Whether W~, Jr., the number holder (NH), and Claimant E~, who purportedly entered
into a same-sex, common-law marriage in Kentucky in 1972 and moved to Alabama in 2006,
were validly married under Alabama law as early as December xx, 2014 (before Alabama
began recognizing same-sex marriages in February 2015), for determining WIB and LSDP
We believe that the Alabama Supreme Court would recognize as valid the common-law
marriage between Claimant and NH that began at least by December xx, 2014. Consequently,
the agency could find Claimant and NH were married for WIB and LSDP purposes and satisfied
the WIB duration of marriage requirement.
According to the information provided, Claimant alleges he and NH, both men, began
living together and entered into a common-law marriage in Kentucky in 1972 and continued
living together as a married couple through their 2006 move to Alabama and until September
xx, 2015, when NH died while domiciled in Alabama. Claimant completed a Statement
of Marital Relationship, in which he explained that he and NH loved each other, NH
bought them a house, they intended to make a life together, and they lived together
and shared expenses during their thirty-four years in Kentucky. He did not, however,
state that he and NH considered themselves to be married at that time. Claimant explained
that NH owned the house they shared in Kentucky and the house they shared in Alabama,
but Claimant provided receipts to show he shared household expenses. Claimant also
claims he and NH purchased land together in Alabama, each paying half, but that, at
NH’s insistence, they listed the property in Claimant’s name. Claimant now states
that he considered himself married to NH in common-law, because it was obvious to
them and those who knew them that they were in a long-term relationship, shared with
each other, and planned for a future together, “just as heterosexual, married couples
always have done.”
Claimant and NH did not execute any documents jointly (such as tax returns, deeds,
contracts, insurance policies) or open joint bank accounts. However, Claimant said
he referred to NH when talking to relatives, friends, neighbors, and others as his
mate, partner, friend, husband, or spouse, and that NH used similar terms when referring
to Claimant. NH purchased an annuity in August 2013 and named Claimant, his “Friend/Domestic
Partner,” as his primary beneficiary. In his will, NH referred to Claimant as his
“friend,” and named Claimant executor and left him the residuary of his estate. NH’s
brothers contested NH’s will, and the Circuit Court of Bullock County summarily dismissed
NH’s great nephew and niece and Claimant’s niece, each completed a Statement Regarding
Marriage, where each said he or she had known both NH and Claimant for decades, and
met with the couple at family gatherings. Each said he or she had heard NH and Claimant
refer to each other as a spouse, each considered NH and Claimant to be married, and
each said NH and Claimant were generally known as a married couple.
A claimant may be eligible for WIB if the claimant is the widower of an individual
who died fully insured. See Social Security Act (Act) § 202(f)(1); 20 C.F.R. § 404.335(a) (2018). A claimant may qualify as the widower of an insured individual if the courts of the
state in which the insured individual was domiciled at the time of death would find
the claimant and insured individual were validly married when the insured individual
died. See Act § 216(h)(1)(A)(i); 20 C.F.R. §§ 404.335(a)(1), 404.345; Program Operations Manual
System (POMS) GN 00305.001A.2.a, POMS RS 00207.001A.1.a.1. When a couple was childless and the claimant was not entitled to benefits before
the marriage began, a widower can qualify for WIB if he had been married to the insured
individual for at least nine months immediately before the insured individual died.
See Act § 216(c)(1)(E); 20 C.F.R. § 404.335(a)(1); POMS GN 00305.100A.1; POMS RS 00207.001A.1.a.2. A surviving spouse of an individual who died fully or currently insured can be
eligible for the LSDP if the couple was living together when the insured individual
died. See Act § 202(i); 20 C.F.R. §§ 404.390, 404.391; POMS RS 00210.001. Unlike the provisions related to WIB, LSDP rules do not require a widower of an
insured individual to have been married for a minimum period to qualify. See Act § 202(i); 20 C.F.R. §§ 404.390, 404.391; POMS RS 00210.001. NH was a resident of Alabama when he died. Therefore, we look to Alabama law to
determine if (and, if so, how long) Claimant and NH were validly married.
