You asked whether, for purposes of determining entitlement to widow's insurance benefits
and spouse insurance benefits, SSA is bound by a March 25, 2003 judgment and the findings
of the Vigo Superior Court of Indiana. The court decreed that Hazel is entitled to
inherit Clyde’s estate as his widow by virtue of a common-law marriage which commenced
in 1955. We conclude that SSA is not bound by the State court determination because
it is not consistent with what the Indiana Supreme Court would have held. You also
asked whether the evidence submitted regarding the couple's relationship is sufficient
to establish a valid common law marriage. We conclude that the evidence is not sufficient
to establish a valid common law marriage in Indiana.
According to the information you provided to our office, wage earner Clyde was entitled
to social security benefits from March 1989 until his death on May 30, 2002. Clyde
was domiciled in Indiana when he died. On July 25, 2003, Hazel applied for widow's
insurance benefits (WIB) on Clyde's account. On her WIB application, Hazel stated
that she and Clyde were married by a clergyman or public official in Bloomington,
Indiana, on January 1, 1955. Hazel also stated on her WIB application that, before
she married Clyde, she had a prior marriage of about six months duration, but she
did not remember anything about the marriage or her prior husband. On July 29, 2003,
Hazel completed a Statement of Marital Relationship, SSA-754-F4, indicating that there
had been no ceremonial marriage between her and Clyde, but they had agreed to be married
in 1955 and had lived together as husband and wife continuously since that time. She
wrote, "We knew that common law marriage existed under the law of the State of Indiana
and knew that by living together for a number of years we were legally married." Hazel
indicated that: she was known as Hazel or Clyde when she and Clyde lived together;
Clyde's union papers showed her as his wife; and the couple had filed joint tax returns,
bought property together, and maintained joint checking accounts. Hazel further stated
that she had been married and divorced three times prior to her common law marriage
to Clyde. Before she started living with Clyde, Hazel was known by the name Hazel
. During the course of further development, Hazel appears to have indicated that her
prior marriage to, and divorce from, a man named Clyde took place in Tippecanoe County,
Indiana. You have advised that attempts to locate a record of Hazel's prior marriage
to Clyde and their subsequent divorce were unsuccessful. You have also advised that
Hazel's Numident record shows a name change to J~ in 1956, after she alleges her common
law marriage to Clyde began, and another name change to Clyde's last name (K~) in
Statements were secured from Hazel's sister, Clyde's brother, and Clyde's sister.
Clyde's sister, Billie, stated that: she did not consider Hazel and Clyde to be husband
and wife, nor were they generally known as husband and wife; she knew Hazel as Hazel
J~ or Hazel S~; Clyde had told her that he did not want to get married; and, Hazel
had not accompanied Clyde when he visited his family. She indicated, however, that
the couple had maintained a home and lived together continuously as husband and wife.
In a separate statement, Billie reported that Clyde and Hazel were never married and
that Clyde had tried to get Social Security benefits for Hazel, but she had not met
SSA's "rules."  The statement of Clyde's brother, Gerald , relates the same information as that related
by Billie. Hazel's sister, Lucy , stated, however, that she had known Clyde for 50
years, during which time he was married to Hazel, that they were generally known as
husband and wife and "always" referred to each other as husband and wife, and that
she considered them to be husband and wife. Lucy stated that the couple began living
together as husband and wife in 1955 and lived together continuously until Clyde's
death. Lucy also indicated that Hazel had been married and divorced three times before
she met Clyde.
Additional information submitted in connection with Hazel's claim includes:
copies of the presentation page and the marriage record page from a Bible, indicating
that the Bible was "Presented to Hazel by Clyde " on March 27, 1956 and that Clyde
married Hazel in 1955 (you have indicated that the date when the entries were made
cannot be ascertained);
copies of pages from Clyde's union dues books for 1976-1980 and 1981-1985, showing
Hazel as "wife;"
a copy of a warranty deed, dated December 3, 1978, conveying property to "Clyde and
Hazel , husband and wife;"
a copy of a warranty deed, dated December 14, 1973, conveying property to "Clyde and
Hazel , husband and wife;" and
an unsigned copy of a 1980 tax return for Clyde and Hazel with the "Married filing
joint return" box checked.
