PR: Title II Regional Chief Counsel Precedents
TN 33 (03-18)
A. PR 18-038 Would Rhode Island recognize a common-law marriage, allegedly contracted within the State by a same-sex couple, for entitlement to widower’s benefits
Date: January 3, 2018
1. Syllabus
The number holder (NH) had a permanent residence in Rhode Island at the time of his death; therefore, the agency looks to the Rhode Island law to determine whether the claimant can be considered the NH’s widower. The claimant alleges that he and the NH entered into a common-law marriage in Rhode Island in May 1977. Common law marriage was recognized in Rhode Island, but was not legalized until August 1, 2013. We believe that, in light of recent changes to Rhode Island’s statutory law, a Rhode Island court would adapt its common law to include those who cohabit as, and hold themselves out as, husband and husband or wife and wife. In this case, based on the evidence provided, we believe that the couple’s relationship satisfies the Rhode Island’s requirements to establish a valid, common-law marriage. For that reason, the agency would be justified in concluding that the claimant is the NH’s widower for the purpose of entitlement to widow’s benefits under Title II.
2. Opinion
I. Question Presented
Whether C~ (the claimant) is the widower of W~ (the NH) for purposes of determining the claimant’s entitlement to benefits under Title II of the Social Security Act (the Act).
II. Short Answer
Yes. We believe the claimant has satisfied the requirements to form a valid, common-law marriage in the state of Rhode Island. For that reason, the agency should also consider the claimant to be the NH’s widower.
III. Background
In August 2016, the claimant applied for widower’s benefits on the earnings record of the deceased NH. The claimant alleged that a common-law marriage was entered into in P~, Rhode Island on May XX, 1977, when same-sex marriages were not permitted by the State. The claimant states that he and the NH had an understanding of “total commitment [and] respect for one another” beginning in May of 1977 and that relationship remained the same through 2016 and the NH’s death. The NH died on April XX, 2016, while living in Rhode Island.
In support of his August 2016 application, the claimant provided the following evidence:
The NH’s death certificate issued by the State of Rhode Island, listing the claimant as his spouse;
The claimant’s Statement of Marriage (SSA-754);
Statements Regarding Marriage (SSA-753) provided by a friend, E~, and the claimant’s sister, B~;
A letter from the priest of C Church, indicating that the claimant and the NH had been in a “loving relationship” for 38 years and that at the untimely death of the NH, it had been the couple’s intention to have the “relationship” recognized by the church and the State of Rhode Island. The priest wrote of the couple, “It has been their devotion to each other, nearly four decades, they have lived out the promises made in the Marriage Blessing”;
A letter from E2~, the director of the W~ Senior Center, who stated the claimant and the NH were active members in the center and had lived as “domestic partners” for as long as she had known them, for ten years;
A copy of the NH’s obituary, which listed the claimant as his partner of 38 years;
A copy of the claimant’s last will and testament, showing that the claimant and the NH had formed “The P~-O~ Revocable Trust Agreement” on November XX, 2000, with the claimant and the NH serving as co-trustees. Further, the claimant’s will appointed the NH as his personal representative;
A warranty deed, dated August XX, 1988, identifying the claimant and the NH as tenants in common of real property in W~, Rhode Island;
Evidence showing that the claimant and the NH shared three joint bank accounts at Citizens Bank and owned a car or truck together.
IV. Applicable Law
A. Federal Law
To be entitled to widower’s insurance benefits under the Act, a claimant must show, among other things, that he is the widower of the insured. See Act § 202(f)(1), 42 U.S.C. § 402(f)(1). As pertinent here, the Act defines “widower” as “the surviving husband of an individual . . . .” 42 U.S.C. § 416(g)(1). Under the Act:
An applicant is the . . . widower . . . of a fully or currently insured individual for purposes of this title if the courts of the State in which such insured individual is domiciled at the time such applicant files an application, or, if such insured individual is dead, the courts of the State in which he was domiciled at the time of death . . . would find that such applicant and such insured individual were validly married . . . at the time he died . . . .
42 U.S.C. § 416(h)(1)(A)(i); see also 20 C.F.R. § 404.345. The relationship requirement will also be met if, under State law, the claimant would be able to inherit a husband’s share of the insured’s personal property if he were to die without leaving a will. 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.
Additionally, to be considered a “widower,” a claimant must show that “he . . . was married to [his spouse] for a period of not less than nine months immediately prior to the day on which [his spouse] died . . . .” 42 U.S.C. § 416(g)(1)(E).
Here, the NH resided in Rhode Island at the time of his death. Therefore, the agency must determine whether the State courts of Rhode Island would consider the claimant and the NH to be validly married at the time the number holder died.
With respect to the agency’s application of State marriage laws, we note that in Obergefell v. Hodges, 135 S. Ct. 2584, 2604-05 (2015), the Supreme Court held State laws invalid to the extent they exclude same-sex couples from marriage on the same terms and conditions as opposite-sex couples. Pursuant to Harper v. Virginia 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 will consider State-law same-sex-marriage bans, whether based on State constitutional or statutory provisions or case law void and ineffective. SSA will apply the relevant law to the facts as usual to evaluate marital status.
B. Common-Law and Same-Sex Marriage in Rhode Island
Common law marriage has long been recognized in Rhode Island. Holgate v. United Electric Railways Co., 47 R.I. 337, 339, 133 A. 243, 244 (1926). Such unions can be established by clear and convincing evidence that the parties seriously intended to enter into the spousal relationship, Ibello v. Sweet, 47 R.I. 480, 482, 133 A. 801, 801-02 (1926), and that their conduct was of such a character as to lead to a belief in the community that they were married, Williams v. Herrick, 21 R.I. 401, 402, 43 A. 1036, 1037 (1899).
The serious intent requirement has also been construed as a “present intent” requirement. For example, in Zharkova v. Gaudreau, the Supreme Court of Rhode Island stated that, “[i]n order to establish a common-law marriage . . . , plaintiff was first required to provide clear and convincing evidence of each party’s mutual present intent to be [married].” 45 A.3d 1282, 1291 (R.I. 2012). See also Smith v. Smith, 966 A.2d 109, 114 (R.I. 2009) (“the parties must mutually and presently intend to be husband and wife rather than merely become engaged to be husband and wife at some point in the future”).
The requisite intent and belief may be inferred from cohabitation, declarations, reputation among kindred and friends, and other competent circumstantial evidence. Sardonis v. Sardonis, 106 R.I. 469, 472, 261 A.2d 22, 24 (1970). However, “cohabitation alone is not conclusive of intent to be husband and wife, and such evidence may be rebutted by counter-proof.” Smith, 966 A.2d at 114 (citing Peck v. Peck, 12 R.I. 485, 488 (1880)).