Same-Sex Marriage in Alabama
Before February xx, 2015, Alabama did not recognize marriages contracted between individuals
of the same sex and prohibited the issuance of a marriage license to parties of the
same sex. Both the state constitution and the Alabama Code restricted the definition
of marriage to a union between a man and a woman. See Ala. Const. art. I, § 36.03; Ala. Code § 30-1-19(d) (2018). However, on January xx, 2015, a Federal district court in the Southern District of
Alabama held that Alabama’s same-sex marriage ban was unconstitutional and enjoined
the state’s attorney general from enforcing the state’s ban. SeeSearcy v. Strange, 81 F. Supp. 3d 1285, 1287-90 (S.D. Ala. 2015). After the Eleventh Circuit Court
of Appeals and United States Supreme Court denied requests to extend any stay on the
Searcy injunction, that injunction in took effect on February 9, 2015. SeeStrange v.
Searcy, 574 U.S. ---, 135 S. Ct. 940 (Mem.) (2015); Order, Searcy v. Attorney Gen., State of Ala., No. 15-10295 (11th Cir. Feb. 9, 2015). Based on the injunction, Alabama began recognizing
same-sex marriages performed in the state as of February xx, 2015. See POMS GN 00210.003A.1.
On June xx, 2015, United States Supreme Court held that same-sex couples may exercise
the fundamental right to marry under the United States Constitution. SeeObergefell v. Hodges, 576 U.S. ---, 135 S. Ct. 2584, 2604-05 (2015). The Court held state laws invalid
to the extent they exclude same-sex couples from civil marriage on the same terms
and conditions as opposite-sex couples. Id., 135 S. Ct. at 2605. Pursuant to Harper v. Virginia Department of Taxation, 509 U.S. 86, 94-98 (1993), the agency should give Obergefell full retroactive effect in all cases still open on direct review and as to all events,
regardless of whether such events predate or postdate Obergefell. As a result, the agency considers state-law same-sex-marriage bans, whether based
on state constitutional or statutory provisions or on case law, void and ineffective.
Although Claimant alleges a common-law marriage with NH beginning in 1972, Kentucky does not recognize common-law marriage. SeeMcDaniel v.
McDaniel, 280 S.W. 145, 146 (Ky. 1926). Therefore, we must determine whether Alabama courts
would recognize as valid the couple’s purported same-sex, common-law marriage, and
for WIB purposes we must determine if the marriage, if valid, arose at least by December
xx, 2014, nine months before NH died. Therefore, we considered whether Alabama courts
would recognize Claimant and NH to have been married at common-law as of December
xx, 2014, or earlier.
Common-law marriage in Alabama
Alabama abolished common-law marriage as of January xx, 2017. See Ala. Code § 30-1-20(a); POMS GN 00305.075B. However, “[a]n otherwise valid common-law marriage entered into before January xx,
2017, shall continue to be valid in” Alabama. Ala. Code § 30-1-20(b); see POMS GN 00305.075B. Alabama considers common-law marriage an “alternate method of validating the connubial
union of two people,” that is “co-equal” to ceremonial marriage. Scott v. Bd. of Trs. of Mobile S.S.
Ass’n-Int’l Longshoremen’s Ass’n Pension, Welfare & Vacation
Plans, 540 So. 2d 657, 659 (Ala. 1988) (internal citations omitted). The elements of a
valid Alabama common-law marriage are: (1) the capacity to marry; (2) present, mutual
agreement to permanently enter the marriage relationship to the exclusion of all other
relationships; and (3) public recognition of the relationship as a marriage and public
assumption of marital duties and cohabitation. SeeBoswell v. Boswell, 497 So. 2d 479, 480 (Ala. 1986). These elements may be “either explicitly expressed
or implicitly inferred from the circumstances.” Id. Alabama courts “closely scrutinize claims of common-law marriage and require clear
and convincing proof thereof.” Lofton v. Estate of Weaver, 611 So. 2d 335, 336 (Ala. 1992) (internal quotation marks omitted). “Clear and convincing
evidence” is defined as:
Evidence that, when weighed against evidence in opposition, will produce in the mind
of the trier of fact a firm conviction as to each essential element of the claim and
a high probability as to the correctness of the conclusion. Proof by clear and convincing
evidence requires a level of proof greater than a preponderance of the evidence or
the substantial weight of the evidence, but less than beyond a reasonable doubt.
