The number holder (NH) died while domiciled in the District of Columbia; therefore, we look to the laws of the District of Columbia to determine if the Claimant is the NH’s widow. We believe District of Columbia courts would find that the Claimant has proven by a preponderance of the evidence that she was in a valid common-law marriage with the NH under District of Columbia law from April 2009 until the NH’s death in December 2021. Accordingly, we believe there is support for the agency to find that the Claimant is the NH’s widow for purposes of determining her entitlement to widow’s insurance benefits on the NH’s record.

QUESTION PRESENTED

D~ (Claimant) filed an application for widow’s insurance benefits on the record of the deceased number holder (NH) C~. The Claimant alleges a common-law marriage to the NH beginning in April 2009 and ending with the NH’s death on December XX, 2021, in the District of Columbia. The couple separated in February 2019. You asked whether a valid common-law marriage existed between the NH and the Claimant under District of Columbia law such that the Claimant is the NH’s widow under Title II of the Social Security Act (Act).

ANSWER

We believe District of Columbia courts would find that the Claimant has proven by a preponderance of the evidence that she was in a valid common-law marriage with the NH under District of Columbia law from April 2009 until the NH’s death on December XX, 2021. Once a valid common-law marriage exists, it may be terminated only by death or divorce. Thus, the couple’s separation in 2019 did not terminate their valid common-law marriage. Accordingly, we believe there is support for the agency to find that the Claimant is the NH’s widow for purposes of determining her entitlement to widow’s insurance benefits on the NH’s record.

BACKGROUND

The NH died on December XX, 2021, domiciled in the District of Columbia.^[1] On October XX, 2022, the Claimant filed an application for widow’s insurance benefits as the NH’s widow. You stated that she alleged a common-law marriage with the NH from April 2009 until the NH’s death on December XX, 2021. They lived together in the District of Columbia until they separated in February 2019, at which time the Claimant moved to Pennsylvania and the NH stayed in the District of Columbia.

In support of her common-law marriage claim, the Claimant completed the Form SSA-754 Statement of Marital Relationship in November 2022 and provided a few documents. She was living in Pennsylvania. She reported that she and the NH began living together as spouses in April 2009 in the District of Columbia. She stated that they lived together continuously in the District of Columbia as spouses for almost ten years from April 2009 until February 2019 when they separated. When they began living together, they told each other that they loved one another, they understood they would be together forever, and the NH always introduced her as his wife. She reported that they did a lot of things that married people did such as filing joint tax returns for the years 2014 through 2018. The Claimant provided IRS documents confirming that for the 2016 and 2017 tax periods, the NH and the Claimant filed tax returns jointly as a married couple. Documents from their landlord in 2009 indicate that the Claimant and the NH had been living together at a property in the District of Columbia for fifteen years. The Claimant had a prior spouse who died in August 2004.

The Claimant identified three of her relatives and one of the NH’s relatives who knew of their relationship but stated that his sister may not want to answer questions because they were not speaking to her. She also reported that their separation in 2019 was due to his family. Two of the Claimant’s relatives provided marital statements to the agency supporting the Claimant’s common-law marriage with the NH. None of the NH’s relatives provided statements.^[2]

G~, the Claimant’s sister, completed the Form SSA-753 Statement Regarding Marriage. She described herself as the NH’s sister-in-law and stated she had known him for 28-29 years. She would visit the couple often. The NH attended all family events. To her knowledge, the NH and the Claimant were generally known as a married couple and she considered them to be a married couple. She reported that the Claimant cooked, cleaned, washed clothes, and shopped for the entire household and took care of the NH, who had cerebral palsy. She reported that she heard the NH and the Claimant refer to each other as spouses and that this was always how they described their relationship. She believed that they maintained a home and lived together continuously as a married couple in the District of Columbia from 2009 to 2020 when they separated. She stated that even after they separated, the Claimant continued to do things for the NH.

E~, another one of the Claimant’s sisters, completed the Form SSA-753 Statement Regarding Marriage. She described herself as the NH’s sister-in-law and reported knowing the NH for 24 years. To her knowledge, the NH and the Claimant were generally known as a married couple and she considered them to be a married couple because of how long they were together, the fact that the NH called her his sister-in-law, and the fact that they lived together at her house and her mother’s house. She heard the NH and the Claimant refer to one another as spouses whenever they were together and stated that he always called her his sister-in-law. She believed that the Claimant and the NH maintained a home and lived together continuously as a married couple in the District of Columbia from 2009 until 2019.

ANALYSIS

A. Federal Law: Entitlement to Widow(er)’s Insurance Benefits as a Widow(er)^[3]

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.^[4] 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 the District of Columbia when the NH died on December XX, 2021. Therefore, we look to the District of Columbia law to determine if the Claimant is the NH’s widow.

B. State Law: Validly Married under District of Columbia Law at the Time of the NH’s Death

1. District of Columbia Law and the Claimant’s Common-Law Marriage to the NH

a. Elements of a Common-Law Marriage

“The District of Columbia has long recognized common-law marriages.” Coates v. Watts, 622 A.2d 25, 27 (D.C. 1993). Under District of Columbia law, the elements of a common-law marriage are:

1. an express mutual agreement, which must be in words of the present tense, to be permanent partners with the same degree of commitment as the spouses in a ceremonial marriage,

2. followed by cohabitation. In re Estate of Jenkins, 290 A.3d 524, 528 (D.C. 2023); Gill v. Nostrand, 206 A.3d 869, 875 (D.C. 2019).

The agreement to be married “must be consummated by cohabitation if it is to result in a marriage.” U.S. Fidelity & Guaranty Co. v. Britton, 269 F.2d 249, 251 (D.C. Cir. 1959). However, “living together, by itself, is not a common-law marriage.” Cerovic v. Stojkov, 134 A.3d 766, 776 (D.C. 2016). While there is no set formula required for the agreement, the exchange of words must unambiguously indicate that an agreement was being entered into to become spouses as of the time of the mutual consent. Coates v. Watts, 622 A.2d 25, 27 (D.C. 1993). The agreement must be in the present-tense; an agreement to be married in the future is insufficient.^[5] Gill, 206 A.3d at 875; Coates, 622 A.2d at 27. Further, the agreement must be mutual, which means that if only one party to the purported common-law marriage believes they are married, but the other party does not, a common-law marriage cannot be established. Gill, 206 A.3d at 881.

b. Burden of Proof: Preponderance of the Evidence

The burden is on the proponent to prove the essential elements of a common-law marriage by a preponderance of the evidence.^[6] Cerovic, 134 A.3d at 774-775; Coates, 622 A.2d at 27. The preponderance of the evidence standard means that the court must determine who has the most competent evidence. In re E.D.R., 772 A.2d 1156, 1160 (D.C. 2001). It means “evidence which is of greater weight and more convincing than the evidence presented in opposition to it; that is evidence which is as a whole shows that the fact sought to be proved is more probable than not.” Id. (quoting Black’s Law Dictionary). “Whether a common-law marriage exists is largely a factual determination.” Mesa v. U.S., 875 A.2d 79, 83 (D.C. 2005). In terms of the type of evidence offered to meet this burden, the parties may provide direct evidence of their common-law marriage in the form of the parties’ testimony and documents, such as property deeds and tax records. Mesa, 875 A.2d at 83. Testimony by the parties is the best evidence of the present-tense express mutual agreement to be married.^[7] Gill, 206 A.3d at 875. However, the mutual agreement “may be inferred from the character and duration of cohabitation, or from other circumstantial evidence such as testimony by relatives and acquaintances as to the general reputation regarding the parties’ relationship.” Gill, 206 A.3d at 875; Mesa, 875 A.2d at 83. Such an inference may then be rebutted by direct evidence that there was in fact no present agreement to be married. Mesa, 875 A.2d at 83.

2. Application of the Elements of the Common-Law Marriage to the Claim

a. Mutual Agreement to be Married

As stated, District of Columbia case law requires an express mutual agreement to be permanent partners with the same degree of commitment as the spouses in a ceremonial marriage. In re Estate of Jenkins, 290 A.3d at 528; Gill, 206 A.3d at 875. Here, there is no information indicating that the parties had an agreement to marry in the future or that the agreement to be married was not mutual. We believe District of Columbia courts would find direct evidence of a present-tense mutual agreement to be married in the form of the Claimant’s statements and the IRS documents showing that they presented themselves as married on their tax returns. The Claimant reported on the SSA Form-754 that she and the NH began living together as spouses in April 2009 in the District of Columbia and they lived together continuously for almost ten years from April 2009 until February 2019 when they separated. When they began living together, they told each other that they loved one another, they understood they would be together forever, and the NH always introduced her as his wife. The Claimant reported that they did a lot of things that married people did such as filing joint tax returns for the years 2014 through 2018. The Claimant provided IRS documents confirming that for the 2016 and 2017 tax periods, the NH and the Claimant filed tax returns jointly as married. Documents from their landlord in 2009 indicate that the Claimant and the NH had been living together at a property in the District of Columbia for fifteen years even prior to 2009.

Additionally, their ten years (plus) of cohabitation and reputation as being married, as attested to by the Claimant’s sisters, supports a mutual agreement to be married. Both sisters reported that the NH and the Claimant were generally known as a married couple, they believed them to be a married couple, and they heard them refer to one another as spouses. They also reported that the NH and the Claimant lived together continuously as a married couple from 2009 until 2019. Sister G~ reported that the Claimant cared for the NH, who had cerebral palsy, and that she did all of the chores for the household.

Given these statements and documents, we believe District of Columbia courts would find a preponderance of the evidence supports this required element of a mutual agreement to be married for a common-law marriage.

b. Cohabitation

As noted, District of Columbia case law requires that the couple live together following their mutual agreement to be married. In re Estate of Jenkins, 290 A.3d at 528; Gill, 206 A.3d at 875. Here, the Claimant’s statements, the sisters’ statements, and the landlord’s records corroborate their years of cohabitation in the District of Columbia from at least April 2009 to February 2019. We believe District of Columbia courts would find a preponderance of the evidence supports this required element of cohabitation for a common-law marriage.

c. Summary: Valid Common-Law Marriage Terminated by the NH’s Death

In summary, this is not a claim involving conflicting evidence or deficient evidence as to a particular required element. We believe District of Columbia courts would find that uncontroverted statements from the Claimant and her two sisters, the longevity of their relationship, the IRS documents showing they presented their marital status as married filing jointly, and the landlord documents confirming cohabitation in 2009 constitutes competent evidence establishing that it was more probable than not that the NH and the Claimant were common-law married under the District of Columbia law.

Finally, we note that the Claimant and the NH separated in 2019 and lived apart until the NH’s death in 2021. Once established, “a common law marriage may be legally terminated only by divorce or death of a spouse.” Cerovic, 134 A.3d at 781 (citing Hoage v. Murch Bros. Constr. Co., 50 F.2d 983, 984 (D.C. 1931)); see also Lee v. Lee, 201 A.2d 873, 875 (D.C. 1964) (declaring an attempted ceremonial marriage void because an earlier common-law marriage had not been dissolved). Thus, similar to other States that recognize common-law marriage, there is no common-law divorce under the laws of the District of Columbia. See Phillips v. The Dow Chemical Co., 186 S.W.3d 121, 127 (Tex. App. – Houston [1st Dist.] 2005, no pet.) (“Texas recognizes common-law marriage but does not recognize common-law divorce or annulment.”); see also Estate of Claveria v. Claveria, 615 S.W.2d 164, 167 (Tex. 1981) (common-law marriage, like a ceremonial marriage, can terminate only by death or divorce). Therefore, although they separated in 2019, in the absence of any evidence of a divorce, the Claimant’s common-law marriage with the NH did not terminate until the NH’s death in 2021.

