PR: Title II Regional Chief Counsel Precedents

Effective Dates: 07/13/2018 - Present

TN 38 (07-18)

A. PR 18-075 Marital Status for Alleged Common-Law Marriage in Texas

Date: April 13, 2018

1. Syllabus

The number holder (NH) resided in Texas at the time the Claimant filed her application for spouse’s benefits; therefore, we look to Texas law to determine whether the NH and the Claimant had a valid common-law marriage under the Act. Texas marriages may be either ceremonial or common-law. Texas common-law marriage produces the same legal consequences as a ceremonial marriage. The Claimant and the NH entered into a common-law marriage in 1970 in Texas. Based on the evidence provided, we believe that a Texas court would conclude that the Claimant has proven by a preponderance of the evidence all three elements required to prove a valid common-law marriage. Accordingly, we believe there is support for the agency to find that the Claimant is the NH’s spouse and that their marriage meets the Act’s one-year marriage duration requirement for purposes of determining the Claimant’s entitlement to spouse’s benefits on the NH’s record.

2. Opinion

QUESTIONS PRESENTED

S~ (S~) filed an application for spouse’s benefits under Title II of the Social Security Act (Act) on the record of J~, the number holder (NH). S~ alleges a common-law marriage to the NH in Texas beginning in 1970. You asked whether under Texas law, S~ has proven a valid common-law marriage to the NH such that she is the NH’s spouse under the Act. If so, you also asked when the marriage began for purposes of determining whether the marriage satisfies the Act’s one-year marriage duration requirement for spouse’s benefits.

ANSWER

We believe that Texas courts would find that S~ has proven by a preponderance of the evidence that she has had a valid common-law marriage with the NH under Texas law beginning in 1970 and there is no evidence it has terminated. Accordingly, we believe there is support for the agency to find that S~ is the NH’s spouse and that their marriage meets the Act’s one-year marriage duration requirement for purposes of determining S~’s entitlement to spouse’s benefits on the NH’s record.

BACKGROUND

You advised that on March XX, 2017, when the NH was residing in E~, Texas, S~ filed for spouse’s benefits on the NH’s record as his spouse. On her application, S~ alleged that she and the NH entered into a common-law marriage on July XX, 1970, in R~, Texas.

In agency forms, S~ and the NH provided generally consistent statements describing their relationship as a common-law marriage. They reported that they entered into a common-law marriage in 1970 in Texas that ended when they separated in 1993 or 1994. They stated that they lived together continuously in Texas from approximately 1970 to 1983 (when they moved to California) and had an understanding as to their relationship when they began living together. S~ and the NH explained that they believed they had created a common-law marriage in Texas. After they began living together, they considered themselves to be husband and wife, they referred to each other as husband and wife, they were generally known as husband and wife, and they used the same last name. As to the same last name, your request further specified that S~ used the NH’s last name on her Social Security card for the last three years that they lived together in Texas (1980-1983). S~ and the NH stated that they were shown as husband and wife on a bank account, though they did not specify when this account was opened. They represented that they had the intent to get married, and both checked boxes on agency forms indicating that they had an agreement or promise that a ceremonial marriage would be performed in the future. S~ and the NH also listed the names of several individuals who knew of their relationship on their respective forms. They also have eight children together.

In addition to the above statements, S~ provided documentary evidence to support her claim in the form of birth certificates/certificates of vital record for seven of the eight children purportedly born of her relationship with the NH. Relevant to this claim, the birth certificates indicate that two of the children (A~ in 1978 and P~ in 1980) were born in Texas with S~ and the NH listed as the parents with the same last name.

S~ and the NH also made some inconsistent statements to the agency. For example, in his May 2009 application for retirement benefits, the NH stated that he was never married. However, as noted above, in other agency forms the NH described his relationship with S~ as a common-law marriage and he stated that he considered them to be husband and wife and believed that living together made them legally married. Further, S~ stated that she and the NH did not have an understanding as to how their relationship could be ended, whereas the NH stated that they did have such an understanding, though he did not specify what that understanding was. S~ and the NH’s statements also contain some inconsistencies as to which Texas cities they lived in during which years. Specifically, S~ and the NH reported in agency forms that they lived together in S2~/H~, Texas from 1970 to 1983 and in E~, Texas from 1979 to 1981. However, in another agency form, the NH indicated that he and S~ lived together in S2~, Texas from 1970 to 1978 and in E2~, Texas from 1978 to 1983. Likewise, in a different form, S~ stated that she and the NH lived together in S2~, Texas from 1970 to approximately 1983. She said that they lived with the NH’s grandparents in S2~and “went back and forth,” but she did not specify to where. In addition, in one form S~ stated that she and the NH did not have a bank account together, yet as noted above, in other forms both she and the NH represented that they were shown as husband and wife on a bank account. The NH further indicated that after they began living together, he and S~ were shown as husband and wife on rental leases, but S~’s forms did not specify whether they were shown as husband and wife on these leases.

ANALYSIS

A. Federal Law: “Spouse” under the Act for Spouse’s Benefits

Under Title II of the Act, a claimant may be entitled to spouse’s benefits on an insured individual’s account if, among other things, he or she is the insured’s spouse and their marriage has lasted at least one year. See Act §§ 202(b)(1), (c)(1), 216(b), (f); 42 U.S.C. §§ 402(b)(1), (c)(1), 416(b), (f); 20 C.F.R. § 404.330. The agency will find that a claimant is an insured individual’s spouse if the courts of the State in which the insured individual resided at the time the claimant filed the application “would find that such applicant and such insured individual were validly married” at the time such claimant files such application, or if, under application of the State’s intestate succession laws, the claimant would be able to inherit a spouse’s share of the insured’s personal property. See Act § 216(h)(1)(A), 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.330(a), 404.344, 404.345. Here, because the NH resided in Texas at the time S~ filed her application for spouse’s benefits, we look to Texas law to determine whether the NH and S~ had a valid common-law marriage such that she is the NH’s spouse under the Act.

B. Texas Law: Common-Law Marriage and Relevant Marital Presumptions

1. Elements of a Common-Law Marriage

The elements of a valid common-law marriage under Texas law are:

(1) an agreement to be married,

(2) cohabitation in Texas as spouses, and

(3) representation, or holding out to others that they are married.

See Tex. Fam. Code Ann. § 2.401(a); Estate of Claveria v. Claveria, 615 S.W.2d 164, 166 (Tex. 1981); Ex parte Threet, 333 S.W.2d 361, 364 (Tex. 1960); see also Van Hooff v. Anderson, 2016 WL 193172, at *3 (Tex. App. – Amarillo Jan. 14, 2016, no pet.) (“Other than terminology used, the common law marriage requirements and the statutory requirements for an informal marriage are the same.”). A common-law marriage does not exist until a party meets all three elements, which courts determine on a case-by-case basis and on the specific facts presented. Estate of Claveria, 615 S.W.2d at 166; Nguyen v. Nguyen, 355 S.W.3d 82, 88-89 (Tex. App. – Houston [1st Dist.] 2011, pet. denied). A party seeking to prove the existence of a common-law marriage must show that all three elements were present at the same time while living in Texas. See Bolash v. Heid, 733 S.W.2d. 698, 699 (Tex. App-San Antonio 1987, no writ) (“All three of the required elements must exist at the same time.”); Williams, 722 S.W.2d at 788 (living together and holding out in another state does not satisfy the requirements for common-law in Texas); Tex. Fam. Code Ann. § 2.401(a)(2) (“they lived together in this state as husband and wife and there represented to others that they were married”) (emphasis added).

2. Rebuttable Presumption of No Agreement to be Married

As noted above, one of the elements of a common-law marriage is an agreement to be married. Tex. Fam. Code Ann. § 2.401(a). Texas law provides that if a party does not bring a proceeding to prove a common-law marriage within two years from the date of their separation, “it is rebuttably presumed that the parties did not enter into an agreement to be married.” Tex. Fam. Code Ann. § 2.401(b). Section 2.401(b) does not create a statute of limitations that requires a person to prove a common-law marriage within two years of the end of the relationship; rather, it creates only a presumption that no common-law marriage existed, and an individual may rebut such presumption with evidence showing that a common-law marriage did in fact exist. See Wilson ex rel. C.M.W. v. Estate of Williams, 99 S.W.3d 640, 644-45 (Tex. App. - Waco 2003, no pet.). The Texas Supreme Court has explained that a rebuttable presumption has “no effect on the burden of persuasion,” that the effect of a rebuttable presumption “is to shift the burden of producing evidence to the party against whom it operates,” and that “[o]nce that burden is discharged and evidence contradicting the presumption has been offered, the presumption disappears” and “[t]he evidence on the issue is then evaluated as it would be in any case.” General Motors Corp. v. Saenz o/b/o Saenz, 873 S.W.2d 353, 359 (Tex. 1993); see also Joplin v. Borusheski, 244 S.W.3d 607, 611-612 (Tex. App. – Dallas 2008, no pet.) (noting that “[t]he effect of a presumption is to force the party against whom it operates to produce evidence to negate the presumption,” the court found that the male cohabitant failed to produce sufficient evidence of an agreement to be married to rebut the statutory presumption).

There is no evidence in this case that S~ commenced a proceeding to prove a common-law marriage to the NH within two years of their separation in 1993 or 1994. Because she did not commence a proceeding to prove a common-law marriage to the NH within two years of their separation, there is a rebuttable presumption that she and the NH had no agreement to be married, and thus, that she was not common-law married to the NH. See Tex. Fam. Code Ann. § 2.401(b); Wilson ex rel. C.M.W., 99 S.W.3d at 644-45. If S~ provides sufficient contradicting evidence to rebut the presumption of no agreement to be married, the presumption goes away, and she must then prove the three elements of a valid common-law marriage by a preponderance of the evidence. See General Motors Corp., 873 S.W.2d at 359; Joplin, 244.S.W.3d at 611-612. We address below whether she has rebutted the presumption and proven a valid common-law marriage under Texas law.

3. Burden of Proof: Preponderance of the Evidence

Unlike some other States, which impose a higher burden of proof on claimants who seek to prove the existence of a common-law marriage, in Texas the party seeking to prove the existence of a common-law marriage holds the burden of proof by a preponderance of the evidence. See Tompkins v. State, 774 S.W.2d 195, 208 (Tex. Crim. App. 1987); Farrell v. Farrell, 459 S.W.3d 114, 117 (Tex. App. – El Paso 2015, no pet.); Nguyen, 355 S.W.3d at 88-89. Texas law defines that standard as the greater weight and degree of credible evidence that would create a reasonable belief in the truth of the claim. See Herrera v. Stahl, 441 S.W.3d 739, 741 (Tex. App. – San Antonio 2014, no pet.); Upjohn Co. v. Freeman, 847 S.W.2d 589, 591 (Tex. App. – Dallas 1992, no writ) (“Preponderance of the evidence means the greater weight and degree of credible evidence” and the court of appeals considers whether the “trier of fact could reasonably conclude that the existence of a fact is more probable than not.”). Therefore, we must determine if S~ has shown that it was more probable than not that from 1970 to 1983 (while they were living in Texas prior to moving to California), she and the NH agreed to be married, lived together in Texas as husband and wife, and represented to others that they were married.

Here, S~ and the NH provided statements regarding their common-law marriage. Under Texas law, statements alone can be sufficient to meet the preponderance of the evidence burden. See Small v. McMaster, 352 S.W.3d 280, 283-284 (Tex. App. – Houston [14th Dist.] 2011, pet. denied) (the wife’s testimony and the testimony of other witnesses was sufficient evidence of an agreement to be married; although the husband presented contrary testimony, it turned on witness credibility and demeanor). Indeed, a party’s statements can constitute direct evidence of the elements of a common-law marriage. See Omodele v. Adams, 2003 WL 133602, at *2 (Tex. App. – Houston [14th Dist.] 2003, no pet.) (the wife’s uncontroverted testimony that she and the husband had an agreement to be married was alone sufficient to show an agreement to be married; testimony also established that the parties lived together for almost 2 years and that they purchased a home and insurance together as husband and wife); Martinez v. Lopez, 2011 WL 2112806, at *5-6 (Tex. App. – Houston [14th Dist.] 2011, no pet.) (finding that the fact that the wife was not mentioned in financial documents was not direct proof that the couple did not represent themselves as husband and wife; finding that the wife’s uncontroverted testimony that they represented themselves as married to others supported the element of holding out to others); Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex. App. – Houston [1st Dist.] 1991, writ denied) (finding that the wife’s testimony was direct evidence of their agreement to be married); see also Flores v. Flores, 847 S.W.2d 648, 651 (Tex. App. – Waco 1993, writ denied) (“If the statement [of marriage] is made in a self-serving context – such as . . . an application to a lender by one seeking a loan . . . it may not have great weight”).

In addition, circumstantial evidence can prove the requisite elements of common-law marriage. Russell, 865 S.W.2d at 933. “A fact is established by circumstantial evidence when the fact may be fairly and reasonably inferred from other facts proved in the case.” Id. (quoting Dallas Co. Flood Control v. Cross, 815 S.W.2d 271, 279-80 (Tex. App. – Dallas 1991, writ denied)). The Texas Supreme Court has provided examples of circumstantial evidence, explaining that, “proof of common-law marriage may be shown by the conduct of the parties, or by such circumstances as their addressing each other as husband and wife, acknowledging their children as legitimate, joining in conveyances as spouses, and occupying the same dwelling place.” Estate of Claveria, 615 S.W.2d at 166. “[T]he circumstances of each case [as to the elements of a common-law marriage] must be determined based upon its own facts.” Id. We consider whether the greater weight and degree of credible evidence supports a common-law marriage in Texas between S~ and the NH.

4. Application of the Elements of a Common-Law Marriage to the Claim

a. Elements

i. Agreement to Marry

The first element for a valid common-law marriage is an agreement to marry. See Tex. Fam. Code Ann. § 2.401(a)(2). The parties must prove by a preponderance of the evidence that they both had a “present, immediate, and permanent marital relationship and that they did in fact agree to be husband and wife.” Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App. – Houston [1st Dist.] 2001, pet. denied). The parties show an agreement to be married with proof that they intended to create an immediate and permanent marital relationship, not merely a cohabitation or temporary association that either party may end at any time and not an agreement to marry in the future. See Van Hooff, 2016 WL 193172, at *3; Burden v. Burden, 420 S.W.3d 305, 308 (Tex. App. –Texarkana 2013, no pet.); Gary v. Gary, 490 S.W.2d 929, 932 (Tex. Civ. App. – Tyler 1973, writ ref’d n.r.e.); Perales v. Flores, 147 S.W.2d 974, 976 (Tex. Civ. App – San Antonio 1941, writ ref’d). Testimony of one of the parties to the marriage as to their agreement to be married constitutes some direct evidence of the parties’ agreement to be married. Small, 352 S.W.3d at 283-284. Evidence of cohabitation and representations to others that the parties are married may show circumstantial evidence of an agreement to be married. See Lee v. Lee, 981 S.W.2d 903, 906 (Tex. App. – Houston [1st Dist.] 1998, pet. denied); Flores, 847 S.W.2d at 652 (“non-marital cohabitation for extended periods of time is far more common than it once was,” and thus, “evidence of a tacit agreement to marry should be weighed more carefully than in the past”).

As explained above, there is a rebuttable presumption under Texas law that S~ and NH did not agree to be married. See Tex. Fam. Code Ann. § 2.401(b); Wilson ex rel. C.M.W., 99 S.W.3d at 644-45. However, we believe that Texas courts would find that S~ has provided evidence in both her statements and the NH’s statements showing an agreement to be married in 1970 that is sufficient to rebut this presumption. See General Motors Corp., 873 S.W.2d at 359; Matter of Marriage of Farjardo, No. 14-15-00653-CV, 2016 WL 4206009, at *2-4 (Tex. App. – Houston [14th Dist.] Aug. 9, 2016, no pet.) (noting that the party with the burden of rebutting the presumption must come forward with more than a scintilla of evidence, and finding that the petitioner successfully rebutted the statutory presumption with her testimony that she believed respondent agreed to be married, that she lived with him for 12 years, and that he introduced her as his wife on several occasions, and with evidence of showing that they filed their tax returns jointly as spouses); Interest of J.J.F.R., No. 05-14-00751-CV, 2016 WL 3944823, at *3-6 (Tex. App. – San Antonio July 20, 2016, no pet.) (noting that the party with the burden of rebutting the presumption must come forward with sufficient evidence of an agreement to be married, and finding that the petitioner successfully rebutted the statutory presumption with her testimony that she and respondent agreed to be married and began living together as husband and wife when they were expecting their first child). Thus, we next consider whether Texas courts would find that she has met her burden of establishing an agreement to marry by a preponderance of the evidence.

Here, statements from both S~ and the NH are generally consistent and indicate that they had an agreement for an immediate and permanent marital relationship that began in 1970 in Texas and continued for over 12 years in Texas. For example, although the NH stated that he was never married in his 2009 application for retirement benefits, both he and S~ described their relationship as a “common-law marriage” in forms submitted to the agency. See In re Estate of Giessel, 734 S.W.2d 27, 31 (Tex. App. – Houston [1st Dist.] 1987, writ ref’d n.r.e.) (the wife’s representations in documents that she was single went “to the weight of the evidence” and did not “negate a marriage, as a matter of law”). Further, in statements to the agency, both S~ and the NH provided that they lived together continuously as husband and wife in Texas from 1970 to 1983. S~ and the NH also both checked boxes on agency forms indicating that they had an understanding as to their relationship when they began living together. S~ and the NH both explained that they believed they had created a common-law marriage because they lived together as husband and wife for three months. In addition, S~ stated that although they had no understanding as to how long they would live together, they did not have an understanding as to how their relationship could be ended.

After they began living together, they considered themselves to be husband and wife and they referred to each other as husband and wife. The NH also stated that they were generally known as husband and wife, explaining that “anywhere we were at we were considered husband and wife.” In addition, S~ and the NH stated that after they began living together, S~ was known by the NH’s last name. S~ also stated that she had mail addressed to her using the NH’s last name. Your request further specified that S~ used the NH’s last name on her Social Security card for the last three years that they lived together in Texas (1980-1983).

In addition, four children (A~, P~, M~, and B~) were born of their relationship while they were living in Texas (which spanned from 1970 to 1983). Further, the Texas birth certificates for A~ and P~ list both S~ and the NH as the parents with the same last name (the NH’s last name). These facts support an agreement to be married. See In re Marriage of Hallgarth, No. 07-01-0013-CV, 2001 WL 574833, at *2 Tex. App.–Amarillo May 29, 2001, no pet.) (finding that 15 years of cohabitation, use of the same last name, and representations to third parties that they were married constituted sufficient evidence of an agreement to be married); Lee, 981 S.W.2d at 906 (representations to others can constitute circumstantial evidence of an agreement to be married).

In their statements to the agency, S~ and the NH also represented that they had the intent to get married, and both checked boxes on their agency forms indicating that they had an agreement or promise that a ceremonial marriage would be performed in the future. However, the parties’ intent to marry ceremonially in the future does not necessarily negate an inference that the parties believed that they already had a common-law marriage. See Aguilar v. State, 715 S.W.2d 645, 648 (Tex. Crim. App. 1986); McIlveen v. McIlveen, 332 S.W. 2d 113, 117 (Tex. Civ. App. 1960) (holding no inconsistency in testimony regarding desire to marry in Catholic ceremony and existence of common-law marriage); Trammell v. Trammell, 196 S.W.2d 209, 2010 (Tex. Civ. App.—San Antonio 1946) (“The fact that the parties were to live together as husband and wife in accordance with their agreement to do so, and at some time in the future, when their affairs made it feasible or practical they would solemnize their relation by engaging in a lawful ceremony, cannot be construed into a modification of the marriage agreement, rendering it void and condemning them to a life of unlicensed sin.”). Here, S~ explained that because common-law marriage no longer existed in California (where they moved in 1983), she felt that she needed something in writing stating that they “were married after 24 years and 8 children.” However, as shown above, despite the intent to marry ceremonially in the future (in California), it appears that S~ and the NH believed they already had a common-law marriage in Texas beginning in 1970. Indeed, the NH explained that they never went through with a ceremonial marriage because he “did not feel after 24 years and 8 children that a piece of paper with both our names would change anything.”

Considering the totality of the evidence, we believe that Texas courts would find S~ satisfied the first element of a common-law marriage to the NH. As such, we believe the agency could reasonably conclude that S~ has proven the first element for a valid common-law marriage under Texas law.

ii. Cohabitation in Texas as Spouses

Here, the statements submitted by S~ and the NH establish that they lived together continuously as spouses in Texas from 1970 to 1983. Although some of their statements contain minor inconsistencies as to which Texas cities S~ and the NH lived in during which years, their statements are consistent in reflecting that they were living together in Texas. See Tex. Fam. Code Ann. § 2.401(a)(2) (“they lived together in this state as husband and wife and there represented to others that they were married”) (emphasis added). We believe that Texas courts would find that S~ satisfied the second element of a common-law marriage to the NH. See Van Hooff, 2016 WL 193172, at *5 (the court found sufficient evidence to support the cohabitation element where neither party disputed that they began living together in 1999 and continued to live together until 2011 when they separated); Romano v. Newell Recycling of San Antonio, LP, 2008 WL 227974, at *5 (Tex. App. – San Antonio 2008, no pet.) (finding “extensive evidence of cohabitation” where witnesses testified that the couple lived together for around nine years and it did not appear that the husband left the wife for more than a month or two at a time and that he left only during times the couple was fighting). As such, we believe the agency could reasonably conclude that S~ has established the second element for a valid common-law marriage under Texas law.

iii. Representation to Others as Married

Here, both S~ and the NH provided statements indicating that they represented to others that they were husband and wife. We note that their statements do not distinguish between their relationship from 1970 to 1983 in Texas and their relationship from 1983 to 1994 in California. Thus, it is not entirely clear which statements describe their relationship in Texas for purposes of the holding out element. However, we believe a Texas court would find based on these statements that S~ has proven by a preponderance of the evidence that they represented to others that they were married while living in Texas. This does not appear to be a case in which there is evidence of a secret relationship; rather, they lived together and had four children while living in Texas for over 12 years. See Threet, 333 S.W.2d at 364-365. As noted above, S~ and the NH stated that after they began living together, S~ was known by the NH’s last name. S~ further stated that she had mail addressed to her using the NH’s last name. According to your request, for the last three years that they lived together in Texas (1980-1983), S~ also used the NH’s last name on her Social Security card. In addition, the Texas birth certificates for two of the children born of their relationship in Texas identify both S~ and the NH as the parents with the same last name (the NH’s last name). See Estate of Claveria, 615 S.W.2d at 166 (proof of common-law marriage shown by such circumstances as occupying the same dwelling, acknowledging their children as legitimate, and addressing each other as husband and wife). On agency forms, S~ and the NH also identified several individuals who knew of their relationship. In addition, while on one agency form S~ stated that she and the NH did not have a bank account together, in other forms both she and the NH represented that they were shown as husband and wife on a bank account. The NH also stated that they were shown on husband and wife on rental leases. See Danna v. Danna, No. 05–05–00472–CV, 2006 WL 785621, at *1 (Tex. App. – Dallas Mar. 29, 2006, no pet.) (“The couple’s reputation in the community as being married is a significant factor in determining the holding out element.”); In re Estate of Giessel, 734 S.W.2d at 30-31 (holding out element met where the couple represented themselves as husband and wife and had a reputation in the community for being married).

Thus, we believe that Texas courts would find that S~ has proven by a preponderance of the evidence that they represented to others that they were married. As such, we believe that the agency could reasonably conclude that S~ has proven the third element for a valid common-law marriage under Texas law.

b. Totality of the Evidence

We believe Texas courts would find that S~ has proven by a preponderance of the evidence the three elements necessary for a valid common-law marriage that began in Texas in 1970, as this is when S~ and the NH agreed to be in a permanent marital relationship and began living together in Texas and representing to others that they were married. Once a common-law marriage exists, it, like a ceremonial marriage, may be terminated only by death or a court decree of divorce or annulment. See Estate of Claveria, 615 S.W.2d at 167. S~ and the NH believe their marriage ended when they separated in 1994, but there is no evidence of a divorce decree or annulment, so they are still married. Therefore, we believe the agency could find that S~ has proven a common-law marriage to the NH that began in 1970, and that such marriage meets the Act’s one-year marriage duration requirement.

CONCLUSION

In summary, we believe that a Texas court would conclude that S~ has proven by a preponderance of the evidence all three elements required to prove a valid common-law marriage to the NH that began in Texas with an effective date of 1970 (and no evidence of termination of such marriage). Accordingly, we believe there is support for the agency to find that S~ is the NH’s spouse and that their marriage meets the Act’s one-year marriage duration requirement for purposes of determining S~’s entitlement to spouse’s benefits on the NH’s record.