Ala. Code § 6-11-20(b)(4), quoted inDyess v.
Dyess, 94 So. 3d 384, 386-87 (Ala. Civ. App. 2012). On the other hand, once a party demonstrates
the requisites of a common-law marriage, Alabama generally presumes a common-law marriage
is valid, even one that may be flawed, and places the burden of overcoming that presumption
on a party who challenges the marriage. SeeCross v. Rudder, 380 So. 2d 766, 773-74 (Ala. 1979). “The determination of whether a relationship
. . . was intended as a common-law marriage is made on the facts of a particular case,
with regard to the situation and circumstances of the individuals involved.” Boswell, 497 So. 2d at 480.
To demonstrate the first Alabama requirement of a common-law marriage -- the capacity
to marry -- an individual must be unmarried, of sound mind, and over the age of eighteen
(or over sixteen with the consent of a parent or guardian). SeeMoore v. Metro. Life Ins. Co., 949 F. Supp. 2d 1201, 1206 (M.D. Ala. 2013); see also Ala. Code § 30-1-4, 30-1-5. Nothing in the record suggests that either Claimant or
NH were of unsound mind at any time during their roughly forty-three year relationship. During the purported marriage, Claimant and NH engaged in activities suggesting neither
had an unsound mind, such as entering into legal contracts and purchasing property.
Because there is no suggestion in the material provided that either Claimant or NH
was of unsound mind, we believe an agency adjudicator could reasonably conclude both
parties had the capacity to marry.
The second element of an Alabama common-law marriage requires proof of a present,
mutual agreement to permanently enter the marriage relationship to the exclusion of
all other relationships. SeeBoswell, 497 So. 2d at 480. However, Alabama does not require any particular words of consent.
SeeBeck v. Beck, 246 So. 2d 420, 425 (Ala. 1971). An adjudicator may infer such an agreement from
the circumstances. SeeMoore, 949 F. Supp. 2d at 1206 (citing Moore v. Heineke, 24 So. 374, 378-79 (1898), overruled on other grounds byAlexander v.
Gibson, 57 So. 760 (1912)). As the Moore court noted, “the same behavior that evinces agreement to marry may also satisfy
the third element of common-law marriage, public recognition of the relationship as
a marriage and public assumption of marital duties and cohabitation.” Moore, 949 F. Supp. 2d at 1206. The Moore court cited numerous behaviors that Alabama courts had recognized as demonstrating
present intent and public recognition and assumption of marital duties, such as sharing
of household expenses, maintaining joint accounts, and referring to each other as
spouse. Seeid. at 1207. However, the most crucial part of the third element is that others in the
community recognized the couple as married. Seeid. As noted above, Claimant and NH lived together in Alabama from August 2006 until
NH died in September 2015. The couple shared household expenses for decades and purchased
property together. Although the couple did not share joint ownership of property,
file joint tax returns, sign documents jointly, or share bank accounts, they shared
household expenses, referred to each other as spouse, remained in a committed relationship
for forty-three years, and were known in the community as a married couple.
Relatives of the couple signed statements attesting that they had known Claimant and
NH for many years and each considered Claimant and NH to be married. Each said he
or she had known both NH and Claimant for decades, and met with them at family gatherings.
Each said he or she had heard NH and Claimant refer to each other as a spouse, each
considered NH and Claimant to be married, and that NH and Claimant were generally
known as a married couple.
Furthermore, the materials you sent include preferred evidence of a common-law marriage.
If a claimant provides the agency with preferred evidence, the agency will generally
find the evidence is convincing. 20 C.F.R. § 404.709. If, as here, one spouse is dead, preferred evidence includes a signed statement from
the living spouse and signed statements from two blood relatives of the deceased spouse.
