TN 32 (07-06)

A. Introduction

This section provides information on the laws that apply in determining whether a common-law relationship results in a valid marriage for entitlement to spouse or surviving spouse benefits. It also provides clarification on the development of common-law marriages outside the U.S. and guidelines on when to submit a claim for a legal opinion.

B. Policy

SSA does not develop for a common-law marriage unless there is some indication that one exists.

1. Applicable Law

A claimant is the wife, husband, widow or widower of a NH if he or she would be found to be validly married to the NH by the courts of the State in which the NH was domiciled at the time the claimant files for benefits or at the time of NH’s death.

If the NH was not domiciled in a State, the claimant is the wife, husband, widow or widower of the NH if the courts of the District of Columbia would find that the claimant and the NH were validly married at the prescribed time (as shown above).

In determining the validity of a foreign marriage, the D.C. courts determine whether the marriage was valid under the law of the place where the marriage was entered into. However, a marriage that is valid under the law of the place where it was entered into may not be recognized by the D.C. courts if it violates D.C. law or public policy (e.g., it is polygamous, incestuous, or otherwise declared void by statute).

NOTE: The definition of State includes the 50 States, the District of Columbia, the U.S. Virgin Islands, Puerto Rico (effective January 1, 1951), Guam, American Samoa and the Northern Mariana Islands (effective January 1, 1987).

2. Common-law Relationship Not Recognized as a Valid Marriage

If the common-law relationship is not recognized as a valid marriage, a claimant can be the wife, husband, widow or widower of the NH if he or she has the status of spouse in the distribution of intestate personal property.

Some countries, that do not recognize a common-law relationship as a valid marriage, do recognize the relationship for certain pension and/or inheritance rights. It is important to note that entitlement to such a pension does not automatically carry with it the necessary inheritance rights.

C. Procedure

1. General

Develop for a common-law relationship as explained in GN 00305.065. See GN 00307.255 for information on the recognition of common-law marriages in some countries and for some periods.

2. No Precedent Opinion

If there is no precedent opinion on the recognition of common-law marriage in a country, submit the claim for a legal opinion, as explained in GN 01010.800. Foreign Service posts and the Division of International Operations should forward the claim to the Center for Program Support (CPS) in the Office of Central Operations for submittal to OGC for a legal opinion

3. Common-Law Marriage Recognized

If there is a precedent opinion showing that a common-law marriage in that country is recognized as a valid marriage and the facts of the claim are compatible with those in the precedent, process the case in accordance with normal procedures.

Generally, submit the claim for another legal opinion if (a) the facts of the claim are different from those in the precedent, or (b) the common-law marriage took place in a jurisdiction other than that in which the NH is/was residing at the prescribed time.

4. Common-Law Marriage Not Recognized

If there is a precedent opinion showing that a common-law marriage in that country is not recognized as a valid marriage, process the case in accordance with normal procedures.

Submit the claim for a legal opinion if (a) there are indications that the law on common-law marriage has changed, or (b) the common-law marriage took place in a jurisdiction other than that in which the NH is/was residing at the prescribed time (see GN 00307.257B.5. for information on development in such cases).

5. Common-Law Marriage Occurred in a Country/State Other Than the Country of Residence

Where there is an indication that a common-law relationship existed in a jurisdiction other than the one in which the NH is/was residing at the prescribed time, develop for a common-law relationship in that jurisdiction if:

1. Common-law marriage is/was recognized in that jurisdiction at the time; or

2. There is no precedent opinion on the recognition of common-law marriage at that time.