Finally, there is a document, dated March 25, 2003, signed by a judge of the Vigo
Superior Court of the State of Indiana, entitled "Findings of Fact, Conclusions of
Law and Judgment." (hereinafter referred to as "Findings & Judgment"). The judgment
portion decrees that a common law marriage between Clyde and Hazel commenced in 1955
and continued without interruption until Clyde's death and that Hazel is entitled
to inherit all of Clyde's net estate as his surviving widow. Findings & Judgment at
4. The document indicates that Hazel's petition was opposed by Clyde's brother and
sister. Findings & Judgment at 1. Among the court's findings of fact are:
Hazel and Clyde met in 1955 in Bloomington, Indiana;
Before her relationship with Clyde, Hazel was married to, and divorced from, a Mr.
Hazel introduced Clyde as her husband to her sisters, Lucy and Dorothy, in 1995;
Hazel and Clyde lived in Bloomington, then Lafayette, and finally Terre Haute, where
they cohabited over 30 years at the same address;
Hazel and Clyde purchased a home in 1973 and adjoining land at a later date, both
by warranty deeds, which referred to them as "Clyde and Hazel, husband and wife;"
Hazel and Clyde filed sworn joint income tax returns as "married filing joint return"
and, in 1997, a sworn application for Unified Tax Credit for the Elderly as a married
Clyde left his union pension benefits to "Hazel , wife;"
Sometime after 1955, Hazel obtained a beautician's license under the name "Hazel ;"
On an application for union benefits, signed by Clyde on April 22, 1987, he indicated
he was "not married" and named Gerald as beneficiary;
On a registration card for the Welfare Fund Life Insurance, signed by Clyde on April
22, 1987, he named "Hazel - Friend" as beneficiary;
Upon admission to a center for mental illness in 1995, Hazel identified Clyde as her
husband and stated that she had lived with her husband since 1955;
Records from a 1996 admission to the same center show that: Hazel's marital status
was "divorced;" she had been living with her "boyfriend" for 20 years; she was "dependent
upon her boyfriend, whom she calls her husband, for his retirement benefits;" and,
she stated that she wanted to return home to her husband;
Gerald and Billie, Clyde's brother and sister, knew Hazel as Hazel J~ or Hazel S~,
not as Hazel K~ or as Clyde's wife;
Clyde and Hazel were never married by a clergyman, and no marriage license was ever
issued to them.
Findings & Judgment at 1-3.
One of the requirements for WIB entitlement is that a claimant must be the deceased
insured wage earner's "widow." 20 C.F.R. § 404.335. We look to the laws of the State
where the wage earner was permanently domiciled at death to determine whether a claimant
meets the definition of "widow." 20 C.F.R. § 404.345. If the claimant and the wage
earner were validly married under State law at the time of the wage earner's death,
or if under State law the claimant would be able to inherit an intestate share of
the wage earner's personal property as his widow, the relationship requirement is
met.  20 C.F.R. § 404.345. Because Clyde was domiciled in Indiana when he died, we look
to whether Hazel and Clyde had a valid marriage under Indiana law and, alternatively,
whether Hazel would inherit a share of Clyde's intestate personal property as his
widow under Indiana law.
The Indiana intestate succession statutes provide that a decedent's surviving spouse
is entitled to a share of the decedent's intestate estate. Indiana Code Annotated
(West 2004) (Ind. Code Ann.) § 29-1-2-1(b). The term "surviving spouse" is not defined
in the Indiana probate code.
The Vigo Superior Court of the State of Indiana has decreed that Hazel is entitled
to inherit Clyde's estate as his surviving spouse. If SSA honors the State court determination,
the relationship requirement for WIB is met. Under Social Security Ruling (SSR) 83-37c,
the Agency is not bound by a State trial court's determination to which it was not
a party. The Agency cannot ignore the decision, however, if all four of the following
prerequisites are met: "(1) an issue in a claim for Social Security benefits previously
has been determined by a State court of competent jurisdiction; (2) this issue was
genuinely contested before the State court by parties with opposing interests; (3)
the issue falls within the general category of domestic relations law; and (4) the
resolution by the State trial court is consistent with the law enunciated by the highest
court in the State." SSR 83-37c. See also Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973).
