QUESTION PRESENTED
The purpose of this memorandum is to respond to your request for our opinion regarding
the possible entitlement of R~ (R~) to widow’s insurance benefits as the widow of
J~, the deceased number holder (NH). See 42 U.S.C. § 402(e)(1) (entitlement to widow’s insurance benefits). For determining
whether R~ is the NH’s widow as section 216(c) of the Social Security Act (Act) defines,
you asked whether under Texas law, R~ and the NH were validly married at the time
of the NH’s death. See 42 U.S.C. § 416(c), (h)(1)(A)(i). For widow’s benefits on the NH’s record, R~ must
also be unmarried and thus, you also asked us to determine the status of R~’s subsequent
marriage to her second alleged spouse, M~ (M~). See 42 U.S.C. § 416(e)(1)(A). Specifically, you asked whether under Texas law R~ and
M~ had a valid common-law marriage and if so, the effective date of when such marriage
began.
ANSWER
Based on the evidence submitted, we believe that there is legal support for the agency
to find that under Texas law R~ and the NH had a valid ceremonial marriage at the
time of the NH’s death in July 2004. Although they had filed for divorce, the court
dismissed their divorce action for want of prosecution in 1995. Therefore, R~’s marriage
to the NH did not end until the NH’s death on July XX, 2004.
Although R~’s subsequent March XX, 2004 ceremonial marriage to M~ in Nevada was void
because R~ was still married to the NH at that time, we believe that there is legal
support for the agency to find that after the NH’s death and upon moving to Texas
in 2005, R~ and M~ entered into a valid common-law marriage under Texas law effective
sometime in 2005 when they began living as husband and wife in Texas. Because R~ and
M~ have a valid common-law marriage, R~ was not unmarried at the time she applied
for widow’s benefits on the NH’s record in 2016.
BACKGROUND
The evidence provided shows that R~ has had three purported marriages, as described
below:
A. R~’s 1985 Ceremonial Marriage to the NH in Texas
R~ provided a copy of a completed and recorded Texas marriage license and certificate,
which stated that she and the NH married in a ceremony on June XX, 1985 in E~ County,
Texas. In 1995, the NH filed for divorce from R~. The evidence contains a copy of
a Dismissal Order for Lack of Prosecution signed October XX, 1995 (and filed November
XX, 1995), from the 34th District Court of E~ County, Texas showing that the divorce
petition between R~ and the NH was dismissed after neither the parties nor their attorneys
appeared for trial. The District Clerk for E~ County wrote a letter dated September
XX, 2016, certifying that she searched the civil index records for the dates from
1985 to 2004 and found that the divorce case between the NH and R~ was closed with
an Order for Dismissal for Want of Prosecution on November XX, 1995. R~ stated she
believed she was divorced from the NH because he gave her divorce papers to sign and
did not learn that the court dismissed the divorce petition until she tried to obtain
proof of the divorce when she was buying a house in 2013. On July XX, 2004, the NH
died domiciled in Texas.
B. R~’s Purported Ceremonial Marriage to M~ in Nevada
On March XX, 2004, R~ entered into a ceremonial marriage with M~ in Nevada under the
belief that she and the NH were divorced. She provided a copy of a Nevada certified
abstract of marriage record showing that she and M~ married in a solemnized marriage
ceremony in C~ County, Nevada on March XX, 2004. They apparently lived in Arizona
at this time from March 2004 until August 2004, but married in a ceremony in Nevada.
R~ and M~ moved to L~, California in 2004, and later moved to E~, Texas in 2005, where
they continue to live.
C. R~’s Subsequent Purported Common-Law Marriage to M~ in Texas
R~ submitted a SSA-754 Statement of Marital Relationship, which she competed in February
2017, stating that she and M~ began living together as husband and wife in March 2004.
She stated that they lived together as husband and wife, considered themselves to
be married, and referred to each other as husband and wife. In addition, R~ stated
that from March 2004 to August 2004, she and M~ lived together as husband and wife
in M~ Arizona, and that from August 2004 to sometime in 2005, R~ and M~ lived as husband
and wife in L~, California. Beginning at some point later in 2005, R~ and M~ began
living as husband and wife in E~, Texas, where they continue to reside together in
2017. She listed her address as E~, Texas. She reported that they opened joint bank
accounts showing themselves as married, they had insurance policies showing that they
were married, and they filed tax returns as a married couple.