Intent may also be demonstrated by the actions of the couple while a legal impediment exists. In Fravala v. City of Cranston ex rel. Baron, the Supreme Court of Rhode Island held that “[b]ecause intent of the parties is crucial in determining whether a common-law marriage exists, the conduct of the parties, even at a time when an impediment precludes the lawful existence of a common-law marriage, could be probative of the parties’ intent after the impediment is removed.” 996 A.2d 696, 703 (R.I. 2010) (emphasis supplied).
Rhode Island legalized same-sex marriage on August 1, 2013.1 See R.I. Gen. Laws Ann. § 15-1-1 (West 2015) (“Any person who otherwise meets the eligibility requirements of chapters 15-1 and 15-2 may marry any other eligible person regardless of gender.”); see also POMS GN 00210.003. Although the case law refers to common-law marriage using the gendered phrases “husband” and “wife,” we believe that, in light of recent changes to Rhode Island’s statutory law, discussed below, a Rhode Island court would adapt its common law to include those who cohabit as, and hold themselves out as, “husband and husband” or “wife and wife.” The law that allows for same-sex marriages states:
Marriage is the legally recognized union of two (2) people. Terms relating to the marital relationship or familial relationship shall be construed consistently with this section for all purposes throughout the law, whether in the context of statute, administrative or court rule, policy, common law, or any other source of civil law.
R.I. Gen. Laws Ann. § 15-1-7 (West 2015) (emphasis supplied). We interpret this statutory provision to mean that same-sex couples who satisfy Rhode Island’s common-law marriage requirements will be considered married under State law, at least as of August 1, 2013.
V. Analysis
The NH had a permanent residence in Rhode Island at the time of his death in 2016. Thus, the agency looks to Rhode Island law to determine whether the claimant can be considered to be the NH’s widower. 42 U.S.C. § 416(h)(1)(A)(i); see also 20 C.F.R. § 404.345.
The claimant alleges that he and the NH entered into a common-law marriage in Rhode Island on May XX, 1977, except that same-sex marriages was not permitted by the State until August 1, 2013. See R.I. Gen. Laws Ann. § 15-1-1 (West 2015). However, as we previously explained, under Obergefell, SSA will consider State-law same-sex-marriage bans, whether based on State constitutional or statutory provisions or case law void and ineffective. Instead, SSA will apply the relevant law to the facts as usual to evaluate marital status.
As discussed above, Rhode Island will find that a common-law marriage has been established if clear and convincing evidence shows the following: (1) that the parties seriously intended to enter into the husband-wife relationship, Ibello, 47 R.I. at 482, 133 A. at 801; and (2) that their conduct was of such a character as to lead to a belief in the community that they were married, Williams, 21 R.I. at 402, 43 A. at 1036.
A. Evidence of Serious Intent to Enter into a Spousal Relationship
The claimant alleges that he entered a common-law marriage with the NH on May XX, 1977. However, because same-sex marriages were not recognized in Rhode Island until May 2, 2013, we will use this later date to determine whether claimant meets Rhode Island’s common-law marriage requirements—specifically the “belief in the community” requirement. 2
A review of Rhode Island case law suggests that “clear and convincing evidence” of serious (and present) intent to enter a common-law marriage largely turns on the consistency of the evidence presented. The Supreme Court of Rhode Island has found requisite intent to be lacking where, despite cohabitation, the parties present contradictory narratives about their intentions. In such cases, the court also considers the financial affairs of the couple, e.g., whether they own property jointly, beneficiary designations for life insurance policies and retirement plans, and their representations as being either “single” or “married” on official documents.
For example, in a recent case, the court held that the plaintiff had not provided clear and convincing evidence of mutual, present intent where the parties presented conflicting evidence. Zharkova v. Gaudreau, 45 A.3d 1282 (R.I. 2012). Specifically, the plaintiff testified that the defendant proposed marriage in 2000 or 2001, to which she replied, “What’s the point?” Zharkova, 45 A.3d at 1291. The defendant testified that he did not recall proposing to the plaintiff and that, had he intended to do so, he would have purchased a ring. Id. The court characterized the plaintiff’s testimony about when she believed the common-law marriage came into existence as “vague and inconsistent.” Id. Although the plaintiff and the defendant filed joint tax returns, the defendant testified that this action based on a friend’s advice that they would save money that way. Id. at 1292. The couple also owned property as tenants by the entirety; however, the defendant testified that he did not understand the distinction in property ownership and “knew that two people could own properties together when they were not married.” Id. at 1288. The defendant also testified that he moved in with the plaintiff so they “could help each other out,” that there was never an “official arrangement of how any finances would be handled,” and that he and the plaintiff never shared bank accounts. Id. at 1287-88. Additionally, the defendant’s daughter—not the plaintiff—was the beneficiary of both his 401(k) plan and his life insurance policy. Id. at 1288.
In another case, Smith, the court described the evidence of intent as, “[a]t best, . . . conflicting.” 966 A.2d at 115. The plaintiff testified that the defendant proposed marriage in 1989, which she allegedly accepted. Id. at 111. She testified that she believed the marriage began in 1991 and that the defendant gave her a ring in 1998. Id. The court found, however, that “[t]he ring was not a clear indication of [the defendant’s] intent because it was given on Christmas and may have been intended as a Christmas gift.” Id. at 115. Additionally, the defendant “gave her the ring about nine years after his proposal and about seven years after [the plaintiff] contended that they already were living as husband and wife.” Id. The court concluded that “the timing of these circumstances negates any inference that [the defendant] believed he had been married from 1991 to 1998.” Id. The court also noted that the plaintiff declared herself, under penalty of perjury, to be a single person on her income tax returns and on her bankruptcy petition, and that the defendant listed himself as single on his tax returns and on a mortgage application. Id. at 109.
In DeMelo v. Zompa, 844 A.2d 174, 177-78 (R.I. 2004), the court held that the plaintiff had not presented clear and convincing evidence of serious intent because she had “merely testified that [the couple] had discussions about spending their lives together, not necessarily as a married couple,” and that “[a]lthough plaintiff testified that she always wore a diamond ring on her left hand, which plaintiff says defendant gave her to signify that they were married, a picture was admitted in evidence clearly showing plaintiff wearing the ring on her right hand.” DeMelo, 844 A.2d at 177. The Court also discussed documents that listed the plaintiff as “single,” such as tax returns, a mortgage application, and insurance applications. Id. at 178. Additionally, the court considered the fact that the plaintiff did not designate the defendant as a beneficiary on her pension or 401(k), that their condominium was owned as tenants in common (not as tenants by the entirety or joint tenants), and that they kept separate bank accounts. Id., See also Lovegrove v. McCutcheon, 712 A.2d 874, 874 (R.I. 1998) (mem.) (holding parties cohabitating for fifteen years were not in common-law marriage because evidence revealed that the plaintiff designated herself as single on employment applications, the home was purchased under the defendant’s name alone, and they did not pool their assets).