B. PR 18-068 -Texas State Law – Status of Claimant’s Marriage for Widower’s Application

Date: March 20, 2018

1. Syllabus

The number holder (NH) died while domiciled in Texas; therefore, we look to the Texas law to determine if the NH and Claimant had a valid common-law marriage. Under Texas law, to have a valid common-law marriage, there must be an agreement to be married, cohabitation in Texas as spouses, and representation, or holding out to others that they are married.

We believe that a Texas court would find that the Claimant has not proven by a preponderance of the evidence that he and the NH had valid common-law marriage under Texas law at the time of the NH’s death. Therefore, the agency may reasonably conclude that the Claimant was not the NH’s widower for purposes of his applications for widower’s insurance benefits and the LSDP on the NH’s record.

2. Opinion

QUESTIONS PRESENTED

The purpose of this memorandum is to respond to your request for our opinion regarding the possible entitlement of L~ (L~) to widower’s insurance benefits and the lump sum death payment (LSDP) as the widower of C~, the deceased number holder (NH). See 42 U.S.C. § 402(f)(1) (entitlement to widower’s insurance benefits). For determining whether L~ is the NH’s widower as section 216(g) of the Social Security Act (Act) defines, you asked whether under Texas law, L~ has proven a valid common-law marriage to the NH. See 42 U.S.C. § 416(g), (h)(1)(A)(i). If so, you also asked when the common-law marriage began.

ANSWER

We believe that Texas courts would find that L~ has not proven a valid common-law marriage to the NH under Texas law at the time of the NH’s death in October 2017. Specifically, we believe Texas courts would find that for the period from December 2006 (when his prior marriage dissolved) through October 2017, L~ has not proven by a preponderance of the evidence that he and the NH cohabitated in Texas as spouses or represented to others that they were married, which are two of the three required elements for a valid common-law marriage under Texas law. In addition, we believe that the agency may reasonably conclude that L~ is unable to inherit a spouse’s share from the NH under Texas intestate succession laws. Therefore, we believe there is legal support for the agency to conclude that L~ has not proven that he is the NH’s widower for purposes of his applications for widower’s benefits and the LSDP.¹

BACKGROUND

The NH died October XX,, 2017, while domiciled in Texas. On December XX, 2017, L~ filed an application for widower’s insurance benefits and the LSDP on the NH’s record as her widower.

The evidence shows that L~ entered into multiple marriages, as follows:

In support of his application for widower’s benefits, L~ provided a completed and recorded Texas marriage license and certificate, which stated that he and the NH married in a ceremony on November XX, 1998, in T~ County, Texas.

L~ alleged a prior marriage to C2~ from April XX, 1963, to February XX, 1985, which ended with her death.

L~ also alleged a prior marriage to M~ from March XX, 1991, to March XX, 1994, which ended with her death.

Agency records indicate that L~ had a prior marriage to L2~ (L2~) in November 1953 in New Jersey that ended with her death on December XX, 2006. Agency records show that L2~ received spouse benefits on L~’s record, but it is unclear what evidence was provided to prove this marriage.

On December XX, 2017, L~ completed a Form SSA-795, Statement of Claimant or Other Person, in which he acknowledged that he married his first wife, L2~, in New Jersey in 1953 and that they never divorced. He also stated that he knew he was still legally married to L2~ when he married the NH in 1998 in Texas, but he thought it did not matter because the marriage occurred in a different state.

As proof of his marital relationship with the NH, L~ submitted the Texas marriage license and certificate showing that he and the NH married in a ceremony on November XX, 1998. He also submitted his life insurance policy naming the NH as his wife and beneficiary, and provided the NH’s Texas Certificate of Death listing L~ as the informant and the NH’s surviving spouse. L~ did not submit any witness statements in the Form SSA-753, Statement Regarding Marriage nor did he provide his own statement of a common-law marriage in the Form SSA-754, Statement of Marital Relationship. In January 2018, the agency sent a request for these forms, but did not receive a response from L~.

ANALYSIS

Federal Law: Entitlement to Widower’s Insurance Benefits and the LSDP under the Act

Under Title II of the Act, a claimant may be entitled to widower’s insurance benefits on a deceased individual’s account if, among other things, the claimant is the widower of the fully insured NH and their marriage lasted nine months before the insured died.² See 42 U.S.C. §§ 402(f)(1), 416(g); 20 C.F.R. §§ 404.335(a)(1) (relationship must have lasted for at least 9 months), 404.345 (your relationship as a surviving spouse under state law). To be entitled to the LSDP under Title II of the Act, a claimant must establish that he is the widower of an individual who died fully or currently insured, and he was living in the same household as the insured at the time of her death or if not living in the same household, that he met the requirements for entitlement to widower’s insurance benefits. See 42 U.S.C. §§ 402(i), 416(g); 20 C.F.R. §§ 404.390-404.392.

The agency will find that a claimant is an insured individual’s widower if the courts of the State in which the insured individual resided at the time of death “would find that such applicant and such insured individual were validly married” at the time such insured individual died, or if, under application of that State’s intestate succession laws, the applicant would be able to inherit a spouse’s share of the insured’s personal property. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. Because the NH was domiciled in Texas at the time she died, we look to Texas law to determine whether the L~ and the NH had a valid common-law marriage at the time of the NH’s death such that he is the NH’s widower under the Act.

B. Texas State Law: L~’s Multiple Marriages, the Presumption of the Validity of the Most Recent Marriage, and Void Marriages

In Texas, marriages may be either ceremonial or common-law. See Tex. Fam. Code Ann. §§ 2.001 – 2.602; Russell v. Russell, 865 S.W.2d 929, 931-33 (Tex. 1993) (“[c]ommon law marriages have been recognized in Texas since 1847”). A Texas common-law marriage produces the same legal consequences as a ceremonial marriage. Whaley v. Peat, 377 S.W.2d 855, 857 (Tex. Civ. App. - Houston 1964, writ ref’d n.r.e). Here, there is evidence of L’s ceremonial marriage to the NH in Texas in November 1998, but also evidence of L’s prior marriage to L2~ in New Jersey on November XX, 1953, that did not end until L2~’s death in December 2006.³ Under Texas law, there is the presumption of validity of his more recent ceremonial marriage to the NH in 1998. See Tex. Fam. Code Ann. § 1.103 (Texas law applies to persons married elsewhere who are domiciled in this state). When two or more marriages of a person to different spouses are alleged, Texas law presumes the validity of the most recent marriage until the validity of the prior marriage is proven. Tex. Fam. Code Ann. § 1.102. The presumption of the validity of the most recent marriage is one of the strongest presumptions under Texas law. See Texas Employer’s Ins. Ass’n. v. Elder, 282 S.W.2d 371, 373 (Tex. 1955). The burden is on the party attacking the validity of the most recent marriage, who must establish both the existence of the prior marriage and its continuing validity at the time of the later alleged marriage and must introduce sufficient evidence, standing alone, to negate the dissolution of the prior marriage. See Estate of Claveria v. Claveria, 615 S.W.2d 164, 165 (Tex. 1981); In re Estate of Loveless, 64 S.W.3d 564, 574 (Tex. App. – Texarkana 2001, no pet.).

In this case, L~’s own statements and agency records showing that the agency awarded L2~ spousal benefits on the NH’s record based on a valid marriage in November 1953 rebut the presumption of the validity of his 1998 ceremonial marriage to the NH. In his Form SSA-795, Statement of Claimant or Other Person, L~ acknowledged to the agency that he married L2~ in 1953, that they never got divorced, and that he knew he was still married to L2~ when he married the NH on November XX, 1998, in a ceremonial marriage in Texas. Under Texas law, a marriage s void if entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the other spouse’s death. Tex. Fam. Code Ann. § 6.202(a); see also Romano v. Newell Recycling of San Antonio, L.P., 2008 WL 227974 at *3 (Tex. App.-San Antonio January 30, 2008, no pet.) (mem. op.) (“This rule rendering the subsequent marriage void applies whether the marriage is ceremonial or common law.”); Phillips v. The Dow Chemical Company, 186 S.W.3d 121, 127 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (“Thus, a marriage entered into while one party is married to another person is void from the outset as a matter of law.”). Thus, based on L~’s own admission of his 1953 marriage to L2~ that did not end by divorce and agency records showing that L2~ received benefits as the NH’s spouse based on their 1953 marriage until her death in December 2006, we believe a Texas court would find that L~’s 1998 marriage to the NH was void due to the NH’s prior undissolved 1953 marriage to L2~.

However, under Texas law, a marriage that is void because one of the parties to the marriage has an existing marriage may become a common-law marriage upon the dissolution of the prior marriage. See Tex. Fam. Code Ann. § 6.202 (a marriage is void if entered into when either party has an existing marriage that has not been dissolved by legal action or terminated by death of other spouse; however, the later marriage that is void becomes valid when the prior marriage is dissolved if, after the date of the dissolution, the parties have lived together as husband and wife and represented themselves to others as being married). Thus, we next look whether L~ has proven that he and the NH had a valid common-law marriage under Texas law beginning on December XX, 2006, when his marriage to L2~ ended with her death. See Omodele v. Adams, 2003 WL 133602, at *3-4 (Tex. App. – Houston [14th Dist.] 2003, no pet.) (the impediment to the common-law marriage was removed when the husband’s divorce from his previous wife became final; thus, the prior marriage did not preclude the existence of the subsequent valid common-law marriage following the divorce).

C. Texas State Law: Alleged Common-Law Marriage Between L~ and the NH Beginning December XX, 2006

1. Overview of the Elements of a Common-Law Marriage

The elements of a valid common-law marriage under Texas law are:

(1) an agreement to be married,

(2) cohabitation in Texas as spouses, and

(3) representation, or holding out to others that they are married.

See Tex. Fam. Code Ann. § 2.401(a); Estate of Claveria, 615 S.W.2d at 166; Ex parte Threet, 333 S.W.2d 361, 364 (Tex. 1960); see also Van Hooff v. Anderson, 2016 WL 193172, at *3 (Tex. App. – Amarillo Jan. 14, 2016, no pet.) (“Other than terminology used, the common law marriage requirements and the statutory requirements for an informal marriage are the same.”). A common-law marriage does not exist until a party meets all three elements, which courts determine on a case-by-case basis and on the specific facts presented. Estate of Claveria, 615 S.W.2d at 166; Nguyen v. Nguyen, 355 S.W.3d 82, 88-89 (Tex. App. – Houston [1st Dist.] 2011, pet. denied).

2. Burden of Proof: Preponderance of the Evidence

Unlike some other States, which impose a higher burden of proof on claimants who seek to prove the existence of a common-law marriage, in Texas the party seeking to prove the existence of a common-law marriage holds the burden of proof by a preponderance of the evidence.⁴ See Tompkins v. State, 774 S.W.2d 195, 208 (Tex. Crim. App. 1987); Farrell v. Farrell, 459 S.W.3d 114, 117 (Tex. App. – El Paso 2015, no pet.); Nguyen, 355 S.W.3d at 88-89. Texas law defines that standard as the greater weight and degree of credible evidence that would create a reasonable belief in the truth of the claim. See Herrera v. Stahl, 441 S.W.3d 739, 741 (Tex. App. – San Antonio 2014, no pet.); Upjohn Co. v. Freeman, 847 S.W.2d 589, 591 (Tex. App. – Dallas 1992, no writ) (“Preponderance of the evidence means the greater weight and degree of credible evidence” and the court of appeals considers whether the “trier of fact could reasonably conclude that the existence of a fact is more probable than not”).⁵ Therefore, we must determine if L~ has shown that it was more probable than not that from December 29, 2006 to October 30, 2017, he and the NH agreed to be married, lived together in Texas as husband and wife, and represented to others that they were married.

In addition, circumstantial evidence can prove the requisite elements of common-law marriage. Russell, 865 S.W.2d at 933. “A fact is established by circumstantial evidence when the fact may be fairly and reasonably inferred from other facts proved in the case.” Id. (quoting Dallas Co. Flood Control v. Cross, 815 S.W.2d 271, 279-80 (Tex. App. – Dallas 1991, writ denied)). The Texas Supreme Court has stated that, “proof of common-law marriage may be shown by the conduct of the parties, or by such circumstances as their addressing each other as husband and wife, acknowledging their children as legitimate, joining in conveyances as spouses, and occupying the same dwelling place.” Estate of Claveria, 615 S.W.2d at 166. “[T]he circumstances of each case [as to the elements of a common-law marriage] must be determined based upon its own facts.” Id. We consider whether the greater weight and degree of credible evidence supports a common-law marriage between L~ and the NH beginning in December 2006 upon dissolution of L~’s prior marriage to L2~.

3. Application of Texas Law to the Claim: L~ has not Proven a Common-Law Marriage by Preponderance of the Evidence

As explained below, we believe that there is stronger legal support for the agency to conclude that L~ has not proven all three of the required elements for a common-law marriage by a preponderance of the evidence, as required under Texas law.⁶

a. Elements

i. Agreement to Marry

The first element for a valid common-law marriage is an agreement to marry. See Tex. Fam. Code Ann. § 2.401(a)(2). The parties must prove by a preponderance of the evidence that they both had a “present, immediate, and permanent marital relationship and that they did in fact agree to be husband and wife.” Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App. – Houston [1st Dist.] 2001, pet. denied). The parties show an agreement to be married with proof that they intended to create an immediate and permanent marital relationship, not merely a cohabitation or temporary association that either party may end at any time and not an agreement to marry in the future. See Van Hooff, 2016 WL 193172, at *3; Burden v. Burden, 420 S.W.3d 305, 308 (Tex. App. –Texarkana 2013, no pet.); Gary v. Gary, 490 S.W.2d 929, 932 (Tex. Civ. App. – Tyler 1973, writ ref’d n.r.e.); Perales v. Flores, 147 S.W.2d 974, 976 (Tex. Civ. App – San Antonio 1941, writ ref’d). As explained above, direct or circumstantial evidence may establish an agreement to be married. Russell, 865 S.W.2d at 931. Testimony of one of the parties to the marriage as to their agreement to be married constitutes some direct evidence of the parties’ agreement to be married. Small, 352 S.W.3d at 283-284. Evidence of cohabitation and representations to others that the parties are married may show circumstantial evidence of an agreement to be married. See Lee v. Lee, 981 S.W.2d 903, 906 (Tex. App. – Houston [1st Dist.] 1998, pet. denied); see also Flores 847 S.W.2d at 652 (“non-marital cohabitation for extended periods of time is far more common than it once was,” and thus, “evidence of a tacit agreement to marry should be weighed more carefully than in the past”).

In this case, L~ has provided sufficient evidence concerning an agreement to be married. He provided a completed and recorded Texas marriage license and certificate for his 1998 Texas ceremonial marriage to the NH. ⁷ Documentary evidence shows that L~ is listed as the NH’s surviving spouse on the NH’s Texas Certificate of Death, and that L~ named the NH as his wife and beneficiary in his life insurance policy. As noted, the NH’s daughter stated that the NH was unaware of L~’s prior marriage to L2~. Based on the totality of this evidence, we believe that a Texas court would find that the greater weight and degree of credible evidence supports a reasonable belief that L~ and the NH had an ongoing agreement to be in a permanent marital relationship that continued after L2~’s death in December 2006. See Ballesteros v. Jones, 985 S.W.2d 485, 490 (Tex. App. – San Antonio 1998, pet. denied) (although the parties were married to others at the time their relationship began, an ongoing agreement to be married was proven after the removal of the impediment); Winfield, 821 S.W.2d at 645 (to establish the element of an agreement to be married, the evidence must show that the parties intended to have a present, immediate and permanent relationship and that they agreed to be husband and wife). As such, we believe that the agency could reasonably conclude that L~ has established the first element for a valid common-law marriage under Texas law.

ii. Cohabitation in Texas as Spouses

Here, we believe that a Texas court would find that L~ has not shown that from December 2006 to October 2017, it was more probable than not that he and the NH lived together in Texas as spouses. R~, the NH’s daughter and representative payee, stated that the NH and L~ did not own a home together and that they were both elderly and they were living with her at the time of the NH’s death. However, she did not further elaborate on their living status from December 2006 until the NH’s death in October 2017. L~ has not provided any evidence showing that he and the NH lived together as spouses in Texas from December 2006 to October 2017. In fact, there is evidence contradicting that L~ and the NH lived together as spouses in Texas. L~’s life insurance policy shows that as recently as April 2015, he and the NH had separate addresses in Austin, Texas and shows the NH’s address at XXXX H~ and the NH’s address on XXth Street. The NH’s death certificate lists a different address for the NH on S~ Drive.

Based on this evidence, we believe that a Texas court would find that L~ did not meet his burden of proving by a preponderance of the evidence that they cohabitated in Texas as spouses from December 2006 until the NH’s death in November 2017. See Burden, 420 S.W.3d at 308-309 (where evidence of one of the elements of common-law marriage was controverted, the court properly determined the evidence insufficient to establish all elements of a common-law marriage). As such, we believe that the agency could reasonably conclude that L~ has not established the second element for a valid common-law marriage under Texas law. As stated, a common-law marriage does not exist until a party meets all three elements. Nguyen, 355 S.W.3d at 88-89. Because he cannot establish this second element, he cannot prove a valid common-law marriage; however, for completeness, we also consider whether he has proven the remaining element.

iii. Representation to Others as Married

Here, we believe that L~ has not shown that it was more probable than not that he and the NH represented to others that they were husband and wife following L2~’s death in December 2006. L~ did not provide any of his own statements indicating that they referred to each other as husband and wife or that they were generally known as husband and wife. L~ did not submit a Form SSA-754, Statement of Marital Relationship. He also did not submit any witness statements to show that they referred to each other as spouses and had a reputation for being married. He did not provide any SSA Form-753 statements. The NH’s daughter stated that L~ and the NH did not have any joint accounts and they did not have a home in their names, as they were both ill, elderly, and living with her at the time of the NH’s death. However, she did not otherwise elaborate on their relationship from December 2006 through November 2017.

As noted, as recently as April 2015, the NH and L~ were listed on L~’s life insurance policy as having separate addresses in Austin, Texas. Although the NH’s daughter said she was going to help L~ complete the SSA-754, Statement of Marital Relationship and ask relatives to complete the SSA-753, Statement Regarding Marriage, these forms were not submitted. In addition, the NH’s daughter stated that she wanted to serve as representative payee for L~, suggesting that she might have an interest in establishing a common-law marriage between L~ and the NH. Regardless, L~ has not provided any statements or other evidence showing that he and the NH had a reputation in the broader community as a married couple. Although the death certificate identifies the NH as married and L~ as the NH’s spouse and the life insurance policy names the NH as L~’s wife, these isolated references have been held insufficient to show that they had a reputation in the community for being married. See In re marriage of Warren, 2010 WL 4243666, at *2-3 (Tex. App. – Waco, Oct. 27, 2010, no pet.) (there was no evidence that anyone in the community ever saw or knew of the representations on the insurance policy or the credit report referring to the party as the spouse); Eris, 39 S.W.3d at 716-717 (finding insufficient evidence to support the required element of holding out where the evidence consisted of one party’s statements to only a handful of friends that they were married and the fact that none of the documents from the couple’s joint bank account or closing documents from a house transfer indicated that they were married); Small, 352 S.W.3d at 285 (occasional references to each other as husband and wife are insufficient to establish an informal marriage; there was no evidence that the parties had a reputation in the wider community as being married).

Based on this evidence, we believe a Texas court would find that L~ has not proven by a preponderance of the evidence that after L2~’s death in December 2006, he and the NH represented themselves to others as being married. As such, the agency may reasonably find that L~ has not provided sufficient evidence to establish the third element for a valid common-law marriage under Texas law.

b. The Totality of the Evidence

In summary, L~ has not established by a preponderance of the evidence that following L2~’s death in 2006 and dissolution of their marriage that he and the NH cohabitated in Texas as spouses and represented to others that they were married, which are two of the three elements required for a valid common-law marriage under Texas law. Russell, 865 S.W.2d at 933 (noting that there must be evidence to support each element of a common-law marriage). The existence of a common-law marriage is a fact question, and the party seeking to establish the existence of the marriage bears the burden of proving each of the three elements by a preponderance of the evidence. Weaver v. State, 855 S.W.2d 116, 120 (Tex. App. –Houston [14th Dist.] no pet.). A common-law marriage does not exist until the concurrence of all three elements. Eris, 39 S.W.3d at 714. Thus, we believe that a Texas court would find that the greater weight and degree of credible evidence establishes that L~ and the NH did not have a common-law marriage beginning in December 2006 when L~’s prior marriage to L2~ ended with her death. See Threet, 333 S.W.2d at 364 (“The living together as man and wife and the public and open holding out that the two are man and wife are as essential to a valid common-law marriage as the agreement itself. Without these elements, there is no common-law marriage”). As such, we believe that the agency may reasonably conclude that L~ has not proven that he was validly married to the NH under Texas law at the time of the NH’s death in October 2017.

CONCLUSION

We believe that a Texas court would find that L~ has not proven a valid common-law marriage to the NH under Texas law at the time of the NH’s death in October 2017. Specifically, we believe that a Texas court would conclude that L~ has not proven by a preponderance of the evidence that from December 2006 (when his prior marriage dissolved) through October 2017, he and the NH cohabitated in Texas as spouses or represented to others that they were married, which are two of the three required elements for a valid common-law marriage under Texas law. In addition, we believe that the agency may reasonably conclude that L~ is unable to inherit a spouse’s share from the NH under Texas intestate succession laws.⁸ Therefore, the agency may reasonably conclude that L~ was not the NH’s widower for purposes of his applications for widower’s insurance benefits and the LSDP on the NH’s record. See 42 U.S.C. §§ 402(f)(1), (i), 416(g), (h)(1)(A)(i); 20 C.F.R. §§ 404.335(a), 404.345, 404.390, 404.391.

C. PR 18-055 Marital Status for Alleged Common-Law Marriage for Widow's Benefits

Date: February 20, 2018

1. Syllabus

The number holder (NH) died while domiciled in Texas; therefore, we look to the Texas law to determine if the Claimant and NH had a valid common law marriage. The elements of a valid common-law, or informal, marriage under the Texas law are:

an agreement to be married, cohabitation in Texas as spouses, and
representation, or
holding out to others that they are married.

A common-law marriage does not exist until a party meets all three elements. In this case, we believe the Texas courts would find that the Claimant has not proven by a preponderance of the evidence that she was in a valid common-law marriage to the NH under the Texas law at the time of the NH’s death. Therefore, the Agency can reasonably conclude that the Claimant is not entitled to widow’s insurance benefits on the NH’s record.

2. Opinion

QUESTION PRESENTED

On June XX, 2017, J~ (Claimant) filed an application for widow’s insurance benefits on the record of the deceased number holder (NH) D~. The Claimant alleges a common-law marriage to the NH beginning on January XX, 1978, and ending with the NH’s death on October XX, 2006, in Texas. You asked whether a valid common-law marriage existed between the Claimant and the NH under Texas law such that the Claimant is the NH’s widow, or surviving spouse, under Title II of the Social Security Act (Act).⁹ If so, you also asked when the common-law marriage began.

ANSWER

We believe that Texas courts would find that because the Claimant did not commence a proceeding to prove a common-law marriage to the NH within two years of the NH’s death, the Claimant has not overcome the rebuttable presumption that she and the NH had no agreement to be married and thus, were not common-law married.

Furthermore, we believe Texas courts would find that the Claimant has not proven by a preponderance of the evidence that she was in a valid common-law marriage to the NH under Texas law at the time of the NH’s death on October XX, 2006. Specifically, based on her own contradictory statements, we believe that Texas courts would find the Claimant has not proven by a preponderance of the evidence that she and the NH had a mutual agreement for a permanent marital relationship or represented themselves as a married couple, which are two of the three required elements of a common-law marriage under Texas law. Thus, the agency may reasonably conclude that the Claimant was not validly married to the NH at the time of his death and the Claimant is not the NH’s widow for the purpose of her application for Title II widow’s insurance benefits.¹⁰

BACKGROUND

The NH died on October XX, 2006, while domiciled in Texas. His Texas death certificate listed his marital status as “married,” with the Claimant listed as his surviving spouse. His obituary in a funeral program listed the Claimant as his surviving wife. On June XX, 2017, the Claimant filed an application for widow’s benefits on the NH’s record.