M~ also submitted a SSA-754, which he completed in February 2017, stating and he and
R~ lived together as husband and wife, considered themselves to be married, and referred
to each other as husband and wife. He stated that they began living together as husband
and wife in March 2004 in Arizona, then they lived together in California from 2004
to 2005, and then they lived together in E~, Texas from 2005 until 2017. He also stated
that they filed tax returns as a married couple, opened joint bank accounts as a married
couple, and have life insurance policies showing they are married. He listed the same
home address as R~ in E~, Texas.
ANALYSIS
A. Federal Law: Entitlement to Widow’s Insurance Benefits Under the Act
A claimant is entitled to widow’s insurance benefits under Title II of the Act if,
among other things, she shows that she is the widow of a person who died a fully insured
individual, that their marriage lasted nine months immediately before the insured
died, and that she is unmarried. See 42 U.S.C. §§ 402(e)(1), 416(c); 20 C.F.R. §§ 404.335(a)(1) (you are married and your
marriage lasted for at least 9 months), (e) (you are unmarried), 404.345 (your relationship
as a surviving spouse under state law) Thus, R~ must show that she is the NH’s widow,
that they were married for at least 9 months immediately before the NH died in July
2004, and that she is unmarried.
The agency will determine whether an applicant is an insured individual’s widow by
determining if the courts of the state in which the insured individual had a permanent
home 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 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. Permanent home means the
true and fixed home or legal domicile of the insured individual. 20 C.F.R. § 404.303.
Because the NH was domiciled in Texas at the time he died, we look to Texas law to
determine whether R~ is the NH’s widow.
B. Texas State Law: R~’s Marriages to the NH and to M~
1. R~ Was Validly Married to the NH at the Time of His Death in July 2004
In Texas, marriages may be either ceremonial or informal. See Tex. Fam. Code Ann. §§ 2.001 – 2.602; Russell v. Russell, 865 S.W.2d 929, 931-33 (Tex. 1993) (“[c]ommon law marriages have been recognized
in Texas since 1847”). A Texas common-law marriage produces the same legal consequences
as a ceremonial marriage. Whaley v. Peat, 377 S.W.2d 855, 857 (Tex. Civ. App. - Houston 1964, writ ref’d n.r.e). Here, there
is evidence of R~’s ceremonial marriage to the NH in Texas in 1985, her ceremonial
marriage to M~ in Nevada in March 2004, and a common-law marriage to M~ in Texas in
2005. When two or more marriages of a person to different spouses are alleged, Texas
law presumes the validity of the most recent marriage until the validity of the prior
marriage is proven. Tex. Fam. Code Ann. § 1.102. The presumption of the validity of
the most recent marriage is one of the strongest presumptions under Texas law. See Texas Employer’s Ins. Ass’n. v. Elder, 282 S.W.2d 371, 373 (Tex. 1955). The burden is on the party attacking the validity
of the most recent marriage, who must establish both the existence of the prior marriage
and its continuing validity at the time of the later alleged marriage and must introduce
sufficient evidence, standing alone, to negate the dissolution of the prior marriage.
See Estate of Claveria v. Claveria, 615 S.W.2d 164, 165 (Tex. 1981); In re Estate of Loveless, 64 S.W.3d 564, 574 (Tex. App. – Texarkana 2001, no pet.).
Here, R~s March 2004 ceremonial marriage to M~ is her most recent marriage and therefore, is
presumed valid. See Tex. Fam. Code Ann. § 1.103 (Texas law applies to persons married elsewhere who are
domiciled in this state). However, as presented above, the evidence indicates that
R may still have been married to the NH at the time she married M~ in March 2004.
Under Texas law, a marriage is void if entered into when either party has an existing
marriage to another person that has not been dissolved by legal action or terminated
by the other spouse’s death. Tex. Fam. Code Ann. § 6.202(a); see also Romano v. Newell Recycling of San Antonio, L.P., 2008 WL 227974 at *3 (Tex. App.-San Antonio January 30, 2008, no pet.) (mem. op.)
(“This rule rendering the subsequent marriage void applies whether the marriage is
ceremonial or common law.”); Phillips v. The Dow Chemical Company, 186 S.W.3d 121, 127 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (“Thus, a marriage
entered into while one party is married to another person is void from the outset
as a matter of law.”). Therefore, we consider whether R~ and the NH were validly married
and remained married at the time she later entered into this ceremonial marriage with
M~ in March 2004, such that her ceremonial marriage to M~ was void.