Unlike the plaintiffs in those cases, the claimant offered an abundance of evidence of the couple’s intent to enter into a spousal relationship. In his application for benefits, the claimant reported that he and the NH entered into a common-law marriage on May XX, 1977 and from that day through the NH’s death, the couple had an understanding of “total commitment [and] respect for one another.” Further, in a letter from the couple’s church, a priest wrote, “It has been their devotion to each other, nearly four decades, they have lived out the promises made in the Marriage Blessing.” He also wrote that prior to the NH’s death3 it had been the couple’s intention to also have their marriage recognized by the church and the State of Rhode Island.
The claimant’s relationship with the NH has more in common with relationships recognized as common-law marriages. For example, in Fravala, the Supreme Court of Rhode Island affirmed the Superior Court’s finding that an alleged widow had demonstrated the requisite intent to enter a common-law marriage based on evidence that the couple had lived together for thirty-five years, pooled their finances, held joint shares in a credit union, were joint borrowers on a loan, lived in a home that was jointly leased for no specified term, listed each other as emergency contacts on important documents, and that the plaintiff was designated as the primary beneficiary of the deceased’s life insurance policy. 996 A.2d at 705-06. The plaintiff also testified that she paid for the deceased’s funeral expenses. Id. at 700. Although there was no marriage ceremony, the Superior Court found that the couple “were as committed to one another for over thirty-five years as they would have been were they formally married[,]” noting that their relationship was arguably “a stronger relationship than many married couples today or over the course of time.” Id. at 705.
As in Fravala, the claimant and the NH did not have a formal ceremony but lived together as a couple for many years (since 1977) and shared assets, such as three joint bank accounts, real property as tenants in common since 1988, and a car or a truck. The couple were also co-trustees of the P~-O~ Revocable Trust, formed in 2000. Additionally, the claimant had appointed the NH as his personal representative in his last will and testament. Finally, the clamant is identified as the NH’s spouse on his death certificate.
Based on our analysis, we believe a Rhode Island court would consider the documents submitted to be clear and convincing evidence of a serious and present intent to enter a common-law marriage. Although same-sex marriages were not recognized in 1977, the Supreme Court of Rhode Island has held that “Because intent of the parties is crucial in determining whether a common-law marriage exists, the conduct of the parties, even at a time when an impediment precludes the lawful existence of a common-law marriage, could be probative of the parties’ intent after the impediment is removed.” 996 A.2d at 703. The impediment in this case was removed in 2013 when Rhode Island began recognizing same-sex marriages, thus allowing same-sex couples to provide evidence of belief in the community that the couple was married—the second requirement to establish a common-law marriage in the State.
B. Evidence of a Belief in the Community
To establish the second element of a common-law marriage, an individual must also provide clear and convincing evidence of a belief in the community that the couple were married. See Smith, 966 A.2d at 116-17 (citing Sardonis, 106 R.I. at 472, 261 A.2d at 24). Such a belief may be inferred from cohabitation, declarations, and reputation among friends and family. Id. The reputation, however, must be general and uniform. Smith, 966 A.2d at 116-17 (citing Williams, 21 R.I. at 403, 43 A. at 1037).
Again, the court has been more instructive on the type of evidence that does not satisfy the requirement. In Smith, the court found that this requirement had not been proven because the parties presented conflicting evidence. Id. at 115. In that case, for example, while the plaintiff testified that she often introduced the defendant as her husband to various people, including her doctor, her son’s substance-abuse counselor, her business associates, and her home decorator, the defendant testified that the people who knew the parties were aware that they were not married. Id. at 116. The court wrote,
The record is simply devoid of any testimony that any member of Todd’s family believed that the couple was married. Indeed, Todd’s sister testified that in 1999 she made a family tree and displayed it at a family party, but she did not list Paulette or her children on the family tree. She also testified that the family occasionally would ask the couple why they would not get married, and they would respond that they did not want to “ruin a good thing.”
Id. In another case, DeMelo, the court noted the paucity of evidence, where plaintiff’s only evidence was the testimony of her brother, who said the defendant referred to him as his brother-in-law. 844 A.2d at 177-78. In contrast, long-time friends of both the plaintiff and the defendant testified that they never planned to get married, nor did they refer to each other as husband and wife. Id.
This case does not lend itself to a direct comparison because the couple, based on their same-sex status, were not open to establish belief of their marriage in the community prior to Rhode Island’s legalization of same-sex marriages in 2013 – a prohibition the Supreme Court has since held to be unconstitutional. See Obergefell, 576 U.S. at ___, 135 S.Ct. 2584. Thus, others could not have considered them to be legally married, even under common-law, until such marriages were recognized in the State.
Despite the prohibition against same-sex marriage in the State prior to 2013, the claimant provided ample evidence of others in the community who corroborated his characterization of his relationship with the NH. For example, the priest from the couple’s church wrote in a letter that the NH and the claimant had lived in a “loving” relationship for 38 years and had “lived out the promises made in the Marriage Blessing.” E2~, the director of the Warren Senior Center, wrote a letter stating the claimant and the NH were active members in the center and had lived as “domestic partners” for as long as she had known them, for ten years. In addition, E~ also completed a “Statement of Marriage,” indicating she believed the couple had maintained a home and lived together as spouses continuously since 1982. The claimant’s sister completed a “Statement Regarding Marriage” where she indicated she had known the NH for 38 years and had met with the NH on all holidays and at all family “get togethers.” The claimant’s sister stated that the NH and claimant were generally known as spouses and she herself considered them spouses because they “did everything together,” “shared together,” attended all functions together, and bought and owned a home together.
These statements are similar to those provided in Fravala, which the Superior Court found to be “overwhelming evidence supporting the fact that the community recognized the parties to be in a husband-wife relationship for over thirty-five years.” 996 A.2d at 706. The evidence in Fravala included testimony from three of the plaintiff’s children, who told the court that the deceased was a father figure during their childhood, four friends who described the plaintiff and the deceased as a “couple,” and the plaintiff’s grandson, who testified that he called the plaintiff and the deceased his “grandparents.” Id. at 700-01.
In addition to these statements, the couple cohabitated starting in 1977, purchased a home together in 1988, shared joint bank accounts, co-owed a car or a truck, and served as co-trustees of the P~-O~ Revocable Trust (formed in 2000). Based on the evidence, we believe a Rhode Island court would conclude that the claimant provided clear and convincing evidence of a belief in the community that the couple were married.
