began living together as spouses in February 1984 and continuously
lived together in South Carolina for 26 years until the NH’s death in 2010. She reported
that they “assumed the same relationship as husband and wife” and they “lived and
did everything a married couple did.” She identified neighbors, friends, and relatives
who knew of their relationship. The Claimant’s statements and their 26 years together
are supportive of a mutual agreement to be married.
Documentary evidence corroborates that they lived together in the same house in South
Carolina for 26 years and shows conduct consistent with marriage such as co-owning
a home and paying property taxes together and naming one another as beneficiaries
of life insurance policies in 1998. On their life insurance policy applications, the
NH identified the Claimant’s relationship to him as his “CLW” and the Claimant identified
the NH’s relationship as her as her “CLH.” Most likely, these abbreviations for the
relationship indicate common-law wife and common-law husband. The NH’s obituary published
at the time of his death states that he was survived by “his wife,” the Claimant.
Additionally, the witness statements on the Form SSA-753 from two of the NH’s relatives
establish their cohabitation and representation to others of being married. The NH’s
relatives’ statements are supportive of Claimant’s common-law marriage claim. The
NH’s sister reported that the Claimant and the NH were generally known as a married
couple, and she considered them to be a married couple based on their 26-year relationship
living together. She heard them refer to one another as spouses. In her opinion, the
Claimant and the NH maintained a home and lived together continuously as a married
couple in South Carolina from 1984 until the NH’s death in 2010. Similarly, the NH’s
stepmother reported that the NH and the Claimant were generally known as a married
couple and she considered them married. She wrote: “they lived together for over 26
½ years” and the Claimant “will always be part of the family.” She heard the couple
refer to each other as spouses. In her opinion, they maintained a home and lived together
continuously as a married couple in South Carolina from 1984 until the NH’s death
in 2010.
Although the Claimant admitted that she and the NH did not report being married on
their earlier Social Security benefit applications or in filing taxes, it is unclear
whether they believed a South Carolina common-law marriage – as opposed to a ceremonial
marriage – should be reported on such government documents. If they understood marriage
in the government forms included common-law marriage, this would provide an inconsistency
to the Claimant’s common-law marriage claim. It is possible that they wanted to avoid
any penalties or reduction in benefits associated with a marriage. These actions cast
some doubt on the common-law marriage claim. However, based on the totality of the
evidence provided, including two supportive statements from the NH’s relatives and
the longevity of their 26-year relationship, we believe South Carolina courts would
find that their conduct overall is sufficient to provide a firm belief that they had
a mutual agreement to enter into a common-law marriage while living in South Carolina.
See Stone, 833 S.E.2d at 270; see also Stiggers-Smith v. Smith, 2009 WL 9527554, at
*3-5 (S.C. Ct. App. March 2, 2009) (holding evidence supported family court’s decision
that couple’s actions after moving to South Carolina, including holding themselves
out to the community as married and purchasing property while living in the State,
demonstrated an intent to enter into a common-law marriage while living in South Carolina).
In summary, unlike the evidence in Stone, which the court found to be “decidedly mixed”
and conflicting as to the parties’ intent, in the present matter, the evidence as
a whole as presented in the witness statements from the NH’s own relatives and documents
is all generally consistent and supportive of Claimant’s common-law marriage with
NH, with the exceptions noted above. See Stone, 833 S.E.2d at 273 (reversing the family
court’s order and finding the evidence to be conflicting and insufficient to prove
the mutual intent required for a common-law marriage); Powell v. Dolin, 879 S.E.2d
26, 32-33 (S.C. Ct. App. 2022) (finding that the evidence considered in determining
intent was conflicting and “decidedly against a finding of common-law marriage”).
We believe South Carolina courts would find that the Claimant has proven by clear
and convincing evidence that she and the NH mutually agreed and intended to be married
while living in South Carolina, and thus, had a valid common-law marriage under South
Carolina law that began in 1984 and continued for 26 years until the NH’s death in
2010.
CONCLUSION
We believe South Carolina courts would find that the Claimant and the NH had a valid
common-law marriage under South Carolina law from 1984 until the NH’s death in 2010.
Thus, we believe South Carolina courts would find the Claimant was validly married
to the NH at the time of his death on May XX, 2010. As such, there is legal support
for the agency to find that the Claimant is the NH’s widow under the Act for purposes
of determining her entitlement to widow’s insurance benefits on the NH’s record.