Here, the evidence indicates that R~ and the NH entered into a ceremonial marriage
in Texas. A ceremonial marriage requires parties to the marriage to obtain a marriage
license from a county clerk, participate in a marriage ceremony an authorized person
performed, and return the marriage license after the ceremony to the county clerk,
who then records the completed marriage license and mails the certified copy to the
married couple. See Tex. Fam. Code Ann. §§ 2.202, 2.203(a), 2.206(a), 2.208(a). The recorded marriage
license with the completed marriage certificate is proof of a valid marriage. See Black v. Shell Oil Co., 397 S.W.2d 877, 881 (Tex. Civ. App. - Texarkana 1965, writ ref’d n.r.e.); Jones v. State, 17 S.W.2d 1053, 1056 (Tex. Crim. App. 1928); see also Simpson v. Simpson, 380 S.W.2d 855, 858 (Tex. Civ. App. – Dallas 1964, writ ref’d n.r.e) (“It has long
been the established law of Texas that a ceremonial marriage entered into in accordance
with legal forms will raise the presumption, or inference of its legality.”).
As described above in the background section, the evidence provided shows R~ and the
NH had a valid ceremonial marriage in Texas that began in 1985 and continued until
the time of the NH’s death in July 2004. R~ and the NH’s 1985 recorded Texas marriage
license with the completed marriage certificate is proof of a valid marriage. See Black v. Shell Oil Co., 397 S.W.2d at 881; see also Simpson v. Simpson, 380 S.W.2d at 858 (“It has long been the established law of Texas that a ceremonial
marriage entered into in accordance with legal forms will raise the presumption, or
inference of its legality.”). Once a marriage exists, it may be terminated only by
death, a court decree of divorce, or annulment. Estate of Claveria v. Claveria, 615 S.W.2d 164, 167 (Tex. 1981); Tatum v. Tatum, 476 S.W.2d 629, 631 (Tex. Civ. App. – Fort Worth, 1972, writ dsm’d w.o.j.). The information
you provided shows that R~ believed she later divorced the NH because the NH gave
her divorce papers that she signed. However, the evidence also shows that the court
dismissed the NH’s divorce petition for want of prosecution and therefore, did not
render a final judgment of divorce. Because there was no timely challenge to this
dismissal of the divorce action, the order of dismissal became final. See Pollard v. Pollard, 316 S.W.3d 246, 251 (Tex. App. – Dallas 2010, no pet.) (the court properly dismissed
the divorce action after the spouse had died and with no timely challenge to the dismissal,
the order of dismissal became final). R~ stated that she did not learn that the divorce
petition was dismissed until she bought a house in 2013 and after she married M~ in
March 2004 in a ceremonial marriage. Under Texas law, evidence that divorce proceedings
were instituted during a first marriage, but then dismissed for want of prosecution
has been held “sufficient to overcome the presumption of validity of the subsequent
marriage.” Bailey-Mason v. Mason, 122 S.W.3d 894, 898 (Tex. App. Dallas 2003, pet. denied); see Dodd v. Dodd, 17 S.W.3d 714, 716 (Tex. App. —Houston [1st Dist.] 2000, no pet.), disapproved on
other grounds, 124 S.W.3d 163 (Tex. 2003). Thus, the evidence provided is sufficient
to establish that R~ and the NH were validly married and never divorced, and as a
result, her March 2004 ceremonial marriage to M~ was void.
Therefore, under Texas law, R~ was validly married to the NH at the time of his death
in July 2004 and their marriage lasted at least nine months before the NH’s death.
As such, R~ is the NH’s widow under the Act for purposes of her application for widow’s
benefits on the NH’s record. See 42 U.S.C. §§ 402(e)(1), 416(c)(1), (h)(1)(A)(i); 20 C.F.R. §§ 404.335(a), 404.345.
However, as explained below, R~ does not meet the requirement for widow’s benefits
that she was unmarried because there is legal support for the agency to reasonably
conclude that she is currently in a valid common-law marriage to M~ under Texas law.