Here, whether Hazel can inherit a widow's share of Clyde's intestate estate is at
issue in her WIB claim. It is an issue that has been determined by the Vigo Superior
Court, which, in the absence of information to the contrary, we presume had competent
jurisdiction to decide the issue. Thus, the first of the four requirements is met.
The second requirement, that the issue was genuinely contested by parties with opposing
interests, is also met. The superior court's findings of fact indicate that Hazel's
petition was contested by a brother and sister of Clyde, Gerald and Billie, and that
Clyde was not survived by any children or decedents of any children who predeceased
him. Findings & Judgment at 1. If the superior court had found that Clyde did not
leave a surviving spouse, Clyde's brothers and sisters would have stood to inherit
a portion of Clyde's intestate personal property. See Ind. Code Ann. § 29-1-2-1(d)(3) (if there is no surviving spouse and there are no
surviving children or survivors of predeceased children, the estate is distributed
to decedent's parents, brothers, and sisters). Thus, Clyde's siblings and Hazel had
opposing interests. The third requirement for recognition of a State court adjudication
is that the issue must fall within the general category of domestic relations law.
SSR 83-37c. The Indiana probate code does not specifically define the term "surviving
spouse." See Ind. Code Ann. 29-1-1-3 (probate code definitions). We presume, therefore, that the
term has its commonly used meaning, i.e., a person legally married to the decedent
at the time of the decedent's death. The issue of whether two persons are legally
married to each other falls squarely in the category of domestic relations law. See Ind. Code Ann., Title 31 (Family Law and Juvenile Law), Article 7 (Marriage).
The first three prerequisites for recognizing a State trial court's adjudication of
an issue having been met, we turn to the last requirement: Is the State trial court's
determination consistent with the law enunciated by the highest court in the State?
We conclude that the Vigo Superior Court's determination is not consistent with what
the highest court of Indiana, the Indiana Supreme Court, would have found had it considered
the issue under the same facts.
Before a couple can marry in Indiana, they must obtain a marriage license. Ind. Code
Ann. § 31-11-4-1. The Vigo Superior Court found that Hazel and Clyde were never married
by a clergyman and no marriage license was ever issued to them. Findings & Judgment
at 3. Hazel alleges that she and Clyde entered into a common law marriage. Under Indiana
law, a marriage is void, without any legal proceedings, if the marriage is a common
law marriage entered into after January 1, 1958. Ind. Code Ann. §§ 31-11-8-1, 31-11-8-5.
Thus, to establish a valid common law marriage under Indiana law, Hazel must prove
that she and Clyde met the requirements for a common law marriage before January 1,
To establish a common law marriage in Indiana, there must be proof of a contract to
marry, made by words in the present tense between two persons capable of making such
a contract, and acted upon by a holding out of such relationship by the parties. Anderson v. Anderson, 131 N.E.2d 301, 305 (Ind. 1956). Both parties must be competent to enter into the
contract. Id. The existence of a valid contract must be established by clear and convincing evidence.
In re Estate of D~, 222 N.E.2d 285, 291 (Ind. App. 1966). The contract to marry must be an express contract,
although it need not be in writing. Anderson, 131 N.E.2d at 306. There must be words to create an offer. Id. Acceptance can be made by words or actions, depending on the terms of the offer.
Id. Cohabitation alone is insufficient to establish a common law marriage, although it
may corroborate evidence that there was a contract and, in a strong case, it may suffice
to draw the inference that a contract existed. Id. Where the contract to marry is oral and not witnessed, even if it is followed by
cohabitation, there must also be "a holding out by the parties of their marriage status
to at least such part of the public in the community in which they live as is made
up of their acquaintances, neighbors, and relatives." A~, 131 N.E.2d at 306, citing Schilling v. Parsons, 36 N.E.2d 958, 960 (Ind. App. 1941).