CONCLUSION

We believe District of Columbia courts would find that the Claimant has proven by a preponderance of the evidence that she was in a valid common-law marriage with the NH under the District of Columbia law from April 2009 until the NH’s death on December XX, 2021. Once a valid common-law marriage exists, it may be terminated only by death or divorce. Thus, the couple’s separation in 2019 did not terminate their valid common-law marriage. Accordingly, we believe there is support for the agency to find that the Claimant is the NH’s widow for purposes of determining her entitlement to widow’s insurance benefits on the NH’s record.

The number holder (NH) was domiciled in Peru at the time of his death; therefore, the agency applies the law of the District of Columbia to determine the marital status between the NH and the Claimant. Although it is possible that the Claimant’s relationship with the NH beginning in 2002 in Peru may have constituted a de facto union recognized under the laws of Peru, at the time of the NH’s death in 2009, the law of Peru did not afford intestate inheritance rights to partners in a de facto union. As Peru only recognizes civil ceremonial marriages, the Claimant has not proven a valid marriage under the laws of Peru based on their years living together prior to their civil ceremonial marriage. Thus, we believe the courts of the District of Columbia would find that Claimant was not validly married to NH under Peru’s laws prior to their civil ceremonial marriage. As such, there is legal support for the agency to find that the Claimant did not have a marital relationship with the NH of sufficient duration to meet the Act’s nine-month marriage duration requirement for widow’s insurance benefits under Title II of the Act on the NH’s record.

S1~ (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) S2~, who died in Peru on October XX, 2009. For purposes of determining whether the Claimant and the NH had a marital relationship of sufficient duration to meet the Act’s nine-month marriage duration requirement for widow’s insurance benefits, you asked whether the Claimant and the NH had a valid common-law marriage^[9] in Peru beginning in 2002 prior to their October XX, 2009, civil ceremonial marriage in Peru.^[10]

ANSWER

Given that the NH was domiciled in Peru and outside of the United States at the time of his death in 2009, the agency applies the law of the District of Columbia to determine the marital status between the NH and the Claimant.^[11] District of Columbia courts would look to Peru’s laws to determine the validity of any marriage and intestate inheritance rights. Although it is possible that the Claimant’s relationship with the NH beginning in 2002 in Peru may have constituted a de facto union recognized under the laws of Peru, at the time of the NH’s death in 2009, the law of Peru did not afford intestate inheritance rights to partners in a de facto union. Thus, assuming the Claimant could prove a de facto union with the NH prior to their civil ceremonial marriage, we believe the courts of the District of Columbia would find that the Claimant did not have the right to inherit a spouse’s share under Peru’s intestate succession laws in effect in 2009 based on such a de facto union. As such, there is legal support for the agency to find that the Claimant did not have a marital relationship with the NH of sufficient duration to meet the Act’s nine-month marriage duration requirement for widow’s insurance benefits under Title II of the Act on the NH’s record.

BACKGROUND^[12]

You advised that the NH died on October XX, 2009, in San Vicente, Peru. The Claimant provided the NH’s Peru death certificate.

You also advised that the Claimant filed an application for widow’s insurance benefits on the NH’s record on November XX, 2018, and that she was residing in New Jersey at that time. You stated that she reported on her application that she and the NH entered into a common-law marriage and presented themselves as life partners beginning in 2002 in Lima, Peru. The Claimant and the NH later legally married on October XX, 2009, in Peru. The Claimant provided their Peru marriage certificate.

The Claimant completed the Form SSA-754 Statement of Marital Relationship. She reported that she and the NH began living together as a married couple in December 2002 in Peru. She reported that they lived together in Peru from 2002 until 2008 and then in New Jersey from December 2008 to 2009.^[13] In a subsequent statement to the agency on the Form SSA-795, the Claimant stated that when they realized the NH, who had cancer, was going to die, they went back to Peru because that is where he wanted to pass away.

M~, identified as the child of the Claimant and of the NH’s brother, completed the Form SSA-753 Statement Regarding Marriage in November 2018. She referred to the NH as her uncle. She reported that the NH and the Claimant lived together continuously as a married couple in Peru from December XX, 2002, until November XX, 2008, and then in New Jersey from December XX, 2008, until September XX, 2009.

C~, identified as the NH’s sister, completed the Form SSA-753 in Spanish. The translation of this statement reflects that NH’s sister stated that the NH and the Claimant used to live in the NH’s parents’ house, then they went to live at their house and returned to the United States, and when the NH got sick, they went back to Peru. The NH’s sister believed that the NH and the Claimant lived together as a married couple in Peru from January XX, 2002, through October XX, 2009.

ANALYSIS

A. Federal Law: Entitlement to Widow(er)’s Insurance Benefits as a Widow(er)^[14]

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.^[15] See 42 U.S.C. §§ 402(e), (f), 416(a)(2), (c), (g); 20 C.F.R. § 404.335. For purposes of determining whether the Claimant and the NH had a marital relationship of sufficient duration for widow(er)’s insurance benefits, you asked whether the Claimant and the NH had a marital relationship in Peru prior to their October XX, 2009, civil ceremonial marriage in Peru given the NH’s death five days later on October XX, 2009.

As pertinent here, the Act provides two methods for a claimant to show he or she is the widow(er) of an insured individual who was domiciled outside the United States.^[16] First, a claimant is the widow(er) of such insured if the courts of the District of Columbia would find that the claimant was validly married to the insured at the time the insured died. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Second, if the claimant was not validly married to NH at the time the NH died, the claimant will be deemed to be the insured’s widow(er) if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, the claimant would have the “same status” as a widow of the insured with respect to the taking of such property. 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

In this case the NH was domiciled in Peru when he died in 2009. Therefore, as he was domiciled outside of the United States, the Claimant’s status as the NH’s widow will be evaluated under the laws of the District of Columbia.

B. District of Columbia Law: Valid Marriage or Inheritance of a Spouse’s Share under Intestate Succession Law

1. Valid Marriage

Under the law of the District of Columbia, the validity of the marriage is determined by the law of the jurisdiction where the marriage occurred. See Cerovic v. Stojkov, 134 A.3d 766, 778 (D.C. 2016); Bansda v. Wheeler, 995 A.2d 189, 198 (D.C. 2010); McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Varr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946). In this situation, the Claimant alleges that she and the NH entered into a common-law marriage and presented themselves as life partners beginning in 2002 in Lima, Peru.

As a civil law country, Peru does not recognize common-law marriage. Only civil marriages celebrated in a civil ceremony before competent authorities of the municipality or its delegated authorities are recognized as marriages under Peru’s laws.^[17]

As Peru only recognizes civil ceremonial marriages, the Claimant has not proven a valid marriage under the laws of Peru based on their years living together prior to their civil ceremonial marriage on October XX, 2009. Thus, we believe the courts of the District of Columbia would find that Claimant was not validly married to NH under Peru’s laws prior to their October XX, 2009 civil ceremonial marriage.

2. Inheritance of a Spouse’s Share under Intestate Succession Law

Since the Claimant was not validly married to the NH prior to their civil ceremonial marriage on October XX, 2009, we next must examine whether she has the same rights as a spouse to share in the distribution of the NH’s intestate personal property under the intestate succession laws of the District of Columbia based on their years living together in Peru beginning in 2002. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345. Under District of Columbia law, the law of the decedent’s domicile determines intestate inheritance rights. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.C. Cir. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)). As the NH was domiciled in Peru at the time of his death on October XX, 2009, we consider whether the Claimant established a relationship with the NH under the laws of Peru (prior to their civil ceremonial marriage) that afforded her the right to inherit a spouse’s share under Peru’s intestate succession law.

Per the 1979 Constitution and 1984 Civil Code, Peru recognizes a de facto union as a relationship not formalized by marriage that affords rights and obligations similar to those derived from a marriage.^[18] De facto unions are recognized under the law if they meet certain requirements, including being free from legal impediments to enter into a marriage.^[19] The status of a partner in a de facto union is established by recording the recognition of the de facto union in the Personal Registry of the Registry Office where the partners are domiciled, or if the union has been judicially recognized.^[20]

In terms of the rights under the law afforded to partners in such a relationship, de facto unions set up a community of assets governed by the regime applicable to the marital community of property as deemed applicable if the union lasted for at least two uninterrupted years.^[21] Since 2013, the law has granted intestate inheritance rights to partners of de facto unions that meet all of the legal requirements under article 326 of the Civil Code where such de facto unions are active at the time of the death of either partner.^[22] However, prior to 2013, partners in a de facto union did not have intestate inheritance rights under the Peru’s laws.^[23]

Per section 216(h)(1)(A) of the Act, we apply the law in effect at the time of the NH’s death. See 42 U.S.C. § 416(h)(1)(A). Although it is possible that the Claimant’s relationship with the NH beginning in 2002 in Peru may have constituted a de facto union recognized under the laws of Peru, at the time of the NH’s death in 2009, the law of Peru did not afford intestate inheritance rights to partners in a de facto union. Thus, assuming the Claimant could prove a de facto union with the NH prior to their civil ceremonial marriage, we believe the courts of the District of Columbia would find that the Claimant did not have the right to inherit a spouse’s share under Peru’s intestate succession laws in effect in 2009 based on such a de facto union.

CONCLUSION

Although it is possible that the Claimant’s relationship with the NH beginning in 2002 in Peru may have constituted a de facto union recognized under the laws of Peru, at the time of the NH’s death in 2009, the law of Peru did not afford intestate inheritance rights to partners in a de facto union. Thus, assuming the Claimant could prove a de facto union with the NH prior to their civil ceremonial marriage, we believe the courts of the District of Columbia would find that the Claimant did not have the right to inherit a spouse’s share under Peru’s intestate succession laws in effect in 2009 based on such a de facto union. As such, there is legal support for the agency to find that the Claimant did not have a marital relationship with the NH of sufficient duration to meet the Act’s nine-month marriage duration requirement for widow’s insurance benefits under Title II of the Act on the NH’s record.

The number holder (NH) was domiciled in Brazil when he died; therefore, the Claimant’s status will be evaluated under the laws of the District of Columbia. The Claimant alleged she and the NH established a common- law marriage in 1997 in Brazil. The NH and Claimant did not participate in a marriage ceremony. The evidence provided shows that the Claimant and NH had a stable union under the laws of Brazil. We believe the Claimant’s relationship with the NH would be recognized as a valid stable union and the Claimant has the same status as a spouse of the NH for intestate succession purposes under the law of Brazil. Thus, we believe that courts of the District of Columbia would find that the claimant has the same intestate succession rights as a spouse. Accordingly, we believe that there is support for the agency to deem the couple married and find that the Claimant is NH’s widow for the purpose of Title II benefits under the Act.