In support of her application, the Claimant completed a Form SSA-754-F4 Statement of Marital Relationship in which she stated that she and the NH began living together in a common-law marriage in 1978, when their first child was born, and lived together continuously in M~, Texas until the year before his death in 2006 (when he moved in with his mother to be closer to his doctors). They had five children together, but the Claimant reported that the NH was not listed as a parent on any of the birth certificates. She also indicated that she and the NH did not own any property together and did not share any bank or other monetary accounts. She stated they did not believe living together created a legal marriage, they did not have an agreement for a ceremonial marriage in the future, and neither party had changed their last name because they “did want to get married.” They referred to each other as “boyfriend” or “girlfriend,” although the NH sometimes called her his “wife.” She stated that they did not have any documentation showing that they were husband and wife.

In addition to her own statements, the Claimant provided three witness statements on a Form SSA-753 Statement Regarding Marriage from the Claimant’s brother, the Claimant’s sister, and the NH’s cousin, in support of a common-law marriage. Each person stated the NH and the Claimant were generally known as husband and wife, referred to each other as husband and wife, lived continuously together in the same household in Texas, and had five children together.

ANALYSIS

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

Under Title II of the Act, a claimant may be entitled to widow(er)’s insurance benefits on a deceased individual’s account if, among other things, the claimant is the widow(er) of the fully insured NH and their marriage lasted nine months before the insured died.¹¹ See Act § 202(e)(1), (f)(1), 42 U.S.C. § 402(e)(1), (f)(1); Act § 216(a)(2), (c), (g), 42 U.S.C. § 416(a)(2), (c), (g); 20 C.F.R. § 404.335.

The agency will find that a claimant is an insured individual’s widow(er) if the courts of the State in which the insured individual resided at the time of death “would find that such applicant and such insured individual were validly married” at the time such insured individual died, or if, under application of that State’s intestate succession laws, the applicant would be able to inherit a spouse’s share of the insured’s personal property. See Act § 216(h)(1)(A), 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. Here, the evidence shows that the NH resided in Texas at the time of his death. We therefore look to Texas law to determine whether the Claimant is the NH’s widow.¹²

B. Texas State Law: Common-Law Marriage Elements and Presumptions

1. Overview of the Elements of a Common-Law Marriage and the Rebuttable Presumption of No Agreement to be Married

Texas law authorizes ceremonial and common-law marriage. See Tex. Fam. Code Ann. §§ 2.001 – 2.602; Russell v. Russell, 865 S.W.2d 929, 931-33 (Tex. 1993) (“[c]ommon law marriages have been recognized in Texas since 1847”). A Texas common-law marriage produces the same legal consequences as a ceremonial marriage. Whaley v. Peat, 377 S.W.2d 855, 857 (Tex. Civ. App. - Houston 1964, writ ref’d n.r.e). The elements of a valid common-law, or informal, marriage under Texas law are:

(1) an agreement to be married,

(2) cohabitation in Texas as spouses, and

(3) representation, or holding out to others that they are married.

Texas law also provides that if a party does not bring a proceeding to prove a common-law marriage within two years from the date of a separation, “it is rebuttably presumed that the parties did not enter into an agreement to be married.” Tex. Fam. Code Ann. § 2.401(b); Lopez-Rodriguez v. City of Levelland, 2004 WL 1746045, at *7 (N.D. Tex. Aug. 3, 2004) (separation includes the end of a marriage due to the death of one of the spouses). Section 2.401(b) does not create a statute of limitations that requires a person to prove a common-law marriage within two years of the end of the relationship; rather, it creates only a presumption that no common-law marriage existed, and an individual may rebut such presumption with evidence showing that a common-law marriage did in fact exist. See Wilson ex rel. C.M.W. v. Estate of Williams, 99 S.W.3d 640, 644-45 (Tex. App. - Waco 2003, no pet.). The Texas Supreme Court has explained that a rebuttable presumption has “no effect on the burden of persuasion,” that the effect of a rebuttable presumption “is to shift the burden of producing evidence to the party against whom it operates,” and that “[o]nce that burden is discharged and evidence contradicting the presumption has been offered, the presumption disappears” and “[t]he evidence on the issue is then evaluated as it would be in any case.” General Motors Corp. v. Saenz o/b/o Saenz, 873 S.W.2d 353, 359 (Tex. 1993); see also Joplin v. Borusheski, 244 S.W.3d 607, 611-612 (Tex. App. – Dallas 2008, no pet.) (noting that “[t]he effect of a presumption is to force the party against whom it operates to produce evidence to negate the presumption,” the court found that the male cohabitant failed to produce sufficient evidence of an agreement to be married to rebut the statutory presumption).

Because the Claimant did not commence a proceeding to prove a common-law marriage to the NH within two years of the NH’s death in 2006, there is a rebuttable presumption that she and the NH had no agreement to be married and thus, that she was not common-law married to the NH. See Tex. Fam. Code Ann. § 2.401(b); Wilson ex rel. C.M.W., 99 S.W.3d at 644-45. As stated, if the Claimant provides sufficient contradicting evidence to rebut the presumption of no agreement to be married, the presumption goes away, and she must then prove the three elements of a valid common-law marriage by a preponderance of the evidence, as addressed next. See General Motors Corp., 873 S.W.2d at 359; Joplin, 244.S.W.3d at 611-612; see also Matter of Marriage of Farjardo, 2016 WL 4206009, at *2-4 (Tex. App. – Houston [14th Dist.] Aug. 9, 2016, no pet.) (noting that the party with the burden of rebutting the presumption must come forward with more than a scintilla of evidence, and finding that the petitioner successfully rebutted the statutory presumption with her testimony that she believed respondent agreed to be married, that she lived with him for 12 years, and that he introduced her as his wife on several occasions, and with evidence of showing that they filed their tax returns jointly as spouses); Interest of J.J.F.R., 2016 3944823, at *3-6 (Tex. App. – San Antonio July 20, 2016, no pet.) (noting that the party with the burden of rebutting the presumption must come forward with sufficient evidence of an agreement to be married, and finding that the petitioner successfully rebutted the statutory presumption with her testimony that she and respondent agreed to be married and began living together as husband and wife when they were expecting their first child). However, as discussed in the following, the Claimant has not provided sufficient evidence to rebut the presumption.

2. Burden of Proof: Preponderance of the Evidence

Unlike some other States, which impose a higher burden of proof on claimants who seek to prove the existence of a common-law marriage, in Texas, the party seeking to prove the existence of a common-law marriage holds the burden of proof by a preponderance of the evidence.¹³ See Tompkins v. State, 774 S.W.2d 195, 208 (Tex. Crim. App. 1987); Farrell v. Farrell, 459 S.W.3d 114, 117 (Tex. App. – El Paso 2015, no pet.); Nguyen, 355 S.W.3d at 88-89. Texas law defines that standard as the greater weight and degree of credible evidence that would create a reasonable belief in the truth of the claim. See Herrera v. Stahl, 441 S.W.3d 739, 741 (Tex. App. – San Antonio 2014, no pet.).¹⁴ Thus, the Claimant must prove by a preponderance of evidence that she and the NH agreed to be married, lived together in Texas as spouses, and represented to others that they were married.

To meet her burden, the Claimant provided her own statement and statements from other relatives to support her claim of a valid common-law marriage. Although she also submitted other evidence, such as a copy of the NH’s death certificate naming the Claimant as spouse, under Texas law, the statements alone can be sufficient to meet the preponderance of the evidence burden. See Small v. McMaster, 352 S.W.3d 280, 283-284 (Tex. App. – Houston [14th Dist.] 2011, pet. denied) (the wife’s testimony and the testimony of other witnesses was sufficient evidence of an agreement to be married); see also Ranolls, at 624-25 (in rejecting defendant’s claim that the same-sex partner could not demonstrate that she and the deceased were informally married under Texas law, the court found that affidavits describing the same-sex relationship raised a genuine issue of material fact as to the couple’s marital status under Texas law). Indeed, a claimant’s statements can constitute direct evidence of the elements of a common-law marriage. See Omodele v. Adams, 2003 WL 133602, at *2 (Tex. App. – Houston [14th Dist.] 2003, no pet.) (the wife’s uncontroverted testimony that she and the husband had an agreement to be married was alone sufficient to show an agreement to be married; testimony established that the parties lived together for almost 2 years and that they purchased a home and insurance together as husband and wife); Martinez v. Lopez, 2011 WL 2112806, at *5-6 (Tex. App. – Houston [14th Dist.] 2011, no pet.) (finding that the fact that the wife was not mentioned in financial documents was not direct proof that the couple did not represent themselves as husband and wife; finding that the wife’s uncontroverted testimony that they represented themselves as married to others supported the element of holding out to others); Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex. App. – Houston [1st Dist.] 1991, writ denied) (finding that the wife’s testimony was direct evidence of their agreement to be married).

In addition, circumstantial evidence can prove the requisite elements of common-law marriage. Russell, 865 S.W.2d at 933. “A fact is established by circumstantial evidence when the fact may be fairly and reasonably inferred from other facts proved in the case.” Id. (quoting Dallas Co. Flood Control v. Cross, 815 S.W.2d 271, 279-80 (Tex. App. – Dallas 1991, writ denied)). The Texas Supreme Court has stated that, “proof of common-law marriage may be shown by the conduct of the parties, or by such circumstances as their addressing each other as husband and wife, acknowledging their children as legitimate, joining in conveyances as spouses, and occupying the same dwelling place.” Estate of Claveria, 615 S.W.2d at 166. “[T]he circumstances of each case [as to the elements of a common-law marriage] must be determined based upon its own facts.” Id.

Therefore, we next consider whether the greater weight and degree of credible evidence provided in the Claimant’s and relatives’ statements supports a reasonable belief in the truth of the Claimant’s assertion that they agreed to be married, lived together as spouses, and represented to others that they were married. See Herrera, 441 S.W.3d at 741. In other words, has the Claimant proven that it was more probable than not that she and the NH had a common-law marriage? See Upjohn Co. v. Freeman, 847 S.W.2d 589, 591 (Tex. App. – Dallas 1992, no writ) (“Preponderance of the evidence means the greater weight and degree of credible evidence” and the court of appeals considers whether the “trier of fact could reasonably conclude that the existence of a fact is more probable than not”). As addressed below, we believe that the Claimant has not met her burden of proof.

3. Application of Elements of a Common-Law Marriage to the Claim Elements

i. Agreement to Marry

The first element for a valid common-law marriage is an agreement to marry. See Tex. Fam. Code Ann. § 2.401(a)(2). The parties must prove by a preponderance of the evidence that they had a “present, immediate, and permanent marital relationship and that they did in fact agree to be husband and wife.” Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App. – Houston [1st Dist.] 2001, pet. denied). The parties show an agreement to be married with proof that they intended to create an immediate and permanent marital relationship, not merely a cohabitation or temporary association that either party may end at any time and not an agreement to marry in the future. See Van Hooff, 2016 WL 193172, at *3; Gary v. Gary, 490 S.W.2d 929, 932 (Tex. Civ. App. – Tyler 1973, writ ref’d n.r.e.); Perales v. Flores, 147 S.W.2d 974, 976 (Tex. Civ. App – San Antonio 1941, writ ref’d). However, the parties’ intent to marry ceremonially in the future does not necessarily negate an inference that the parties believe that they are already informally or common-law married. Aguilar v. State, 715 S.W.2d 645, 648 (Tex. Crim. App. 1986). As explained above, direct or circumstantial evidence may establish an agreement to be married. Russell, 865 S.W.2d at 931. Testimony of one of the parties to the marriage as to their agreement to be married constitutes some direct evidence of the parties’ agreement to be married. Small, 352 S.W.3d at 283-284. Evidence of cohabitation and representations to others that the parties are married may show circumstantial evidence of an agreement to be married. See Lee v. Lee, 981 S.W.2d 903, 906 (Tex. App. – Houston [1st Dist.] 1998, pet. denied).

First, as explained above, there is a rebuttable presumption under Texas law that the Claimant and NH did not agree to be married. See Tex. Fam. Code Ann. § 2.401(b); Wilson ex rel. C.M.W., 99 S.W.3d at 644-45. We believe that Texas courts may find that the Claimant has not provided sufficient evidence to rebut the presumption that they did not agree to be married. General Motors Corp., 873 S.W.2d at 359. More importantly, however, even if the Claimant produced evidence sufficient to contradict the presumption, we believe Texas courts would find that she has still not met her burden of establishing an agreement to marry by a preponderance of the evidence. Id.

Here, there is contradictory evidence on this element of an agreement to be married. In weighing the totality of the contradictory evidence, we believe that Texas courts would find that the Claimant has not shown that from January XX, 1978, through the NH’s death on October XX, 2006, it was more probable than not that she and the NH had an agreement to be in a permanent marital relationship, as opposed to a cohabitation or temporary association that either party could end at any time. While some of the Claimant’s statements and the relatives’ statements describe the relationship in terms consistent with common-law marriage, many of the Claimant’s own admissions are inconsistent with an agreement to marry. Specifically, she indicated that neither party believed living together made them legally married. She stated they did not change last names because they “did want to get married,” demonstrating both parties believed they were not married.¹⁵ While they referred to each other as spouses on occasion, the Claimant acknowledges that they generally referred to each other publically as boyfriend and girlfriend. They did not comingle accounts or establish any property together as spouses, and according to her statements, they did not list NH as a parent on any of the children’s birth certificates.

While the factors above individually may be insufficient to show there was not an agreement to marry, we believe that Texas courts would find that the totality of these statements together is inconsistent with an agreement to marry. Therefore, we do not believe the Claimant has proven by a preponderance of the evidence that she and the NH had an agreement for a marital relationship. Rather, we believe Texas courts would find that this evidence indicates that it was more probable than not that the Claimant and NH had a long-term cohabitation relationship. Based on this evidence, we believe that a Texas court would find that she did not meet her burden of proving by a preponderance of the evidence that they had a mutual agreement for a permanent marital relationship. See Burden v. Burden, 420 S.W.3d 305, 308-309 (Tex. App. –Texarkana 2013, no pet.) (evidence pertaining to an agreement to be married was controverted and the court properly determined insufficient to establish all elements of a common-law marriage).

As such, we believe that the agency could reasonably conclude the Claimant has not established the first element for a valid common-law marriage under Texas law. As stated, a common-law marriage does not exist until a party meets all three elements. Nguyen, 355 S.W.3d at 88-89. Because she cannot establish this first element, she cannot prove a valid common-law marriage; however, for completeness, we also consider whether she has proven the remaining elements.

ii. Cohabitation as Spouses

The evidence is uncontroverted as to this element. All of the statements from the Claimant and other relatives clearly establish that the NH and the Claimant lived together continuously in Texas for about 27 years from 1978 until approximately 2005, the year before NH’s death in 2006. Considering this uncontroverted evidence, we believe that Texas courts would find that the greater weight and degree of credible evidence supports a reasonable belief that the Claimant and the NH lived together in Texas from 1978 to at least 2005. See Van Hooff, 2016 WL 193172, at *5 (the court found sufficient evidence to support the cohabitation element where no one disputed that they couple began living together in 1999 and continued to live together until 2011 when they separated); Romano v. Newell Recycling of San Antonio, LP, 2008 WL 227974, at *5 (Tex. App. – San Antonio 2008, no pet.) (finding “extensive evidence of cohabitation” where witnesses testified that the couple lived together for around nine years and it did not appear that the husband left the wife for more than a month or two at a time and that he left only during times the couple was fighting); Winfield, 821 S.W.2d at 648 (the court found that the following evidence was sufficient to establish the element of cohabitation: the husband bought a condominium for the wife in Houston; they two of them were together as often as he could be in Houston; he sent his bed to Houston and kept his personal belongings there; and he acted like a husband by running errands, working around the house, and generally behaving as if he were married). As such, we believe that the agency could reasonably conclude that the Claimant has proven the second element for a valid common-law marriage under Texas law.

iii. Representation to Others as Married

Here, there is contradictory evidence on this element. The evidence indicates that the Claimant and NH represented themselves as a married couple on some occasions but generally did not represent publically that they were a married couple. For example, the Claimant’s and NH’s relatives stated the couple was generally understood to be married and that they presented themselves as spouses. However, on the Form SSA-754, the Claimant stated that in introducing themselves to others, she and the NH generally referred to one another as boyfriend and girlfriend, though the NH occasionally called her wife. As stated, occasional introductions as husband and wife are insufficient to establish this element of holding out to the public. Winfield, 821 S.W.2d at 648-51. She also indicated that both individuals retained their original last names (because they “did want to get married”), did not file taxes as a married couple, and did not create joint accounts with financial institutions as a married couple.¹⁶ Based on Claimant’s statement, they did not present NH as a parent at the birth of their children. These actions are all inconsistent with representing to others that the Claimant and NH were married. See Small, 352 S.W.3d at 285-286 (the parties’ representations to the community tended to show they were not married); Eris, 39 S.W.3d at 716-717 (finding insufficient evidence to support the required element of holding out where the evidence consisted of one party’s statements to only a handful of friends that they were married and the fact that none of the documents from the couple’s joint bank account or closing documents from a house transfer indicated that they were married); Winfield, 821 S.W.2d at 649-650 (introduction as girlfriend, not wife, weighed against the element of holding out); Van Hoof, 2016 WL 193172, at *7 (witness’s testimony that the alleged husband consistently referred to the alleged wife as his girlfriend weighed against the element of holding out). Although the Claimant was named as a surviving spouse on the NH’s death certificate and she presented herself as the NH’s wife during his funeral proceedings, in consideration of her other statements, this does not show that they represented to others they that were married during their relationship prior to the NH’s death.

Thus, while they occasionally used the terminology husband and wife and were understood by family members to be married, other evidence indicates that they did not represent themselves as married to the community. As such, we believe Texas courts would find that the Claimant has not established by a preponderance of the evidence that the couple’s general conduct meets the Texas law requirement that a couple consistently conduct themselves as husband and wife in the public eye or community. Van Hooff, 2016 WL 193172, at *5. As such, we believe the agency may reasonably conclude that the Claimant has not proven the third element for a valid common-law marriage under Texas law.

b. The Totality of Evidence

In summary, the totality of the evidence shows actions inconsistent with an agreement to be married and representation to others that they were married. As noted above, they did not engage in the type of financial responsibilities typical of a married couple, list the NH as a co-parent of their children on birth certificates, or generally present each other as “husband” or “wife.” These actions are inconsistent with general precedent establishing a common-law marriage. See, e.g., Bailey v. Thompson, 2012 WL 4883219, at *10-12 (Tex. App. – Houston [14th Dist.] Oct. 16, 2012, no pet.) (the evidence, including introductions to others as married, holding joint accounts with rights of survivorship, husband’s transferring personal balances to wife’s credit card, was sufficient to establish a common-law marriage); Estate of Claveria, 615 S.W.2d at 166 (the evidence, including addressing each other as husband and wife, documents executed in purchasing their house, and occupying the same home, was conduct sufficient to establish common-law marriage); Tatum v. Tatum, 478 S.W.2d 629, 630 (Tex. Civ. App. – Fort Worth 1972, writ dismissed) (filing joint tax returns, opening a joint checking account, designating a spouse on life insurance policy, and holding themselves out to their community as being married all constituted sufficient evidence of a common-law marriage).

Thus, although the Claimant has provided a preponderance of the evidence to support the element of cohabitation, we believe Texas courts would find that she did not establish by a preponderance of the evidence that she and the NH had an agreement to be married or that they represented themselves to others as a married couple. Russell, 865 S.W.2d at 933 (“Proof of cohabitation and representations to others that the couple are married may constitute circumstantial evidence of an agreement to be married. However, the circumstances of each case must be determined based upon its own facts,” and there must be evidence to support each element of a common-law marriage). The existence of a common-law marriage is a fact question, and the party seeking to establish the existence of the marriage bears the burden of proving each of the three elements by a preponderance of the evidence. Weaver v. State, 855 S.W.2d 116, 120 (Tex. App. –Houston [14th Dist.] no pet.). A common-law marriage does not exist until the concurrence of all three elements. Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App. –Houston [1st Dist.] 2001, pet. denied). Here, we believe that a Texas court would find that the greater weight and degree of credible evidence establishes that the Claimant and the NH did not have a common-law marriage. See In Estate of Walker, 2009 WL 1996301, at *4 (Tex. App. – Fort Worth July 9, 2009, no pet.) (“When there is conflicting evidence about the existence of an informal marriage . . ., whether the parties entered into an informal marriage is a question for the factfinder.”).

CONCLUSION

We believe that a Texas court would find that because the Claimant did not commence a proceeding to prove a common-law marriage to the NH within two years of the NH’s death, the Claimant has not overcome the rebuttable presumption that she and the NH had no agreement to be married and thus, were not common-law married.

Moreover, we believe that a Texas court would conclude that the Claimant has not proven by a preponderance of the evidence all three requisite elements for a valid common-law marriage to the NH from January XX, 1978, to the date of the NH death. Therefore, we believe that the agency may reasonably conclude that the Claimant was not validly married to the NH at the time of his death for purposes of her application for widow’s insurance benefits. See Act § 202(e)(1), (f)(1), 42 U.S.C. § 402(e)(1), (f)(1); Act § 216(a)(2), (c), (g), (h)(1)(A), 42 U.S.C. § 416(a)(2), (c), (g), (h)(1)(A); see also 20 C.F.R. §§ 404.335, 404.344, 404.345.

D. PR 18-044 Texas State Law- Marital Status for Alleged Common Law Marriage

Date: January 25, 2018

1. Syllabus

The number holder (NH) was domiciled in Texas at the time of his death; therefore, we look to Texas law to determine whether the NH and the Claimant had a valid common-law marriage at the time of the NH’s death. A valid common-law marriage under Texas law must meet three elements:

an agreement to be married,
cohabitation in Texas as spouses, and
representation, or holding out to others that they are married.

We believe that a Texas court would conclude that the Claimant has not proven by a preponderance of the evidence all three elements required to prove a valid common-law marriage to the NH. Under the Texas law, the Claimant was not validly married to the NH at the time of his death for purposes of widow’s insurance benefits and the LSDP on the NH’s record.

2. Opinion

QUESTIONS PRESENTED

The purpose of this memorandum is to respond to your request for our opinion regarding the possible entitlement of K~ (K~) to widow’s insurance benefits and the lump sum death payment (LSDP) as the widow of J~, the deceased number holder (NH). See 42 U.S.C. § 402(e)(1) (entitlement to widow’s insurance benefits). For determining whether K~ is the NH’s widow as section 216(c) of the Social Security Act (Act) defines, you asked whether under Texas law, K~ has proven a valid common-law marriage to the NH. See 42 U.S.C. § 416(c), (h)(1)(A)(i). If she has proven a valid marriage to the NH, you also asked us the effective date of the common-law marriage between K~ and the NH. You further asked whether K~’s subsequent marriage to C~ (C~) was void or voidable.

ANSWER

Based on the evidence submitted, we believe there is legal support for the agency to conclude that K~ has not provided sufficient evidence of a valid common-law marriage to the NH under Texas law at the time of his death. Specifically, she has not provided sufficient evidence to establish that she and the NH had a mutual agreement for a permanent marital relationship. Therefore, K~ has not proven that she is the NH’s widow for purposes of her applications for widow’s benefits and the LSDP.¹⁷ K~’s March 1990 ceremonial marriage to C~ was not void because K~ did not have a valid common-law marriage with the NH at the time of her marriage to C~.

BACKGROUND

The NH died January XX, 2017, while domiciled in Texas. On February XX, 2017, K~ filed an application for widow’s insurance benefits and the LSDP on the NH’s record as his widow.

K~ provided a completed and recorded Texas marriage license and certificate, which stated that she and the NH married in a ceremony on March XX, 1976, in H~ County, Texas. K~ also produced birth certificates for the two children born during her ceremonial marriage to the NH, J2~ and L~. K~ also provided a January XX, 1980 decree of divorce from the 317^th Judicial Court in J3~ County, Texas, granting a divorce between K~ and the NH.

K~ stated that after their divorce, she and the NH got back together and lived together from June 1980 until she moved to Louisiana in June 1987. K~ submitted a SSA-754, Statement of Marital Relationship that she completed in March 2017, stating that following their divorce, she and the NH began living together as husband and wife in B~, Texas beginning in June 1980; they considered themselves to be married, and referred to each other as husband and wife. K~ also submitted a SSA-795, Statement of Claimant or Other Person that she completed in November 2017, in which she stated that she and the NH got back together after their January 1980 divorce and presented themselves in public as husband and wife. K~ also stated that after she and NH got back together, she had a third child with the NH, R~ (R~). K~ submitted a birth certificate showing that R~ was born on September XX, 1981. K~ also stated that her common-law marriage to the NH began in June 1980 and ended in June 1987, when she left the NH and moved to Louisiana. K~ submitted a cosmetology license with her name listed as K~ and requested that her cosmetology license be transferred from Texas to Louisiana. K~ also submitted a motion for child support filed against the NH in H2~ County, Texas on October XX, 1989.