VI. Conclusion
We believe that the couple’s relationship satisfies Rhode Island’s requirements to establish a valid, common-law marriage, at least as early as 2013. For that reason, the agency would be justified in concluding that the claimant is the NH’s widower for the purpose of entitlement to widow’s benefits under Title II.
Michael J. Pelgro
Regional Chief Counsel
By: Sarah E. Choi
Assistant Regional Counsel
B. PR 18-036 Widow's Benefits and Same-Sex Common-Law Marriage in Rhode Island
Date: December 21, 2017
1. Syllabus
The number holder (NH) resided in Rhode Island at the time of her death. Therefore, the agency must determine whether the courts of Rhode Island would consider the claimant and the NH to be validly married at the time the NH died. The claimant and the NH began to live together in 1995 and entered into a common-law marriage in January 1998. The claimant alleged that she and the NH had intended to marry when ceremonial marriage became available to same-sex couples in Rhode Island, but by the time the State legalized same-sex marriage the NH’s disease was too far advanced and the NH died in 2014. Based on the evidence provided, we believe a Rhode Island court would consider the documents to be clear and convincing evidence of a serious and present intent to enter a common-law marriage. We believe that the couple’s relationship satisfies Rhode Island’s requirements to establish a valid, common-law marriage, at least as early as 2007. The agency would be justified in concluding that the claimant is the NH’s widow for the purpose of entitlement to widow’s benefits under Title II.
2. Opinion
I. Question Presented
Whether D~ (the claimant) is C~’s (the NH) widow for purposes of determining the claimant’s entitlement to benefits under Title II of the Social Security Act (the Act).
II. Short Answer
Yes. We believe the claimant has satisfied the requirements to form a valid, common-law marriage in the State of Rhode Island. For that reason, the agency should consider the claimant to be the NH’s widow.
III. Background
The NH was originally married to A~ on April XX, 1972. After the initiation of divorce proceedings, the NH began living with the claimant in 1995. The NH’s divorce was finalized on December XX, 1997. According to the claimant, the couple entered into a common-law marriage on January XX, 1998.
The claimant reported that the NH began experiencing symptoms of Alzheimer’s disease in 2009. She alleged that she and the NH had intended to marry when ceremonial marriage became available to same-sex couples in Rhode Island, but by the time the State legalized same-sex marriage on August XX, 2013, the NH’s Alzheimer’s disease was too far advanced. The NH died on November XX, 2014, while living in Rhode Island.
On April XX, 2015, the claimant applied for widow’s benefits based on her alleged common-law marriage to the NH. In support of her application, the claimant provided the following evidence:
The claimant’s Statement of Marriage (SSA-754);
The claimant’s Supplemental Statement (SSA-795);
Statements Regarding Marriage (SSA-753) provided by long-time friends and family: M~, A2~, and L~;
A mortgage deed, dated December XX, 1998, identifying the claimant and the NH as joint tenants of real property;
A document, dated December XX, 2014, showing that the claimant was the beneficiary of the NH’s death benefit from the Employees Retirement System of Rhode Island;
Evidence showing that the claimant and the NH shared a joint bank account at Citizens Bank;
The divorce decree between the NH and A~, dated December XX, 1997;
A tax bill from the City of Providence addressed jointly to the claimant and the NH;
Health coverage certification of residency for same-sex partners;
Financial account documents identifying the claimant and the NH as joint owners;
A notice, addressed to the claimant, from Providence Schools concerning medical insurance coverage for domestic partners; and
An invoice from S~ S Memorial Chapel showing that the claimant paid for the NH’s funeral services.
IV. Applicable Law
A. Federal 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 defines “widow” as “the surviving wife of an individual…” 42 U.S.C. § 416(c)(1). Under the Act:
An applicant is the . . . widow . . . of a fully or currently insured individual for purposes of this title if such insured individual is dead, the courts of the State in which [s]he was domiciled at the time of death . . . would find that such applicant and such insured individual were validly married at the time . . . [s]he died . . .
42 U.S.C. § 416(h)(1)(A)(i); see also 20 C.F.R. § 404.345. The relationship requirement will also be met if under State law the claimant would be able to inherit a wife’s share of the insured’s personal property if she were to die without leaving a will. 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.
Additionally, to be considered a “widow,” a claimant must show that “she … was married to [her spouse] for a period of not less than nine months immediately prior to the day on which [her spouse] died…” 42 U.S.C.A. § 416(c)(1).
Here, the NH resided in Rhode Island at the time of her death. Therefore, the agency must determine whether the courts of Rhode Island would consider the claimant and the NH to be validly married at the time the NH died.
With respect to the agency’s application of State marriage laws, we note that in Obergefell v. Hodges, 135 S. Ct. 2584, 2604-05 (2015), the Supreme Court held State laws invalid to the extent they exclude same-sex couples from marriage on the same terms and conditions as opposite-sex couples. Pursuant to Harper v. Virginia 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 will consider all State-law, same-sex-marriage bans, whether based on State constitutional provisions, statutory provisions, or case law, void and ineffective. SSA will apply the relevant law to the facts as usual to evaluate marital status.
B. Common-Law Marriage in Rhode Island
Common law marriage has long been recognized in Rhode Island. Holgate v. United Electric Railways Co., 47 R.I. 337, 339, 133 A. 243, 244 (1926). Such unions can be established by clear and convincing evidence that the parties seriously intended to enter into the spousal relationship, Ibello v. Sweet, 47 R.I. 480, 482, 133 A. 801, 801-02 (1926), and that their conduct was of such a character as to lead to a belief in the community that they were married, Williams v. Herrick, 21 R.I. 401, 402, 43 A. 1036, 1037 (1899).
The serious intent requirement has also been construed as a “present intent” requirement. For example, in Zharkova v. Gaudreau, the Supreme Court of Rhode Island stated that, “[i]n order to establish a common-law marriage . . . , plaintiff was first required to provide clear and convincing evidence of each party’s mutual present intent to be [married].” 45 A.3d 1282, 1291 (R.I. 2012). See also Smith v. Smith, 966 A.2d 109, 114 (R.I. 2009) (“the parties must mutually and presently intend to be husband and wife rather than merely become engaged to be husband and wife at some point in the future”).
The requisite intent and belief may be inferred from cohabitation, declarations, reputation among kindred and friends, and other competent circumstantial evidence. Sardonis v. Sardonis, 106 R.I. 469, 472, 261 A.2d 22, 24 (1970). However, “cohabitation alone is not conclusive of intent to be husband and wife, and such evidence may be rebutted by counter-proof.” Smith, 966 A.2d at 114 (citing Peck v. Peck, 12 R.I. 485, 488 (1880)).