QUESTION

Whether I~ (Claimant) and number holder (NH) C~, were validly married, or may be deemed married, for the purpose of determining Claimant’s entitlement to Title II benefits under the Social Security Act (Act).

ANSWER

We believe that even though Claimant and NH were not validly married under Title II of the Act, the agency can deem the couple as married for the purpose of Title II benefits. The evidence provided shows that Claimant and NH had a stable union under the laws of Brazil, and as such, Claimant has the same status as a widow of the NH for purposes of intestate inheritance. Accordingly, the agency could find that Claimant is NH’s widow for the purpose of Title II benefits under the Act.

BACKGROUND

Claimant alleges she and NH established a common- law marriage in 1997 in Brazil. NH and Claimant did not participate in a marriage ceremony. NH’s niece and son, and Claimant’s son submitted statements attesting NH and Claimant lived together continuously for eighteen years and were generally known as husband and wife. Claimant’s son stated NH raised him and they lived together as a family. Claimant submitted documents showing NH adopted her son in Brazil in October 2009. The adoption record stated NH had been living in a stable union with Claimant for thirteen years. The couple had a daughter who died shortly after birth in 1998. Claimant and NH also shared a personal checking account.

NH and Claimant resided in Brazil together at his death on June XX, 2015. Claimant filed for widow’s insurance benefits and a lump sum death payment (LSDP) on or about June XX, 2019. She later withdrew, but resubmitted her application on or about September XX, 2021.

DISCUSSION

Under Title II of the Act, a claimant may be entitled to widow(er)’s insurance benefits on a deceased insured individual’s account if, among other things,^[24] the claimant is the widow(er) of the insured individual and their marriage lasted at least nine months as of the day before the insured individual died. See 42 U.S.C. §§ 402(e)(1), (f)(1), 416(a)(2), (c), (g); 20 C.F.R. § 404.335; Program Operations Manual System (POMS) GN 00305.100. Under Title II of the Act, the LSDP, which is a one-time payment of $255, may be paid to a deceased insured individual’s widow(er) who was living in the same household with the insured at the time of his death.^[25] See 42 U.S.C. § 402(i); 20 C.F.R. §§ 404.390, 404.391.

As pertinent here, the Act provides two methods for a claimant to show he or she is the widow(er) of an insured who was domiciled outside the United States.^[26] First, a claimant is the widow(er) of such insured if the courts of the District of Columbia would find that the claimant was validly married to the insured at the time the insured died. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Second, if the claimant was not validly married to NH at the time the NH died, the claimant will be deemed to be the insured’s widow(er) if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, the claimant would have the “same status” as a widow(er) of the insured with respect to the taking of such property. 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

In this case, the NH was domiciled in Brazil when he died. Therefore, the claimant’s status will be evaluated under the laws of the District of Columbia.

Claimant was not Validly Married to the NH under the laws of Brazil.^[27]

Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Carr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946).

In Brazil, a civil marriage occurs when the couple declares before a judge their free will to establish a conjugal bond, and the judge declares them married.^[28] A religious marriage that meets the legal requirements for a valid civil marriage has the same legal effects as a civil marriage, as long as it is registered with the competent civil registrar’s office.^[29]

Here, Claimant and NH lived as husband and wife, but the couple never participated in a marriage ceremony and Claimant did not submit proof they registered their marriage with a civil registrar’s office. Therefore, the District of Columbia would not recognize the couple as validly married, and Claimant is not entitled to Title II widow’s benefits or the LSDP on the record of the NH based on a valid marriage.

Claimant Has the Same Status as a Wife of the NH under the Intestacy Law of Brazil

Because Claimant was not validly married to NH, the agency will deem the couple to have been married if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, the claimant would have the “same status” as a spouse of the NH with respect to the taking of such property, if the NH were to die. See 42 U.S.C § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345. Under District of Columbia law, intestate inheritance rights are determined by the law of the decedent’s domicile. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.D.C. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)).

Here, NH was domiciled in Brazil at the time of his death on June XX, 2015. Accordingly, to determine whether Claimant would have the requisite status with respect to inheritance of the NH’s intestate property, we apply the law of Brazil. Brazil recognizes stable unions between a man and woman who are not formally married as a family entity.^[30] On May 10, 2017, the Brazilian Federal Supreme Court held that the distinction in succession schemes between married spouses and partners in a stable union provided in Brazil’s Civil Code was unconstitutional.^[31] The Court held that the succession framework applicable to spouses of a civil marriage must be applied both in cases of marriage and in stable unions.^[32] Thus, for purposes of Brazilian inheritance rights, stable unions and marriages have the same legal value, providing partners in stable unions the same rights as those of married persons.^[33]

A stable union can be evidenced by public, continuous, and lasting cohabitation that is established with the objective of constituting a family.^[34] A joint bank account can also be used to prove a stable union. Here, NH and Claimant met the definition of a stable union.^[35] Claimant introduced evidence that she lived with NH continuously in Brazil for eighteen years, NH adopted and helped raise Claimant’s son, and the couple shared a bank account. The 2009 Brazil adoption record also notes the couple were in a stable union for thirteen years. Therefore, we believe under Brazilian law, Claimant would have the same inheritance rights as she would if she were NH’s spouse through a civil marriage. Accordingly, we believe Claimant’s inheritance rights would be recognized by the District of Columbia.

CONCLUSION

We believe Claimant’s relationship with the NH would be recognized as a valid stable union and that Claimant has the same status as a spouse of the NH for intestate succession purposes under the law of Brazil. Thus, we believe that courts of the District of Columbia would find that the claimant has the same intestate succession rights as a spouse. Accordingly, we believe that there is support for the agency to deem the couple married for Title II purposes.

The number holder (NH) was domiciled in Nova Scotia at the time of his death; therefore, we apply the laws of the District of Columbia to determine whether the claimant is the NH’s widow. We believe the District of Columbia courts would find that the couple was validly married in Nova Scotia, but that the couple’s ceremonial marriage does not meet the Act’s nine-month marriage duration requirement, and the purported common-law relationship is not a legal marriage or one that conveys inheritance rights as a spouse. Thus, we believe the agency can conclude that the claimant is not entitled to widow’s insurance benefits on the NH’s record.

I. Question Presented

You asked whether the claimant, E~, can be considered the widow of deceased number holder (NH) M~ for purposes of determining the claimant’s entitlement to widow’s insurance benefits under Title II of the Social Security Act (Act) on the NH’s record based on a purported, common-law relationship in Nova Scotia.

II. Short Answer

Because the NH was domiciled in Nova Scotia at the time of his death, we apply the law the courts of the District of Columbia would apply to determine whether the claimant is the NH’s widow. The courts of the District of Columbia would apply Nova Scotia law under the facts presented. Although we believe the District of Columbia courts would find that the couple was validly married in Nova Scotia on March XX, 2013, their ceremonial marriage did not last at least nine months immediately prior to the NH’s death on August X, 2013, as required for widow’s insurance benefits.

Further, even if the claimant could establish that she and the NH were in a common-law relationship predating the ceremonial marriage, a common-law relationship is not a legal marriage under Nova Scotia law and parties to common-law relationships do not have the same intestacy rights as individuals legally married under Nova Scotia law. Thus, in applying Nova Scotia law, we believe the District of Columbia courts would find that the couple’s purported common-law relationship was not a valid marriage and further, that such a common-law relationship did not convey spousal inheritance rights under intestacy law.

Therefore, for purposes of determining the claimant’s entitlement to widow’s insurance benefits on the NH’s record as his widow, the agency may reasonably conclude that the couple’s ceremonial marriage does not meet the Act’s nine-month marriage duration requirement, and the purported common-law relationship is not a legal marriage or one that conveys inheritance rights as a spouse. Thus, we believe the agency can determine that the claimant is not entitled to widow’s insurance benefits on the NH’s record.

III. Background

The claimant, E~, married the NH on March XX, 2013, in Nova Scotia, Canada.^[36] The NH passed away in Nova Scotia less than five months later, on August X, 2013. The claimant filed an application for widow’s insurance benefits on the NH’s record alleging she was the NH’s widow. According to the claimant, she began living with the NH in 2009, the couple exchanged rings in 2010, and they “settled” in her house in Nova Scotia in 2011. The claimant felt she was in a “committed (common-law) marriage” with the NH well before their ceremonial marriage in March 2013.

IV. Federal Law: Widow(er) under the Act for Widow(er)’s Insurance Benefits

Under Title II of the Act, a claimant may be entitled to widow(er)’s insurance benefits on a deceased insured individual’s account if, among other requirements, the claimant is the widow(er) of the insured individual and their marriage relationship lasted nine months before the insured individual died.^[37] See 42 U.S.C. §§ 402(e), (f), 416(a), (c), (g); see also 20 C.F.R. § 404.335.

The agency considers a claimant to be an insured’s widow(er) if the courts of the State in which the insured resided at the time of death would find that the claimant and the insured were validly married at the time the insured 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’s personal property. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.335(a), 404.344, 404.345.

As pertinent here, in determining the claimant’s relationship as the insured’s spouse, the agency looks to the law of the State where the insured had a permanent home at the time of death. See 42 U.S.C. § 416(h)(1)(A)(i). If the insured is not domiciled in any State, the agency applies the law of the District of Columbia. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345; POMS GN 00210.006.B.

It is our understanding that the NH permanently resided in Nova Scotia, Canada at the time of his death on August X, 2013. Thus, because his permanent home was outside of the United States at the time of his death, we look to the law the courts of the District of Columbia would apply to determine if the claimant is the NH’s widow.

A. Analysis^[38]

1. The Ceremonial Marriage Does Not Meet the Duration Requirement

Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. See McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Varr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. App. 296 (D.D.C. 1946). We believe there is no dispute that under the law of the District of Columbia, a D.C. Court would find that the claimant and the NH had a valid ceremonial marriage on March XX, 2013 in Nova Scotia. Claimant presented SSA with (1) a marriage certificate from Nova Scotia, certified by a Consular Clerk, and (2) the NH’s death certificate, listing the Claimant as his wife. In addition, SSA has statements from relatives mentioning the couple’s ceremonial marriage. However, because the NH died on August X, 2013, less than six months after the ceremonial marriage, the nine-month duration requirement from the Act is not met. See 42 U.S.C. §§ 402(e), (f), 416(a), (c), (g); see also 20 C.F.R. § 404.335. 2.

2. The Common-Law Relationship is not a Valid Marriage

The claimant also alleges that prior to the ceremonial marriage, she and the NH entered into a common-law “marriage “in Nova Scotia, Canada. Again, the courts of the District of Columbia would apply Nova Scotia law.

Nova Scotia law recognizes common-law relationships, but such relationships are not the equivalent of legal marriages and do not carry all of the same rights and obligations of married couples under the law.^[39] Moreover, Nova Scotia does not provide for common-law marriage. ^[40] Thus, even if the claimant was able to prove that she and the NH were in a common-law relationship before their March 2013 ceremonial marriage, it is not the equivalent of a legal marriage under Nova Scotia law. As such, applying Nova Scotia law, we believe the courts of the District of Columbia would find that the claimant was not validly married to the NH prior to their March 2013 ceremonial marriage. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. §§ 404.335(a)(1), 404.345.