2. R~ Has a Valid Common-Law Marriage to M~
The information provided shows that while R~ and M~s 2004 ceremonial marriage was
void, she entered into a subsequent common-law marriage to M~. Under Texas law, an
otherwise void marriage becomes valid if, after the prior marriage has been dissolved,
the parties live together as husband and wife and represent themselves to others as
being married. Tex. Fam. Code Ann. § 6.202(b). Here, R~’s marriage to the NH terminated
upon his death in July 2004, and she continued to live with M~ after this time as
a married couple. To establish a valid marriage to M~ under Texas law, R~ must prove
that she and M~ lived together as husband and wife and represented themselves to others
as being married during the time following the NH’s death in July 2004 (and dissolution
of his marriage to R~). Id. at § 6.202(b); see also Omodele v. Adams, 2003 WL 133602, at *3-4 (Tex. App – Houston [114th Dist.] 2003, no pet.) (“when
a woman continues to live with a man as his wife after his divorce from a previous
wife, a common-law marriage exists that may be the subject of a divorce”). In other
words, they can establish a valid common-law marriage under Texas law upon dissolution
of R~s marriage to the NH with his death in July 2004.
a. Overview of the Elements of a Common-Law Marriage
The elements of a valid common-law 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).
b. Burden of Proof: Preponderance of the Evidence
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. 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.); 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”). Therefore, we must determine if R~ has shown
by a preponderance of the evidence that during the time she and M~ lived together
in Texas beginning in 2005 (and after the NH’s death), she and M~ agreed to be married,
lived together in Texas as husband and wife, and represented to others that they were
married.
R~ and M~ provided their statements regarding their common-law marriage. Although
R~ did not submit any documentary evidence, under Texas law, 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). Indeed, a claimant’s statements can constitute direct evidence
of the elements of a common-law marriage. See Omodele, 2003 WL 133602, at *2 (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 together for almost 2 years and that
they purchased a home and insurance together as husband and wife); Martinez v. Lopez, 2011 WL 2112806, at *5-6 (Tex. App. – Houston [14th Dist.] 2011, no pet.) (the wife’s
uncontroverted testimony that they represented themselves as married to others supported
the element of holding out to others); Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex. App. – Houston [1st Dist.] 1991, writ denied) (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 stated 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. We consider whether the greater weight and degree of credible evidence supports a
common-law marriage between R~ and M~.
c. Application of the Elements of a Common-Law Marriage
i. Elements
a. Agreement to Marry
The first element for a valid common-law marriage requires 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). 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, R~ and M~ clearly had an agreement to marry as they were married in a ceremonial
marriage in Nevada in March 2004 and did not know that such ceremonial marriage was
void until 2013. They each submitted a Statement of Marital Relationship in which
they both stated that they began living together in a husband and wife relationship
in March 2004 after this ceremonial marriage and continued to live together and represent
to others that they were married after they moved to Texas in 2005. As such, we believe
that Texas courts would find an agreement to marry and that the agency could reasonably
conclude that R~ and M~ have established the first element for a valid common-law
marriage under Texas law.
Furthermore, section 6.202 indicates that the critical elements for proving a valid
common-law marriage upon dissolution of a prior marriage under circumstances such
as the one involved here are the elements of cohabitation and representation of marriage
to others, which we address next. See Tex. Fam. Code Ann. § 6.202(b) (“The later marriage that is void under this section
becomes valid when the prior marriage is dissolved, if, after the date of the dissolution,
the parties have lived together as [spouses] and represented themselves to others
as being married.”).
b. Cohabitation in Texas as Spouses
The second element for a valid common-law marriage requires that the couple live together
in Texas as spouses. See Tex. Fam. Code Ann. § 2.401(a)(2). R~ and M~ both stated that they have lived together
as spouses in Texas from 2005 to the present. They continue today to live at the same
address in E~, Texas. R~ and M~ stated that they did not live together continuously
during that time, and that they had a period of separation from September 2015 to
November 2015. However, courts have not required the living arrangement to be continuous.
See Small v. McMaster, 352 S.W.3d 280, 284 (Tex. App. –Houston [14th Dist.] 2011 pet. denied). (‘[c]ohabitation
need not be continuous for a couple to enter into a common law marriage.”). Considering
their statements, we believe that there would be legal support for the agency to conclude
that the greater weight and degree of credible evidence supports a reasonable belief
that R~ and the NH lived together in Texas as spouses since 2005 or for the past 12
years. See Van Hooff, 2016 WL 193172, at *5 (the court found sufficient evidence to support the cohabitation
element where no one disputed that they couple began living together in 1999 and continued
to live together until 2011 when they separated); Romano v. Newell Recycling of San Antonio, LP, 2008 WL 227974, at *5 (Tex. App. – San Antonio 2008, no pet.) (finding “extensive
evidence of cohabitation” where witnesses testified that the couple lived together
for around nine years and it did not appear that the husband left the wife for more
than a month or two at a time and that he left only during times the couple was fighting).