20 C.F.R. § 404.726(b)(2); see also POMS GN 00305.065(B)(3) (instructing the agency to obtain a Form SSA-754-F4 from the surviving spouse
and Form-753s from two blood relatives of the deceased spouse and from a blood relative
of the surviving spouse). “All signed statements should show why the signer believes
there was a marriage between the two persons.” 20 C.F.R. § 404.726(b). The materials
you sent include Claimant’s SSA-754-F4. They also include Form-753s from NH’s niece
and great nephew and from Claimant’s niece, each stating that he or she had heard
NH and Claimant refer to each other as spouse, each considered NH and Claimant to
be married, and each said NH and Claimant were generally known as a married couple.
As a final matter, we also note that an Alabama official’s amendment of a death certificate
to recognize the marriage of the deceased individual and his same-sex spouse as of
a date before Alabama began recognizing same-sex marriages was held to support the
conclusion that Alabama courts would recognize a marriage established before February
2015. In Hard v. Att’y Gen., State of Ala., 648 F. App’x 853 (11th Cir. 2016), the Eleventh Circuit Court of Appeals affirmed
a district court’s dismissal of a wrongful death claim brought by a surviving spouse
of a same-sex couple, because the plaintiff obtained all the relief he sought. The
appellant in Hard had married the decedent in Massachusetts in 2011, after which the couple returned
home to Alabama. See 648 F. App’x at 854. The decedent died in a 2012 collision with a United Parcel Service
(UPS) truck and his estate settled a wrongful death action against UPS. Seeid. The decedent’s Alabama death certificate indicated he was “Never Married.” Seeid. Through the court action, the appellant sought: amendment of the death certificate
to reflect his status as the deceased’s spouse; a spouse’s share of the wrongful death
settlement; a declaratory judgment that Alabama’s same-sex marriage ban was unconstitutional;
and an injunction requiring Alabama state officials to recognize marriages of same-sex
In affirming the district court’s dismissal of the case as moot, the Hard court observed that the Alabama State Registrar of Vital Statistics had already issued
an amended version of decedent’s death certificate to reflect the appellant’s status
as the decedent’s spouse, which allowed the district court to order payment of the
full spouse’s share of the wrongful death settlement to the appellant, and the court
found that the Supreme Court’s order in Obergefell provided the declaration that same-sex marriage bans like the ones in Alabama were
unconstitutional and an injunction against state officials seeking to enforce such
a ban. Seeid. at 856. The fact that the Alabama State Registrar of Vital Statistics amended the
decedent’s 2012 death certificate to reflect the appellant as the decedent’s spouse,
when Alabama did not begin recognizing same-sex marriages until 2015, suggests that
Alabama officials, and perhaps Alabama courts, post-Obergefell, are prepared to consider the facts needed to prove a marriage that predated Alabama’s
general recognition of same-sex marriage.
Thus we conclude, given that the retroactive application of the Supreme Court’s decision
of Obergefell removed consideration of the partners’ same-sex status from the marriage equation,
Claimant has presented sufficient proof that he and NH established a common-law marriage
in Alabama by December 26, 2014, or earlier.
An agency adjudicator could conclude on the facts presented that Alabama courts would
recognize as valid a common-law marriage between Claimant and NH, beginning at least
as early as December 26, 2014, and could therefore conclude that Claimant and NH were
married for WIB and LSDP purposes and satisfied the duration of marriage requirement
^Regional Attorney Opinions
 All references to the Code of Federal Regulations are to the 2018 edition.
 All references to the Alabama Code are to the 2018 version.
 Agency regulations define common-law marriage as one considered valid under a state’s
laws even though there is no formal marriage ceremony; “[i]t is a marriage between
two persons free to marry, who consider themselves married, live together as man and
wife, and, in some States, meet certain other requirements.” 20 C.F.R. § 404.726(a).
 Although NH’s brothers challenged NH’s will, alleging he lacked mental capacity,
the court summarily dismissed their claim.
Even if preferred evidence is not available, the agency can find other evidence convincing
in some circumstances. See 20 C.F.R. § 404.709.