3. The Common-Law Relationship Does Not Convey Inheritance Rights

As noted above, even if not validly married, the agency shall nevertheless deem the claimant to be the NH’s widow if, under the intestacy laws applied by the courts of the District of Columbia, the claimant would have the same status as a spouse or widow with respect to the taking of the insured individual’s property. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345. The courts of the District of Columbia have held that the laws of the NH’s domicile at the time of his death determine intestate inheritance rights. See Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.C. Cir. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)). Therefore, here, the courts of the District of Columbia would apply Nova Scotia intestacy law to determine if a common-law relationship, if established, would confer upon the claimant the same intestate succession rights that a widow would have.

Under Nova Scotia law, the Intestate Succession Act governs the disposition of the property of an individual who dies without a will. ^[41] The Intestate Succession Act grants no rights of inheritance to common-law partners.^[42] Further, Nova Scotia case law forecloses the possibility that a common-law partner could be considered a “spouse” under the Intestate Succession Act.^[43] The Supreme Court of Nova Scotia has ruled that the term “spouse” as used in the Intestate Succession Act applies only to marriages or registered domestic partnerships, and that common-law spouses are thus excluded from intestate inheritance.^[44]

Accordingly, even if the claimant was in a common-law relationship with the insured before their March 2013 ceremonial marriage, it does not convey inheritance rights of a spouse under Nova Scotia intestacy law. Thus, in applying Nova Scotia law, we believe the courts of the District of Columbia would find that the claimant could not inherit from the NH based on the couple’s purported common-law relationship. Accordingly, the agency cannot deem the partner in a common-law relationship a widow for purposes of establishing entitlement to widow’s benefits under Title II of the Act.

Finally, we note that Nova Scotia law provides an alternative to legal marriage that does confer intestate inheritance rights—a registered domestic partnership.^[45] This partnership, if properly registered, provides the same inheritance rights as a spouse under the Intestate Succession Act.^[46] We have received no evidence to suggest that the claimant and the NH were in a registered domestic partnership, so this opinion does not delve further into its requirements. V.

Conclusion

In applying Nova Scotia law, we believe the District of Columbia courts would find that the couple’s purported common-law relationship was not a valid marriage and further, that such a common-law relationship did not convey spousal inheritance rights under intestacy law. Therefore, for purposes of determining the claimant’s entitlement to widow’s insurance benefits on the NH’s record as his widow, the agency may reasonably conclude that the couple’s ceremonial marriage does not meet the Act’s nine-month marriage duration requirement, and their purported common law relationship is not a legal marriage or one that conveys inheritance rights as a spouse. Thus, we believe the agency can conclude that the claimant is not entitled to widow’s insurance benefits on the NH’s record.

The number holder (NH) died in Argentina. It appears that the alleged basis for the marital relationship is a common law marriage. However, Argentina only recognizes a cohabitation union, which differs from a legal marriage. Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. Here, because the claimant and NH were not validly married under Argentine law, a District of Columbia court would not recognize the couple as validly married. The claimant and NH were not legally married; therefore, the agency cannot deem the claimant a widow for title II purposes.

QUESTION PRESENTED

Whether the claimant is entitled to survivor’s benefits under Title II of the Social Security Act on the record of the deceased number holder (NH) based on alleged opposite-sex common law marriage?

ANSWER

The claimant’s relationship with the NH would not be recognized as a valid marriage.  Further, while Argentina recognizes cohabitation unions (uniónes convivencial), such a union does not confer upon the surviving member of that union the same intestate succession rights as marriage confers upon a widow.  Accordingly, even if the claimant can establish that she was in a cohabitation union with the NH, the agency cannot deem the claimant the NH’s widow for Title II purposes.^[47]

BACKGROUND

The NH died in Argentina in December 2019. The claimant alleges that, prior to the NH’s death, she and the NH lived together in Argentina in a common law marriage. The claimant applied for widow’s benefits and was denied initially based on the precedent contained in POMS PR 05630.016.

ANALYSIS^[48]

To be entitled to widow’s insurance benefits under the Act, a claimant must show, among other things, that she is the “widow” of an insured and that she was married to the insured for a period of nine months. 42 U.S.C. § 402(e)(1). As pertinent here, the Act provides two methods for a claimant to show she is the widow of an insured who was domiciled outside the United States. ^[49] First, a claimant is the widow of such insured if the courts of the District of Columbia would find that the claimant was validly married to the insured for at least nine months at the time the insured died. 42 U.S.C. §§ 416(c)(1), 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Second, if the claimant was not validly married to such insured for at least nine months at the time the insured died, the claimant will be deemed to be the insured’s widow if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, the claimant would have the “same status” as a widow of the insured with respect to the taking of such property. 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

The claimant and NH were not legally married.

Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. See McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Varr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946). Here, it appears that the alleged basis for the marital relationship is a common law marriage. As discussed below, however, Argentina only recognizes a cohabitation union, which differs from a legal marriage. Because the claimant and NH were not validly married under Argentine law, a District of Columbia court would not recognize the couple as validly married.

The claimant does not have the same status as a widow of the NH under the intestacy law of Argentina.

Because the claimant was not legally married to the NH, the agency can deem the claimant to be the NH’s widow if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, she has the “same status” as a widow of the NH with respect to the taking of such property. 42 U.S.C § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.^[50]

Under District of Columbia law, the law of the decedent’s domicile determines intestate inheritance rights. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.D.C. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)).

Here, the NH was domiciled in Argentina at the time of his death. At issue is whether a cohabitation union between the claimant and NH, if established, would confer upon the claimant the same intestate succession rights that a widow would have.

Argentina began recognizing cohabitation unions effective August 1, 2015.^[51] However, under Argentine law, “[p]artners of cohabitation unions do not have the right to inherit from an intestate partner.”^[52] Rather, “[i]f one partner wants the other to inherit his or her assets, that partner must execute a will designating the other partner as a beneficiary.”^[53] A surviving partner of a cohabitation union thus does not have the “same status” as a widow of the NH with respect to taking such property.^[54] Accordingly, the agency cannot deem the partner in a cohabitation union a widow for the purposes of establishing entitlement to benefits under Title II of the Act.

CONCLUSION

The claimant and NH were not legally married. Additionally, even if the claimant and NH were in a cohabitation union, such a relationship would not confer upon the claimant the same intestate succession rights as a widow of the NH under the law of Argentina. Thus, the agency cannot deem the claimant a widow for title II purposes.

The number holder (NH) was domiciled in Canada at the time of his death; therefore, we look to the laws of the District of Columbia to determine the Claimant’s marital relationship to the NH. T he Claimant provided sufficient evidence to satisfy the preponderance of evidence standard that a Montana court would employ when considering an alleged common law marriage. The agency could find that the Claimant and the NH had a common law marriage prior to their ceremonial marriage, thus satisfying the ten‑year duration requirement for surviving divorced spouse benefits on the NH’s record. The common law marriage in Montana when combined with the period of their ceremonial marriage, satisfied the ten-year marriage requirement for widow’s benefits as a surviving divorced spouse .

Question Presented

You have asked us to determine if a valid common law marriage existed in Montana between the number holder, J~, and the claimant, R~, such that the CL is eligible to receive widow’s benefits as a surviving divorced spouse under the Social Security Act.

Short Answer

The agency could find that the CL and NH had a common law marriage prior to their ceremonial marriage, thus satisfying the ten‑year duration requirement for surviving divorced spouse benefits on the NH’s record.

Background

According to the information provided, the NH and the CL began living together in a marital relationship in Montana on March xx, 1980 (see Supporting Evidence pp. 13, 20). They had a ceremonial marriage in Edmonton, Alberta on January x, 1983, and moved to Alberta in 1985 (pp. 2-3, 13, 20). A Canadian court entered a divorce judgment effective April XX, 1992 (pp. 2-3, 20). The NH was domiciled in Edmonton at the time of his death in September 2015 (p. 8).

The CL completed an application for widow’s benefits on March xx, 2019 (pp. 17-25). She submitted evidence in support of that application, including a divorce judgment, a statement of death, and third-party statements from both the NH’s and the CL’s relatives. These are discussed in more detail below.

Discussion

Federal Law

As relevant here, an applicant is entitled to widow’s or widower’s benefits as a surviving divorced spouse if the applicant had a valid marriage to a fully insured individual that lasted at least 10 years before the divorce became final and the applicant is at least 60 years old. 42 U.S.C. §§ 402(e)(1), 416(d)(2); 20 C.F.R. § 404.336.

The agency looks to the law of the state where the number holder had a permanent home to determine a claimant’s marital relationship to the number holder. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. §§404.336(a)(1), 404.344, 404.345.

Because the NH was domiciled in Canada at the time of his death, we look to the laws of the District of Columbia. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345.

State Law

Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction in which the marriage was entered into by the parties. Bansda v. Wheeler, 995 A.2d 189, 198-99 (D.C. 2010); McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951) (citing 2 Beale, Conflict of Laws, 703-04; 35 Am. Jur. § 167); Carr v. Carr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946); Hitchens v. Hitchens, 47 F. Supp. 73 (D.D.C. 1942).[1] We therefore look to the law of Montana, where the CL contends that she and the NH entered a common law marriage in 1980.

Montana recognizes common law marriage, which can be established by proof of the following:

1. The parties were competent to enter into a marriage;

2. The parties assumed a marital relationship by mutual consent and agreement; and

3. The parties confirmed their marriage by cohabitation and public repute.

See POMS GN 00305.075(B); see also Mont. Code Ann. § 40-1-403; In re Marriage of Swanner‑Renner, 209 P.3d 238, 241 (Mont. 2009). These elements, along with the burden of proof, are discussed more below.

Burden of Proof

The burden of proof for establishing a common law marriage in Montana is by a preponderance of the evidence. See POMS GN 00305.075(B); Miller v. Townsend Lumber Co., 448 P.2d 148, 152 (Mont. 1968) Public policy generally favors the finding of a valid marriage, but the burden of proof remains with the person asserting a common law marriage. See In re Marriage of Geertz, 755 P.2d 34, 37 (Mont. 1988). The moving party does not have the burden of proving that the elements of a common law marriage “all happened immediately or instantly,” but rather they can arise over the course of the relationship. In re J.K.N.A., 454 P.3d 642, 649 (Mont. 2019) (citing In re Marriage of Swanner-Renner, 209 P.3d at 242).

Competency to Enter Into a Marriage

Statutorily prohibited marriages in Montana include (1) a marriage entered into prior to the dissolution of an earlier marriage; (2) a marriage between an ancestor and a descendant, or between a sister and brother; and (3) a marriage between an uncle and niece or aunt and nephew. Mont. Code Ann. § 40-1-401(1). Parties who cohabit after removal of an impediment to lawful marriage (such as a prior undissolved marriage) may become lawfully married as of the date the impediment is removed. Id. § 40‑1‑401(2); In re Estate of Alcorn, 868 P.2d 629, 631 (Mont. 1994). The age of consent is 18, although a party age 16 or 17 can marry subject to parental consent/court approval. See Mont. Code Ann. §§ 40-1-202, -213, -402; Elliott v. Indus. Accident Bd., 53 P.2d 451, 454 (Mont. 1936) (common law marriage finding requires competency to enter into a ceremonial marriage). Also, if a party lacks the capacity to consent to marriage because of mental incapacity, the marriage can be declared invalid. Mont. Code Ann. § 40-1-402.[2]

Mutual Consent and Agreement

The mutual consent of the parties does not need to be expressed in any particular form. In re Estate of Hunsaker, 968 P.2d 281, 285 (Mont. 1998). Mutual consent can be implied from the conduct of the parties, but it “must always be given with such an intent on the part of each of the parties that marriage cannot be said to steal upon them unawares.” Id. (quoting State v. Newman, 213 P. 805, 807 (1923)); In re J.K.N.A., 454 P.3d at 650 (“[M]utual consent must be based on deliberate action by each party.”).