As such, we believe that Texas courts would find cohabitation as spouses in Texas
and that the agency could reasonably conclude that R~ and M~ have established 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 evidence shows that R~ changed her name to M~’s last name after she and
M~ married. R~ and M~ also both stated that they had designated themselves as spouses
and married in joint tax returns, a joint bank account for at least ten years, and
a life insurance policy since 2015. R~ and M~ also stated that they introduced each
other as husband and wife, and that their relatives and friends knew of their relationship.
This evidence is sufficient to establish their status in the community as a married
couple. 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
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); Tatum, 476 S.W.2d at 630 (filing joint tax returns, opening a joint checking account, designating
a spouse on life insurance policy, and holding themselves out to their community as
being married all constituted sufficient evidence of a common-law marriage). We believe
that Texas courts would find that they represented to others that they were married
in Texas and that the agency could reasonably conclude that R~ and M~ have established
the third element for a valid common-law marriage under Texas law.
ii. The Totality of the Evidence
In sum, we believe a court would find under Texas law that R~ and M~ proved a subsequent
valid common-law marriage. Thus, we believe there is legal support for the agency
to conclude that the greater weight and degree of credible evidence in their statements
establishes that R~ and M~ had a common-law marriage that began after the dissolution
of R~’s marriage to the NH at the time of the NH’s death in July 2004 and upon continuing
their relationship in Texas in 2005. Although they also stated later in their 2017
statements to the agency that they believed they were not legally married once they
learned in 2013 that R~ had not been divorced from the NH at the time of their March
2004 ceremonial marriage, this subsequent belief based on a misunderstanding of the
law does not disprove or invalidate an otherwise valid common-law marriage under Texas
law. In re Estate of Giessel, 734 S.W.2d at 31 (the wife’s representations in documents that she was single went
“to the weight of the evidence” and did not “negate a marriage, as a matter of law”).
They were living as a married couple in Texas and under the belief that they were
married for eight years from 2005 until 2013. And they continued to live together
after that time and currently live together in 2017. There is no such thing as a common-law
divorce. Estate of Claveria, 615 S.W.2d at 167.
Here, since R~ had a subsequent valid common-law marriage to M~, she was not unmarried
at the time she applied for widow’s benefits. As such, R~ does not meet this requirement
for entitlement to widow’s benefits on the NH’s account. See 42 U.S.C. §§ 402(e)(1), 416(c); 20 C.F.R. § 404.335(e) (requirement that a claimant
under age 60 applying for widow’s benefits must be unmarried).
3. R~’s Common-Law Marriage to M~ Began in 2005
Because we believe that R~ has proven a subsequent valid common-law marriage to M~,
we now address the effective date of their common-law marriage. A common-law marriage
exists when the three elements (an agreement to be married, marital cohabitation in
Texas, and representation of the marital relationship) are present. See Farrell v. Farrell, 459 S.W.3d at 117. In addition, all elements must exist at the same time. See Bolash v. Heid, 733 S.W.2d. 698, 699 (Tex. App-San Antonio 1987, no writ). In this case, R~ and
the NH’s marriage was dissolved at the time of the NH’s death in July 2004. However,
the information provided shows that R~ and M~ were living in Arizona and California
in 2004 and 2005 and did not live together as husband and wife in Texas until they
moved to E~, Texas sometime later in 2005. The three elements necessary for a valid
informal marriage did not exist until sometime in 2005 when R~ and M~ began 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). Therefore, the effective date of R~ and M~’s informal marriage would be sometime
in 2005 when they began living as husband and wife in Texas.
CONCLUSION
We conclude that under Texas law, R~ and the NH had a valid ceremonial marriage until
the time of the NH’s death in July 2004. R~’s March 2004 ceremonial marriage to M~
was void because R~ was still married to the NH at that time. However, after the NH’s
death and upon moving to Texas in 2005, R~ and M~ subsequently validated their marriage
because they agreed to be married, lived as husband and wife in Texas, and represented
to others that they were married. Because R~ had a valid, subsequent common-law marriage
to M~ that began in 2005 when they moved to Texas, R~ was not unmarried at the time
she applied for widow’s benefits in 2016. Therefore, R~ does not meet this requirement
for entitlement to widow’s benefits on the NH’s account.