The Vigo Superior Court made a finding of fact that Hazel married and was divorced
from Mr. J~ prior to her relationship with Clyde. Although SSA records indicate that
Hazel's Numident record showed a name change to J~ in 1956 and to K~ in 1967, which
casts doubt on whether Hazel's divorce preceded her alleged marriage to Clyde, it
appears that the superior court did not have that information. For purposes of determining
whether the superior court's determination is consistent with what the Indiana Supreme
Court would have held, we presume that whatever evidence was presented to the superior
court was sufficient to establish that Hazel's prior marriage ended before she and
Clyde contracted to enter into a common law marriage and, therefore, Hazel and Clyde
were competent to enter into such a contract.
The superior court did not make any finding as to whether Hazel and Clyde actually
entered into a contract by words in the present tense in 1955. Such words are a prerequisite
to the creation of a common law marriage. A~, 131 N.E.2d at 305. Instead, the superior court found that the contract to marry
could be "inferred from all the attending circumstances." Findings & Judgment at 3.
It is true that the existence of a contract to marry may be inferred from the circumstances
in some cases. See A~, 131 N.E. 2d at 305 (in a strong case, cohabitation may suffice to draw the inference
that the couple entered into a contract to marry). We do not believe, however, that
the superior court's findings of fact present a strong case from which the Indiana
Supreme Court would infer the existence of a contract to marry. Hazel alleges in the
materials she submitted to SSA that she and Clyde started living together in 1955
and agreed that they would be married. SSA-754-F4, dated July 2003. Even if we assume
that Hazel made the same allegation to the superior court, which is not evident from
the Findings & Judgment, there is no allegation that such agreement was made in writing.
Under Indiana law, where the contract to marry is oral and not witnessed, even if
it is followed by cohabitation, there must also be "a holding out by the parties of
their marriage status to at least such part of the public in the community in which
they live as is made up of their acquaintances, neighbors, and relatives." A~, 131 N.E.2d at 306. We believe that the evidence recited by the superior court is
not sufficient to establish that Hazel and Clyde held themselves out as husband and
wife to "such part of the public in the community in which they live as is made up
of their acquaintances, neighbors, and relatives." See A~, 131 N.E. 2d at 306.
In Azimow v. Azimow, 255 N.E.2d 667 (Ind. App. 1970), a proceeding to determine heirship, while there
was some evidence that the petitioner had claimed to be the decedent's wife, there
were also many documents, executed by the decedent and notarized by the petitioner,
which referred to the decedent as an unmarried man. A~, 255 N.E.2d at 671. The petitioner contended that the documents referred to the decedent
as unmarried because the couple wanted to keep their status as husband and wife secret
from the decedent's daughter. A~, 255 N.E.2d at 672. The appellate court rejected this theory of "limited secrecy."
Relying on A~ for the requirement that there must be a contract of words in the present tense and
a "uniform holding out of the marital relationship in the community of residence,"
the A~ court stated, "We find the theory of 'limited secrecy' repugnant to the basic requirement
that the parties to an alleged common-law marriage uniformly conduct themselves in
such a manner as to establish the marital relationship in the eyes of the community."
A~, 255 N.E.2d at 672. The facts found by the Vigo Superior Court with regard to Hazel
and Clyde's alleged common law marriage include evidence that Hazel and Clyde held
themselves out as husband and wife to only some parts of the community, but not uniformly
to all of their acquaintances, neighbors, and family members. In 1987, Clyde signed
an application for benefits from his union pension fund on which he listed his status
as "not married." Findings & Judgment at 2. Forms completed in 1996 to admit Hazel
to a treatment facility show her status as "divorced" and "living with her boyfriend
for 20 years." Findings & Judgment at 2. Clyde's brother and sister told the court
that they knew Hazel as Hazel J~ or Hazel S~, but not as Clyde's wife. We believe
that the Supreme Court of Indiana, if it were to examine the same evidence that was
presented to the Vigo Superior Court, would conclude that Hazel and Clyde did not
meet the requirement of a uniform holding out of their relationship as husband and
wife in the community, as enunciated in A~.