Evidence courts have cited in finding mutual consent and agreement include: an informal wedding ceremony; the presence of a wedding ring; household items adorned with both parties initials or names; tax returns indicating a married status; the commingling of finances; and affirmations of a marital relationship in sworn testimony or other documents. See, e.g., In re J.K.N.A., 454 P.3d at 650-51; In re Marriage of Swanner‑Renner, 209 P.3d at 241-42; In re Estate of Hunsaker, 968 P.2d at 285-86; In re Estate of Alcorn, 868 P.2d 629, 631 (Mont. 1994).

Cohabitation and Public Repute

Cohabitation, while required to establish a common law marriage, is not alone determinative of a marital relationship. See In re Estate of Acorn, 868 P.2d at 631. Public repute requires consideration of how the public views the couple and whether the couple held themselves out to the community as spouses. See In re Hunsaker, 968 P.2d at 286. The court views the “‘public’ as the people in the couple’s community ‘whose knowledge would establish the reputation,’ not strangers or the broader public with whom the couple has minimal, if any, acquaintances.” In re J.K.N.A., 454 P.3d at 651 (quoting Miller v. Sutherland, 309 P.2d 322, 327-28 (Mont. 1957)).Relevant considerations in evaluating public repute include whether the parties have kept their relationship secret or cohabited and held themselves out as spouses for only short periods of time. SeeIn re Estate of Vandenhook, 855 P.2d 518, 205 (Mont. 1993) (finding party failed to meet her burden with respect to public repute requirement where she was unable to provide any supporting evidence to substantiate her claim, and multiple individuals attested that they were unaware of any marital relationship); Miller, 309 P.2d at 328; but see In re J.K.N.A., 454 P.3d at 651 (finding same-sex couple had satisfied the public repute element even though they did not always hold themselves out as a couple to strangers or people who might not be accepting to them).

The same types of evidence that courts have looked to in considering mutual consent and agreement have also been cited when considering cohabitation and public repute. See In re Estate of Alcorn, 868 P.2d at 632 (finding this element satisfied where the parties had a shared checking account, hosted their families at the holidays, and family members on both sides testified that they considered the parties married and that the parties used familial terms when referring to each other’s relatives); In re Marriage of Geertz, 755 P.2d at 37 (affirming finding that divorced couple had not established a subsequent common law marriage where the parties maintained separate insurance and bank accounts, each filed single income tax returns, the man generally referred to the woman as his ex-wife, and the man listed himself as single on various loan applications).

Analysis

With respect to the first element of a common law marriage, we are unaware of any evidence indicating that the NH and CL were not competent to enter into marriage.

As to the second and third elements—mutual consent and agreement plus cohabitation and holding out as spouses—the record contains sufficient evidence to support such findings. This evidence consists of:

• •

  A Statement of Marital Relationship completed by the CL, in which she indicated that she and the NH began living together as husband and wife in March 1980 in Billings, Montana. The CL writes that “we were in love and shared our lives, possessions and home”; that they introduced each other as “my husband” or “my wife”; and that she was listed as next of kin on the NH’s work insurance beginning in 1980 (pp. 13-16).

• •

  A Statement Regarding Marriage completed by the CL’s sister, SJ, indicating that she had known the NH since 1978-79 and that the NH and CL maintained a home and lived together as husband and wife beginning in 1980. SJ saw the NH and CL a few times a year, either when she would stay with the NH and CL or when the NH and CL would come to visit her (pp. 6-7).

• •

  Statements Regarding Marriage completed by the NH’s mother and brother, both of whom indicated that they had known the CL since the spring of 1980 and understood the NH and CL to have maintained a home and lived together as husband and wife at that time. The mother and brother both visited the NH and CL in Billings (pp. 9-12).

While the available evidence is somewhat limited, the witnesses uniformly indicated that the NH and CL began living together as husband and wife in the spring of 1980, notwithstanding that a ceremonial marriage occurred on January x, 1983. The CL also provided a reasonable explanation for why she and the NH had the later ceremonial marriage if they already considered themselves married as of March 1980, noting “family pressure and children [their first child was born in 1982] made us realize we should have a legal ceremony and photos” (p. 13). Given that the CL and NH ultimately divorced, it is also notable that two of the statements attesting to a 1980 common law marriage came from the NH’s family.

Overall, the CL has provided sufficient evidence to satisfy the preponderance of evidence standard that a Montana court would employ when considering an alleged common law marriage. See, e.g., In re Estate of Ober, 62 P.3d 1114 (Mont. 2003) (affirming common law marriage finding where the lower court found the surviving spouse’s testimony credible); In re Estate of Murnion, 686 P.2d 893, 896 (Mont. 1984) (affirming finding of common law marriage, notwithstanding some contrary evidence, where the lower court accepted the explanations of the wife, and close members of the husband’s family also supported the wife’s testimony); see also 20 C.F.R. § 404.726(b)(2) (preferred evidence of common law marriage consists of signed statements from the living spouse and two blood relatives of the deceased individual); POMS GN 00305.065(B)(3). The Murnion case is also instructive because the party contesting the alleged common law marriage there pointed out that the putative husband and wife had discussed doing something further to formalize their marriage. 668 P.2d at 897. The court nevertheless found that this did not undermine the evidence establishing a common law marriage: “[A]lthough the parties intended to do something further to formalize their marriage, to please M~ parents, and to accommodate society, this intention to formalize did not conflict with the agreement they had made to become husband and wife.” Id.; see also In re Estate of Eliasen, 668 P.2d 110, 114 (Idaho 1983) (finding that a common law marriage pre-dated the parties’ ceremonial marriage); Shank v. Wilson, 74 P. 812, 812-13 (Wash. 1903) (finding marriage existed even before the parties had a ceremonial marriage).

Conclusion

We believe the available evidence is sufficient to establish a common law marriage in Montana between the NH and the CL that began in March 1980, and that, when combined with the period of their ceremonial marriage, satisfied the ten-year marriage requirement for widow’s benefits as a surviving divorced spouse.

Footnotes:

[1] The only exception is when the marriage is in violation of strong public policy of the District of Columbia. Hitchens, 47 F. Supp. at 74.

[2] The Montana Constitution and a separate Montana statute provide that marriage is only valid if it is between one man and one woman, but those provisions are unconstitutional in light of the decision of the United States Supreme Court in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). In Obergefell, the Supreme 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. 135 S. Ct. at 2604-05. Pursuant to Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 94-98 (1993), SSA 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, SSA considers Montana’s same-sex-marriage bans void and ineffective. See also In re J.K.N.A., 454 P.3d at 649 (holding Obergefell operates retroactively).

The number holder (NH) was domiciled in Trinidad & Tobago at the time of his death; therefore, we apply the law of Trinidad & Tobago. The claimant alleges that her common law marriage to the NH began in 2002 in Trinidad & Tobago. Based on the evidence provided, the claimant and the NH meet the definition of cohabitants as they continuously cohabitated in a bona fide domestic relationship for more than five years prior to the death of the NH as required under the Trinidad and Tobago laws. Since the claimant was not validly married to NH, we applied the District of Columbia laws to determine if we could deem the NH and the claimant married. We believe that courts of the District of Columbia would find that the claimant has the same intestate succession rights as a spouse. Accordingly, we believe that there is support for the agency to deem the couple married for Title II purposes.

Question Presented

Whether J~ (the claimant) and number holder (NH) A~, were validly married for the purpose of determining the claimant’s entitlement to Title II benefits under the Social Security Act (Act). If the couple cannot be considered validly married, can the agency deem the couple as married for the purpose of determining widow’s benefits?

Short Answer

We believe that even though the claimant and the NH were not validly married under Title II of the Act, the agency can deem the couple as married for the purpose of Title II benefits. The evidence provided shows that the claimant and NH are considered cohabitants under the laws of Trinidad and Tobago, and as such, the claimant has the same status as a widow of the NH for purposes of intestate inheritance. Accordingly, the agency could find that the claimant is the NH’s widow for the purpose of Title II benefits under the Act.

Background

The claimant alleges that her common law marriage to the NH began in 2002 in Trinidad & Tobago. There is no indication that the NH and claimant participated in a ceremonial marriage. The NH resided in Trinidad & Tobago as of the date of his death on December xx, 2017. The claimant filed for benefits as a widow and a Lump Sum Death Payment[1] (LSDP) on February xx 2018.

ANALYSIS[2]

To be entitled to widow’s insurance benefits under the Act, a claimant must show, among other things, that she is the “widow” of an insured. 42 U.S.C. § 402(e)(1). As pertinent here, the Act provides two methods for a claimant to show she is the widow of an insured who was domiciled outside the United States.[3] First, a claimant is the widow of such insured if the courts of the District of Columbia would find that the claimant was validly married to the insured at the time the insured died. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. The marriage between the claimant and NH must have also lasted nine months as of the NH’s death. 42 U.S.C. § 416(c), of the Act; 20 C.F.R. § 404.335. Second, if the claimant was not validly married to such insured at the time the insured died, the claimant will be deemed to be the insured’s widow if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, the claimant would have the “same status” as a widow of the insured with respect to the taking of such property. 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

Moreover, under section 202(i) of the Social Security Act (the Act), to be entitled to the LSDP on an insured NH’s record, a claimant must show that he or she is the NH’s widow or widower and resided in the same household with the deceased at the time of death. See also 20 C.F.R. § 404.391. The duration of marital relationship requirement is not required for LSDP applications when the couple was living in the same household (LISH). RS 00210.001C. Living in the household means that the insured and the claimant customarily lived together as husband and wife in the same residence. RS 00210.035A.

The Claimant was not Validly Married to the NH under the laws of Trinidad & Tobago.

Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into.[4] See McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Varr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946).

Here, the claimant and the NH lived as husband and wife, but there is no indication that they ever entered into a ceremonial marriage. Therefore, the District of Columbia law would not recognize the couple as validly married and the claimant is not entitled to Title II widow’s benefits on the record of the NH based on a valid marriage.

The Claimant Has the Same Status as a Wife of the NH under the Intestacy Law of Trinidad & Tobago.

Since the claimant was not validly married to NH, the agency will deem the couple to have been married if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, the claimant would have the “same status” as a spouse of the NH with respect to the taking of such property, if the NH were to die. See 42 U.S.C § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345. Under District of Columbia law, intestate inheritance rights are determined by the law of the decedent’s domicile. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.D.C. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)).