In addition to K~’s statement, her mother and J2~, K~ and the NH’s son, also completed the Form SSA-753, Statement Regarding Marriage. They both stated that the NH and K~ were generally known as husband and wife, that they believed that K~ and the NH were husband and wife, and that they referred to one another as husband and wife. They also stated that the NH and K~ lived as husband and wife in a home in B~, Texas from 1976 (their ceremonial marriage) until 1987. They do not mention their January 1980 divorce.

After moving to Louisiana in June 1987, K~ married C~ in L2~, Louisiana on March XX, 1990. She provided a judgment of divorce from a Louisiana court showing that K~ and C~ later divorced on February XX, 1995.

ANALYSIS

A. Federal Law: Entitlement to Widow’s Insurance Benefits and the LSDP Under the Act

Under Title II of the Act, a claimant may be entitled to widow’s insurance benefits on a deceased individual’s account if, among other things, the claimant is the widow of the fully insured NH and their marriage lasted nine months before the insured died.¹⁸ See 42 U.S.C. §§ 402(e)(1), 416(c); 20 C.F.R. §§ 404.335(a)(1) (relationship must have lasted for at least 9 months), 404.345 (your relationship as a surviving spouse under state law). To be entitled to the LSDP under Title II of the Act, a claimant must establish that she is the widow of an individual who died fully or currently insured, and she was living in the same household as the insured at the time of his death or if not living in the same household, that she met the requirements for entitlement to widow’s insurance benefits. See 42 U.S.C. §§ 402(i), 416(c), (g); 20 C.F.R. §§ 404.390-404.392.

The agency will find that a claimant is an insured individual’s widow(er) if the courts of the State in which the insured individual resided at the time of death “would find that such applicant and such insured individual were validly married” at the time such insured individual died, or if, under application of that State’s intestate succession laws, the applicant would be able to inherit a spouse’s share of the insured’s personal property. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. Because the NH was domiciled in Texas at the time he died, we look to Texas law to determine whether the NH and K~ had a valid common-law marriage at the time of his death such that she is the NH’s widow under the Act.

B. Texas State Law: K~’s Marriages to the NH and to C~ and Relevant Marital Presumptions

In Texas, marriages may be either ceremonial or informal. See Tex. Fam. Code Ann. §§ 2.001 – 2.602; Russell v. Russell, 865 S.W.2d 929, 931-33 (Tex. 1993) (“[c]ommon law marriages have been recognized in Texas since 1847”). A Texas common-law marriage produces the same legal consequences as a ceremonial marriage. Whaley v. Peat, 377 S.W.2d 855, 857 (Tex. Civ. App. - Houston 1964, writ ref’d n.r.e). Here, there is evidence of K~’s ceremonial marriage to the NH in Texas in March 1976, the January 1980 divorce between K~ and the NH, a possible common-law marriage to the NH in Texas beginning in June 1980, a ceremonial marriage to C~ in Louisiana in March 1990, and a February 1995 divorce from C~.

There are two relevant presumptions weighing against K~’s assertion of a valid common-law marriage to the NH beginning in June 1980 and continuing until his death in 2017. First, there is the presumption of validity of her more recent ceremonial marriage to C~ in 1990. See Tex. Fam. Code Ann. § 1.103 (Texas law applies to persons married elsewhere who are domiciled in this state). When two or more marriages of a person to different spouses are alleged, Texas law presumes the validity of the most recent marriage until the validity of the prior marriage is proven. Tex. Fam. Code Ann. § 1.102. The presumption of the validity of the most recent marriage is one of the strongest presumptions under Texas law. See Texas Employer’s Ins. Ass’n. v. Elder, 282 S.W.2d 371, 373 (Tex. 1955). The burden is on the party attacking the validity of the most recent marriage, who must establish both the existence of the prior marriage and its continuing validity at the time of the later alleged marriage and must introduce sufficient evidence, standing alone, to negate the dissolution of the prior marriage. See Estate of Claveria v. Claveria, 615 S.W.2d 164, 165 (Tex. 1981); In re Estate of Loveless, 64 S.W.3d 564, 574 (Tex. App. – Texarkana 2001, no pet.). Thus, in this case, K~ must prove the validity of her prior marriage to the NH.

Second, Texas law provides that if a party does not bring a proceeding to prove an informal marriage within two years from the date of their separation, “it is rebuttably presumed that the parties did not enter into an agreement to be married.” Tex. Fam. Code Ann. § 2.401(b). Section 2.401(b) does not create a statute of limitations that requires a person to prove a common-law marriage within two years of the end of the relationship; rather, it creates only a presumption that no common-law marriage existed, and an individual may rebut such presumption with evidence showing that a common-law marriage did in fact exist. See Wilson ex rel. C.M.W. v. Estate of Williams, 99 S.W.3d 640, 644-45 (Tex. App. - Waco 2003, no pet.). The Texas Supreme Court has explained that a rebuttable presumption has “no effect on the burden of persuasion,” that the effect of a rebuttable presumption “is to shift the burden of producing evidence to the party against whom it operates,” and that “[o]nce that burden is discharged and evidence contradicting the presumption has been offered, the presumption disappears” and “[t]he evidence on the issue is then evaluated as it would be in any case.” General Motors Corp. v. Saenz o/b/o Saenz, 873 S.W.2d 353, 359 (Tex. 1993). There is no evidence in this case that K~ commenced a proceeding to prove a common-law marriage to the NH within two years of her move to Louisiana in June 1987.

Rather, K~’s March 1990 ceremonial marriage to C~ is her most recent marriage and therefore, is presumed valid. However, as presented above, the evidence indicates that K~ may have had a common-law marriage to the NH at the time she married C~ in March 1990. K~ must prove that she and the NH had a valid common-law marriage under Texas law such that her later marriage to C~ was void. Under Texas law, a marriage is void if entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the other spouse’s death. Tex. Fam. Code Ann. § 6.202(a); see also Romano v. Newell Recycling of San Antonio, L.P., 2008 WL 227974 at *3 (Tex. App.-San Antonio January 30, 2008, no pet.) (mem. op.) (“This rule rendering the subsequent marriage void applies whether the marriage is ceremonial or common law.”); Phillips v. The Dow Chemical Company, 186 S.W.3d 121, 127 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (“Thus, a marriage entered into while one party is married to another person is void from the outset as a matter of law.”). Because she did not commence a proceeding to prove a common-law marriage to the NH within two years of their separation in June 1987, there is a rebuttable presumption that she was not common-law married to the NH. Tex. Fam. Code Ann. § 2.401(b); Wilson ex rel. C.M.W., 99 S.W.3d at 644-45. As such, we next consider whether K~ has rebutted both presumptions by proving that she and the NH had a valid common-law marriage under Texas law beginning in June 1980.

C. Texas State Law: Alleged Common-Law Marriage Between K~ and the NH

a. Overview of the Elements of a Common-Law Marriage

The elements of a valid common-law marriage under Texas law are:

(1) an agreement to be married,

(2) cohabitation in Texas as spouses, and

(3) representation, or holding out to others that they are married.

See Tex. Fam. Code Ann. § 2.401(a); Estate of Claveria v. Claveria, 615 S.W.2d at 166; Ex parte Threet, 333 S.W.2d 361, 364 (Tex. 1960); see also Van Hooff v. Anderson, 2016 WL 193172, at *3 (Tex. App. – Amarillo Jan. 14, 2016, no pet.) (“Other than terminology used, the common law marriage requirements and the statutory requirements for an informal marriage are the same.”). A common-law marriage does not exist until a party meets all three elements, which courts determine on a case-by-case basis and on the specific facts presented. Estate of Claveria, 615 S.W.2d at 166; Nguyen v. Nguyen, 355 S.W.3d 82, 88-89 (Tex. App. – Houston [1st Dist.] 2011, pet. denied).

b. Burden of Proof: Preponderance of the Evidence

Unlike some other States, which impose a higher burden of proof on claimants who seek to prove the existence of a common-law marriage, in Texas the party seeking to prove the existence of a common-law marriage holds the burden of proof by a preponderance of the evidence.¹⁹ See Tompkins v. State, 774 S.W.2d 195, 208 (Tex. Crim. App. 1987); Farrell v. Farrell, 459 S.W.3d 114, 117 (Tex. App. – El Paso 2015, no pet.); Nguyen, 355 S.W.3d at 88-89. Texas law defines that standard as the greater weight and degree of credible evidence that would create a reasonable belief in the truth of the claim. See Herrera v. Stahl, 441 S.W.3d 739, 741 (Tex. App. – San Antonio 2014, no pet.); Upjohn Co. v. Freeman, 847 S.W.2d 589, 591 (Tex. App. – Dallas 1992, no writ) (“Preponderance of the evidence means the greater weight and degree of credible evidence” and the court of appeals considers whether the “trier of fact could reasonably conclude that the existence of a fact is more probable than not”)²⁰ Therefore, we must determine if K~ has shown that it was more probable than not that from June 1980 to June 1987, she and the NH agreed to be married, lived together in Texas as husband and wife, and represented to others that they were married.

In terms of the type of evidence that can meet this burden of proof, under Texas law, statements alone can be sufficient to meet the preponderance of the evidence burden. See Small v. McMaster, 352 S.W.3d 280, 283-284 (Tex. App. – Houston [14th Dist.] 2011, pet. denied) (the wife’s testimony and the testimony of other witnesses was sufficient evidence of an agreement to be married; although the husband presented contrary testimony, it turned on witness credibility and demeanor). Indeed, a claimant’s statements can constitute direct evidence of the elements of a common-law marriage. See Omodele v. Adams, 2003 WL 133602, at *2 (Tex. App. – Houston [14th Dist.] 2003, no pet.) (the wife’s uncontroverted testimony that she and the husband had an agreement to be married was alone sufficient to show an agreement to be married; testimony also established that the parties lived together for almost 2 years and that they purchased a home and insurance together as husband and wife); Martinez v. Lopez, 2011 WL 2112806, at *5-6 (Tex. App. – Houston [14th Dist.] 2011, no pet.) (finding that the fact that the wife was not mentioned in financial documents was not direct proof that the couple did not represent themselves as husband and wife; finding that the wife’s uncontroverted testimony that they represented themselves as married to others supported the element of holding out to others); Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex. App. – Houston [1st Dist.] 1991, writ denied) (finding that the wife’s testimony was direct evidence of their agreement to be married); see also Flores v. Flores. 847 S.W.2d 648, 651 (Tex. App. – Waco 1993, writ denied) (“If the statement [of marriage] is made in a self-serving context – such as . . . an application to a lender by one seeking a loan . . . it may not have great weight”). In addition, circumstantial evidence can prove the requisite elements of common-law marriage. Russell, 865 S.W.2d at 933. “A fact is established by circumstantial evidence when the fact may be fairly and reasonably inferred from other facts proved in the case.” Id. (quoting Dallas Co. Flood Control v. Cross, 815 S.W.2d 271, 279-80 (Tex. App. – Dallas 1991, writ denied)). The Texas Supreme Court has stated that, “proof of common-law marriage may be shown by the conduct of the parties, or by such circumstances as their addressing each other as husband and wife, acknowledging their children as legitimate, joining in conveyances as spouses, and occupying the same dwelling place.” Estate of Claveria, 615 S.W.2d at 166. “[T]he circumstances of each case [as to the elements of a common-law marriage] must be determined based upon its own facts.” Id. We consider whether the greater weight and degree of credible evidence supports a common-law marriage between K~ and the NH.

c. Application of Texas Law: K~ has not Rebutted the Presumptions and Proven a Common-Law Marriage by Preponderance of the Evidence

As explained below, we believe that there is stronger legal support for the agency to conclude that K~ has not proven all three of the required elements for a common-law marriage by a preponderance of the evidence, as required under Texas law.²¹

i. Elements

a. Agreement to Marry

The first element for a valid common-law marriage requires an agreement to marry. See Tex. Fam. Code Ann. § 2.401(a)(2). The parties must prove by a preponderance of the evidence that they both had a “present, immediate, and permanent marital relationship and that they did in fact agree to be husband and wife.” Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App. – Houston [1st Dist.] 2001, pet. denied). The parties show an agreement to be married with proof that they intended to create an immediate and permanent marital relationship, not merely a cohabitation or temporary association that either party may end at any time and not an agreement to marry in the future. See Van Hooff, 2016 WL 193172, at *3; Burden v. Burden, 420 S.W.3d 305, 308 (Tex. App. –Texarkana 2013, no pet.); Gary v. Gary, 490 S.W.2d 929, 932 (Tex. Civ. App. – Tyler 1973, writ ref’d n.r.e.); Perales v. Flores, 147 S.W.2d 974, 976 (Tex. Civ. App – San Antonio 1941, writ ref’d). As explained above, direct or circumstantial evidence may establish an agreement to be married. Russell, 865 S.W.2d at 931. Testimony of one of the parties to the marriage as to their agreement to be married constitutes some direct evidence of the parties’ agreement to be married. Small, 352 S.W.3d at 283-284. Evidence of cohabitation and representations to others that the parties are married may show circumstantial evidence of an agreement to be married. See Lee v. Lee, 981 S.W.2d 903, 906 (Tex. App. – Houston [1st Dist.] 1998, pet. denied); Flores 847 S.W.2d at 652 (“non-marital cohabitation for extended periods of time is far more common than it once was,” and thus, “evidence of a tacit agreement to marry should be weighed more carefully than in the past”).

Here, we believe that K~ has not shown that from June 1980 to June 1987, it was more probable than not that she and the NH had an agreement to be in a permanent marital relationship, as opposed to a cohabitation or temporary association that either party may end at any time. Instead, although statements indicated that they lived together and had a third child together after their divorce in 1980, there are statements contradicting an agreement for a permanent relationship and showing a temporary association that could be ended at any time. K~ stated in the Form SSA-754 that she and the NH had an understanding about how the relationship could be ended, and that if she ever left the NH, she would leave with nothing. This statement suggests that K~ and the NH did not intend to have a permanent marriage relationship. She stated that she left the NH in June 1987 when the children finished school. Agency records also show that in 1994, when she filed a claim for child’s benefits for their third child on the NH’s record, she stated that her “divorce from [the NH] was finalized in February 1980, and that they “got back together and lived together for a while before separating for the final time,” and stating that their third child was conceived and born during this time. This statement indicates that their relationship was never intended to be a permanent marital relationship following their divorce. There is also no evidence that they had any contact after she moved out-of-state in 1987.

Moreover, K~’s subsequent actions in marrying C~ in a ceremonial marriage in 1990, and changing her last name to P~ on her Social Security Number (SSN) card indicate that she did not believe she had married the NH again after their divorce and instead believed that she had legally married C~ in 1990. These types of actions contradict her claim of a common-law marriage to the NH. See Estate of Claveria, 615 S.W.2d a 166 (“the act of one of the parties to an alleged common-law marriage in celebrating a ceremonial marriage with another person without having first obtained a divorce, tends to discredit the first relationship and to show it was not valid”); Sinatra v. Sinatra, 2016 WL 4040290, at *2-3 (Tex. App. – Corpus Christi 2016, pet. denied) (despite testimony that the claimant believed that the couple had agreed to continue their marriage after their divorce, in legal matters such as filing tax returns and paying spousal support, they acted as if they were not married; further, the court found that although the claimant testified that she agreed to be married, there was no evidence of a mutual agreement to be married); In the Interest of C.M.V., 479 S.W.3d 352, 360-361 (Tex. App. - El Paso 2015, no pet.) (in finding insufficient evidence of an agreement to create an immediate and permanent marital relationship and not merely a temporary cohabitation, the court noted that the claimant’s testimony indicated that he believed a common-law marriage revolved solely around cohabitation and that when they were no longer living together, he was once again single); Small, 352 S.W.3d at 287 (the couple’s subsequent personal relationships, which included dating and even marrying someone else, were inconsistent with the claim that they had a common-law marriage).

We do not believe that K~ has offered sufficient evidence to establish that she and the NH had an agreement for a permanent marital relationship following their divorce in 1980. Rather, the evidence indicates that it was more probable than not that they had a temporary cohabitation that either party could end at any time, which they did. Based on this evidence, we believe that a Texas court would find that she did not meet her burden of proving by a preponderance of the evidence that they had a mutual agreement for a permanent marital relationship. See Burden, 420 S.W.3d at 308-309 (evidence pertaining to an agreement to be married was controverted and the court properly determined insufficient to establish all elements of a common-law marriage).

As such, we believe that the agency could reasonably conclude that K~ has not established the first element for a valid common-law marriage under Texas law. As stated, a common-law marriage does not exist until a party meets all three elements. Nguyen, 355 S.W.3d at 88-89. Because she cannot establish this first element, she cannot prove a valid common-law marriage; however, for completeness, we also consider whether she has proven the remaining elements.

b. Cohabitation in Texas as Spouses

The second element for a valid common-law marriage requires that the couple live together in Texas as spouses. See Tex. Fam. Code Ann. § 2.401(a)(2). Courts have not required the living arrangement to be continuous. See Small v. McMaster, 352 S.W.3d 280, 284 (Tex. App. –Houston [14th Dist.] 2011 pet. denied). (‘[c]ohabitation need not be continuous for a couple to enter into a common law marriage.”). Considering statements from K~, K~’s mother, and their son, we believe that Texas courts would find that the greater weight and degree of credible evidence supports a reasonable belief that following their divorce in January 1980, K~ and the NH lived together in B~, Texas from June 1980 until June 1987. See Van Hooff, 2016 WL 193172, at *5 (the court found sufficient evidence to support the cohabitation element where no one disputed that they couple began living together in 1999 and continued to live together until 2011 when they separated); Romano, 2008 WL 227974, at *5 (finding “extensive evidence of cohabitation” where witnesses testified that the couple lived together for around nine years and it did not appear that the husband left the wife for more than a month or two at a time and that he left only during times the couple was fighting). As such, we believe that the agency could reasonably conclude that K~ has established the second element for a valid common-law marriage under Texas law.

c. Representation to Others as Married

Here, the evidence shows that K~, her mother, and J2~ all provided statements that K~ and the NH lived together with their three children and referred to each other as husband and wife and that they were generally known as husband and wife. K~ also provided a statement in November 2017 in which she stated that she and the NH presented themselves in public as husband and wife. In addition, K~ stated that they presented themselves as husband and wife in a housing lease entered into in June 1980 and in a document with a cosmetology school in June 1980; however, she did not provide these documents. We also note that her mother and their son did not mention their 1980 divorce or appear to distinguish their relationship while ceremonially married and their relationship following the divorce. And, thus, it is not entirely clear that the relationship they are describing is for the period from June 1980 through June 1987, or for the period from their ceremonial marriage in 1976 until their divorce. However, we believe a Texas court would find based on these statements that she has proven by a preponderance of the evidence that they represented to others that they were married. This does not appear to be a case in which there is evidence of a secret relationship; rather, they lived together with their three children, as they had when they were married. See Threet, 333 S.W.2d at 364-365. As such, we believe the agency could reasonably conclude that K~ has proven the third element for a valid common-law marriage under Texas law.

ii. The Totality of the Evidence

In summary, although K~ has established by a preponderance of the evidence two of the elements of a common-law marriage, cohabitation and representation to others, she did not establish by a preponderance of the evidence that they had an agreement for a permanent marital relationship. Russell, 865 S.W.2d at 933 (“Proof of cohabitation and representations to others that the couple are married may constitute circumstantial evidence of an agreement to be married. However, the circumstances of each case must be determined based upon its own facts,” and there must be evidence to support each element of a common-law marriage). The existence of a common-law marriage is a fact question, and the party seeking to establish the existence of the marriage bears the burden of proving each of the three elements by a preponderance of the evidence. Weaver v. State, 855 S.W.2d 116, 120 (Tex. App. –Houston [14th Dist.] no pet.). A common-law marriage does not exist until the concurrence of all three elements. Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App. –Houston [1st Dist.] 2001, pet. denied).

Because K~ has not proven an agreement for a permanent marital relationship, we believe that a Texas court would find that the greater weight and degree of credible evidence establishes that K~ and the NH did not have a common-law marriage after their divorce in January 1980. See Sinatra v. Sinatra, 2016 WL 4040290, at *2-3 (even assuming that there was some evidence that the couple held out to others that they were married and cohabitated during that time, the court found “no evidence either direct or circumstantial that [the alleged husband] ever intended to be married to [the alleged wife] after [their] 2001 divorce or that he actually agreed to be married”). As such, we believe that the agency may reasonably conclude that K~ has not proven a valid common-law marriage to the NH following their divorce.

CONCLUSION

We believe that a Texas court would conclude that K~ has not proven by a preponderance of the evidence all three elements required to prove a valid common-law marriage to the NH after their divorce in January 1980. Therefore, the agency may reasonably conclude that, under Texas law, K~ was not validly married to the NH at the time of his death for purposes of her applications for widow’s insurance benefits and the LSDP on the NH’s record. See 42 U.S.C. §§ 402(e)(1), (i), 416(c)(1), (h)(1)(A)(i); 20 C.F.R. §§ 404.335(a), 404.345, 404.390, 404.391.²² Further, because K~ did not have a valid common-law marriage with the NH at the time of her March 1990 marriage to C~, her subsequent marriage to C~ was valid.

E. PR 17-150 Marital and Child Status after Settlement and Judgment

Date: August 31, 2017

1. Syllabus

The number holder (NH) died while domiciled in Texas; therefore, the Texas law applies. Texas law authorizes common-law marriage. In this case, the claimant provided a preponderance of evidence that supported the fact that her and the NH had a valid common-law marriage under the Texas law. The subsequent evidence provided, the Family Settlement Agreement and the Judgment Declaring Heirship, alone would not tip the scale such that the preponderance of the evidence no longer supported the existence of the common-law marriage between the NH and the claimant. Also, a state court judgment does not bind the agency if it involves a proceeding to which the agency was not a party. We believe that even in light of this subsequent evidence, the agency’s prior determinations awarding child’s benefits to the children were correct and the new evidence does not provide good cause as new and material evidence for the agency to reopen and revise the agency’s prior favorable determinations to terminate benefits to the claimant and the children. We recommend that the agency not reopen and revise these determinations to terminate benefits based upon this newly provided evidence.

2. Opinion

QUESTION PRESENTED

The Social Security Administration (agency) awarded surviving child’s insurance benefits to B~ (as a natural child) and H~ (as a stepchild) on the deceased number holder R’s (NH’s) record. The agency also awarded B2~ mother’s insurance benefits based on having the NH’s child in her care and the lump sum death payment (LSDP) on the NH’s record as his widow based on a Texas common-law marriage. You asked whether evidence the agency received after awarding these benefits, specifically a November 2015 Texas Rule 11 and Family Settlement Agreement (Family Settlement Agreement) in which B2~ waived all claims of her status as the NH’s common-law spouse, a November 2015 state court Judgment Declaring Heirship stating that P~ is the NH’s sole heir, and a deoxyribonucleic acid (DNA) test showing greater than 99 percent probability that another man is B~’s biological father, provides a basis for the agency to reopen and revise the agency’s determinations awarding benefits to B~, H~, and B2~ and to deny and terminate their benefits

ANSWER

We believe that this evidence does not provide good cause as new and material evidence for the agency to reopen and revise the agency’s determinations. As to the agency’s award of the LSDP and mother’s benefits to B2~ as the NH’s widow under the Social Security Act (Act), neither the Family Settlement Agreement nor the Judgment Declaring Heirship overcome the preferred evidence of witness statements, or the other evidence, including a joint tax return, death certificate, and obituary, upon which the agency relied in determining the NH and B2~ entered into a valid common-law marriage under Texas law. Likewise neither the Family Settlement Agreement nor the Judgment Declaring Heirship bind the agency because they were entered in 2015 after the agency’s 2014 award of benefits, adverse parties do not appear to have actually challenged them, and we cannot determine what evidence the court relied upon in issuing them. Thus, we believe that even considering this subsequent evidence, the agency’s prior determination awarding the LSDP and mother’s benefits to B2~ was correct.

Further, as to the agency’s award of child’s benefits to B~ as the NH’s natural child based on her inheritance rights as the NH’s presumed child born during the marriage of the NH and B2~ under Texas law, the DNA test results do not establish a proper chain of custody and are unreliable and inadmissible to determine paternity under Texas law. There is also no DNA test that excludes the NH as B~s father. Further, for the reasons noted above, the agency is not bound by the Family Settlement Agreement or the Judgment Declaring Heirship. Finally, the agency’s award of child’s benefits to H~ as the NH’s stepchild remains proper given B2~’s valid common-law marriage to the NH. Thus, we believe that even in light of this subsequent evidence, the agency’s prior determinations awarding child’s benefits to B~ and H~ were correct.