Intent may also be demonstrated by the actions of the couple while a legal impediment exists. In Fravala v. City of Cranston ex rel. Baron, the Supreme Court of Rhode Island held that “[b]ecause intent of the parties is crucial in determining whether a common-law marriage exists, the conduct of the parties, even at a time when an impediment precludes the lawful existence of a common-law marriage, could be probative of the parties’ intent after the impediment is removed.” 996 A.2d 696, 703 (R.I. 2010) (emphasis supplied).
Courts also consider whether the relationship began when one or both of the parties was married to another person. In that circumstance, the law presumes that what was meretricious in its origins continues thus in the absence of “clear proof to the contrary.” Ibello, 47 R.I. at 482, 133 A. at 801-02. In other words, if a couple enters a relationship when at least one of them is still married to another, Rhode Island courts will presume that no common-law marriage is established even after the original marriage ends, unless that presumption is rebutted.
V. Analysis
The NH had a permanent residence in Rhode Island at the time of her death in 2014. Thus, the agency looks to Rhode Island law to determine whether the claimant is entitled to widow’s benefits. 42 U.S.C. § 416(h)(1)(A)(i); see also 20 C.F.R. § 404.345.
The claimant alleges that she and the NH entered a common-law marriage in Rhode Island on January XX, 1998, but acknowledges that same-sex marriages could not be legally formed in the State until August 1, 2013. See R.I. Gen. Laws Ann. § 15-1-1 (West 2015). The claimant stated that she did not originally believe that living together made the couple legally married because “no one recognized same sex couples”; however, once same-sex marriages were recognized in Rhode Island, the claimant stated that she and the NH “were definitely common law.” See Statement of Marital Relationship at 2. The State began recognizing same-sex marriages formed in Massachusetts beginning in 2007.4 Without addressing the merits of Plaintiff’s assertion, we note that, pursuant to Obergefell and Harper, SSA will consider State-law same-sex-marriage bans, whether based on State constitutional or statutory provisions or case law void and ineffective. Instead, SSA will apply the relevant law to the facts as usual to evaluate marital status.
As discussed above, Rhode Island will find that a common-law marriage has been established if clear and convincing evidence shows the following: (1) that the parties seriously intended to enter into the husband-wife relationship, Ibello, 47 R.I. at 482, 133 A. at 801; and (2) that their conduct was of such a character as to lead to a belief in the community that they were married, Williams, 21 R.I. at 402, 43 A. at 1036.
A. Evidence of Serious Intent to Enter into Spousal Relationship
The claimant alleges that she entered a common-law marriage with the NH on January XX, 1998, after the NH’s divorce was finalized. In the alternative, the claimant asserts that she meets Rhode Island’s common-law marriage requirements—specifically the “belief in the community” requirement—as of February 2007, when the State began recognizing same-sex marriages formed in Massachusetts. We believe that, for determining intent, the earlier date should apply.
As the Supreme Court of Rhode Island held in Fravala, the conduct of the parties, even at a time when an impediment precludes the lawful existence of a common-law marriage, could be probative of the parties’ intent after the impediment is removed.” 996 A.2d 696, 703 (R.I. 2010). By extension, the claimant’s and the NH’s conduct, prior to Rhode Island’s 2007 recognition of same-sex marriages formed in Massachusetts, could be probative of the couple’s intent. Thus, we have considered all evidence dating back to January XX, 1998—the date the claimant alleges she entered a common-law marriage.
A review of Rhode Island case law suggests that “clear and convincing evidence” of serious (and present) intent to enter a common-law marriage largely turns on the consistency of the evidence presented. The Supreme Court of Rhode Island has found requisite intent to be lacking where, despite cohabitation, the parties present contradictory narratives about their intentions. In such cases, the court also considers the financial affairs of the couple, e.g., whether they own property jointly, beneficiary designations for life insurance policies and retirement plans, and their representations as being either “single” or “married” on official documents.
For example, in a recent case, the court held that the plaintiff had not provided clear and convincing evidence of mutual, present intent where the parties presented conflicting evidence. Zharkova v. Gaudreau, 45 A.3d 1282 (R.I. 2012). Specifically, the plaintiff testified that the defendant proposed marriage in 2000 or 2001, to which she replied, “What’s the point?” Zharkova, 45 A.3d at 1291. The defendant testified that he did not recall proposing to the plaintiff and that, had he intended to do so, he would have purchased a ring. Id. The court characterized the plaintiff’s testimony about when she believed the common-law marriage came into existence as “vague and inconsistent.” Id. Although the plaintiff and the defendant filed joint tax returns, the defendant testified that this action based on a friend’s advice that they would save money that way. Id. at 1292. The couple also owned property as tenants by the entirety; however, the defendant testified that he did not understand the distinction in property ownership and “knew that two people could own properties together when they were not married.” Id. at 1288. The defendant also testified that he moved in with the plaintiff so they “could help each other out,” that there was never an “official arrangement of how any finances would be handled,” and that he and the plaintiff never shared bank accounts. Id. at 1287-88. Additionally, the defendant’s daughter—not the plaintiff—was the beneficiary of both his 401(k) plan and his life insurance policy. Id. at 1288.
In another case, Smith, the court described the evidence of intent as, “[a]t best, . . . conflicting.” 966 A.2d at 115. The plaintiff testified that the defendant proposed marriage in 1989, which she allegedly accepted. Id. at 111. She testified that she believed the marriage began in 1991 and that the defendant gave her a ring in 1998. Id. The court found, however, that “[t]he ring was not a clear indication of [the defendant’s] intent because it was given on Christmas and may have been intended as a Christmas gift.” Id. at 115. Additionally, the defendant “gave her the ring about nine years after his proposal and about seven years after [the plaintiff] contended that they already were living as husband and wife.” Id. The court concluded that “the timing of these circumstances negates any inference that [the defendant] believed he had been married from 1991 to 1998.” Id. The court also noted that the plaintiff declared herself, under penalty of perjury, to be a single person on her income tax returns and on her bankruptcy petition, and that the defendant listed himself as single on his tax returns and on a mortgage application. Id. at 109.