Here, the NH was domiciled in Trinidad & Tobago at the time of his death on December 5, 2017. Accordingly, to determine whether the claimant would have the requisite status with respect to inheritance of the NH’s intestate property, we apply the law of Trinidad & Tobago. Under the Trinidad and Tobago Cohabitational Relationships Act of 1998 and the Administration of Estates Act of 1913, the surviving member of a cohabiting couple may inherit to the same degree as a spouse in a legal marriage where the parties lived together for five years.[5] The Administration of Estates Act defines a “cohabitant” as a “person of the opposite sex who while not married to the intestate, continuously cohabitated in a bona fide domestic relationship with the intestate for a period of not less than five years preceding the death of the intestate.” [6] The Estates Act goes on to state that where there is no surviving spouse, but instead a surviving cohabitant, the cohabitant shall be treated for the purposes of this Act as if he or she were a surviving spouse of the intestate. If the deceased died intestate leaving children but not a spouse, then the children have a right to half of the estate and the cohabitant the other half.

Here, the claimant and NH meet the definition of cohabitants as they continuously cohabitated in a bona fide domestic relationship for more than five years prior to the death of the NH. Moreover, there is no evidence that suggests the NH had a surviving spouse and/or children with a right to the NH’s estate. Therefore, the claimant would have a right to the NH’s entire estate under the law of Trinidad and Tobago and this right would be recognized by the District of Columbia.

CONCLUSION

We believe the claimant’s relationship with the NH would be recognized as a valid cohabitational relationship and that the claimant has the same status as a spouse of the NH for intestate succession purposes under the law of Trinidad & Tobago. Thus, we believe that courts of the District of Columbia would find that the claimant has the same intestate succession rights as a spouse. Accordingly, we believe that there is support for the agency to deem the couple married for Title II purposes.

Footnotes

[1]If a person is fully or currently insured when he or she dies, a LSDP of $255 may be paid to the widow or widower of the deceased if the widow or widower applies for the payment within two years of the NH’s death, and if he or she was living in the same household with the NH at the time of his or her death. 20 C.F.R. §§ 404.390, 404.391 (2013). According to the information submitted, the claimant met the Living in Same Household requirement at the time of the NH’s death. In addition, the claimant applied for the LSDP in February 2018, well within the two year time period.

[2] Our discussion of the law of Trinidad & Tobago is based in part on information we received from the Library of Congress. See Ruth Levush, LL File No. 2019-017033 (November 2018) (Law Library of Congress Report).

[3]In determining the claimant’s relationship as the insured’s spouse, the agency looks to the law of the state where the insured was domiciled at the time the claimant applied for benefits. See 42 U.S.C. § 416(h)(1)(A)(i). If the insured was not domiciled in any state, the agency applies the law the District of Columbia would apply. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345; POMS GN 00210.006(B)(2).a.

[4] The only exception is when the marriage is in violation of strong public policy of the District of Columbia. Hitchens v. Hitchens, 47 F. Supp. 73, 74 (D.D.C. 1942). There is no indication that this union would violate public policy.

[5]LL File No. 2019-017033 (November 2018) (Law Library of Congress Report), at 1 citing Cohabitational Relationships Act 30 of 1998, as amended, LAWS OF TRINIDAD AND TOBAGO (LTT) Ch. 45:55, (updated to Dec. 31, 2015), http://rgd.legalaffairs.gov.tt/laws2/alphabetical_list/lawspdfs/45.55.pdf , archived athttps://perma.cc/4HLF-ZCED and Administration of Estates Act 35 of 1913, as amended, LTT Ch. 9:01, http://rgd.legalaffairs.gov.tt/laws2/alphabetical_list/lawspdfs/9.01.pdf , archived at https://perma.cc/3DCR-BRSP .

[6]LL File No. 2019-017033 (November 2018) (Law Library of Congress Report), at 1 Id. § 2.

The claimant entered into a valid ceremonial marriage with the NH in Hawaii in February 1998.  The NH died on October 24, 1998 in Québec, Canada. Because the NH resided in Canada at the time of his death, we apply District of Columbia law to determine whether they were validly married. Under the law of the District of Columbia, the claimant would be recognized as the NH’s widow. However, under the Act, the marital relationship did not last at least nine months before the NH died as required under the Act. Therefore, the claimant is not entitled to Title II widow’s benefits on the record of the NH. In addition, the agency cannot deem the couple as married for Title II benefit purposes, as their relationship does not allow the claimant the same status as a widow of the NH under the intestacy law of Québec, Canada.

Question Presented

M~ (the claimant) applied for widow’s insurance benefits on the earnings record of T~, the deceased insured number holder (the NH). The claimant submitted evidence that she had a spousal-type relationship with the NH and that they began living together in 1990 in Québec, Canada. The couple lived in San Francisco, California, and in Maui, Hawaii. In Hawaii, the couple married on February 17, 1998. They moved back to Québec, Canada, where the NH died on October 24, 1998. You have asked if the claimant is entitled to Title II widow’s benefits based on her relationship with the NH.

OPINION

No, the claimant is not entitled to Title II widow’s benefits based on her relationship with the NH. Although the claimant married the NH on February 17, 1998, the marriage did not last the requisite nine months required by the Social Security Act (Act). ^[56] Section 216(c) of the Act; 20 C.F.R. § 404.335. In addition, the agency cannot deem the couple as married for Title II benefit purposes, as their relationship does not allow the claimant the same status as a widow of the NH under the intestacy law of Québec, Canada.

BACKGROUND

The claimant and the NH lived together from January 1990, until the NH’s death on October 24, 1998, in Québec, Canada. You requested a legal opinion regarding whether the claimant is entitled to Title II widow’s benefits on the record of the NH, based on this relationship.

ANALYSIS ^[57]

Generally, an individual is entitled to widow’s or widower’s benefits if he or she (1) is the insured’s widow or widower and the marital relationship lasted at least nine months before the insured died; (2) files an application; (3) is at least 60 years old; (4) is not entitled to an old-age benefit that is equal to or larger than the insured person’s primary insurance amount; and (5) is not currently married. Sections 206(e), (f), 216(c), (g) of the Act; 20 C.F.R. § 404.335.

Here, because the NH resided in Canada at the time he died, we apply District of Columbia law to determine whether they were validly married. Section 216(h)(1)(A)(i) of the Act; 20 C.F.R. § 404.345. Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. See McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Varr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi,69 F. Supp. 296 (D.D.C. 1946). The only exception is when the marriage is in violation of strong public policy of the District of Columbia. Hitchens v. Hitchens, 47 F. Supp. 73, 74 (D.D.C. 1942).

The Claimant’s Ceremonial Marriage to the NH did not Last at Least Nine Months

The claimant entered into a valid ceremonial marriage with the NH in Hawaii, on February 17, 1998. However, the NH died on October 24, 1998. Under the law of the District of Columbia, the claimant would be recognized as the insured’s widow. However, under the Act, the marital relationship did not last at least nine months before the insured died as required under sections 216(c), 216(g) of the Act; 20 C.F.R. § 404.335. Therefore, the claimant is not entitled to Title II widow’s benefits on the record of the NH, based on their ceremonial marriage.

The Claimant Does Not Have the Same Status as a Wife of the NH Under the Intestacy Law of Québec, Canada

If the claimant cannot be entitled to widow’s benefits based on a marriage to the NH, the agency will deem the couple to have been married, if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, the claimant would have the “same status” as a widow of the NH with respect to the taking of such property, if the NH were to die. See § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345. Under District of Columbia law, intestate inheritance rights are determined by the law of the decedent’s domicile. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.D.C. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)). As previously noted, the NH died domiciled in Québec, Canada. Accordingly, to determine whether the claimant would have the requisite status with respect to inheritance of the NH’s intestate property, we apply the law of Québec.

Québec recognizes marriages, civil unions,^[58] and de facto unions (conjoints de fait), ^[59] all of which are open to couples who are in an opposite or same-sex relationship. De facto unions exist when two people live together as a couple without being married or in a civil union. ^[60] According to Justice Québec, the website of Québec’s Department of Justice:

Québec lawmakers, respecting the freedom of choice of couples living in a de facto union, have deliberately chosen not to extend to de facto couples the same rights and responsibilities that married or civil union couples have under the Civil Code of Québec, regardless of the number of years of cohabitation.^[61]

Here, the claimant does not allege that she was in a civil union with the NH. Instead, the claimant and the NH lived together from January 1990, until the NH’s death on October 24, 1998. Under the laws of Québec, this relationship would be defined as a de facto union (conjoints de fait). However, under the Civil Code of Québec, a member of a de facto union does not have spousal rights of intestate inheritance from the other member. Accordingly, the agency would not deem a couple in a de facto union as married.

CONCLUSION

The claimant does not have the same status as a wife of the NH under the law of Québec. Thus the agency cannot deem the couple married for Title II purposes.

Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. To determine whether claimant was validly married to the NH for Social Security purposes, we must determine whether their relationship constitutes a valid marriage under New Brunswick law. As pertinent here, the Act provides two methods for a claimant to show that she is the widow of an insured who was domiciled outside the United States. First, a claimant is the widow of such insured if the courts of the District of Columbia would find that the claimant was validly married to the insured at the time he died.   Second, even if a claimant was not validly married to the insured at the time he died, she will be deemed to be his widow if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, she would have the same status as a widow of the insured with respect to the taking of such property. Claimant fails to satisfy either requirement.

The Province of New Brunswick recognizes common-law relationships for certain purposes, but does not consider a common-law couple to be validly married because the union was never solemnized. In this case, claimant does not allege that her relationship with NH was solemnized by a marriage ceremony.  Under the laws of New Brunswick, Canada, the couple was not validly married because there was no solemnized marriage ceremony. We believe that the claimant should not be deemed NH's widow for purposes of determining her entitlement to widow’s insurance benefits.

I. Question Presented

The claimant, S~, applied for widow’s insurance benefits on the earnings record of P~, the deceased insured number holder. S~ submitted evidence showing that she had a spousal-type relationship with P~ and that they lived together in New Brunswick, Canada from 1967 until P~’s death in June 2012. The question presented is whether the agency should consider S~ to be P~’s “widow” in determining her eligibility for survivors benefits under Title II of the Social Security Act (the Act).

CONCLUSION

Based on our review of the facts of this case and our research of the relevant law, we have determined that it is unlikely that a District of Columbia court would find a valid common law marriage established in its jurisdiction.

II. Short Answer

No. Under the laws of New Brunswick, Canada, a common-law relationship is not a valid marriage. Further, when a common-law partner dies without a will, the surviving partner does not have the same property rights as a legal widow or widower under New Brunswick intestacy laws. For those reasons, the agency should not consider S~ to be P~’s widow for Title II survivor’s benefits eligibility purposes.

 III. Background On August 31, 2012, S~ filed for widow’s benefits based on an alleged common-law marriage to the deceased number holder, P~.  Both were previously married to others, and their divorces reportedly became final sometime between 1967 and 1970. The couple shared the same address in New Brunswick, Canada, purchased property jointly, and shared joint bank accounts. S~ and P~ signed a Statutory Declaration of Common-Law Union for the purposes of the Canadian Pension Plan. In that Declaration, the couple alleged that they had been living together as husband and wife in Canada since 1967. S~ is named as P~’ “spouse” and “next of kin” in the “proof of death certificate” issued by Fundy Funeral Home, New Brunswick, Canada.

