You have requested an opinion regarding whether a 1999 Georgia State Court Order finding
that Margo is the biological and legitimate child of Ronald establishes paternity
for the purpose of awarding Social Security surviving child's benefits. / In our opinion,
the Social Security Administration (SSA) should not accept the Order as establishing
the paternity of Margo because the proceedings were not genuinely contested and the
Order is not consistent with the law enunciated by the highest court of the State.
Ronald's death certificate indicates that he was 20 years old when he died in Oklahoma
on March 24, 1982. His death was deemed a suicide by the medical examiner. His father,
Max (the senior Max), informed the medical examiner that his son was never married
and was a resident of Oklahoma. Margo's birth certificate was completed by her mother,
Tracey , a resident of Oklahoma, who signed her name as "Tracey." The birth certificate
indicates that Margo was born in Oklahoma on November, and that her father was Ronald.
Ronald's father, mother ( Martha ), and brother, Raymond , were recently contacted
by the undersigned. The senior Raymond said that Ronald never resided in Georgia,
and in fact had never visited Georgia with Tracey. He noted that his son lived at
home with him in Lawton, Oklahoma until his son turned 18 and got a job with Haliburton
in Davis, Oklahoma. Ronald then lived in Davis until he died. Raymond said that his
brother and Tracey lived together for a short time, and that his brother never indicated
to him that Tracey and he considered themselves married. Raymond did not believe that
Margo was his brother's child because Tracey had sexual relations with other men at
that time. Ronald 's mother and father both reported that they were not notified that
Tracey and Margo had filed a Petition To Establish Paternity And Legitimization.
In May 1983, Tracey filed applications for surviving child's benefits on behalf of
Margo, and surviving widow's benefits on behalf of herself, alleging that she and
Ronald had a common law marriage. Both applications were denied in December 1983,
on the basis that Tracey could not establish that a marriage existed under the deemed
marriage provisions or under the laws of Oklahoma, and that Margo was not a deemed
child and could not inherit under Oklahoma law.
Another application for surviving child's benefits was filed in May 1991, when Tracey
and Margo were residents of Florida. The SSA obtained information from the prior file,
which contained statements from Tracey that she had not used Ronald's surname because
they were not married. There were also statements from a friend who noted that Tracey
did not want to marry Ronald. The friend also noted that Ronald and Tracey had an
argument and Ronald had kicked Tracey out of the house a few days before he committed
suicide. Tracey also informed the SSA that Ronald did not acknowledge that Margo was
his child because he did not know Tracey was pregnant at the time of his death. In
the 1991 application, Tracey acknowledged that Margo does not meet the requirements
to be entitled on Ronald's record, but was advised by an attorney to file again nevertheless.
This application was denied by the SSA in June 1991, as there was no new and/or material
evidence to show that the previous denial was incorrect.
In September 1999, Tracey filed a Petition to Establish Paternity and Legitimization
(Petition) in the Superior Court of Charlton County, Georgia. Tracey states that she
is a resident of Charlton County, Georgia. The Petition incorrectly states that Ronald
was killed on April 24, 1982. The Petition further states that Tracey and Ronald "were
common law married under the laws of the States of Oklahoma and Georgia, which they
has (sic) resided in both." On this basis alone, it was requested that Margo be found
the child of Ronald and Tracey. The undersigned contacted Tracey's attorney, Kenneth.
According to Ronald, only Tracey and Margo testified at the hearing, and the Guardian
Ad Litem for Margo gave a report. On November 15, 1999, Stephen, Judge, Superior Court
of Charlton County, Georgia, signed an Order Establishing Paternity and Legitimization,
prepared by Margo. This Order states that Margo was born as issue of a common law
marriage established under the States of Oklahoma and Georgia, and was therefore the
biological and legitimate child of Ronald.
On December 13, 1999, Tracey filed the current application for surviving child's benefits
on behalf of Margo. In that application, Ms. P~ incorrectly states that "no previous
application has been filed with the Social Security Administration for whom this application
is being filed." Ms. P~ also noted that only her parents show an active interest in
Margo. Ronald's parents are not listed.
On June 27, 2000, Tracey wrote a letter to a United States Representative from Jacksonville,
Florida. Tracey indicated that she was now living in Yulee, Florida. She states in
this letter, "When I was twenty years old, I was engaged to be married and pregnant.
Six months pregnant my fiancé was killed in an automobile accident...."
The Social Security Act provides that in determining whether an applicant is the child
of a fully insured individual, the Commissioner of Social Security shall apply such
law as would be applied in determining the devolution of intestate personal property
by the courts of the state in which the insured was domiciled at the time of his death.
42 U.S.C. § 416(h)(2)(A). Thus, eligibility for Social Security benefits depends on
whether the individual would inherit under the law of intestate succession in the
state where decedent was domiciled. In this case, Oklahoma law controls because Ronald
was domiciled in Oklahoma at the time of his death. Id.