In DeMelo v. Zompa, 844 A.2d 174, 177-78 (R.I. 2004), the court held that the plaintiff had not presented clear and convincing evidence of serious intent because she had “merely testified that [the couple] had discussions about spending their lives together, not necessarily as a married couple,” and that “[a]lthough plaintiff testified that she always wore a diamond ring on her left hand, which plaintiff says defendant gave her to signify that they were married, a picture was admitted in evidence clearly showing plaintiff wearing the ring on her right hand.” DeMelo, 844 A.2d at 177. The Court also discussed documents that listed the plaintiff as “single,” such as tax returns, a mortgage application, and insurance applications. Id. at 178. Additionally, the court considered the fact that the plaintiff did not designate the defendant as a beneficiary on her pension or 401(k), that their condominium was owned as tenants in common (not as tenants by the entirety or joint tenants), and that they kept separate bank accounts. Id. See also Lovegrove v. McCutcheon, 712 A.2d 874, 874 (R.I. 1998) (mem.) (holding parties cohabitating for fifteen years were not in common-law marriage because evidence revealed that the plaintiff designated herself as single on employment applications, the home was purchased under the defendant’s name alone, and they did not pool their assets).
Unlike the plaintiffs in those cases, the claimant provided documentary evidence showing, among other things, that she and the NH were joint owners of a condominium, the couple kept a joint bank account and shared financial accounts, the claimant was the beneficiary of the NH’s retirement account, the couple received tax bills jointly, they shared health coverage for same-sex partners, and the claimant planned and paid for the NH’s funeral. The claimant also reported that she and the NH were reciprocal beneficiaries for their life insurance policies, wills, and the couple’s investment holdings.
The claimant’s relationship with the NH has more in common with relationships recognized as common-law marriages. For example, in Fravala, the Supreme Court of Rhode Island affirmed the Superior Court’s finding that an alleged widow had demonstrated the requisite intent to enter a common-law marriage based on evidence that the couple had lived together for thirty-five years, pooled their finances, held joint shares in a credit union, were joint borrowers on a loan, lived in a home that was jointly leased for no specified term, listed each other as emergency contacts on important documents, and that the plaintiff was designated as the primary beneficiary of the deceased’s life insurance policy. 996 A.2d at 705-06. The plaintiff also testified that she paid for the deceased’s funeral expenses. Id. at 700. Although there was no marriage ceremony, the Superior Court found that the couple “were as committed to one another for over thirty-five years as they would have been were they formally married[,]” noting that their relationship was arguably “a stronger relationship than many married couples today or over the course of time.” Id. at 705.
The court also found the requisite intent in another case where a widow sought a declaration of common-law marriage. Ibello v. Sweet, 47 R.I. 480, 133 A. 801 (1926). In Ibello, the court held that a couple’s intent was “evidenced . . . by a celebration and a feast, at which such intention was announced with particularity, and with some measure of formality, in the presence of the company then assembled,” as well as by “their subsequent conduct, and by their statements made to others in the presence of both, and by cohabitation.” 47 R.I. 480, 133 A. 801, 802 (1926). The plaintiff told the court that once her partner received news that his legal wife had died, he told the plaintiff, “Now you are my wife.” Id. at 801.
As in Fravala, the claimant and the NH did not have a formal ceremony but lived together as a couple for many years (since 1995), pooled their investments, held a joint checking account, were reciprocally named as life insurance beneficiaries, and named each other as important contacts. Additionally, like the plaintiff in Fravala, the claimant planned the NH’s funeral and paid for the expenses. Further, the claimant and the NH jointly owned real property, named each other as primary will beneficiaries, ensured that they would be buried together, and created a trust for their joint investments.
Like the plaintiff in Ibello, after the NH’s divorce was finalized, the claimant reportedly told the NH, “Now we can officially be a couple with no past.” Statement of Marital Relationship at 4. Although no formal ceremony was performed, close friends and relatives of the claimant and the NH submitted signed statements that they considered the couple to be married and that the couple maintained a home as spouses for nearly twenty years. See Statement Regarding Marriage (M~), Statement Regarding Marriage (A2~), Statement Regarding Marriage (L~). The claimant also reported that when the couple began living together, they “did all and said all of what a married person would say. Love, devotion, take care of each other until death [do] us part.” Statement of Marital Relationship at 1. In fact, the claimant cared for the NH for six years until her death from Alzheimer’s disease in 2014. See e.g., Statement Regarding Marriage (M~).
Based on our analysis, we believe a Rhode Island court would consider the documents submitted to be clear and convincing evidence of a serious and present intent to enter a common-law marriage. Although same-sex marriages were not recognized in 1998, the Supreme Court of Rhode Island has held that “Because intent of the parties is crucial in determining whether a common-law marriage exists, the conduct of the parties, even at a time when an impediment precludes the lawful existence of a common-law marriage, could be probative of the parties’ intent after the impediment is removed.” 996 A.2d at 703. The impediment in this case was removed in February 2007 when Rhode Island began recognizing same-sex marriages performed in Massachusetts, thus allowing same-sex couples to provide evidence of belief in the community that the couple was married—the second requirement to establish a common-law marriage in the State.
B. Evidence of a Belief in the Community
To establish a common-law marriage, an individual must also provide clear and convincing evidence of a belief in the community that the couple were married. See Smith, 966 A.2d at 116-17 (citing Sardonis v. Sardonis, 106 R.I. 469, 472, 261 A.2d 22, 24 (1970)). Such a belief may be inferred from cohabitation, declarations, and reputation among friends and family. Id. The reputation, however, must be general and uniform. Smith, 966 A.2d at 116-17 (citing Williams, 21 R.I. at 403, 43 A. at 1037).
In Smith, the court found that this requirement had not been satisfied because the parties presented conflicting evidence. Id. at 115. For example, while the plaintiff testified that she often introduced the defendant as her husband to various people, including her doctor, her son’s substance-abuse counselor, her business associates, and her home decorator, the defendant testified that the people who knew the parties were aware that they were not married. Id. at 116. The court wrote,
The record is simply devoid of any testimony that any member of Todd’s family believed that the couple was married. Indeed, Todd’s sister testified that in 1999 she made a family tree and displayed it at a family party, but she did not list Paulette or her children on the family tree. She also testified that the family occasionally would ask the couple why they would not get married, and they would respond that they did not want to “ruin a good thing.”
Id. In another case, DeMelo, the court noted that the plaintiff’s only evidence was the testimony of her brother, who said the defendant referred to him as his brother-in-law. 844 A.2d at 177-78. In contrast, long-time friends of both the plaintiff and the defendant testified that they never planned to get married, nor did they refer to each other as husband and wife. Id.
This case does not lend itself to a direct comparison because the couple, based on their same-sex status, could not establish belief of their marriage in the community prior to Rhode Island’s recognition of same-sex marriages formed in Massachusetts in 2007 or the State’s legalization of such marriages in 2013–a prohibition the Supreme Court has since held to be unconstitutional.5 Thus, others could not have considered them to be married until such marriages were recognized in the State. However, when asked if she believed that living together made them married, the claimant replied, “not originally because no one recognized same sex couples but now that they do we were definitely common law.” Statement of Marital Relationship at 2.