IV. Applicable Law

To be entitled to widow’s insurance benefits under the Act, a claimant must show, among other things, that she is the “widow” of the insured. See Act § 202(e)(1), 42 U.S.C. § 402(e)(1). As pertinent here, the Act provides two methods for a claimant to show that she is the widow of an insured who was domiciled outside the United States.  First, a claimant is the widow of such insured if the courts of the District of Columbia would find that the claimant was validly married to the insured at the time he died. See Act § 216(h)(1)(A)(i), 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345.  Second, even if a claimant was not validly married to the insured at the time he died, she will be deemed to be his widow if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, she would have the same status as a widow of the insured with respect to the taking of such property. See Act § 216(h)(1)(A)(ii), 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

IV. Analysis

1. A. 

   S~ was not validly married to P~ under New Brunswick law.

   Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. See McConnell v. McConnell, 99 F. Supp. 493, 494 (Dist. Court, Dist. of Columbia 1951); Carr v. Varr, 82 F. Supp. 398 (Dist. Court, Dist. of Columbia 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (Dist. Court, Dist. of Columbia 1946). Accordingly, to determine whether S~ was validly married to P~ for Social Security purposes, we must determine whether their relationship constitutes a valid marriage under New Brunswick law. The Canadian provinces have exclusive jurisdiction over the solemnization of marriage under section 92(12) of the Constitution Act, 1867. Constitution Act, 1867, 30 & 31 Vict., c. 3. Further, the Supreme Court of Canada ruled in January 2013 that the provinces held the authority to decide what rights should be given to common-law couples. Quebec (Attorney General) v. A, 2013 SCC 5 (CanLII) (also known as “Eric” v “Lola”).

   The Province of New Brunswick recognizes common-law relationships for certain purposes, but does not consider a common-law couple to be validly married because the union was never solemnized. Marriage Act, R.S.N.B. 2011, c. 188, s. 27, par. 1. See also Public Legal Education and Information Service of New Brunswick, Living Common-Law: Rights and Responsibilities (March 2013), http://www.legal-info-legale.nb.ca/en/index.php?page=living_common-law.

    Like validly married couples, common-law partners in New Brunswick are able to claim credits for tax purposes The Income Tax Act recognizes common-law partners for tax purposes. Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.). or file a claim for a portion of their partners’ pensions. Under the Pension Act, the surviving common-law partner of a member of the forces is entitled to a pension. Pension Act, R.S.C. 1985, c. P-6, s. 45, par. 2.1. Unlike validly married couples, common-law partners can be forced to testify against each other, are not responsible for the debts of their partners, cannot make health care decisions for their partners (unless they hold a power of attorney), and the children of such unions are considered illegitimate. Public Legal Education and Information Service of New Brunswick, Living Common-Law: Rights and Responsibilities (March 2013), http://www.legal-info-legale.nb.ca/en/index.php?page=living_common-law.  To be validly married under New Brunswick law, a couple must have their marriage solemnized in accordance with the Marriage Act. Marriage Act, R.S.N.B. 2011, c. 188, s. 27, par. 1.

   In this case, S~ does not allege that her relationship with P~ was solemnized by a marriage ceremony.  While it appears that they were recognized as common-law partners by the Canadian Pension Plan, the rules governing that program are not applicable to this question. Similarly, the fact that S~ was named as P~’ deceased spouse and next of kin on the proof of death certificate issued by the funeral home has no bearing on whether the couple would be considered validly married under New Brunswick law.  Because there was no solemnized marriage ceremony, the couple was not validly married. Accordingly, S~ cannot qualify as P~’ widow for Social Security purposes on the basis of a valid marriage.

2. B. 

   S~ does not have the same status as P~’ widow under New Brunswick intestacy law.

   Even if S~ is not validly married to P~, she will still be deemed his widow if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, she has the same status as his widow with respect to the taking of such property. See Act § 216(h)(1)(A)(ii), 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

   Under District of Columbia law, intestate inheritance rights are determined by the law of the decedent’s domicile. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (Dist. Court, Dist. of Columbia 2005) (citing In re G~’s Estate, 168 F. Supp. 124 (Dist. Court, Dist. of Columbia 1958)). Here, P~ was domiciled in New Brunswick, Canada. Accordingly, to determine whether S~ has the requisite status to inherit P~’ intestate property, we apply New Brunswick law. The Canadian provinces have exclusive jurisdiction over property and civil rights under section 92(13) of the Constitution Act, 1867. Constitution Act, 1867, 30 & 31 Vict., c. 3.

   In New Brunswick, the Devolution of Estates Act mandates how an estate is to be distributed when an individual dies intestate (without a will). The Act recognizes the entitlement of a legally married spouse – i.e., “widow” – but does not recognize entitlement of a common-law relationship partner. Devolution of Estates Act, R.S.N.B. 1973, c. D-9, s. 22. Although common-law partners have no property rights, they may still petition a court to order the partner’s estate to provide support under the Provisions for Dependents Act. Provision for Dependants Act, R.S.N.B. 1973, c P-22.3. Through such petition, the common-law partner may be awarded a portion of the deceased’s estate. Such an award would not, however, amount to a right to inherit the deceased partner’s intestate property. See also Public Legal Education and Information Service of New Brunswick, Living Common-Law: Rights and Responsibilities (March 2013), http://www.legal-info-legale.nb.ca/en/index.php?page=living_common-law. Because New Brunswick law will not entitle S~ to inherit P~’ property in the absence of a will, the agency should not deem S~ to be the insured’s widow under the Act. See Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.

CONCLUSION

For the above reasons, we conclude that a common law marriage under the law of the District of Columbia has not been established between the Number Holder and L~ given the evidence you provided.

Donna L. Calvert

Regional Chief Counsel

By:________________________________

Elizabeth A. Corritore

Assistant Regional Counsel

To determine whether a common law marriage contracted out-of-state is valid, New York applies the law of the State in which the marriage occurred. In the District of Columbia, there are two elements of a common law marriage. First there must be proof of an express, mutual, present agreement to be husband and wife. Second, there must be good faith cohabitation following the agreement.

QUESTION PRESENTED

This is in response to your request for an opinion as to whether R~, the Number Holder, and N~ had a valid marriage under the law of the District of Columbia. The specific question is whether a couple living in New York would be considered to have a common law marriage under the law of the District of Columbia based on a three week visit to the area.

CONCLUSION

Based on our review of the facts of this case and our research of the relevant law, we have determined that it is unlikely that a District of Columbia court would find a valid common law marriage established in its jurisdiction.

FACTUAL BACKGROUND

The following is a summary of the relevant facts in this matter. The Number Holder and N~ lived together in New York for approximately twenty years prior to the Number Holder's June 1992 death.

According to N~, they lived as husband and wife throughout that time period, sharing all household expenses and conducting their affairs together.

N~ also represented that she wore a wedding ring given to her by the Number Holder for more than fifteen years.

In January 1993, N~ filed an Affidavit in Surrogate's Court attesting that she and R~ were husband and wife. On June 18, 2003, N~ was appointed the administrator of the Number Holder's estate. The Letters of Administration identify N~ as "N~," but do not refer to her as R~ surviving spouse.

In 1984, N~ and the Number Holder entered an in vitro fertilization (IVF) program at the George Washington University Hospital in Washington, D.C. In connection with that program, N~ alleges that she and the Number Holder resided in a Washington, D.C. hotel for a three week period. N~ provided no direct evidence that she and the Number Holder cohabitated in the hotel for that three week time period.

However, she did provide a copy of a note addressed to "N~" written by a hotel staff member wishing her luck with her trip to George Washington University Hospital. N~ also submitted a letter written by Joseph, M.D., in December 1992. Dr. S~ stated that to the best of his recollection, N~ and the Number Holder resided together at the hotel during the duration of the program.

Dr. S~ further stated that he had no doubt that N~ and the Number Holder were accepted into the IVF program as a married couple.

Several forms completed by the Number Holder and N~ in connection with the program have signature lines for "Husband" and "Wife," indicating N~ as the "Wife" and the Number Holder as the "Husband." Those designations were not handwritten by either N~ or the Number Holder. Rather, the words "Husband" and "Wife" were in typeface and located underneath the signature lines.

DISCUSSION

Widow's benefits may be granted based on the earnings record of an insured person who has died if the applicant was the insured's wife under the law of the state where the insured had a permanent home at the time of his death.

42 U.S.C. § 416(h)(1)(a)(i); 20 C.F.R. §§ 404.335, 404.345 (2005); POMS RS 00207.001. The relationship requirement is also met if under State law the claimant would be able to inherit a widow's share of the insured's personal property if he were to die intestate. 20 C.F.R. § 404.345 (2005). Because the Number Holder was domiciled in New York at the time of his death, New York law applies.

Under New York's intestacy statute, property of a decedent not disposed of by will is distributed to the decedent's "spouse" and issue. M~'s EPTL § 4-1.1. Because N~ has neither alleged a ceremonial marriage occurring in New York, nor is there evidence that N~ was adjudicated to be the Number Holder's wife, she would not be entitled to inherit a widow's share of the Number Holder's personal property pursuant to New York's intestacy statute. Accordingly, N~ must demonstrate a valid common law marriage in order to be eligible for widow's benefits.

While New York abolished common law marriages in 1933, it will recognize a common law marriage contracted in a sister State if the marriage is valid where it was contracted. Mott v. Duncan Petroleum Trans., et al., 414 N.E.2d 657, 658-59 (N.Y. 1980). To determine whether a common law marriage contracted out-of-state is valid, New York applies the law of the state in which the marriage occurred. Id. at 659. N~ alleges that she and the Number Holder had a common law marriage based on their three week visit to the District of Columbia.

Thus, we apply the law of the District of Columbia to determine whether a valid common law marriage was formed.

In the District of Columbia, there are two elements of a common law marriage. First, there must be proof of an express, mutual, present agreement to be husband and wife. Mesa v. United States, 875 A.2d 79, 83 (D.C. 2005) (citing East v. East, 536 A.2d 1103, 1105 (D.C. 1988)).

Second, there must be good faith cohabitation following the agreement.

Mesa, 875 A.2d at 83. "Since ceremonial marriage is readily available and provides unequivocal proof that the parties are husband and wife, claims of common law marriage should be closely scrutinized, especially where one of the purported spouses is deceased and the survivor is asserting such a claim to promote his financial interest." Coates v. Watts, 622 A.2d 25, 27 (D.C. 2005). The burden is on the proponent to prove the essential elements of a common law marriage by a preponderance of the evidence. Id. at 27. In addition, "when one of the parties to the alleged marriage asserts its existence but either denies or fails to say there was mutual consent or agreement, then mere cohabitation, even though followed by reputation, will not justify an inference of mutual consent or agreement to be married." Id. (emphasis supplied) (citations omitted).

We have extensively researched relevant case law from District of Columbia courts regarding the establishment of a common law marriage. The few published state court decisions that do exist address whether a common law marriage was formed by District of Columbia residents in the District of Columbia. They do not address whether a common law marriage can be established by out-of-state couples who are merely visiting the District of Columbia for a short period of time.

However, there are two cases of interest applying District of Columbia law.