In summary, we believe that the new evidence does not provide a sufficient basis for the agency to reopen and revise the prior agency determinations awarding surviving child’s benefits to B~ and H~ and mother’s benefits and the LSDP to B2~ on the NH’s record. We recommend that the agency not reopen and revise these determinations to terminate benefits based upon this newly provided evidence.

BACKGROUND

A. B~’s and H~’s Applications for Surviving Child’s Benefits as the NH’s Children

On December XX, 2013, the NH died while domiciled in Texas. On January XX, 2014, B2~ filed an application on the NH’s earnings record for surviving child’s benefits on B~’s behalf as the NH’s child. She stated that B~ was born on April XX, 2003, during the common-law marriage between she and the NH, and that B~ was the NH’s natural, legitimate child.

B2~ also filed an application for surviving child’s benefits on H~’s behalf as the NH’s dependent stepchild. H~ was born to B2~ on March XX, 2001, before B2~’s common-law marriage to the NH.²³

B. B2~'s Application for Mother’s Benefits and the LSDP as the NH’s Widow

On January XX, 2014, B2~ filed an application on the NH’s earning record for mother’s benefits and the LSDP as the NH’s widow. B2~ stated she and the NH entered into a common-law marriage on November XX, 2002, in Texas.

C. Evidence Provided to the Agency with the Applications for Benefits

As proof of her marital relationship with the NH, B2~ submitted the following as the agency’s preferred evidence of a common-law marriage:

B2~ completed an SSA-754-F4 form. She stated she and the NH began living together as husband and wife in Texas on November XX, 2002. She stated they separated from December 2006 to May 2007, but then reunited and lived together in A~, Texas, until the NH’s death on December XX, 2013.²⁴ B2~ stated she and the NH called each other husband and wife and agreed to live together until one of them would die. She stated she believed they were legally married because they lived as husband and wife, filed income tax returns as married, and presented to others as married. B2~ stated she and the NH were going to formalize the marriage with a ceremony on May XX, 2014, but the NH died before they could. She stated one child, B~, was born during the marriage.

D~, B2~’s mother, completed an SSA-753 form. She stated she heard B2~ and the NH introduce themselves as husband and wife and heard them refer to each other as husband and wife. She stated the couple maintained a home in A~, Texas, from 2002 to 2013, but were separated from December 2006 to May 2007.

R2~, B2~’s sister, completed an SSA-753 form. She stated B2~ and the NH lived together as husband and wife, filed taxes jointly, and introduced themselves as husband and wife. She stated she heard them refer to each other as husband and wife.

B3~, the NH’s father, completed an SSA-753 form. He stated the NH and B2~ were generally known as husband and wife, and he considered them husband and wife. B3~ stated the NH and B2~ had a common abode and raised children together. He stated he heard them refer to each other as husband and wife.

D2~, the NH’s mother, completed an SSA-753 form. She stated the NH and B2~ were generally known as husband and wife, and she considered them husband and wife. D2~ stated the NH and B2~ had children, lived together, and maintained a home together. She stated she heard them refer to each other as husband and wife.

See 20 C.F.R. § 404.726; Program Operations Manual System (POMS) GN 00305.065.B.3.

It is our understanding that B2~ submitted to the agency the following additional documentation in support of the applications (not all of this evidence was provided to us with this legal opinion request):

Internal Revenue Service (IRS) forms

A 2002 IRS form 1040A Income Tax Return stamped “COPY ONLY DO NOT FILE.” The IRS form 1040A is from the first year of B2~ and the NH’s purported marriage and shows a filing status of married filing jointly for B2~ and the NH. The tax form was prepared by H & R Block, and includes an authorization to efile under B2~’s and the NH’s pin numbers. The NH had $38,287 in income and had $5,008 in taxes withheld. However, the supporting IRS form W-2 from Core-Mark showed the withholding was based upon a filing status of single with no dependents.

A copy of a 2013 IRS form 1040A Income Tax Return showing filing status of married filing jointly for B2~ and the deceased NH. The form was prepared by H & R Block after the NH’s death. The form also lists H~ and B~ as their daughters. The supporting IRS form W-2 from S S. does not indicate how the withholding was calculated. However, with reported income of $34,765.55, and withholding of $4,794.69, the withheld amount suggests the withholding was based upon a filing status of single with no dependents.

A wedding chapel rental agreement signed by B2~ on October XX, 2013. The date of the wedding event was to be on May XX, 2014.

A pension fund letter from Central States Pension Funds, which is addressed to the Family of R~, but does not identify any particular family members by name. The letter advises the family that the NH was not vested for benefits, so no lump-sum death benefit or surviving spouse pension would be payable.

B~s Texas birth certificate. This document was not included in the information you provided us with this legal opinion request, but we assume it shows the NH as B~’s father.

The NH’s Texas death certificate, listing the date of death as December XX, 2013. The death certificate shows his marital status as married and lists B2~ as the surviving spouse. B2~ provided the information for the death certificate.

The NH’s funeral announcement. The obituary in the announcement indicates that the NH’s survivors include his wife, B2~ (B2~), and daughters, H~, B~, and P~, as well as three stepchildren.²⁵

An Application to Declare Heirship in the cause of In the Estate of R~, Deceased. The application is unsigned and does not have a cause number, but indicates the application was to be filed in the Probate Court of P~, Texas. B2~ is the applicant and describes herself as the NH’s wife and the personal representative of the NH’s estate. The application states that at the time of the NH’s death, the NH was informally married to B2~. The application states the NH and B2~ lived together as husband and wife from October 2002 until the NH’s death, held themselves out as married, and filed income tax returns each year as married filing jointly. In addition, the application lists B~ and P~ as the NH’s children.

D. The Agency’s Determinations Awarding Mother’s Benefits, the LSDP, and Child’s Insurance Benefits

In 2014, based upon the applications and evidence summarized above, the agency found the NH and B2~ entered into a common-law marriage in Texas on November XX, 2002, which ended with the NH’s death in 2013.²⁶ Thus, the agency determined that B2~ was the NH’s widow under the Act. The agency determined that because B~ was

on April XX, 2003, she was born during their marriage and could inherit as the NH’s presumed child under Texas intestate succession law. Thus, the agency determined B~ was the NH’s natural child under the Act. The agency found that H~, who was born to B2~ on March XX, 2001, was the NH’s dependent stepchild under the Act because B2~ married the NH in 2002 after H~’s birth and the NH provided one-half support for H~. As a result, in determinations issued in 2014, the agency awarded B~ child’s insurance benefits on the NH’s record as his natural child, awarded H~ child’s insurance benefits on the NH’s record as his stepchild, and awarded B2~ mother’s benefits and the LSDP as the NH’s widow with the NH’s children (who are entitled to child’s insurance benefits) in her care.

E. Evidence Received Subsequent to the Agency’s Determinations Awarding Benefits

In April 2016, the agency received additional evidence, which casts doubt on the marital relationship between the NH and B2~ as well as the parent-child relationship between the NH and B~ and H~.

An August XX, 2015 DNA Test Report. DNA Diagnostics Center (the Laboratory) performed a DNA test on B2~, B~, and an alleged father, T~. The DNA Test Report indicates a 99.999999996% probability of paternity and a combined paternity index of 29,137,283,388. The American Association of Blood Banks (AABB), among other accreditation organizations, accredits the Laboratory. The Laboratory director signed the DNA Test Report, and the signature was sworn before a notary public. The genetic specimens are identified by name of donor, test number, and date collected, but there is no chain of custody information for the specimen and no photographs identifying the test subjects.

Court documents from the case, In the Estate of R~, Deceased, Civil Action No. 15-0270, in the P, Texas, County Court at Law No. 2:

A Family Settlement Agreement between B2~ and J~, as Natural Guardian of P~ (the NH’s adjudicated child), approved by the Presiding Judge in this case on November XX, 2015. The Family Settlement Agreement identifies B2~ as the “longtime paramour” of the NH and describes P~ as the NH’s “sole heir.” Under the terms of the Family Settlement Agreement, B2~ received an immediate payment of $20,000 from a wrongful death insurance policy paid to P~, a future payment of $15,000 at the time P~ received payment of judgment in a civil action related to the NH’s death, and the right to reside in the NH’s home for six months. In exchange, B2~ waived all claims regarding her status as the NH’s common-law wife, all claims she may have regarding the NH’s death, and all claims that B~ was the NH’s heir.

A Judgment Declaring Heirship entered in this case on November XX, 2015. The Presiding Judge found the parties were represented and the court had jurisdiction of the subject matter and all parties. The Presiding Judge concluded the evidence presented fully and satisfactorily proved that the NH’s “sole and only heir” was P~.

A Trust was established on March, 2016, as ordered by the Presiding Judge in this case, for P~’s benefit. Life insurance proceeds from Sedgwick funded the Trust, and the trustee was given the authority to effectuate payment of the Family Settlement Agreement regarding the “disputed probate of [the NH].” The payment authorized was “$11,000.00 made payable to B2~ as per the Family Settlement Agreement and the Contract dated February XX, 2016 to be paid within 5 business days of receipt of the initial life insurance proceeds.”

F. The Agency’s Reopening of the Determinations Awarding Benefits to B2~, B~, and H~

After receiving the evidence subsequent to the Agency’s 2014 benefits award to B2~, B~, and H~ on the NH’s record, on April XX, 2016, the agency reopened the 2014 determinations based on new and material evidence, citing POMS GN 04010.030 (reopenings for new and material evidence) and GN 01010.480.B (reopening erroneous awards). The agency made a special determination that B2~, B~, and H~ should never have been entitled to benefits on the NH’s record. The agency concluded the DNA Test Results established B~ was never entitled to benefits as the NH’s natural legitimate child; B2~ was not the NH’s common-law spouse because she waived all claims as the NH’s common-law spouse in the Family Settlement Agreement; and H~ was not eligible for stepchild benefits because the NH and B2~ were never married. The agency recommended reopening under the new and material evidence standard because the new evidence showed that the prior award was clearly erroneous. As a result, the agency terminated their benefits. After B2~ requested reconsideration of the termination of benefits for herself, B~, and H~, you submitted the present legal opinion request asking whether the agency should reopen and revise the 2014 determinations awarding benefits in light of the new evidence.

ANALYSIS

A. Federal Law: Reopening and Revising an Agency Determination for Good Cause Based on New and Material Evidence

The agency may reopen and revise a determination, which is otherwise final and binding, within 12 months of the date of the notice of the initial determination for any reason; within 4 years of the date of the notice of the initial determination if the agency finds good cause to reopen the case; or at any time if the determination was obtained by fraud or similar fault. 20 C.F.R. §§ 404.987, 404.988. Because it has been longer than 12 months but shorter than 4 years since the agency issued its 2014 determination, we will examine whether there is good cause for the agency to reopen the claim. See 20 C.F.R. § 404.988(b).²⁷ The regulatory definition of “good cause” includes when new and material evidence is furnished to the agency. See 20 C.F.R. § 404.989(a)(1). The POMS further defines “new and material evidence” as any evidence that:

(1) Was not a part of the claims, disability or earnings discrepancy file when the final determination or decision was made; but

(2) Relates back to the date of the original determination or decision; and

(3) Shows facts that would result in a conclusion different from that originally reached had the new evidence been introduced or available at the time of the original determination.

See POMS GN 04010.030.A. The POMS also instructs that the agency should never reopen a correct determination and explains that a determination that was correct when made is still correct even if there is a subsequent change in the factual situation. See POMS GN 04001.070. New and material evidence “can only be used to reopen and revise incorrect determinations, i.e., determinations which were never correct, but appeared to be correct based on the evidence before the adjudicator at the time the determination was made.” See id.

Here, the new evidence was not part of the original claims file when the agency made the original determinations and appears to relate back to the date of the original determination. See POMS GN 04010.030.A. The primary issue then is whether the new evidence “shows facts that would result in a conclusion different from that originally reached had the new evidence been introduced or available at the time of the original determination.” Id. In other words, does the new evidence show facts that would have resulted in a different determination and that render the original determination incorrect. As we explain below, we believe that it does not.

B. B2~’s Applications – Federal Law: Entitlement to the LSDP as the NH’s Widow and to Mother’s Benefits as the NH’s Widow with the NH’s Entitled Child in Care

Under Title II of the Act, a claimant is eligible for the LSDP if she is the widow of an insured individual and she was living in the same household as the insured at the time of the death (or satisfies other criteria if not living in the same household). See 42 U.S.C. § 402(i), 20 C.F.R. §§ 404.390 - 404.392. Under the Act, a claimant is eligible for mother’s benefits if, among other things, she is the surviving spouse, or widow, of an insured individual and she has in-care a child of the deceased number holder entitled to child’s insurance benefits. See 42 U.S.C. §§ 402(g)(1), 416(a)(2), (c); 20 C.F.R. § 404.339. Thus, for both, the claimant must establish she is the insured individual’s widow.

The agency will find that a claimant is an insured individual’s widow if the courts of the State in which the insured individual resided at the time of death “would find that such applicant and such insured individual were validly married” at the time such insured individual died, or if, under application of that State’s intestate succession laws, the applicant would be able to inherit a spouse’s share of the insured’s personal property. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. Here, the evidence showed that the NH resided in Texas at the time of his death. The agency determined B2~ was the NH’s surviving spouse, or widow, based upon a valid common-law marriage under Texas law. As detailed below, the agency also found that B~ was the NH’s child, that B~ was entitled to child’s insurance benefits, and that B~ was in B2~’s care. Thus, the agency awarded B2~ mother’s benefits and the LSDP as the NH’s widow.²⁸

We apply Texas law in weighing all of the evidence (including the newly received Family Settlement Agreement and Judgment Declaring Heirship) to determine whether there is a valid common-law marriage, or whether this new evidence proves no valid common-law marriage such that the agency’s original determination was incorrect.

C. B2~’s Applications – State Law: Texas Common-Law Marriage Between the NH and B2~ and B2~ Status as the NH’s Widow

1. Texas Law: Common-Law Marriage Elements and Burden of Proof

Texas law authorizes common-law marriage. See Tex. Fam. Code Ann. § 2.401; Russell v. Russell, 865 S.W.2d 929, 931-33 (Tex. 1993) (“[c]ommon law marriages have been recognized in Texas since 1847”). Once established, a Texas common-law marriage produces the same legal consequences as a ceremonial marriage. Whaley v. Peat, 377 S.W.2d 855, 857 (Tex.Civ.App.--Houston 1964, writ ref’d n.r.e). It is treated with the same dignity as a ceremonial marriage, and may only terminate by death, divorce, or annulment. Estate of Claveria v. Claveria, 615 S.W.2d 164, 165, 167 (Tex. 1981). There is no common-law divorce in Texas. Id. Texas law requires proof of three elements to establish a common-law marriage: (1) an agreement to be married, (2) cohabitation in Texas as husband and wife, and (3) representation to others that the couple is married. Tex. Fam. Code Ann. § 2.401(a); Estate of Claveria, 615 S.W.2d at 166; Ex parte Threet, 333 S.W.2d 361, 364 (Tex. 1960); see also Van Hooff v. Anderson, 2016 WL 193172, at *3 (Tex. App. – Amarillo Jan. 14, 2016, no pet.) (“Other than terminology used, the common law marriage requirements and the statutory requirements for an informal marriage are the same.”). A common-law marriage does not exist until a party meets all three elements, which courts determine on a case-by-case basis and on the specific facts presented. Estate of Claveria, 615 S.W.2d at 166; Nguyen v. Nguyen, 355 S.W.3d 82, 88-89 (Tex. App. – Houston [1st Dist.] 2011, pet. denied).

Unlike some other States, which impose a higher burden of proof on claimants who seek to prove the existence of a common law marriage, in Texas the party seeking to prove the existence of a common-law marriage holds the burden of proof by a preponderance of the evidence.²⁹ See Tompkins v. State, 774 S.W.2d 195, 208 (Tex. Crim. App. 1987); Farrell v. Farrell, 459 S.W.3d 114, 117 (Tex. App. – El Paso 2015, no pet.); Nguyen, 355 S.W.3d at 88-89. Texas law defines that standard as the greater weight and degree of credible evidence that would create a reasonable belief in the truth of the claim. See Herrera v. Stahl, 441 S.W.3d 739, 741 (Tex. App. – San Antonio 2014, no pet.).³⁰ In other words, has the claimant proven that it was more probable than not that she and the purported spouse had a common-law marriage. See Upjohn Co. v. Freeman, 847 S.W.2d 589, 591 (Tex. App. – Dallas 1992, no writ) (“Preponderance of the evidence means the greater weight and degree of credible evidence” and the court of appeals considers whether the “trier of fact could reasonably conclude that the existence of a fact is more probable than not”).

Under Texas law, statements alone can be sufficient to meet the preponderance of the evidence burden. See Small v. McMaster, 352 S.W.2d 280, 283-284 (Tex. App. – Houston [14th Dist.] 2011, pet. denied). Indeed, a claimant’s statements can constitute direct evidence of the elements of a common-law marriage. See Omodele v. Adams, 2003 WL 133602, at *2 (Tex. App. – Houston [14th Dist.] 2003, no pet.); Martinez v. Lopez, 2011 WL 2112806, at *5-6 (Tex. App. – Houston [14th Dist.] 2011, no pet.); Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex. App. – Houston [1st Dist.] 1991, writ denied). In addition, circumstantial evidence can prove the requisite elements of common-law marriage. Russell, 865 S.W.2d at 933. “A fact is established by circumstantial evidence when the fact may be fairly and reasonably inferred from other facts proved in the case.” Id. (quoting Dallas Co. Flood Control v. Cross, 815 S.W.2d 271, 279-80 (Tex. App. – Dallas 1991, writ denied)). The Texas Supreme Court has stated that, “proof of common-law marriage may be shown by the conduct of the parties, or by such circumstances as their addressing each other as husband and wife, acknowledging their children as legitimate, joining in conveyances as spouses, and occupying the same dwelling place.” Estate of Claveria, 615 S.W.2d at 166. “[T]he circumstances of each case [as to the elements of a common-law marriage] must be determined based upon its own facts.” Id. We now consider whether B2~ has proven a common-law marriage by a preponderance of the evidence.

2. A Preponderance of the Evidence Supports a Valid Common-Law Marriage between the NH and B2~ Under Texas Law

As noted, the first element for a valid common-law marriage requires an agreement to marry. See Tex. Fam. Code Ann. § 2.401(a)(2). The parties must prove by a preponderance of the evidence that they had a “present, immediate, and permanent marital relationship and that they did in fact agree to be husband and wife.” Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App. – Houston [1st Dist.] 2001, pet. denied). The parties show an agreement to be married with proof that they intended to create an immediate and permanent marital relationship, not merely a cohabitation or temporary association that either party may end at any time and not an agreement to marry in the future. See Van Hooff, 2016 WL 193172, at *3; Gary v. Gary, 490 S.W.2d 929, 932 (Tex. Civ. App. – Tyler 1973, writ ref’d n.r.e.); Perales v. Flores, 147 S.W.2d 974, 976 (Tex. Civ. App – San Antonio 1941, writ ref’d). However, the parties’ intent to marry ceremonially in the future does not necessarily negate an inference that the parties believe that they are already informally or common-law married. Aguilar v. State, 715 S.W.2d 645, 648 (Tex. Crim. App. 1986). As explained above, direct or circumstantial evidence may establish an agreement to be married. Russell, 865 S.W.2d at 931. Evidence of cohabitation and representations to others that the parties are married may show circumstantial evidence of an agreement to be married. See Lee v. Lee, 981 S.W.2d 903, 906 (Tex. App. – Houston [1st Dist.] 1998, pet. denied).

Here, the uncontroverted witness statements all consistently support the finding that the NH and B2~ had a permanent agreement to be married, as opposed to a temporary cohabitation that could be ended at any time, and that they lived together and represented to others that they were married for over 11 years. B2~ reported to the agency that she and the NH began living together as husband and wife in Texas on November XX, 2002, that they separated for a period of time in 2006 and 2007, but reunited and continued to live together as husband and wife until the NH’s death on December XX, 2013. She stated that they planned to formalize their marriage with a ceremony in 2014 (consistent with the wedding chapel receipt provided), but the NH died before they could. She provided an income tax return from 2002 showing that they filed jointly as a married couple. The NH’s Texas death certificate identifies him as married and identifies B2~ as his spouse. The funeral announcement identifies B2~ as the NH’s surviving wife. B2~’s mother and sister and the NH’s mother and father all advised the agency that the NH and B2~ were known as spouses, lived together and maintained a home together as spouses, and raised children together. We believe that a Texas court would find that the greater weight and degree of credible evidence supports a reasonable belief in the truth of the claim that they had an agreement to marry. Thus, we believe the agency could reasonably find that B2~ provided a preponderance of the evidence to support the first element for a valid common-law marriage. See Small, 352 S.W.2d at 283-284 (the wife’s testimony and the testimony of other witnesses was sufficient evidence of an agreement to be married); Omodele, 2003 WL 133602, at *2 (the wife’s uncontroverted testimony that she and the husband had an agreement to be married was alone sufficient to show an agreement to be married; testimony established that the parties lived together for almost two years and that they purchased a home and insurance together as husband and wife).

The second element for a valid common-law marriage requires that the couple live together in Texas as spouses, but the cohabitation need not be continuous for a couple to prove a common-law marriage. See Tex. Fam. Code Ann. § 2.401(a)(2); Small, 352 S.W.2d at 284. As noted, B2~ reported that after they began their marriage in November 2002, they had a brief period of separation in 2006 and 2007, but reunited and remained together until the NH’s death in December 2013. Thus, their relationship spanned an 11-year period. The witness statements all consistently report that the NH and B2~ lived together and maintained a home together in Texas as spouses. We believe that a Texas court would find the greater weight and degree of credible evidence supports a reasonable belief in the truth of the claim that they lived together as spouses in Texas. Thus, we believe that the agency could reasonably find that B2~ provided a preponderance of the evidence to support the second element for a valid common-law marriage. See Romano v. Newell Recycling of San Antonio, LP, 2008 WL 227974, at *5 (Tex. App. – San Antonio 2008, no pet.) (finding “extensive evidence of cohabitation” where witnesses testified that the couple lived together for around nine years and it did not appear that the husband left the wife for more than a month or two at a time and that he left only during times the couple was fighting).

The third element for a valid common-law marriage requires that the couple held out to the public, or represented to others while living in Texas, that they were married. See Tex. Fam. Code Ann. § 2.401(a)(2). Representation of the marriage to others, or holding out to the public as being married, can be shown through the “conduct and actions of the parties.” Eris, 39 S.W.3d at 715. Spoken words are not necessary to prove this element; rather, the focus is upon whether the couple had a reputation for being married. Id. Occasional introductions as husband and wife are not enough to satisfy the holding out requirement, and there is no such thing as a secret common-law marriage. Threet, 333 S.W.2d at 364; Winfield, 821 S.W.2d at 648-51. Instead, Texas law requires that the couple “consistently [conduct] themselves as husband and wife in the public eye or that the community [view] them as married.” Van Hooff, 2016 WL 193172, at *5. “[T]he jurisprudence in Texas strictly construes the holding out element and has held that marriage is more than a contract; it is a ‘status’ in the community, a general reputation, a public and open holding out that the parties are man and wife.” Id. at *6. As described in the witness statements, B2~ and their relatives all consistently reported that the NH and B2~ were generally known as husband and wife, that they considered them husband and wife, and that they represented to others that they were husband and wife. The funeral announcement identifies B2~ and the NH’s surviving spouse. The death certificate identifies the NH as married and B2~ as his surviving spouse. The IRS income tax return from 2002 shows that they filed as a married couple. We believe that a Texas court would find the greater weight and degree of credible evidence supports a reasonable belief in the truth of the claim that they represented to others that they were married. Thus, we believe that the agency could reasonably find that B2~ provided a preponderance of the evidence to support the third element for a valid common-law marriage. See In re Estate of Giessel, 734 S.W.2d 27, 30-31 (Tex. App. – Houston [1st Dist.] 1987, writ ref’d n.r.e.) (the couple had lived together as husband and wife for 20 years, the husband represented to many people in the community that the woman was his wife, and the couple had a reputation in the community for being married); Tatum v. Tatum, 478 S.W.2d 629, 630 (Tex. Civ. App. – Fort Worth 1972, writ dismissed) (filing joint tax returns, opening a joint checking account, designating a spouse on life insurance policy, and holding themselves out to their community as being married all constituted sufficient evidence of a common-law marriage).