Others corroborated the claimant’s characterization of her relationship with the NH. For example, when asked whether the claimant and the NH maintained a home together and lived together as husband and wife, M~ (a friend), replied “absolutely!” She also wrote that the way the couple lived together and treated one another “was all one could hope for in a marriage.” She continued, “in the twenty years they spent together, they made a home, worked in the community, and were known as partners everywhere.” A second friend, A2~, wrote that she considered the couple to be married because they were “as perfect as any married couple could be” and “they were soulmates.” When asked if she had heard them refer to each other as spouses, she replied “yes” and “everywhere referred to each other as ‘partner’ and ‘my love.’” L~, the claimant’s niece, also provided a similar statement. She wrote, “they lived together and portrayed themselves as a married couple for 20 years.” Although no one from the NH’s family provided a statement about the couple’s relationship, the claimant explained that the NH’s “immediate family all predeceased her.” Statement of Claimant of Other Person. Instead, statements were provided by the NH’s close friends. In fact, M~ stated that she had known the NH for 43 years, but had only known the claimant for 22 years. See Statement Regarding Marriage (M~) at 1.
These statements are similar to those provided in Fravala, which the Superior Court found to be “overwhelming evidence supporting the fact that the community recognized the parties to be in a husband-wife relationship for over thirty-five years.” 996 A.2d at 706. The evidence in Fravala included testimony from three of the plaintiff’s children, who told the court that the deceased was a father figure during their childhood, four friends who described the plaintiff and the deceased as a “couple,” and the plaintiff’s grandson, who testified that he called the plaintiff and the deceased his “grandparents.” Id. at 700-01.
Based on the evidence, we believe a Rhode Island court would conclude that the claimant provided clear and convincing evidence of a belief in the community that the couple were married from at least the time when same-sex marriages were recognized within in the State.
C. Prior Marriage
As noted above, Rhode Island courts will also consider whether the original relationship between the couple was entered into when either was married to another person. Ibello, 47 R.I. at 482, 133 A. at 801-02. In that circumstance, the law presumes that what was meretricious in its origins continues in the absence of clear proof to the contrary. Id. The court found that the appellee had successfully rebutted that presumption in Ibello, writing:
After the impediment to their marriage had been removed [i.e., after Raffaele’s legal wife died], Raffaele and Jennie then consented to be husband and wife, presently, and at once entered into a changed relationship. They evidenced this by a celebration and a feast, at which such intention was announced with particularity, and with some measure of formality, in the presence of the company then assembled. The intention of the parties was further evidenced by their subsequent conduct, and by their statements made to others in the presence of both, and by cohabitation. We are convinced that after the death of Margherita there was clearly a change in the relation of the parties, and we have no difficulty in finding that the status of marriage then arose between them, which continued until the death of Raffaele.
47 R.I. 480, 133 A. at 802. See also Fravala, 996 A.2d at 703 (holding that the parties conduct “even at a time when [one party was still married to someone else], could be probative of the parties’ intent after the impediment is removed.”). We believe the same is true in this case. The NH’s divorce was finalized on December XX, 1997. Although the couple began cohabitating in 1995 (after initiation of the divorce proceedings, which were allegedly protracted due to “monetary issues”), the claimant asserts that she and the NH did not enter into a common-law marriage until January XX, 1998. The claimant reported that, after the divorce was final, they said to each other “[n]ow we can officially be a couple with no past.” See Attachment 1, Statement of Marital Relationship at 4.
As in Ibello, the claimant and the NH consented to be married after the divorce was finalized and that intention was “further evidenced by their subsequent conduct, and by their statements made to others in the presence of both, and by cohabitation.” Ibello, 47 R.I. at 480, 133 A. at 802. The claimant and the NH lived together continuously since 1998. Their “subsequent conduct” also strongly supports a change in the nature of their relationship. For example, numerous documents show that the claimant and the NH began to jointly acquire assets after that date, including a home (a mortgage deed is dated December 1998), a bank account, and other financial accounts. The couple also obtained health coverage based on their status as a couple, and the NH designated claimant as her retirement account death beneficiary. As discussed above, the claimant provided evidence from others confirming the couple’s statements about the marital nature of their relationship. For these reasons, and in light of this evidence, we believe a Rhode Island court would conclude that the status of marriage arose and continued until the NH’s death.
D. Mental Capacity
Based on the facts of this case, we believe the claimant has provided clear and convincing evidence that a common-law marriage was established. It is unnecessary to reach the question of the NH’s mental capacity at the time the impediment to same-sex marriage was removed6 because SSA now applies Obergefell retroactively when a same-sex couple meets the criteria for common-law marriage as it was applied to opposite-sex couples during the relevant period.
VI. Conclusion
We believe that the couple’s relationship satisfies Rhode Island’s requirements to establish a valid, common-law marriage, at least as early as 2007. For that reason, the agency would be justified in concluding that the claimant is the NH’s widow for the purpose of entitlement to widow’s benefits under Title II.
Michael J. Pelgro
Regional Chief Counsel
By: Candace H. Lawrence
Assistant Regional Counsel
C. PR 83-036 M~ John, Validity of Mexican Divorce -- Rhode Island
Date: October 31, 1983
1. Syllabus
DIVORCE -- VALIDITY OF DIVORCE OBTAINED OUTSIDE OF STATE -- OUTSIDE OLF UNITED STATES -- RHODE ISLAND
Rhode Island courts would probably apply the law of the State where both parties to a Mexican divorce were domiciled in determining the validity of the divorce, although in situations where one or both parties were domiciled in Rhode Island at the time, or where the parties were domiciled in different jurisdictions each of which would render a different result, Rhode Island would apply its own law. In the instant case, the law of New York, which would recognize the validity of the Mexican divorce, would probably be applied by the Rhode Island courts in the absence of definitive law to the contrary, since both were domiciled in New York at the time of the divorce. (M~, John, ~ -- RAI (Triba), to ARC, 10/31/83.)
MARRIAGE -- COMMON-LAW MARRIAGE -- RHODE ISLAND
Since Rhode Island law recognizes common-law marriages, where the parties resumed living together in Rhode Island holding themselves out as husband and wife and believed they were married, Rhode Island courts would hold that they were validly married at the time of the husband's death. Clear and convincing evidence of the existence of the necessary elements constituting a common-law marriage is required. (M~, John,~ -- RAI (Triba), to ARC, 10/31/83.)
2. Opinion
You have requested our opinion whether a Mexican divorce obtained by the claimant from the wage earner would be considered valid by the courts of Rhode Island.