Even if we were to assume that the requirements of a contract in the present tense
and uniform holding out were met, we would nevertheless conclude that the superior
court's determination is inconsistent with the law enunciated by the highest court
of Indiana. By Indiana statute, an otherwise valid common law marriage is void if
it was entered into after January 1, 1958. Ind. Code Ann. § 31-11-8-5. We located
no Indiana Supreme Court cases dealing directly with the sufficiency of evidence to
prove that a common law marriage had been entered into before January 2, 1958, as
opposed to after January 1, 1958. In In re Estate of S~, 204 N.E.2d 520 (Ind. 1965), however, the Indiana Supreme Court noted that the statute
outlawing common law marriages was inapplicable where the petitioner alleged that
she and the decedent entered into a contract to marry in August 1956. In re Estate of S~, 204 N.E.2d at 521-22. An Indiana appellate court has explicitly held that, to establish
a valid common law marriage, the evidence must establish that the marriage existed
prior to the effective date of the statute. In re Estate of P~, 293 N.E.2d 62, 63 (Ind. App. 1973); see also In re Estate of D~, 222 N.E.2d at 292 ("there was clear and convincing evidence of a common-law marriage
many years prior to January 1, 1958"). We conclude, based on the statute and the case
law that, the Indiana Supreme Court would require Hazel to provide clear and convincing
evidence that the requirements for a common law marriage were met before January 2,
1958. The only indications in the superior court's findings that in any way support
the conclusion that the marriage contract was entered into before 1958 are the finding
that the couple met in 1955 and the finding that, when Hazel was admitted to a treatment
facility in 1995, she claimed she had lived with her husband, Clyde , since 1955.
Findings & Judgment at 1, 2. These findings, while supporting the conclusion that
Hazel and Clyde began living together in 1955, do not provide clear and convincing
evidence that they entered into an agreement to marry at that time, particularly in
light of later statements made by each of them. All of the superior court's other
findings relate to Hazel and Clyde's status after 1958. We find it highly unlikely
that, if presented with the same evidence, the Supreme Court of Indiana would conclude
that Hazel and Clyde entered into an agreement to marry prior to January 2, 1958.
Because we conclude that the Vigo Superior Court's determination is inconsistent with
what the highest court of the State of Indiana would have found under the same facts,
we advise that SSA need not adhere to the superior court's determination that Hazel
is entitled to inherit Clyde's estate as his widow.
Because SSA has additional information which it appears was not before the Vigo Superior
Court, the question remains whether the information in the Findings & Judgment, combined
with the additional information in SSA's possession, is sufficient to establish, under
Indiana law, the existence of a valid common law marriage between Hazel and Clyde
for purposes of WIB entitlement. We conclude that it is not. On the whole, the additional
information submitted to SSA supports the conclusion that Hazel and Clyde did not
enter into a valid common law marriage before January 2, 1958. For example, although
Hazel claims that she divorced Mr. J~ prior to the time her relationship began with
Clyde in 1955, Numident records show that she changed her name to J~ in 1956 and did
not change her name to K~ until 1967. Clyde's sister and brother reported to SSA that
they knew Hazel by the names of J~ and S~, not K~, and that Clyde told them he did
not want to get married. Like the Numident records, the copies of Bible pages detract
from Hazel's claim that they entered into a marriage agreement in 1955 and cast doubt
on whether Hazel's prior marriage had terminated and, therefore, whether she was competent
to enter into a marriage contract. Although the marriage page states that she and
Clyde were married in 1955, the presentation page states that Clyde presented the
Bible to "Hazel J~" after that date, which is contrary to Hazel's claim that she was
known as Hazel K~ when she lived with Clyde. In addition, in 1987, Clyde stated that
he was "unmarried" on a union benefits application, and he listed "Hazel J~" as a
"friend" on a life insurance beneficiary designation. Although there is some evidence
to support the conclusion that Hazel and Clyde lived together as husband and wife,
there is not clear and convincing evidence to establish that the couple entered into
a valid common law marriage prior to January 2, 1958. We conclude that the evidence
is not sufficient to establish a valid common law marriage in Indiana and, therefore,
does not establish Hazel's entitlement to WIB on Clyde's account.
We conclude that, the determination as to whether Hazel is entitled to benefits as
Clyde's spouse or widow, need not be governed by the Vigo Superior Court's determination
that Hazel can inherit Clyde's intestate property as his surviving spouse. We further
conclude that the evidence submitted to the superior court and the evidence submitted
to SSA in connection with Hazel's WIB claim do not establish that Hazel is Clyde's
widow under Indiana law.