In the first case, Cross v. Cross, 146 A.D.2d 302 (N.Y. 1989), the putative wife sought to establish a common law marriage under District of Columbia law. The couple were residents of New York, but travelled to Washington, D.C., for a two day weekend. In holding that the putative wife had failed to establish a common law marriage based on District of Columbia law, the Court noted that she did not introduce "a scintilla of evidence that she and defendant had entered into a present tense agreement to be husband and wife while they were in Washington, D.C." Id. at 309 (emphasis supplied).

Similarly, while N~ has produced some evidence that she and the Number Holder held themselves out as husband and wife during the IVF program, there is insufficient evidence of an express, present tense agreement to be husband and wife which was formed while they were in Washington, D.C. In the Affidavit filed in connection with administration of the Number Holder's estate, N~ avers that she and the Number Holder travelled to Washington, D.C. to enter an IVF program. She did not allege that she and the Number Holder entered into a marital agreement while in Washington, D.C.

In the second case, National Union Fire Insurance Co. v. Britton, 187 F.Supp. 359 (D.D.C. 1960), a couple allegedly entered into a common law marriage in Virginia. Unbeknownst to the couple, the Commonwealth of Virginia did not recognize common law marriages. The couple later moved to the District of Columbia, where they continued living together for approximately ten years. The Court noted that "the impediment to the inception of the marriage was removed and since the relation continued pursuant to the agreement entered into previously, a common-law marriage was created as soon as the couple moved to the District of Columbia and continued living there." Id. at 364 (emphasis supplied). In holding that a common law marriage existed, it appears that the Court in Britton found it relevant that the couple established residency in the District of Columbia after forming the marital agreement in Virginia. That is unlike the facts of the present case, where there is no evidence that N~ and the Number Holder ever intended to make the District of Columbia their domicile.

In our opinion, N~ cannot establish that an express, mutual, present agreement to be husband and wife was contracted in the District of Columbia, nor can she prove that the three week visit satisfies the "good faith cohabitation" requirement of a common law marriage in the District of Columbia. Even assuming that N~ can demonstrate, by affidavit or otherwise, that she and the Number Holder cohabitated at the hotel and held themselves out as husband and wife during their three week sojourn in the District of Columbia, we believe a District of Columbia court would conclude that they failed to satisfy either element of a common law marriage.

Several regional offices of the Agency have come to the same conclusion analyzing similar fact patterns occurring in other jurisdictions. In an advice opinion dated February 14, 1985, Region III addressed whether the State of Delaware, which does not itself recognize common law marriages, would recognize as valid a common law marriage after a brief weekend visit to the Commonwealth of Pennsylvania to attend another couple's wedding.

Region III concluded that under Pennsylvania law, the evidence was insufficient to establish the essential elements of a common law marriage, namely, present intent of the parties to form a marriage contract and a reputation of marriage. On September 27, 1985, Region VII addressed the question of whether the State of Missouri would recognize a common law marriage based on a sojourn in a common law state.

While this opinion is not precisely on point, insofar as the author concludes that no common law marriage would be recognized in Missouri based on public policy grounds, the author does note that a temporary stay in Ohio by non-residents was insufficient to establish a common law marriage pursuant to Ohio law. On April 5, 2005, Region VIII issued an opinion concluding that North Dakota law would not recognize a common law marriage purportedly entered into in Montana based on short visits, finding insufficient evidence of cohabitation and repute in Montana, especially insofar as there was no evidence that the couple ever intended to make Montana their residence. Given the District of Columbia's proclamation that common law marriage claims should be closely scrutinized, especially where one party is deceased, we conclude that it is unlikely that a District of Columbia court would find a valid common law marriage was established in its jurisdiction.

CONCLUSION

For the above reasons, we conclude that a common law marriage under the law of the District of Columbia has not been established between the Number Holder and N~ given the evidence you provided.

Donna L. Calvert

Regional Chief Counsel

By:________________________________

Elizabeth A. Corritore

Assistant Regional Counsel

Although a common law marriage cannot be formed within New York, the State will recognize valid common law marriages from other jurisdictions. In making the determination, New York will apply the common law marriage requirements of the other jurisdiction.

QUESTION PRESENTED

On August 30, 2005, you asked for our advice as to whether there was a valid common law marriage between R~ (claimant), a claimant for survivor's benefits, and M~ (number holder), the deceased number holder.

SUMMARY

Based on our review of the information you have provided, it is our opinion that the claimant did not present sufficient evidence to demonstrate a common law marriage with the number holder under the laws in the District of Columbia. We would recommend further development of the record to determine whether a common law marriage existed.

BACKGROUND

On April 18, 2005, the claimant filed an application for survivor's benefits as the common law spouse of the deceased number holder. In his application, the claimant indicated that he and the number holder had a common law marriage since January 1977 and that the marriage ended by the number holder's death on February 10, 2001. In January 1977, the claimant and number holder started a business in the District of Columbia. The claimant and number holder lived together in the District of Columbia until December 1978 when they relocated to New York, where they lived together until the number holder's death. Until 1986, the claimant and number holder continued to travel to the District of Columbia to run their business.

In support of this application, the claimant submitted affidavits signed in 2002 by Shirley, the claimant's sister, and George, a friend of the claimant and number holder. Shirley and George stated that they knew the claimant and number holder since at least 1977 and that the claimant and number holder lived together in the District of Columbia in 1977 and later in New York. Although the claimant and number holder purportedly represented themselves as a married couple, Shirley and George never identified when the claimant and number holder first represented that they were married.

The claimant also submitted several financial records, including a life insurance policy, two joint bank accounts, and a W-2 form. These records showed that the claimant and number holder resided together in New York and that the claimant was the beneficiary of the number holder. These records were relatively recent (since 1998) and did not indicate when the life insurance policy or bank accounts were opened. The number holder used her own last name in all of these records.

As noted in a print out from a SSA database, when the number holder applied for retirement benefits in March 1998, she indicated that she had never married.

The number holder's death certificate identified the claimant's "relationship to deceased" as "companion." The claimant obtained a copy of the autopsy report which is only available for inspection by a relative, next of kin, or heir of the decedent. The claimant's request for the autopsy was not provided. It is unknown under which classification the claimant was provided the autopsy report. The death certificate showed that the number holder resided with the claimant.

APPLICABLE LAW

To determine a claimant's relationship as a deceased number holder's spouse, the Agency looks to the law of the number holder's permanent home at the time of her death, which, in the instant case, is New York. 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.345. Although a common law marriage cannot be formed within New York, the state will recognize valid common law marriages from other jurisdictions. Mott v. Duncan Petroleum Trans., 51 N.Y.2d 289, 292 (1980). In making this determination, New York will apply the common law marriage requirements of the other jurisdiction. Id.

The District of Columbia does recognize common law marriages. Johnson v. Young, 372 A.2d 992, 994 (D.C. 1977). To establish a valid common law marriage in the District of Columbia, the parties must "express [a] mutual present intent to be husband and wife, followed by good faith cohabitation."

Id. Although recognized, claims of common law marriages should be closely scrutinized, especially when the surviving spouse has asserted "such a claim to promote [a] financial interest." Coates v. Watts, 622 A.2d 25, 27 (D.C. 1993); see also Mesa v. United States, 875 A.2d 79, 83 (D.C. 2005). claimant has the burden of proving the existence of a common law marriage by a preponderance of the evidence. East v. East, 536 A.2d 1103, 1106 (D.C. 1988). This burden is satisfied when the claimant's evidence is of greater weight, or is more convincing, than the evidence offered in opposition. In re E.D.R., 772 A.2d 1156, 1160 (D.C. 2001).

When evaluating an alleged common law marriage, the preferred evidence is a completed Form 754-F4 (Statement of Marital Relationship) from the claimant and a completed Form 753 (Statement Regarding Marriage) from one blood relative of the claimant and two blood relatives of the deceased number holder. POMS GN 00305.065(2)(a). If a Form 753 cannot be completed by the necessary individuals, the Agency should obtain a written explanation from the claimant, and the form should instead be completed by an individual who knows all of the facts. Id. The Agency can also use other direct evidence, such as property deeds or tax returns, to evaluate an alleged common marriage. Mesa, 875 A.2d at 83.

RELEVANT TIME PERIOD

The claimant asserted that he and the number holder had a valid common law marriage while living in the District of Columbia. In December 1978, the claimant and number holder moved from the District of Columbia and relocated to New York where they lived together until the number holder's death in 2001. Because New York does not independently recognize a common law marriage, the claimant must prove that he and the number holder had a valid common law marriage in the District of Columbia prior to December 1978.

DISCUSSION

In the instant case, there is insufficient evidence in the record to show that a valid common law marriage existed prior to December 1978. As noted above, claims of a common law marriage are closely scrutinized in the District of Columbia, especially when one party has a financial interest.

C~, 622 A.2d at 27; see also Mesa, 875 A.2d at 83. The record, at this time, does not show a "mutual present intent to be husband and wife." J~, 372 A.2d at 994. The death certificate identified the claimant as a "companion" and the number holder's application for retirement benefits indicated that she had never married. Both of these documents, created long after the relevant time period, suggest that the claimant and number holder never expressed a "present mutual intent" to marry prior to December 1978.

Although the record currently does not demonstrate a common law marriage, it is conceivable that additional development would demonstrate such a marriage. The Agency recognizes several standardized forms as the preferred evidence to establish a common law marriage. POMS GN 00305.065(2)(a). The current record contains neither a completed Form 753 from two blood relatives of the number holder nor a written explanation from the claimant for the inability to obtain such completed forms. We recommend that the Agency obtain, if possible, a completed Form 753 from two blood relatives of the number holder.

Apart from these standardized forms, we also recommend further development of other direct evidence that courts have given significant weight, such as tax returns and property documents. Mesa, 875 A.2d at 83. The direct evidence currently in the record (i.e., several financial records) is recent and sheds no light on the existence of a common law marriage during the relevant time period. We recommend that the Agency request, if possible, additional direct evidence during or soon after the relevant time period supporting the claimant's application. Given the passage of time, we understand that such evidence may be difficult to obtain. The Agency,however, should not ignore recent direct evidence. Although recent evidence may not prove a common law marriage during the relevant time period, it may disprove it. For example, the claimant and number holder may have claimed to be single on recent tax returns.

If the Agency obtains cumulative or no additional evidence, then we believe that the claimant has failed to demonstrate a common law marriage prior to December 1978 by a preponderance of the evidence. If additional evidence is obtained, the Agency must determine whether this additional evidence satisfied the claimant's burden of showing a common law marriage. Although completed Forms 753 are the preferred evidence, they are not irrefutable.

The Agency must weigh all of the evidence to determine whether a common law marriage existed. If the totality of the evidence suggests that it is more likely than not that a common law marriage existed, then the claimant should be awarded benefits. If it is more likely than not that a common law marriage did not exist or if the existence and non-existence of a common law marriage is equally likely, then the claimant has failed to meet his burden and his application should be denied.

CONCLUSION

For the reasons discussed above, we believe that the claimant presently lacks sufficient evidence to demonstrate a common law marriage with the number holder in the District of Columbia. We would recommend further development of the record to determine whether a common law marriage was created prior to December 1978.

Sincerely,

Donna L. Calvert

Regional Chief Counsel

By:______________________

Craig B. Ormson

Assistant Regional Counsel