According to the file, the claimant, Mabel S~, married the wage earner, John M~, in 1958 in New York. On December XX, 1965, the claimant obtained a Mexican divorce from the wage earner. The claimant appeared personally at the divorce proceedings and met Mexico's residency requirement. The wage earner was represented by an attorney at the proceedings and submitted to the jurisdiction of the Mexican court.
Both the claimant and the wage earner were domiciled in New York at the time of the divorce. They both remained domiciled in New York after the divorce and lived together there until 1969, although the claimant used her maiden name following the divorce. The parties were separated from 1969 through 1978 and thereafter resumed living together in Rhode Island in 1979. The wage earner died on December XX, 1980, while domiciled in Rhode Island. Neither the claimant nor the wage earner had remarried at any time after the Mexican divorce. On April XX, 1983, Mabel S~ filed an application for widow's benefits on the deceased wage earner's account.
Section 216(h)(1)(A) of the Social Security Act provides that an applicant is the widow of a wage earner if the courts of the state in which the wage earner was domiciled at death would find that the claimant and the wage earner were validly married at the time of his death. Accordingly, the claimant's status must be determined under Rhode Island law. Whether the claimant was married to the wage earner at the time he died in turn depends upon whether the claimant's Mexican divorce from the wage earner is valid. In deciding this question we must first decide whether the courts of Rhode Island, in addressing the issue of the validity of the divorce, would apply Rhode Island law or the law of New York, where the parties were domiciled at the time of the divorce. New York law upholds the validity of a bilateral divorce decree rendered by a foreign country in cases where, as here, one spouse appears personally and the other spouse submits to the Jurisdiction of the foreign court by appearing through an attorney, and the residency requirements of the foreign country are met. Rosenstiel v. Rosenstiel, 16 N.Y.Zd 64, 262 N.Y.Supp. 2d 86, 209 N.E.2d 709.(1~65),, cert. denied, 383 U.S. 943 (1966). Rhode Island, however, will not. recognize a foreign divorce decree where neither spouse had an actual domicile within the foreign country. See, e.g., our opinion re.Peter Y~, March 12, 1979.
We have been unable to locate any Rhode Island case law discussing what law the courts of Rhode Island would apply in the circumstances of this case. It is clear that Rhode Island would apply its own law .in cases in which one or both of the parties to a foreign divorce are domiciled in Rhode Island at the time of the divorce. Opinion re. Peter, supra. We believe Rhode Island would also apply its own law in cases where the parties to a foreign divorce are each domiciled in different states at the time of the divorce and those states would reach contrary conclusions as to the validity of the divorce. In the present case, however, the claimant and wage earner were married in New York and were both domiciled in New York at the time of the divorce. In addition, they continued to live in New York for at least several years subsequent to the divorce. At the time of the divorce only the State of New York had an interest in their marriage status, and New York would give recognition to their bilateral Mexican divorce. Rosenstiel v. Rosenstiel, supra. We believe that under such circumstances the courts of Rhode Island would apply New York law to determine the validity of the divorce. A conclusion that the courts of Rhode Island would recognize the status the parties acquired while domiciled in New York is consistent with the interest of stability in Judicial determinations. We therefore conclude, in the absence of Rhode Island law to the contrary, that the courts of Rhode Island would apply New York law and find that the claimant's Mexican divorce from the wage earner was valid. 27B C.J.S. Divorce, ~326; cf. Rosen v. Sither, 418 A.2d 490 (Pa. Super. 1980).
Having determined that the courts of Rhode Island would recognize the claimant's Mexican divorce in this case, it would ordinarily be concluded that the claimant is not entitled to widow's benefits on the wage earner's account. However, the claimant and wage earner lived together in Rhode Island from 1979 until the wage earner's death on December XX, 1980. The claimant alleges that she and the wage earner considered themselves to be husband and wife during that time. Rhode Island does recognize common-law marriages as valid. Souza v. O'Hara, 121R.I. 88, 395 A.2d 1060 (1978). Proof of a common-law marriage requires clear and convincing evidence that the parties considered themselves to be married and that their conduct gave rise to a general reputation among friends and relatives that they were married. Sardonis v. Sardonis, 106 R.I. 469, 261.A.2d 22 (1970). As the fact finder, you must determine whether there is clear and convincing evidence that a valid common-law marriage had arisen. 1_/ If you should find upon your review of the evidence that the claimant was the common-law wife of the wage earner at the time of his death, the claimant would qualify for widow's benefits on the wage earner's account, assuming she meets all other conditions of entitlement.
Please let us know if you have any questions.
Attachment: Claims file
1_/ We note that the file contains conflicting evidence concerning the existence of a common-law marriage. The claimant alleged the existence of a common-law marriage in her application for widow's benefits, and several relatives have stated that they always considered the claimant and the wage earner to be husband and wife. In an earlier application for the lump-sum death payment, however, the claimant stated that she did not have a common-law marriage.
Footnotes:
. On May 2, 2013, the Governor of Rhode Island signed into law legislation enacted by the Rhode Island General Assembly recognizing same-sex marriage. The law, entitled “An Act Relating to Domestic Relations – Persons Eligible to Marry,” took effect on August 1, 2013. See 2013 R.I. Pub. Laws, ch. 004, Bill No. H 5015B.
. See 2013 R.I. Pub. Laws, ch. 004, Bill No. H 5015B. Additionally, we note that same-sex couples might conceivably show “belief in the community” as early as February 2007, when Rhode Island began recognizing same-sex marriages formed in Massachusetts. See R.I. Att’y Gen. Op. (Feb. 20, 2007).
. The NH’s obituary indicates that he passed away after surgery for complications from his Type I diabetes.
. In February 2007, Attorney General Patrick C. Lynch issued an opinion advising that same-sex marriages performed in Massachusetts be recognized in Rhode Island. He said that “his interpretation permitted recognition of the marriages, although he acknowledged that it was just an opinion and did not have the force of law.” R.I. Att’y Gen. Op. (Feb. 20, 2007). Later, this recognition expressly carried the force of law when the Governor of Rhode Island signed an Executive Order in May 2012. R.I. Exec. Order No. 12-02 (May 14, 2012).
. See Obergefell v. Hodges, 135 S. Ct. 2584, 2604-05 (2015).
. . . Under R.I. Gen. Laws Ann. § 15-1-5 (West 2015), “any marriage where either of the parties is mentally incompetent at the time of the marriage, shall be absolutely void, and no life estate created by chapter 25 of title 33 shall be assigned to any surviving spouse in consequence of the marriage.” The claimant indicated that the NH suffered from Alzheimer’s disease, which was too far progressed at the time same-sex marriage became legal to permit them to marry in 2013.