An issue of a valid marriage is entitled to inherit under the law of intestate succession
in Oklahoma. 84 Okl. St. Ann § 213. The Oklahoma statutes further provide that a child
conceived during a valid marriage, but not born at the time of the father's death,
is deemed an existing person for inheritance purposes if subsequently born alive within
ten (10) months after the death of the father. 15 Okla. St. Ann. § 15; 10 Okla. St.
Ann. § 2. Likewise, Georgia statutes provide that all children, including issue of
a common law marriage, are legitimate if born in wedlock or within the usual period
of gestation thereafter. Ga. St. Ann. 19-7-20; 1958-1959 Op. Att'y Gen. p. 89.
To establish entitlement to surviving child's benefits as a dependent child, Margo
must meet one of four provisions found at § 216(h) of the Social Security Act, 42
U.S.C. § 416(h). In the present case, Tracey asserts that because Margo is the child
of a valid common law marriage established under the laws of Oklahoma and Georgia,
Margo is entitled to Social Security surviving child's benefits based on the first
statutory alternative, found at 42 U.S.C. §§402(d)(3) and 416(h)(2)(B). These sections
provide that the child of a valid or putative marriage is deemed to be dependent for
support on the deceased wage earner and is thus eligible for surviving child's insurance
benefits without the necessity of proving actual dependence. 42 U.S.C. §§402(d)(3)
and 416(h)(2)(B). The alleged existence of a common law marriage was the only proof
of paternity submitted to the Georgia State Court. Thus, Margo's claim for surviving
child's benefits is dependent on the validity of the Georgia State Court's finding
that a common law marriage was established in either Georgia or Oklahoma.
In Social Security Ruling 83-37c, which adopts the decision in Gray v.
Richardson, 474 F.2d 1370 (6th Cir. 1973), the Social Security Administration explains when
it is bound by state court decisions on family law issues. Although the Commissioner
is not bound by a state court's decision in a proceeding to which he was not a party,
the Social Security Administration must accept state court decisions where:
an issue in a claim for Social Security benefits previously has been determined by
a state court of competent jurisdiction;
this issue was genuinely contested before the state court by parties with opposing
the issue falls within the general category of domestic relations law; and
the resolution by the state court is consistent with the law enunciated by the highest
court of the State.
See Social Security Ruling 83-37c; Gray v.
Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973).
Whether or not the Georgia State Court was a court of competent jurisdiction is not
entirely clear. The superior courts of Georgia have "subject matter" jurisdiction
in all proceedings for the determination of paternity of children who are residents
of the state. Ga. St. Ann. 19-7-40. However, it is unclear whether the superior court
had "jurisdiction over the person" ("personal jurisdiction") of all the necessary
parties in the present case. The Code of Georgia provides that a court may order service
upon a person outside the state upon a finding that there is a constitutionally permissible
basis for jurisdiction over the person, including those enumerated in Article 3, Chapter
11 of Title 19. Ga. St. Ann. 19-7-41. The relevant statute in Article 3, Chapter 11,
is the State of Georgia's version of the Uniform Interstate Family Support Act, which
lists eight methods a state court may exercise "personal jurisdiction" over a nonresident
individual in a proceeding to establish or determine parentage. Ga-St-Ann. 19-11-110.
However, this statute assumes that the putative father is alive and is silent as to
the process for deceased putative fathers. It is important to note that the Court
of Appeals of Georgia has held that the administrator of a deceased putative father's
estate was a necessary party regardless of whether the proceeding was one to establish
legitimization of a child or one to have a new birth certificate issued, or both.
Ward, 115 Ga. App. 778, 779, 782, 156 S.E.2d 210, 211, 213 (1967). Under Oklahoma law,
when a person dies intestate with no known wife or children, the father or mother
of the decedent is the administrator of the estate. 58 Okl. St. Ann. § 122. Both of
Ronald's parents reported to the undersigned that they were not informed that Tracey
and Margo had filed the Petition to Establish Paternity and Legitimization.
Thus, although it is unclear whether the Georgia State Court had obtained "personal
jurisdiction" over all the necessary parties to issue the Order in the present case,
this need not be conclusively resolved in light of the fact that the SSA need not
accept the state court Order where the issue was not genuinely contested by parties
with opposing interests, nor where resolution by the state court is consistent with
the law enunciated by the highest court of the State. See Social Security Ruling 83-37c; Gray v. Richardson,
Clearly, the issue of Ronald's paternity was not genuinely contested by parties with
opposing interests. As noted above, only Tracey, Margo and the Guardian Ad Litem for
Margo presented evidence in the state court proceeding which found that a common law
marriage existed in Georgia and Oklahoma, and that Margo was an issue of that marriage.
Furthermore, as shown below, the findings of the Georgia State Court that a valid
common law marriage existed in Georgia and Oklahoma are contrary to the evidence as
a whole and not binding on the SSA because they are not consistent with the law enunciated
by the highest court of the State.