Although the statement in the Family Settlement Agreement that B2~ was the NH’s long-term paramour suggests B2~ was not married to the NH, such a statement does not constitute evidence sufficient to conclude that the common-law marriage never existed. See Estate of Claveria, 615 S.W.2d at 167 (“once the marriage exists, the spouses’ subsequent denials of the marriage, if disbelieved, do not undo the marriage”). As stated, there is no common-law divorce; rather a common-law marriage may only terminate by death, divorce, or annulment. Id. The wording of the Family Settlement Agreement is at best ambiguous and does not clearly repudiate the earlier statements B2~ made to the agency that she and the NH had a common-law marriage. The Family Settlement Agreement states, “B2~ will waive all claims of her status as the common law wife of Decedent.” Although in its special determination, the agency read the Family Settlement Agreement as stating B2~ waived her claim to be the NH’s common-law spouse, the Family Settlement Agreement does not clearly state that. Instead, the Family Settlement Agreement seems to acknowledge B2~’s status as the NH’s common-law spouse, but indicates she will waive her legal claims associated with that status. The wording of the Family Settlement Agreement seems to be B2~’s waiver of the right to receive her spouse’s share of the NH’s intestate estate, rather than a waiver of her status as the NH’s common-law spouse. On the other hand, the Family Settlement Agreement also refers to B2~ as the NH’s longtime paramour, which is possibly contrary to a statement that B2~ was the NH’s common-law spouse. However, for reasons explained above, we believe that the agency reasonably found that B2~ had proven a valid common-law marriage to the NH under Texas law, and a later ambiguous statement cannot dissolve the established marriage or establish that a valid common-law marriage never existed.

In summary, other than the statement in the Family Settlement Agreement identifying B2~ as the NH’s long-term paramour, very little evidence refutes the common-law marriage between the NH and B2~. In other words, we do not believe the statement alone would tip the scale such that the preponderance of the evidence no longer supported the existence of the common-law marriage between the NH and B2~. See In re Estate of Giessel, 734 S.W.2d at 31 (the wife’s representations in documents that she was single went “to the weight of the evidence” and did not “negate a marriage, as a matter of law”). Thus, we believe that it is reasonable for the agency to conclude that a Texas court would find that B2~ established a common-law marriage to the NH by a preponderance of the evidence despite her later waiver of all claims related to her status as the NH’s common-law spouse in the Family Settlement Agreement.

Furthermore, we note that B2~ provided the agency with preferred evidence of a common-law marriage. See 20 C.F.R. §§ 404.709 (explaining the agency’s consideration of preferred and other evidence), 404.726(b)(2) (the agency’s preferred evidence of a common-law marriage when one spouse is dead is a signed statement from the living spouse and signed statements from two blood relatives of the deceased spouse); POMS GN 00305.065.B.3 (the agency is instructed to obtain a Form SSA-754-F4 from the surviving spouse and a Form-753 from two blood relatives of the deceased spouse and from a blood relative of the surviving spouse). The regulations provide that “[i]f you give us the type of evidence we have shown as preferred in the following sections of this subpart, we will generally find it is convincing evidence.” 20 C.F.R. § 404.709.

3. Social Security Ruling 83-37c: The Family Settlement Agreement and Judgment Declaring Heirship Does Not Bind the Agency

We next consider whether the Family Settlement Agreement and Judgment Declaring Heirship bind the agency. A state court judgment does not bind the agency if it involves a proceeding to which the agency was not a party. See Social Security Ruling (SSR) 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973)); see also POMS GN 00305.065B.4 (providing that when determining the existence of a common-law marriage and the evidence includes a state court decision on the issue, the agency is not necessarily bound by the decision but must consider the decision if the claimant meets the criteria of Gray); POMS GN 00306.001.C.3 (providing the same policy for determining a child’s relationship). Pursuant to SSR 83-37c, state court determinations on domestic relations matters are entitled to deference and bind the agency only when certain specific factors are satisfied. The agency should defer to state court determinations when (1) a state court of competent jurisdiction previously determined an issue in a claim for Social Security benefits; (2) parties with opposing interests genuinely contested the issue before the state court; (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. See Gray, 474 F.2d at 1373; SSR 83-37c. The Fifth Circuit has similarly recognized that the agency is not bound by ex parte orders of state courts, but emphasized that the agency should disregard such orders only where the agency is convinced the decision is in conflict with what the state supreme court would hold were the issue presented to it (the fourth Gray factor). See Garcia v. Sullivan, 883 F.2d 18, 20 (5th Cir. 1989); Warren v. Sec'y of Health & Human Servs., 868 F.2d 1444, 1446-47 (5th Cir. 1989). As explained below, the Family Settlement Agreement and Judgment Declaring Heirship meet the third Gray factor, in that the case In the Estate of R~, Deceased. involved an issue within the general category of domestic relations. However, as explained below, the documents do not clearly meet the first, second, or fourth Gray factors.

a. State Court of Competent Jurisdiction Previously Determined an Issue in a Claim for Social Security Benefits

On the first factor, the Family Settlement Agreement was signed by the parties and approved by the presiding judge in the P. County, Texas, County Court at Law. The same judge signed the Judgment Declaring Heirship declaring P~ to be the NH’s sole and only heir. The P. County Court at Law is a state court of competent jurisdiction for probate and heirship matters. Tex. Estates Code Ann. §§ 33.004, 202.005. However, the Parker County Court at Law approved the Family Settlement Agreement and issued the Judgment Declaring Heirship on November XX, 2015. Although you did not advise us of the date the agency determined the relationships of B2~, B~, and H~ to the NH, we believe it to have been in March 2014. As such, the Family Settlement Agreement and Judgment Declaring Heirship are not previous determinations of a state court of competent jurisdiction, but rather determinations issued after the agency had already issued its own final determination finding B2~ the NH’s common-law spouse, B~ the NH’s natural, legitimate daughter, and H~ the NH’s stepchild.

Furthermore, as to the Family Settlement Agreement and B2~tatus as the NH’s common-law spouse in particular, we believe that a court-approved settlement agreement between the parties does not appear to be the equivalent of a state court determination following the weighing of any evidence. A family settlement agreement is ‘“an alternative method of [estate] administration in Texas that is a favorite of the law.”’ Webb v. Livingston, -- F.3d --, 2017 WL 2118969 (S.D. Tex. May 16, 2017) (slip copy) (citing Shepherd v. Ledford, 962 S.W.2d 28, 31-32 (Tex. 1998)). It is premised upon the concept that when a person dies without a will, the estate passes immediately to the decedent’s heirs, who then have standing to enter into an agreement for how the estate property will be distributed. Id. And, as we noted above, the wording of the Family Settlement Agreement seems to be B2~'s waiver of B~’s claims as the NH’s heir and her claims as the NH’s common-law spouse, rather than a waiver of her status as the NH’s common-law spouse or a waiver of B~’s status as his child. This Family Settlement Agreement does not indicate that the court made any findings or determinations upon a weighing of evidence and legal arguments that B2~ is not the NH’s common-law spouse and B~ is not the NH’s presumed child. Thus, for all of these reasons, the first Gray factor is not clearly met.

b. Parties with Opposing Interest Genuinely Contested the Issue before the State Court

On the second factor, it is not clear whether parties with opposing interests genuinely contested the issues before the state court. The parties settled the action In the Estate of R~, Deceased with P~ agreeing to pay B2~ a portion of the proceeds of a non-probate wrongful death insurance policy and a portion of judgment in a civil action that P~ was pursuing. The parties to the Family Settlement Agreement are listed as B2~ and J~, P~’s guardian. The Judgment Declaring Heirship lists B2~ as the applicant, P~ as the living heir, and the NH’s living heirs whose names and whereabouts are unknown as defendants. Although we assume B2~ and B~ had opposing interests in the action to P~, it is unclear to what degree those interests were genuinely contested. It seems possible B2~ and B~’s settlement was premised on maximizing their economic gain through obtaining a share of non-probate assets they would not have otherwise been entitled, and not in establishing their relationship to the NH. Thus, it is again unclear whether the second Gray factor is met.

c. The Issue Falls Within the General Category of Domestic Relations Law

As to the third factor, we believe that the Settlement Agreement and Judgment Declaring Heirship pertain to matters within the general category of domestic relations law. Thus, this third Gray factor is met.

d. The State Court Order is Consistent with the Law as Enunciated by the State’s Highest Court

On the fourth factor, we are unable to determine whether the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. The presiding judge stated the evidence presented to the court fully and satisfactorily proves each and every issue presented to the court. However, we are unable to determine what evidence the court relied upon in making its finding. While it is proper for the court to accept a Family Settlement Agreement as evidence in a Judgment to Declare Heirship (Shepherd, 962 S.W.2d at 31-32), as we addressed above, it is ambiguous whether B2~ agreed she was not the NH’s common-law spouse.

Also, while the Judgment Declaring Heirship states that P~ is the NH’s sole heir, we are unable to determine on what basis B~ was denied status as the NH’s heir. To the extent the court denied B~ as the NH’s heir based upon the DNA Test Report showing another man to be B~’s biological father, we will discuss below that the DNA Test Report evidence provided to the agency is unreliable evidence in a Texas court proceeding. Thus, reliance on the DNA Test Report would be inconsistent with the law enunciated by the highest court in the state.

In summary, because all four Gray factors are not met, neither the Family Settlement Agreement nor the Judgment Declaring Heirship are binding on the agency as to B2~’s status as the NH’s common-law spouse and B~’s status as his presumed child born during their marriage. Accordingly, we believe a Texas court would find that a preponderance of the evidence supports a valid common-law marriage between the NH and B2~. In the context of reopening and revising, we believe that the agency’s prior determination was correct and that the new evidence does not render the prior determination incorrect. We next address whether B~ is entitled to surviving child’s insurance benefits as the NH’s child.

D. B~’s Application – Federal Law: Entitlement to Surviving Child’s Insurance Benefits as the NH’s Child

Under the Act, a child may be eligible for surviving child’s insurance benefits if, among other things, she is the child of a deceased insured individual. See 42 U.S.C. §§ 402(d)(1), 416(e); 20 C.F.R. § 404.350(a)(1). The Act and regulations define child to include the individual’s natural child. See 42 U.S.C. §416(e)(1); 20 C.F.R. § 404.355. In determining a claimant’s status as a natural child, the agency must determine whether the claimant could inherit the insured’s personal property as her child under the intestate succession laws of the state where the NH was domiciled. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b).

As the NH was domiciled in Texas, the agency determined B~ was the NH’s natural child because she could inherit from the NH under Texas intestate succession law as a child born during the marriage of her parents. See Tex. Estates Code Ann. § 201.052(a)(1) (child born during marriage of her parents, as described in Tex. Fam. Code Ann. § 160.201, has inheritance rights from the father based on a presumption of paternity). Thus, the agency awarded B~ surviving child’s insurance benefits as the NH’s natural child.³¹

We apply Texas law in weighing all of the evidence (including the newly received DNA Test results, Family Settlement Agreement and Judgment Declaring Heirship) to determine whether B~ could inherit as the NH’s child under Texas intestate succession law. For reopening and revising, we consider whether this new evidence proves that B~ could not inherit as his child such that the agency’s original determination was incorrect.

E. B~s Application - State Law: Texas Intestate Succession Law and B~’s Status as the NH’s Natural Child

1. Texas Intestate Succession Law

Under Texas intestate succession law for paternal inheritance, a child born during her parents’ marriage has inheritance rights from the father based on an unrebutted presumption of paternity. See Tex. Estates Code Ann. § 201.052(a)(1); Tex. Fam. Code Ann. § 160.201(b)(1), 160.204(a)(1). The agency previously concluded B~ was the NH’s natural child because she was born during the marriage between the NH and B2~. Because B~ was born during the marriage of the NH and B2~, the agency concluded she had inheritance rights from the NH’s estate under Texas law. As explained above, we believe that the evidence supports the agency’s finding of a valid common-law marriage between B2~ and the NH under Texas law. We consider whether the DNA Test Report provides evidence to rebut the presumption of paternity under Texas law such that the agency’s original determination that B~ was the NH’s child is incorrect.

2. Presumption of Paternity Under Texas Uniform

Parentage Act

To address parent-child relationships, Texas adopted the Uniform Parentage Act (the Uniform Act) in 2001. See Tex. Fam. Code Ann. §§ 160.001-160.763. The Uniform Act governs every determination of paternity in Texas. Tex. Fam. Code Ann. § 160.103(a). Under the Uniform Act, a man is presumed to be the father of a child if he is married to the mother of the child and the child is born during the marriage. Tex. Fam. Code Ann. § 160.204(a); see also Dickerson v. Doyle, 170 S.W.3d 713, 717 (Tex. App. – El Paso 2005, no pet.) (husband of the child’s mother presumed to be the child’s father, even though another man sometimes lived and slept with the child’s mother and claimed that he was the child’s father).

The Uniform Act provides that a presumption of paternity that arises in marriage may be rebutted only by the following:

(1) an adjudication under a proceeding to determine the parentage of a child under Subchapter G of the Texas Family Code, Sections 160.601-637; or

(2) the filing of a valid denial of paternity by a presumed father in conjunction with the filing by another person of a valid acknowledgment of paternity as provided by section 160.305 of the Uniform Act.

See Tex. Fam. Code Ann. § 160.204(b)(1)-(2). The Texas courts have long interpreted the presumption of paternity that arises in marriage to be strong and very difficult to rebut. See, e.g., Joplin v. Meadows, 623 S.W.2d 442, 443-444 (Tex. App. – Texarkana 1981, no writ) (the presumption that a child conceived during marriage is the legitimate child of the husband and wife is one of the strongest presumptions known to the law and can be rebutted only by clear and convincing evidence showing the impossibility that the husband fathered the child); Etchison v. Greathouse, 596 S.W.2d 233, 236 (Tex. App. – Houston 1980, no writ) (the highest consideration of public policy supplies every reasonable presumption in favor of the legitimacy of a child born during the marriage of a man and a woman, provided that there is no clear evidence of non-access or impotency of the man).

As stated, B~ was born during the marriage of the NH to B2~. Thus, the NH is presumed to be B~’s father. There is no evidence that any court has determined B~’s parentage in a civil proceeding under the provisions of subchapter G of the Uniform Act concerning adjudications of parentage. See Tex. Fam. Code Ann. § 160.204(b)(1). Although the Judgment Declaring Heirship stated P~ is the NH’s sole heir, it did not purport to adjudicate B~’s parentage. Also, the Judgment Declaring Heirship does not explain what evidence the court considered in determining that P~ was the NH’s sole heir. There is also no evidence the NH ever filed a denial of paternity and another person filed a valid acknowledgment of paternity. See Tex. Fam. Code Ann. § 160.204(b)(2). Thus, the NH’s presumed parentage of B~ has not been properly rebutted under Texas law.

However, the agency will not apply a state inheritance law requirement that a court determination of paternity must be obtained or a requirement that paternity must be established before the worker’s death. Paternity will be decided using the standard of proof that the state court would use. 20 C.F.R. § 404.355(b)(2).

Texas courts allow genetic DNA testing as proof to establish paternity, provided the DNA testing and DNA test report meet specific reliability and authenticity requirements. See Tex. Fam. Code Ann. §§ 160.503, 160.504, 160.631; see also In re Office of Atty. Gen., 276 S.W.3d 611, 615 (Tex. App. – Houston [1st Dist.] 2008, orig. proceeding). First, the DNA testing must take place in a laboratory accredited by the AABB, the American Society for Histocompatibility and Immunogenetics, or another accrediting body designated by the Secretary of the United States Department of Health and Human Services. See Tex. Fam. Code Ann. § 160.503(a). Second, a laboratory designee must sign the DNA test report under penalty of perjury. See Tex. Fam. Code Ann. § 160.504(a). Third, the report must establish a reliable chain of custody through testimony or documentation. See Tex. Fam. Code Ann. § 160.504(b). Documentation from the testing laboratory is sufficient to establish a reliable chain of custody that allows the results of genetic testing to be admissible without testimony if the documentation includes (1) the name and photograph of each individual whose specimens have been taken; (2) the name of each individual who collected the specimens; (3) the places in which the specimens were collected and the date of each collection; (4) the name of each individual who received the specimens in the testing laboratory; and (5) the dates the specimens were received. Id.

If the DNA testing and DNA test report satisfy the reliability and authenticity requirements, and the testing reveals at least a 99% probability of paternity with a combined paternity index of at least 100 to 1, a man is rebuttably identified as the father of a child. See Tex. Fam. Code Ann. § 160.505(a); see also In re Z.L.T., 124 S.W.3d 163, 164 n. 1 (Tex. 2003).

The DNA Test Report evidence as provided to the agency does not meet all of the requirements for admissibility. Although the DNA testing took place in a laboratory the AABB accredited and a laboratory designee notarized the DNA Test Report, there is no reliable chain of custody documentation. In fact, the only documentation is of the names of the individuals whose specimens were taken and the date the specimens were taken. The documentation does not contain photographs of the individuals, the names of each person who collected the specimens, the place the specimens were collected, the name of the person who received the specimens at the laboratory, or the date the specimens were received. Also, even though the DNA Test Report shows a greater than 99% probability that another man is B~’s father, with a combined paternity index exceeding 100 to 1, there is no evidence that any DNA test has excluded the NH as B~’s father. Accordingly, we conclude the DNA test would be unreliable evidence to rebut the presumption that the NH was B~’s father. Given these facts, no one has rebutted the presumption that the NH was B~’s father.

As explained above in addressing B2~’s marriage to the NH, neither the Judgment Declaring Heirship nor the Family Settlement Agreement bind the agency because such documents do not meet all four Gray factors. The agency should decline to accept the state court’s finding in the Judgment Declaring Heirship because it is inconsistent with the law enunciated by the highest court in Texas as to reliable evidence to rebut the presumption of paternity. Consequently, we believe the agency could reasonably conclude that B~ could inherit property through Texas intestate succession as the NH’s child based on an unrebutted presumption of paternity. See Tex. Estates Code Ann. § 201.052; Tex. Fam. Code Ann. §§ 160.201, 160.204. In the context of reopening and revising, we believe that the new evidence does not render the agency’s prior favorable determination incorrect.

F. H~’s Application – Federal Law: Entitlement to Surviving Child’s Insurance Benefits as the NH’s Stepchild

Under the Act, a child may be eligible for surviving child’s insurance benefits if, among other things, she is the child of a deceased insured individual. See 42 U.S.C. §§ 402(d)(1), 416(e); 20 C.F.R. § 404.350(a)(1). The Act and regulations define child to include the individual’s stepchild. See 42 U.S.C. §416(e)(2); 20 C.F.R. § 404.357. To qualify as the deceased insured individual’s stepchild, the agency must determine whether after the claimant’s birth, her natural parent validly married the insured individual and that she was the stepchild for at least nine months prior to the day the insured individual died. See 42 U.S.C. § 416(e)(2); 20 C.F.R. § 404.357. Thus, H~’s status as the NH’s stepchild turns upon her mother’s (B2~’s’) status as the NH’s valid common-law spouse under Texas law.

The agency determined that H~ was the NH’s stepchild based on the fact that she was born to B2~ in March 2001 before B2~ married the NH in a valid common-law marriage under Texas law in November 2002. As detailed above, because we believe that the agency could reasonably conclude that a Texas court would find that the NH had a valid common-law marriage to B2~ that began in November 2002, we believe that the agency could find H~ to be the NH’s stepchild. Thus, in the context of reopening and revising, we believe that the new evidence does not render the agency’s prior favorable determination to be incorrect.³²

CONCLUSION

For reopening and revising purposes, we believe that the new evidence does not render the agency’s prior favorable determinations incorrect. We conclude that neither the Family Settlement Agreement nor the Judgment Declaring Heirship overcome the preferred evidence of witness statements, nor the other evidence of a joint tax return, death certificate, and obituary, upon which the agency relied in determining that the NH and B2~ entered into a valid common-law marriage under Texas law. The agency is not bound by the Family Settlement Agreement or the Judgment Declaring Heirship because they were entered after the agency’s 2014 award of benefits, adverse parties do not appear to have actually challenged them, and it is not clear what evidence the court relied upon in issuing the Agreement and Judgment. Finally, the DNA test results do not establish a proper chain of custody and are unreliable and inadmissible to determine paternity under Texas law.³³ There is also no DNA test that excludes the NH as B~’s father. Thus, the new evidence does not establish that the agency’s prior determinations were incorrect. Therefore, we believe that the new evidence does not provide good cause as new and material evidence for the agency to reopen and revise the agency’s prior favorable determinations to terminate benefits to B2~, B~, or H~ on the NH’s record.

F. PR 16-108 Validity of Common Law Marriage – REPLY

Date: March 24, 2016

1. Syllabus

The Claimant alleged that she and the numberholder (NH) entered into a common law marriage in 1998 in Texas. According to the Claimant, they lived together in Texas until sometime in 2000. The Claimant and NH then moved to Ohio sometime in 2000. In February 2015, the Claimant and the NH underwent a legal ceremonial marriage, and lived together as husband and wife in Ohio until the NH’s death in July 2015. The relationship between the claimant and the NH satisfied all of the elements of common law marriage because there is evidence of a present agreement to be married, cohabitation as husband and wife, and representations to others that they were married while they lived in Texas from 1998 until 2000. We conclude that the claimant and the NH were validly married under Ohio law at the time of the NH’s death. Therefore, the claimant is entitled to mother’s benefits as a widow.

2. Opinion

You asked whether claimant K~ and number holder S~ were parties to a valid common law marriage for purposes of claimant’s entitlement to Mother’s Benefits based on S~’s earning record. We conclude that the claimant and the number holder were validly married under Ohio law at the time of S~’s death.

BACKGROUND

The claimant alleged that she and the number holder entered into a common law marriage in 1998 in Texas. The parties reportedly lived together in Texas until sometime in 2000³⁴ , when they moved to Ohio. On February XX, 2015, the parties underwent a legal ceremonial marriage, and lived together as husband and wife until the number holder’s death five months later in July XX, 2015.

The claimant applied for Mother’s Benefits based on the claim that she and the deceased number holder were parties to a valid common law marriage. In support of her claim, she submitted a Statement of Marital Relationship, asserting that she and the number holder referred to each other as husband and wife in the community and cohabitated with an understanding of exclusivity. The claimant also submitted Statements Regarding Marriage from the number holder’s father and the claimant’s son from a prior marriage. The claimant’s son from a prior marriage and the number holder’s father both asserted in their statements that the parties were generally known as husband and wife.

In addition, the claimant submitted a 1998 joint tax return for “S~ & K~” signed by the number holder and referring to the claimant as the number holder’s spouse. The claimant and the number holder had three children together. A birth certificate for their second child, V~, born in June 1998, refers to the parties as “Mr. and Mrs. S2~.” The claimant’s name was changed to S2~ in her Numident File and various other documents refer to her as S2, including an automotive repair order from January 1998 and a letter from MDM Electronics dated January 1999. Moreover, an undated FastCash Filing Agreement signed by the number holder lists “K~” as his spouse.

DISCUSSION

An individual is entitled to mother’s benefits as a surviving widow if they meet the relationship requirements of the Social Security Act. See 20 C.F.R. § 404.339, citing 20 C.F.R. 404.335(a); see also POMS RS 00207.001. When determining who is a widow for purposes of entitlement to benefits, the Agency will look to the law of the state where the insured had a permanent home at the time the application was filed, or at the time of the insured’s death. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345. Here, the number holder died in Ohio. Thus, we look to Ohio law to determine whether the claimant was the widow of the number holder.

To the extent that a state recognizes common law marriage, this will suffice to establish that a claimant is the widow of a deceased number holder. POMS GN 00305.005. Here, however, Ohio has not recognized common law marriage since October 1991. Ohio Rev. Code § 3105.12(B)(1). Yet, Ohio does recognize common law marriages that came into existence in another state in accordance with all relevant aspects of the law of that state. Ohio Rev. Code § 3105.12(B)(3). Thus, if the parties did enter into a valid common law marriage in Texas, Ohio would likely recognize that marriage.

Texas recognizes common-law marriages. See Russell v. Russell, 865 S.W.2d 929, 931-33 (Tex. 1993) (“[c]ommon law marriages have been recognized in Texas since 1847”); Tex. Fam. Code Ann. § 2.401(a) (statutory recognition of common-law marriage and proof required to show such marriage). Texas statutory law provides that a man and woman may prove a valid common law marriage through evidence of a properly executed Declaration and Registration of Informal Marriage, or by showing the following: (1) an agreement to be married; (2) cohabitation in Texas as husband and wife; and (3) proof of representation to others that they are married. Tex. Fam. Code Ann. §§ 2.401(a), 2.402; see also Russell, 865 S.W. 2d at 931-33; Claveria’s Estate v. Claveria, 615 S.W.2d 164, 166 (Tex. 1981). The claimant alleges that she and the number holder were parties to a common law marriage entered into in 1998, and that they moved to Ohio sometime in 2000, therefore Section 1.91 of the Texas Family Code now recodified as Section 2.401 applied. However, like the current Section 2.401(a), Section 1.91 similarly provided that an informal marriage could be shown by evidence of a Declaration of an Informal Marriage, or by showing an agreement to be married, that the parties lived together in Texas as husband and wife, and that they represented to others that they were married. Tex. Fam. Code Ann. § 1.91(a) (Vernon 1994) (repealed 1997); Russell, 865 S.W. 2d at 932-933.

Based upon the information provided, the claimant and the number holder never executed a Declaration of Informal Marriage. Therefore, the claimant must prove that during the time in which they lived together in Texas, she and the number holder agreed to be married, lived together in Texas as husband and wife, and represented to others at that time that they were married. See Tex. Fam. Code Ann. § 2.401(a)(2); see also Russell, 865 S.W. 2d at 931-33. The party seeking to prove the existence of a common law marriage holds the burden of proof by a preponderance of the evidence, which Texas law defines as “the greater weight and degree of credible evidence.” See Farrell v. Farrell, 459 S.W.3d 114, 117 (Tex. App. – El Paso 2015, no pet.); Nguyen v. Nguyen, 355 S.W.3d 82, 88-89 (Tex. App. – Houston [1st Dist.] 2011, pet. denied). Therefore, we must determine if the claimant has shown, by a preponderance of the evidence, that she and the number holder had a common law marriage. Russell, 865 S.W. 2d at 933 (although a declaration of informal marriage constitutes prima facie proof of informal marriage, the parties need not make the declaration to have a valid common law marriage).

Regarding the first element of an agreement to be married, the party seeking to prove a common-law marriage must prove that the couple intended to have “a present, immediate, and permanent marital relationship and that they did in fact agree to be husband and wife.” Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App. – Houston [1st Dist.] 2001, pet. denied). Direct or circumstantial evidence may establish an agreement to be married. See Russell, 865 S.W.2d at 931. Circumstantial evidence of cohabitation and representations to others may show an agreement to be married. See Lee v. Lee, 981 S.W.2d 903, 906 (Tex. App. – Houston [1st Dist.] 1998, pet. denied) (“Proof of cohabitation and representations to others may constitute circumstantial evidence of an agreement to be married.”). The parties may show an agreement to be husband and wife with proof that they intended to create an immediate and permanent marital relationship, not merely a cohabitation that either party may end at any time. Perales v. Flores, 147 S.W.2d 974, 176 (Tex. Civ. App – San Antonio 1941, writ ref’d). Additionally, present cohabitation together with a future agreement to marry does not satisfy this requirement. Gary v. Gary, 490 S.W.2d 929, 932 (Tex. Civ. App. – Tyler 1973, writ ref’d n.r.e.).

The second element of cohabitation requires that the couple “live together in [Texas] as husband and wife,” but courts have not required the living arrangement to be continuous. See Small v. McMaster, 352 S.W.3d 280, 284 (Tex. App. – Houston [14th Dist.] 2011, pet. denied) (“[c]ohabitation need not be continuous for a couple to enter into a common-law marriage”); Bolash v. Heid, 733 S.W.2d 698, 699 (Tex. App. – San Antonio 1987, pet. denied) (sufficient cohabitation when husband visited infrequently from Nigeria).

Finally, as to the third element, representation of the marriage to others is synonymous with the judicial requirement of “holding out to the public,” which the parties may show through their conduct and actions. Eris, 39 S.W.3d at 715 (the focus is upon whether the couple had a reputation in the community for being married); Winfield v. Renfro, 821 S.W.2d 640, 648-651 (Tex. App. – Houston [1st Dist.] 1991) (occasional introductions as husband and wife are not enough); see also POMS SI 00501.152 (Determining Whether Two Opposite-Sex Individuals are Holding Themselves out as a Married Couple). A common law marriage does not exist until a party meets all three elements. Winfield, 821 S.W.2d at 645.

Here, the relationship between the claimant and the number holder satisfied all of the elements of common law marriage because there is evidence of a present agreement to be married, cohabitation as husband and wife, and representations to others that they were married while they lived in Texas from 1998 until 2000. See Lee, 981 S.W.2d at 906; Eris, 39 S.W.3d at 715. The submitted documents, such as the joint tax return filed in 1998 from “S~” and “K~” and referring to the claimant as the number holder’s spouse, demonstrate that both parties held themselves out as a married couple. Additionally, a birth certificate states that V~was “born to Mr. and Mrs. S~” in June 1998. The claimant’s maiden name is listed on the birth certificate as “K~.” The claimant also changed her last name to S2~ in her Numident File, and she is referred to as S2~ in various records, including an automotive repair order from January 1998 and a letter from MDM Electronics dated January 1999. An undated FastCash Filing Agreement signed by S~ lists “K~” as his spouse. Finally, the claimant’s son from a prior marriage and the number holder’s father both asserted in their statements that the parties were generally known as husband and wife. ³⁵ Thus, we find that the greater weight and degree of credible evidence establishes a Texas common-law marriage. “[O]nce [common-law marriage] exists, it, like any other marriage, may be terminated only by death or a court decree.” Claveria’s Estate, 615 S.W.2d at 167.

CONCLUSION

For the reasons discussed above, we conclude that the claimant and the number holder had a valid common law marriage under Ohio law, and thus the claimant is entitled to mother’s benefits as a widow.

G. PR 16-062 Marital Status for Alleged Common-Law Marriage With Subsequent Ceremonial Marriage – Texas

DATE: January 13, 2016

1. Syllabus

The Claimant alleged that she and the NH entered into a common law marriage in August 1995, prior to their ceremonial marriage in Texas in September 2009. Texas recognizes common-law marriages and in this case, we believe that the Claimant has successfully rebutted the presumption that no common-law marriage existed between her and the NH. The Claimant submitted several documents to support her allegation of a common-law marriage with the NH prior to their 2009 ceremonial marriage, thus proving the three required elements by a preponderance of evidence. After reviewing all the evidence submitted, we conclude that the Claimant has shown by a preponderance of the evidence that she and the NH entered into a common-law marriage in August 1995. Finally, we conclude that the Claimant’s and the NH’s September 2009 ceremonial marriage did not negate or terminate the August 1995 common-law marriage, therefore, for purposes of the Claimant’s application for widow’s insurance benefits, we find that the Claimant is the NH’s widow and that their marriage began in August 1995.

2. Opinion

Question Presented

J~ (J~) filed an application for widow’s insurance benefits as the deceased number holder K~’s (NH’s) widow, or surviving spouse.³⁶ You asked whether under Texas law a preponderance of the evidence exists to rebut the presumption that no common-law marriage existed between J~ and the NH, and, if a common-law marriage existed, when it began.

Short Answer

We conclude J~ has shown by a preponderance of the evidence that she and the NH had a valid common-law marriage under Texas law beginning in August 1995. As a result, J~ is the NH’s surviving spouse, or widow, for purposes of determining her entitlement to widow’s insurance benefits on the NH’s account.

Background

In August 1995, J~ and the NH moved in together in L~, Texas, and lived continuously together in Texas until the NH’s death in Texas on November XX, 2009. As evidenced by a Texas marriage license and certificate, on September XX, 2009, the NH and J~ had a ceremonial marriage in B~ County, Texas. On July XX, 2014, J~ filed a claim with the Social Security Administration (agency) for widow’s insurance benefits as the NH’s widow and stated that she married the NH on January XX, 1995, and that their marriage ended with his death in November 2009. The agency’s records show her last name as J~. The agency denied J~’ application at the initial level because she did not meet the duration of marriage requirement. In her request for reconsideration, J~ alleged that though they had a ceremonial marriage in Texas on September XX, 2009, she and the NH entered into a common-law marriage in Texas beginning in 2001. In a later statement, she alleged that their common-law marriage began in August 1995 in Texas. J~ and the NH did not complete a Texas Declaration and Registration of Informal Marriage before the NH’s death.

J~ submitted several documents to support her allegation of a common-law marriage with the NH prior to their 2009 ceremonial marriage. She provided an April XX, 1996, deed of trust for a residence in L~, Texas listing J~ and the NH as joint grantors. J~ also submitted insurance enrollment documents showing that in 2001, the NH added J~ and her son to the NH’s insurance policy effective May XX, 2001. On this insurance enrollment form, the NH listed J~ as his common-law wife and J~’s son as his stepson. In addition, J~ provided car insurance cards from May 2007 and May 2009 listing the NH and J~ jointly as insured drivers and living at the same address in L~, Texas.

J~ also submitted an SSA-754 Statement of Marital Relationship stating that she and the NH lived together as husband and wife since August 1995, considered themselves to be married, and referred to each other as husband and wife. She submitted six SSA-753 Statements Regarding Marriage from the NH’s and J~’S relatives, including the NH’s sister and niece, and friend affirming that the NH and J~ treated each other as common-law spouses since 1995 and referred to each other as husband and wife.

Analysis

A. Requirements for Widow’s Insurance Benefits Under the Social Security Act

A claimant is entitled to widow’s insurance benefits under Title II of the Social Security Act (Act) if, among other things, she shows that she is the widow of a person who died a fully insured individual and that her relationship to the insured individual lasted for at least 9 months immediately before the insured died.³⁷ See 42 U.S.C. §§ 402(e)(1), 416(c); 20 C.F.R. §§ 404.335(a)(1) (relationship must have lasted for at least 9 months), 404.345 (your relationship as a surviving spouse under state law), 404.704 (your responsibility for giving evidence), 404.709 (preferred evidence), 404.723 (when evidence of marriage is required), 404.726 (preferred evidence of common-law marriage). Thus, J~ must establish the requisite relationship with the NH by showing that she is the NH’s surviving spouse and that they were married for at least 9 months immediately before the NH died in November 2009. See 42 U.S.C. § 416(c)(1); 20 C.F.R. §§ 404.335(a), 404.344-404.346.

The agency will determine whether an applicant is an insured individual’s surviving spouse by determining if the courts of the state in which the insured individual was domiciled at the time of death “would find that such applicant and such insured individual were validly married” at the time such insured individual died, or if, under application of that state’s intestate succession laws, the applicant would be able to inherit a spouse’s share of the insured’s personal property. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. Thus, when determining the claimant’s relationship as the insured’s surviving spouse, the agency looks to the law of the state where the insured had a permanent home when he or she died. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. Permanent home means the true and fixed home or legal domicile of the insured individual. 20 C.F.R. § 404.303.

Here, the NH was domiciled in Texas at the time of his death. We therefore look to Texas law to determine first whether J~ had a valid marital relationship with the NH and, if so, what was the date the marital relationship began. See 20 C.F.R. §§ 404.344, 404.345; see also POMS GN 00305.076 (C)-(D) (directing a request for a legal opinion if a claimant files an application for benefits based on an unproven common-law marriage in Texas when presumption exists that no common-law marriage occurred).

B. J~ Has Provided Sufficient Evidence to Prove a Valid Common-Law Marriage to the NH Beginning in 1995

1. Texas Law Regarding Common-Law Marriage

§§ 2.401(a), 2.402; see also Russell, 865 S.W.2d at 931-33; Claveria’s Estate v. Claveria, 615 S.W.2d 164, 166 (Tex. 1981). In the absence of a declaration, if a party does not commence a proceeding to prove her common-law marriage within two years of the date on which the parties separated and ceased living together³⁸ , it is rebuttably presumed that the parties did not enter into an agreement to be married. See Tex. Fam. Code Ann. § 2.401(b). Section 2.401(b) does not create a statute of limitations that requires a person to prove a common-law marriage within two years of the end of the relationship. See Wilson ex rel. C.M.W. v. Estate of Williams, 99 S.W.3d 640, 644-45 (Tex. App. - Waco 2003, no pet.). Rather, it creates only a presumption that no common-law marriage existed, and an individual may rebut such presumption with evidence showing that a common-law marriage did in fact exist. See id. Thus, section 2.401(b) does not place a time bar on when an individual may prove a common-law marriage, only a rebuttable presumption that one did not exist if the two-year period has lapsed. See Tex. Fam. Code Ann.

§ 2.401(b).³⁹

Here, J~ does not maintain that she and the NH signed a declaration of marriage. She instead provides evidence to show that she meets the requirements of section 2.401(a)(2), namely, that she and the NH agreed to be married and after the agreement lived together in Texas as a marital couple and represented to others that they were married. However, J~ did not commence a judicial, administrative, or other proceeding to prove her alleged common-law marriage with the NH within two years of the NH’s death in November 2009. Therefore, a rebuttable presumption exists that J~ and the NH did not enter into an agreement to be married. See Tex. Fam. Code Ann. § 2.401(b).

The Texas Supreme Court has explained that a rebuttable presumption has “no effect on the burden of persuasion,” that the effect of a rebuttable presumption “is to shift the burden of producing evidence to the party against whom it operates,” and that “[o]nce that burden is discharged and evidence contradicting the presumption has been offered, the presumption disappears” and “[t]he evidence on the issue is then evaluated as it would be in any case.” General Motors Corp. v. Saenz o/b/o Saenz, 873 S.W.2d 353, 359 (Tex. 1993); see also Kuester v. Green , 2015 WL 4998171, at *1 (Tex. App. – Austin 2015, no pet.) (“This presumption requires the trier-of-fact to conclude, in the absence of evidence, that the parties never agreed to be married, and at the summary judgment phase, ‘the resisting party must come forward with evidence sufficient to neutralize the effect of the presumption in order to properly allow the case to proceed to trial.’”); Lewis v. Anderson, 173 S.W.3d 556, 559 (Tex. App. – Dallas 2005, pet. denied) (the party seeking to prove a marriage has the burden of proof on all elements); Amaye v. Oravetz, 57 S.W.3d 581, 584 (Tex. App. – Houston [14th Dist.] 2001, pet. denied) (“The effect of a presumption is to force the other party against whom it operates to produce evidence to negate the presumption.”).

The party seeking to prove the existence of a common-law marriage bears the burden of proof by a preponderance of the evidence, which is defined as “the greater weight and degree of credible evidence.” See Farrell v. Farrell, 459 S.W.3d 114, 117 (Tex. App. – El Paso 2015, no pet.); Upjohn Co. v. Freeman, 847 S.W.2d 589, 591 (Tex.App. – Dallas 1992, no writ). The elements of common-law marriage are determined on a case-by-case basis. Claveria’s Estate, 615 S.W.2d at 166. Thus, if J~ produces evidence to negate or contradict the presumption that she and the NH had no common-law marriage, she will then have the burden to prove by a preponderance of the evidence the three elements of a common-law marriage under Texas law, which are: (1) an agreement to be married, (2) cohabitation in Texas as husband and wife, and (3) proof of representation to others of the marriage. Tex. Fam. Code Ann. § 2.401(a)(2); see also Russell, 865 S.W.2d at 931-33.

To show the first element of an agreement to be married, the party seeking to prove a common-law marriage must prove that the couple intended to have “a present, immediate, and permanent marital relationship and that they did in fact agree to be husband and wife.” Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App. – Houston [1st Dist.] 2001, pet. denied). Direct or circumstantial evidence may establish an agreement to be married. See Russell, 865 S.W.2d at 931. Evidence of cohabitation and representations to others that the parties are married may show circumstantial evidence of an agreement to be married. See Lee v. Lee, 981 S.W.2d 903, 906 (Tex. App. – Houston [1st Dist.] 1998, pet. denied). The parties may show an agreement to be husband and wife with proof that they intended to create an immediate and permanent marital relationship, not merely a cohabitation that either party may end at any time, and not an agreement to marry in the future. See Gary v. Gary, 490 S.W.2d 929, 932 (Tex. Civ. App. – Tyler 1973, writ ref’d n.r.e.); Perales v. Flores, 147 S.W.2d 974, 976 (Tex. Civ. App – San Antonio 1941, writ ref’d). While an agreement to presently cohabit and marry in the future is not sufficient to show an agreement to be married, the parties’ intent to marry ceremonially in the future does not necessarily negate an inference that the parties believe that they are already informally or common-law married. Aguilar v. State, 715 S.W.2d 645, 648 (Tex. Crim. App. 1986).

Finally, for the third element, a party must show that the couple represented to others while living in Texas that they were married. See Tex. Fam. Code Ann. § 2.401(a)(2). Representation of the marriage to others, or holding out to the public as being married, is shown through the “conduct and actions of the parties.” Eris, 39 S.W.3d at 715 (spoken words were not necessary to establish representation as husband and wife; the focus is on whether the couple had a reputation in the community for being married); Winfield v. Renfro, 821 S.W.2d 640, 648-51 (Tex. App. – Houston [1st Dist.] 1991, writ denied) (occasional introductions as husband and wife are not enough; a common-law marriage is more than a contract, it is a public status).

A common-law marriage does not exist until a party meets all three elements. Winfield, 821 S.W.2d at 645.

2. J~ Has Rebutted the Presumption and Proven a Common-Law Marriage by a Preponderance of the Evidence

Here, as explained below, we conclude that J~ has successfully rebutted the presumption that no common-law marriage existed between her and the NH and proven the three required elements by a preponderance of evidence.

First, J~ has shown that she and the NH had an agreement to be in a permanent marital relationship and were, in fact, husband and wife. Evidence to support a marital agreement between J~ and the NH includes the May 2001 insurance enrollment, on which the NH added J~ and her son and listed J~ and her son as his common-law wife and stepson, respectively. Documents show that J~ and the NH jointly purchased a home in April 1996 and had car insurance policies together in May 2007 and May 2009. Furthermore, J~ stated that she and the NH had an agreement to be married and be together “forever” and that they lived together as husband and wife from August 1995 until the NH’s death in November 2009. Statements from J~ and the NH’s immediate family, including J~’s son and sister and the NH’s sister and niece, support J~’s statements and confirm that the NH and J~ lived together as husband and wife beginning in 1995. See 20 C.F.R. § 404.726(b)(2) (preferred evidence of common-law marriage if husband or wife is deceased is the signed statement of the living spouse and statements from two blood relatives of deceased spouse), § 404.709 (if a claimant gives the agency preferred evidence, the agency will generally find it is convincing evidence and unless the agency has information raising a doubt about the evidence, no other evidence of the same fact is needed). There is no evidence to contradict the preferred evidence or to impugn its credibility. Thus, J~ has shown by a preponderance of the evidence that she and the NH had an agreement to be married. See Tex. Fam. Code Ann. § 2.401(a)(2) (common-law marriage requires an agreement to be married).

Next, J~ has shown that she and the NH in fact cohabitated together in Texas as husband and wife. As previously discussed, the NH and J~ purchased a home together in April 1996 and lived there together for 13 years until the NH’s death in November 2009. Moreover, the statements J~’s family and friend submitted show that J~ and the NH cohabitated in Texas as husband and wife since 1995. J~ therefore meets the second prong to show that she and the NH cohabitated in Texas as husband and wife. See Tex. Fam. Code Ann. § 2.401(a)(2) (common-law marriage requires proof of cohabitation in Texas as husband and wife).

Finally, J~ meets the third requirement that she and the NH held each other out to others as husband and wife. The NH stated on the May 2001 insurance enrollment form that J~ and her son were his common-law wife and stepson. In addition, the statements from various family members and a friend show that the NH and J~ held each other out as and publicly declared that they were husband and wife. Moreover, the NH’s sister calls J~ her “sister-in-law.” The fact that J~ and the NH purchased a home and maintained car insurance policies together further supports the conclusion that they held themselves out to the public as a married couple. See Tex. Fam. Code Ann. § 2.401(a)(2) (common-law marriage requires representation to others of marriage). In short, the evidence shows that J~ and the NH publicly held themselves out as husband and wife.

In sum, J~ has successfully rebutted the presumption that she and the NH did not have a common-law marriage, and J~ has shown by a preponderance of the evidence that she and the NH met each of the three requirements of common-law marriage in Texas. Therefore, we conclude that J~ and the NH had a valid common-law marriage.

3. The Evidence Supports a Finding that the Common-Law Marriage Began in August 1995

Having determined that J~ has successfully rebutted the presumption of no common-law marriage and shown by a preponderance of the evidence that she and the NH had a valid common-law marriage, we next must determine the date on which the common-law marriage began. There is some inconsistency in the evidence as to when the common-law marriage started. In her application for benefits, J~ states that she and the NH entered into a common-law marriage on January XX, 1995. However, J~ maintains in her SSA-754 Statement of Marital Relationship that she and the NH began living together as husband and wife in August 1995. Statements from J~’s and the NH’s friend and family show that J~ and the NH lived together in a husband and wife relationship since sometime in 1995. And while J~ and the NH purchased a home together in April 1996, J~ stated in her Request for Reconsideration that she and the NH introduced each other as husband and wife since 2001 as shown on the May 2001 insurance enrollment form.

After considering all this evidence, we conclude that the NH and J~ entered into a common-law marriage sometime in August 1995. We recognize that J~ stated in her Request for Reconsideration that she and the NH had held each other out as husband and wife since May 2001, and that the May 2001 insurance enrollment form is the earliest document in the evidence that shows that the NH held out J~ as his common-law wife. However, J~ also states that she and the NH began living in a husband and wife relationship in August 1995, which J~’s and the NH’s family and friend corroborate. Most specifically, J~’s son, who lived with J~ and the NH from 1995 to 2000 and again in 2002, stated that J~ and the NH maintained a home as husband and wife beginning in 1995. By April 1996, the NH and J~ had purchased a home together and resided in this same home until his death in November 2009. This evidence shows that J~ and the NH entered into a common-law marriage before May 2001. Thus, based on the totality of the evidence, we conclude that J~ and the NH entered into a common-law marriage in August 1995. Finally, we recognize that whether the marriage began in January 1995, August 1995, April 1996, or May 2001 is not material here because all of these dates satisfy the 9-month duration requirement. See 20 C.F.R. § 404.335(a)(1) (relationship must have lasted for at least 9 months).

4. Their Subsequent Ceremonial Marriage Did Not Negate the Prior Valid Common-Law Marriage

Although you did not expressly ask us to address the significance of J~’s and the NH’s September XX, 2009, ceremonial marriage, we considered its impact on J~’s claim of a prior common-law marriage. While a subsequent ceremonial marriage can, in certain instances, show that parties to a purported Texas common-law marriage did not have the requisite intent or agreement to be previously married under common law, the preponderance of the evidence in this case supports the conclusion that J~ and the NH had a present agreement to be common-law married in August 1995, which was reaffirmed by their subsequent ceremonial marriage on September XX, 2009. See Aguilar, 715 S.W.2d at 648 (if parties were already informally married, a future marriage ceremony would simply be a reaffirmation of the already existing marriage).

Furthermore, a subsequent ceremonial marriage cannot terminate a prior valid common-law marriage. As previously noted, a common-law marriage is a valid marriage in Texas. “[O]nce [common-law marriage] exists, it, like any other marriage, may be terminated only by death or a court decree.” Claveria’s Estate, 615 S.W.2d at 167. Indeed, Texas law does not recognize common-law divorce. See id. Thus, a common-law marriage terminates only upon the death of one of the spouses or a court order dissolving the marriage. In fact, if an individual who is married at common law attempts to marry another individual in a ceremonial marriage, the ceremonial marriage is void because of the prior valid common-law marriage. See id. at 166-68 (remanding the case to determine the validity of ceremonial marriage due to prior common-law marriage); Tex. Fam. Code Ann. § 6.202(a) (a marriage is void if entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse). Therefore, J~ and the NH’s September XX, 2009, ceremonial marriage had no impact on the validity of and did not terminate their prior August 1995 common-law marriage.

Conclusion

We conclude that J~ has successfully rebutted the presumption that no common-law marriage existed. After reviewing all the evidence submitted, we conclude that J~ has shown by a preponderance of the evidence that she and the NH entered into a common-law marriage in August 1995. Finally, we conclude that J~’s and the NH’s September XX, 2009, ceremonial marriage did not negate or terminate the August 1995 common-law marriage. Therefore, for purposes of J~’s application for widow’s insurance benefits, we find that J~ is the NH’s widow and that their marriage began in August 1995.