The State of Georgia no longer allows individuals to enter into common law marriages;
however, otherwise valid common law marriages entered into prior to January 1, 1997
are continued to be recognized. Ga. St. Ann. 19-3-1.1. To have established a valid
common law marriage in Georgia prior to January 1, 1997, there must be (1) parties
able to contract, (2) an actual contract of marriage where the husband and wife agree
to live together as man and wife and they hold themselves out to the world as married,
and (3) consummation by cohabitation in Georgia. Ga. St. Ann. 19-3-1 (1999); Georgia
Osteopathic Hosp. V. O~ 198 Ga. App. 770, 777-78, 403 S.E.2d 235, 243-44 (1991); Kersey v. Gardner, 264 F. Supp. 887, 889 (M.D. Ga. 1967). There is no credible evidence demonstrating
that Ronald and Tracey ever held themselves out as married, and cohabitated in the
State of Georgia. Thus, Ronald and Tracey did not establish a common law marriage
When a common law marriage is alleged to have been established in another state, the
State of Georgia will apply the law of that other state in determining whether a valid
common law marriage exists. Ga. St. Ann. 24-7-24(a)(2). In the present case, it was
alleged that a common law marriage was established in Oklahoma. Under Oklahoma Law,
a party asserting a common law marriage must prove the following elements with clear
and convincing evidence: (1) an actual and mutual agreement between the spouses to
be husband and wife, (2) a permanent relationship, (3) an exclusive relationship proved
by cohabitation as man and wife, and (4) the parties to the marriage must hold themselves
out publicly as husband and wife. Estate of Stinchcomb v. Stinchcomb, 674 P.2d 26, 28-29 (Okla.1983) (citing Matter of Phifer's Estate, 629 P.2d 808 (Okla. Ct. App. 1981)).
There is no credible evidence that Ronald and Tracey had an actual and mutual agreement
to be husband and wife, or that they held themselves out publicly as husband and wife.
The senior Mr. V~ reported on his son's death certificate that his son was never married
and was a resident of Oklahoma. The senior Ronald further noted that his son always
lived in Oklahoma and did not live in Georgia with Tracey.
Tracey's prior admissions further show that when she filed Margo's second application
for surviving child's benefits, she knew that she did not meet the requirements to
be entitled on Ronald's record. Tracey also admitted that she did not use Ronald's
surname because she did not consider herself married to him, and there was evidence
from a friend showing that Tracey did not want to marry Ronald. Even as late as the
June 27, 2000, letter to her United States Representative, Tracey states that she
was only engaged to be married. No common law marriage exists when a couple refers
to themselves as engaged to be married; an agreement to marry in the future is not
sufficient. In re Estate of Wilson, 236 Ga. App. 496, 496, 512 S.E.2d 383, 385 (1999); In re Gray's Estate, 119 Okla. 219, ____, 250 P. 422, 425 (1926). "A mere promise of future marriage,
followed by illicit relations, is not a common law marriage." Wheaton v.
State, 185 P.2d 931, 937, 85 Okla. Crim. 132, 143-44 (Okl. Cr. App. 1947). Finally, there
is no evidence Ronald ever indicated to his family that he considered himself married
Ronald and Tracey also did not have a permanent relationship, and it is questionable
whether they had an exclusive relationship. The evidence shows that Tracey’s brother,
Raymond, reported that Ronald and Tracey only lived together for a short period of
time in Oklahoma and that Tracey may have had sexual relationships with other men.
Evidence from the prior applications also show that Ronald had kicked Tracey out of
his house a few days before he died.
The overwhelming evidence shows a common law marriage could not have been entered
in Georgia because Ronald never resided there, nor in Oklahoma because Tracey believed,
at the most, to be engaged to Ronald at the time of his death, and they did not hold
themselves out as husband and wife to family and friends. Therefore, it is unlikely
the highest court of Georgia would have found a valid common law marriage existed
in either Georgia or Oklahoma based on these facts. In re
Estate of W~, 236 Ga. App. 496, 496, 512 S.E.2d 383, 385 (1999) (No common law marriage exists
when a couple does not hold themselves out as husband and wife and refer to themselves
as engaged to be married). The SSA therefore, need not accept the Georgia State Court
Order finding that Margo was an issue of a valid common law marriage between Tracey
and Ronald. The Georgia State Court Order would only be considered along with the
other evidence before the Administration. Kersey v. Gardner, 264 F. Supp. 887, 890 (M.D. Ga. 1967).
Based on the foregoing discussion, it is our conclusion that the SSA is not bound
by the Order because it was not genuinely contested before the state court by parties
with opposing interests, and the state court's Order is not consistent with the law
enunciated by the highest court of the State.
Tina M. Waddell
Regional Chief Counsel
Assistant Regional Counsel