H. PR 14-052 Texas State Law – Underage Common Law Marriage (NH C~; SSN ~) – REPLY

DATE: February 21, 2014

1. SYLLABUS

Texas case law during the relevant period indicates that a common law marriage for a female under the age of 14 was illicit and void. Thus, the alleged common law marriage between the number holder and the surviving divorced spouse would have been void under Texas law prior to her fourteenth birthday. Even if the surviving divorced spouse could establish a common law marriage to the number holder for the one day that she was 14 years old prior to her ceremonial marriage, the total time she was in a common law marriage plus the ceremonial marriage falls short of the 10-year duration of marriage requirement for entitlement to widow’s benefits as a surviving divorced spouse

2. OPINION

QUESTION PRESENTED

This memorandum is in response to your request for a legal opinion on whether a Texas common law marriage existed between the deceased number holder C~ (number holder) and R~ (R~) from sometime in 1975 until their ceremonial marriage on November XX, 1976, for purposes of determining whether R~ meets the 10-year marriage requirement for entitlement to Title II surviving disabled divorced widow’s insurance benefits on the number holder’s account under sections 202(e)(1) and 216(d)(2) of the Social Security Act (Act).

ANSWER

Based on the present record and specific circumstances of this case, we believe that a common law marriage could not have existed from 1975 (unknown date) until November XX, 1976, the date of R~’s fourteenth birthday because a common law marriage for a female under the age of 14 was illicit and void under Texas law at the time of the alleged common law marriage. In addition, even though R~ was 14 years old for one day before she entered into the ceremonial marriage on November XX, 1976, the combination of one day and the 9 years, 7 months, and 22 days that she was in the ceremonial marriage does not meet the 10-year marriage requirement to receive Title II surviving disabled divorced widow’s insurance benefits on the number holder’s account.

BACKGROUND

According to the information that you provided, R~ and the number holder married on November XX, 1976, in a ceremonial marriage, and then divorced on July XX, 1986. R’s~ date of birth is November XX, 1962, and she was 14 years old when she married the number holder in the ceremonial marriage on November XX, 1976. R~ applied for Title II surviving disabled divorced widow’s insurance benefits on the number holder’s account on May XX, 2013. The number holder died January XX, 1989 while domiciled in Texas. The Social Security Administration (the agency) denied R~’s Title II surviving disabled divorced widow’s insurance benefits claim because the duration of her ceremonial marriage to the number holder was less than 10 years. In R’s~ request for reconsideration of the agency’s decision to deny her benefits, R~ provided a statement claiming that she entered into a common law marriage with the number holder in 1975, but did not provide the specific date when it occurred. She also provided statements from her niece and the number holder’s two brothers and sister, in which they claimed that R~ and the number holder entered into a common law marriage in 1975.

R~ became 12 years old on November XX, 1974, 13 years old on November XX, 1975, and 14 years old on November XX, 1976. Thus, during her alleged common law marriage to the number holder from sometime in 1975 to the date of the November XX, 1976, ceremonial marriage, she would have been between 12 and 14 years old.

ANALYSIS

Requirements for Title II Surviving Disabled Divorced Widow’s Insurance Benefits

Section 202(e)(1) of the Act provides that the widow (as defined in section 216(c)) or surviving divorced wife (as section 216(d) defines) of a fully insured individual is eligible for widow’s insurance benefits if, among other things, she applies; she is not married; and she has attained age 60, or she has attained age 50 but has not attained age 60 and is under a disability. See 42 U.S.C. § 402(e)(1). Section 216(d)(2) of the Act defines a surviving divorced wife as a woman divorced from an individual who has died, but only if she has been validly married to the individual under applicable state law for a period of 10 years immediately before the date the divorce became effective. See 42 U.S.C. § 416(d)(2); see also 20 C.F.R § 404.336(a) (entitlement to widow’s benefits as a surviving divorced spouse).

As you have only asked for an opinion on the 10-year durational marriage requirement, we assume that you are satisfied that all other requirements for surviving disabled divorced widow’s insurance benefits are met. Thus, our opinion focuses upon whether the number holder and R~ were validly married for 10 years under applicable state law. Using the date of the ceremonial marriage (November XX, 1976) to the date of the divorce (July XX, 1986), R~ and the deceased number holder were married only 9 years and 7 months. Therefore, the determinative issue is whether R~ and the deceased number holder were married under common law prior to the ceremonial marriage to extend the total duration of the marriage to meet the 10-year requirement. The claimant bears the burden of proving the relationship and duration of marriage requirements. See Deters v. Sec. of Health, Educ., and Welfare, 789 F.2d 1181, 1185 (5th Cir. 1985) (the burden of proof rests on the claimant to establish her entitlement to disabled widow’s benefits); 20 C.F.R §§ 404.335, 404.336, 404.704 (“When evidence is needed to prove your eligibility . . . you will be responsible for obtaining and giving the evidence to us.”), 404.723 (“If you apply for benefits as the insured person’s husband or wife, widow or widower, divorced wife or divorced husband, we will ask for evidence of the marriage and where and when it took place.”); Program Operations Manual System (POMS) GN 00305.035A.2 (where the duration of marriage is material, the burden of proof is on the claimant to establish that the marriage lasted at least 10 years).

Under section 216(h)(1)(A)(i) of the Act, if the number holder is deceased, the validity of a marriage is determined by the laws of the state where the number holder had a permanent home at the time of death. “Permanent home means the true and fixed home (legal domicile) of a person. It is the place to which a person intends to return whenever he or she is absent.” 20 C.F.R. § 404.303.

See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345. In this case, because the number holder was domiciled in Texas at the time of his death, we look to Texas law to determine if there was a valid common law marriage between R~ and the number holder prior to their November XX, 1976, ceremonial marriage. See id.

Requirements for a Valid Common Law Marriage Under Texas Law

Texas statutory law provides that a man and woman may prove a valid common law marriage through evidence of a properly executed Declaration and Registration of Informal Marriage, or by showing (1) an agreement to be married, (2) cohabitation in Texas as husband and wife, and (3) proof of representation to others that they are married. Tex. Fam. Code Ann. § 2.401(a); see also Russell v. Russell, 865 S.W.2d 929, 931-33 (Tex. 1993) (explaining the history of Texas common law marriage dating back to 1847 and statutory provisions regarding informal marriage, including the enactment of § 1.91 of the Family Code in 1970 concerning marriages without formalities, the predecessor to the current § 2.401 of the Family Code). The alleged common law marriage, ceremonial marriage, and divorce occurred between sometime in 1975 and July XX, 1986. Section 1.91, effective January XX, 1970, of the Texas Family Code , now recodified as section 2.401, applied during that period of time. Section 1.91 similarly provided that an informal marriage could be shown by evidence of a declaration of an informal marriage, or by showing an agreement to be married, that the parties lived together in Texas as husband and wife, and that the represented to others that they were married. See Acts. 1969, 61st Leg., Ch. 888, § 1.91(a) of the Texas Family Code, effective Jan. 1, 1970. In addition, section 1.91(b) provided that in any proceeding to prove an informal marriage (without a declaration of informal marriage), the agreement of the parties to marry could be inferred if they proved that they lived together as husband and wife and represented to others that they were married. See id. The party seeking to prove the existence of a common law marriage holds the burden of proof by a preponderance of the evidence, which Texas law defines as “the greater weight and degree of credible evidence.” See Tompkins v. State, 774 S.W.2d 195, 208 (Tex. Crim. App. 1987), judgment aff’d, 490 U.S. 754 (1989); see also Nguyen v. Nguyen, 355 S.W.3d 82, 88-89 (Tex. App. – Houston [1st Dist.] 2011, pet. denied). An agreement to be informally married may be established by direct or circumstantial evidence. R~, 865 S.W.2d at 931. A properly executed declaration and registration of informal marriage affirms the elements of a common law marriage and is prima facie evidence of the marriage of the parties. Tex. Fam. Code Ann. § 2.404(d). The information provided demonstrates that R~ and the number holder never executed a declaration of informal marriage. Because no declaration of informal marriage exists, we must determine if R~ has shown, by a preponderance of the evidence, that she and the number holder had a common law marriage. See R~, 865 S.W.2d at 931 (although a declaration of informal marriage constitutes prima facie proof of the parties’ informal marriage, the parties need not make the declaration to have a valid common law marriage).

The elements of a common law marriage—an agreement to be married, marital cohabitation in Texas, and representation of the marital relationship to others—are determined on a case-by-case basis. Estate of Claveria v. Claveria, 615 S.W.2d 164, 166 (Tex. 1981). Regarding the first element, circumstantial evidence of cohabitation and representations to others may show an agreement to be married. See Lee v. Lee, 981 S.W.2d 903, 906 (Tex. App. – Houston [1st Dist.] 1998, pet. denied) (“Proof of cohabitation and representations to others may constitute circumstantial evidence of an agreement to be married.”). The parties may show an agreement to be husband and wife with proof that they intended to create an immediate and permanent marital relationship, not merely a cohabitation that either party may end at any time. Perales v. Flores, 147 S.W.2d 974, 176 (Tex. Civ. App – San Antonio 1941, writ ref’d). Furthermore, an agreement to marry in the future, together with cohabitation does not satisfy this requirement. Gary v. Gary, 490 S.W.2d 929, 932 (Tex. Civ. App. – Tyler 1973, writ ref’d n.r.e.). However, the intent to marry ceremonially, depending on the facts, does not necessarily negate an inference that the parties believe that they are already married by common law. Aguilar v. State, 715 S.W.2d 645, 648 (Tex. Crim. App. 1986).

Regarding the second element, cohabitation, section 2.401(a)(2) of the Texas Family Code requires that the couple “live together in [Texas] as husband and wife,” and courts have not required the living arrangement to be continuous. See Small v. McMaster, 352 S.W.3d 280, 284 (Tex. App. – Houston [14th Dist.] 2011, pet. denied) (“[c]ohabitation need not be continuous for a couple to enter into a common-law marriage”); Bolash v. Heid, 733 S.W.2d 698, 699 (Tex. App. – San Antonio 1987, no writ) (sufficient cohabitation where husband visited from Nigeria infrequently). And, the third element, representation of the marriage to others, is synonymous with the judicial requirement of “holding out to the public,” which the parties may show through the parties’ conduct and actions. Eris v. Phares, 39 S.W.3d 708, 715 (Tex. App. – Houston [1st Dist.] 2001, pet. denied) (the focus is upon whether the couple had a reputation in the community for being married); Winfield v. Renfro, 821 S.W.2d 640, 648-651 (Tex. App. – Houston [1st Dist.] 1991) (occasional introductions as husband and wife are not enough, and that a common-law marriage is more than a contract, it is a public status). A common law marriage does not exist until a party meets all three elements. W~, 821 S.W.2d at 645.

With these elements of common law marriage in mind, we must also examine Texas law relevant to R~’s underage status at the time of her alleged common law marriage to the number holder in 1975 until November xx, 1976, when she was from 12 to 14 years old. The issue is whether under the law in place during the relevant time period, a party who was 12 to 14 years old had the legal capacity to enter into a common law marriage. The Texas Family Code in effect in 1975 did not specify an age requirement for common law marriage. See Acts 1969, 61st Leg., Ch. 888, § 1.91 of the Texas Family Code, effective January XX, 1970; see also Johnson v. State, 103 S.W.3d 463, 463 (Tex. App. – San Antonio 2003, no pet.). However, Texas case law during the relevant period indicates that a common law marriage for a female under the age of 14 was illicit and void. See Walter v. Walter, 433 S.W.2d 183, 191-94, fn. 1 (Tex. Civ. App. – Houston [1st Dist.] 1968, writ ref’d n.r.e.) (“It appears that the intent of the Congress of the Republic, and the subsequent legislature which have considered the matter, was to change the common law age of 7 to 16 in the case of boys and 14 in the case of girls. Marriages under that age should be held void. Child marriages should not be protected by the courts in this State.”).

Here, R~ was under the age of 14 for all but one day of the purported common law marriage to the number holder. Thus, because Texas case law states that a common law marriage cannot exist prior to the age of 14; any such purported marriage between R~ and the number holder would have been void under Texas law prior to her fourteenth birthday on November xx, 1976. Accordingly, R~ and the number holder only could have had a valid common law marriage for the one day prior to their November xx, 1976, ceremonial marriage. Therefore, even if R~ could establish a common law marriage to the number holder for the one day prior to her ceremonial marriage, the total time she was in a common law marriage plus the ceremonial marriage was 9 years, 7 months, and 23 days, which falls short of the 10-year requirement. See 42 U.S.C. § 416(d)(2); see also 20 C.F.R § 404.336(a) (entitlement to widow’s benefits as a surviving divorced spouse). We do not examine whether R~ and the number holder met the elements for a common law marriage for the one day because even if she proved the elements of a common law marriage, she still would not meet the 10-year requirement for Title II Surviving Disabled Divorced Widow’s Insurance Benefits.

CONCLUSION

Accordingly, the evidence provided does not support a finding that R~ meets the 10-year requirement for Title II surviving disabled divorced widow’s insurance benefits on the number holder’s account.

I. PR 13-023 Texas State Law – Questionable Texas Declaration and Registration of Informal Marriage (NH L~ , SSN~) – REPLY

DATE: November 30, 2012

1. SYLLABUS

Texas law provides that either a properly executed Declaration and Registration of Informal Marriage or demonstration of (1) an agreement to be married, (2) cohabitation in Texas as husband and wife, and (3) proof of representation to others that they are married may prove a common-law marriage. Conflicting evidence, as in this case, may raise a question about the effective date for the common-law marriage stated in the Declaration; however, the evidence supports an effective date of February XX, 2009, when the marriage met the three statutory elements.

2. OPINION

QUESTION PRESENTED

You asked for a determination of the effective date of an alleged Texas common law marriage between number holder L~ (the NH) and J~ (the claimant) to determine the support period and the date of entitlement to Title II auxiliary claims of wife’s insurance benefits and child’s insurance benefits for the claimant and A~, the claimant’s son and the NH’s stepson, on the NH’s record.

ANSWER

Based on the specific circumstances of this case, we believe that under Texas law, February XX, 2009, is the effective date of the alleged common law marriage between the NH and the claimant.

BACKGROUND

The evidence submitted contains: (1) a copy of a Decree of Divorce in S~ County, Texas, dated December XX, 1983, between the NH and S~; (2) a copy of the NH’s Last Will and Testament, signed and dated October XX, 2010, listing the claimant as the NH’s common law wife; (3) a copy of a notarized Texas Declaration and Registration of Informal Marriage dated November XX, 2010, signed by the NH and the claimant, each attesting that they agreed to be married on or about February XX, 2009, and that after that date they lived together as husband and wife and represented to others that they were married; (4) a copy of a letter dated August XX, 2011, from Tyler Pipe Company stating that it provides the NH a monthly retirement benefit check in the amount of $151.32; (5) a copy of a loan application dated August XX, 2011, listing the applicants as “L~ or J~”; (6) a copy of a utility bill dated September XX, 2011, from TXU Energy; and (7) a copy of a food stamp program disbursement dated May XX, 2012.

The Social Security Administration’s (agency’s) records show that the NH currently receives Title II benefits, and that on July XX, 2011, the claimant filed unsuccessful Title II claims on the NH’s account for wife’s insurance benefits and child’s insurance benefits for the NH’s stepson. Agency records reflect that the agency denied those claims because the claimant failed to show that the NH adequately supported his stepson. The claimant filed the claims again in June 2012, with additional supporting documentation stating that the NH and the claimant had been married since February 2009 and that the NH had supported his stepson since that time. In July 2012, the agency granted the claims and awarded a June 2012 date of entitlement. The claimant filed a request for reconsideration in August 2012, asserting that the claims should have been paid starting in July 2011, the date of her earlier application. From the evidence submitted, it appears that all requirements for wife’s insurance benefits and child’s insurance benefits have been met, and that the only issue you presented is the effective date of entitlement based on the alleged common law marriage between the NH and the claimant.

The Social Security Act (Act) provides that the wife of an insured husband may be entitled to wife’s insurance benefits if the husband is entitled to old-age or disability benefits, and the marriage has lasted at least one year. See Act §§ 202(b), 216(b)(2); 20 C.F.R. §§ 404.330(a)(1), 404.344. Under the Act, the stepchild of an insured person may also be entitled to child’s insurance benefits if the stepchild’s natural parent married the insured person after the stepchild’s birth; the stepchild received at least one-half support from the insured person at the time of application; and the stepchild relationship existed for at least one year before the date the claimant applied for child’s insurance benefits. See Act §§ 202(d)(1), 216(e)(2), 216(h)(2)(A); 20 C.F.R. §§ 404.357, 404.360, 404.363. 404.366(b).

DISCUSSION

The Act provides that, in determining the validity of a marriage, the agency must look to the laws of the state where the insured husband maintained a permanent home at the time his wife applied for wife’s insurance benefits.

“Permanent home means the true and fixed home (legal domicile) of a person. It is the place to which a person intends to return whenever he or she is absent.” 20 C.F.R. § 404.303. See Act § 216(h)(1)(A)(i); 20 C.F.R. §§ 404.344; 404.345. In this case, we look to Texas law to determine the effective date of the alleged common law marriage between the claimant and the NH because the NH maintained his permanent home in Texas at the time the claimant filed her application for benefits. See id.

Under Texas law, a man and woman may prove a valid common law marriage through evidence of a properly executed Declaration and Registration of Informal Marriage, or by showing (1) an agreement to be married, (2) cohabitation in Texas as husband and wife, and (3) proof of representation to others that they are married. Tex. Fam. Code Ann. § 2.401(a). The party seeking to prove the existence of a common law marriage holds the burden of proof by a preponderance of the evidence, which is defined as “the greater weight and degree of credible evidence.” See Tompkins v. State, 774 S.W.2d 195, 207 (Tex.Crim.App 1987); R & R Contractors v. Torres, 88 S.W.3d 685, 695, n.12 (Tex.App. - Corpus Christi 2002). A properly executed Declaration and Registration of Informal Marriage affirms the elements of a common law marriage and is prima facie evidence of the marriage of the parties. For a declaration to be properly executed, the parties must fully provide information required by a form prescribed by the bureau of vital statistics and provided by the county clerk. Tex. Fam. Code Ann. § 2.402. Tex. Fam. Code Ann. § 2.404(d). It appears from the record that the NH and the claimant properly executed the declaration.

The effective date of a common law marriage as stated in a declaration, however, need not be accepted if conflicting evidence exists as to the date. See Colburn v. State, 966 S.W.2d 511, 515 (Tex.Crim.App. 1998) (testimony of common law wife supported finding that common law marriage did not begin until declaration’s filing date instead of earlier date listed in declaration). And agency policy provides that further development of the common law marriage marital relationship is required in situations where the facts indicate that the declaration may not be valid. See Memorandum from Regional Chief Counsel, Dallas, to Associate Commissioner, OISP, Whether Prior Unproven Common-Law Marriage Precludes Subsequent Common-Law Widow’s Entitlement to Social Security Benefits Under the Laws of the State of Texas (OGC Region VI Opinion No. 04-1533, Prior Opinion No. 00-046 – Reply (June 15, 2005)); (Program Operations Manual System) (General) 00305.075.

In this case, the claimant submitted a notarized Declaration and Registration of Informal Marriage, dated November XX, 2010, which stated that the claimant and the NH agreed to be married on or about February XX, 2009, and that after that date, they lived together in Texas as husband and wife and represented to others that they were married. On its face, the February XX, 2009, date lacks validity because other evidence, including a Title II disability insurance benefits development worksheet and living arrangement summary, indicates that the claimant reported April 2011 as the date she and the NH began living together. However, the NH’s and the claimant’s separately provided Statement of Marital Relationship forms dated July XX, 2012, indicate that the parties did begin living together in February 2009.

Because a question exists as to the validity of the declaration’s date, further analysis of the alleged marital relationship is needed. Under Texas law, the elements of common law marriage—an agreement to be married, marital cohabitation in Texas, and representation of the marital relationship to others—are determined on a case-by-case basis. Estate of Claveria v. Claveria, 615 S.W.2d 164, 166 (Tex. 1981). The first element, an agreement to be married, may be shown through circumstantial evidence of cohabitation and representations to others. Lee v. Lee, 981 S.W.2d 903, 906 (Tex.App. – Houston, 1998, pet. denied) (“Proof of cohabitation and representations to others may constitute circumstantial evidence of an agreement to be married.”). To establish the second element, cohabitation, section 2.401(a)(2) of the Texas Family Code merely requires that the couple “live together in [Texas] as husband and wife,” and courts have not required the living arrangement to be continuous. Small v. McMaster, 352 S.W.3d 280, 284 (Tex.App. – Houston 2011, pet. denied) (“[c]ohabitation need not be continuous for a couple to enter into a common-law marriage”); see also Bolash v. Heid, 733 S.W.2d 698, 699 (Tex.App. – San Antonio, 1987, pet. denied) (sufficient cohabitation where husband visited from Nigeria infrequently). And, the third element, representation of the marriage to others, is shown through the “conduct and actions of the parties.” Eris v. Phares, 39 S.W.3d 708, 715 (Tex.App. – Houston 2001, pet. denied).

The greater weight of evidence indicates that sufficient marital cohabitation and representation existed between the NH and the claimant beginning February XX, 2009, and that the claimant and the NH thus possessed an acceptable agreement to be married from that time. While the claimant apparently stated to the agency in an earlier disability insurance benefits claim that she and the NH began living together in April 2011, she explained to the agency on September XX, 2012, that the April 2011 date referred only to “full-time” cohabitation, and that before that date, she would spend only a few nights a week living with the NH due to problems with the NH’s stepson and the NH’s family. The claimant indicated that she moved in with the NH in February 2009 but also lived at her mother’s house occasionally when her relationship with the NH encountered difficulty. The claimant’s assertion is corroborated by other evidence, including a signed statement from the claimant’s mother stating that marital cohabitation began in February 2009, and signed, notarized statements by the NH and the claimant in a Declaration and Registration of Informal Marriage indicating the same date.

As for representation to others, the NH’s will, signed October XX, 2010, lists the claimant as the NH’s wife, which suggests that they publicly represented their alleged marital relationship well before April 2011. In addition, the August 2011 loan application lists the claimant as “J~,” indicating a public representation of marriage to the NH. And the claimant’s mother issued a statement in July 2012 noting that she frequently heard the claimant and the NH refer to themselves as husband and wife. We believe the greater weight of evidence supports the existence of adequate representation of the marriage to others.

For reasons stated, we believe that under Texas law, the alleged common law marriage met all three statutory elements beginning February XX, 2009. Specifically, Texas law would credit the claimant’s less than full-time cohabitation beginning February XX, 2009, and would find that sufficient evidence exists to establish representation of the marriage to others, and that a valid agreement to be married therefore existed and became effective on that date. See L~, 981 S.W.2d at 906 (“Proof of cohabitation and representations to others may constitute circumstantial evidence of an agreement to be married.”). Accordingly, we believe that the preponderance of the evidence places FebruaryXX, 2009, as the effective date of the common law marriage. See Tompkins v. State, 774 S.W.2d at 207.

CONCLUSION

Based upon the specific circumstances presented, we believe that under Texas law, February XX, 2009, is the effective date of the common law marriage between the claimant and the NH.

J. PR 08-009 Texas State Law Standards for an Administrative Determination to Establish a Valid Common-Law Marital Relationship (NH J~; SSN ~) - REPLY

DATE: October 16, 2007

1. SYLLABUS

In absence of a Declaration of Informal Marriage and in addition to the 3 elements required to establish a common-law marriage under former Tex. Fam. Code section 1.91 (now recodified as section 2.401), the claimant had to commence a proceeding within one year after the date the relationship ended. The claimant's application to obtain the number holder's pension benefits and application for Social Secuirty widow's benefits are considered a "proceeding" under Texas Fam. Code 1.91. Thus the applications would satisified the "other proceeding" requirement under Texas law.

2. OPINION

You have requested an opinion regarding whether private employer statements and actions are acceptable administrative findings to establish a common-law marital relationship. For the reasons stated below, we believe that the private employer statements and actions in this case are acceptable administrative findings to establish a common-law marital relationship.

According to the information you provided, Borden, Inc. (Borden) employed J~ (number holder). Between sometime in 1989 and February 1993, the number holder and T~ (claimant) lived together continuously. In July 1991, the number holder signed a notarized Common Law Marriage Questionnaire to establish the claimant as the number holder's common-law spouse for purposes of Borden's Total Family Protection Plan, a pension plan. The claimant gave birth to a child, J2~, on November XX, 1992, during the time that the number holder and the claimant lived together. The number holder died on November XX, 1994, while domiciled in Texas.

The Social Security Administration (Agency) granted the claimant's application for child's benefits for J2~ on the number holder's account in December 1994. In July 1995, the claimant applied for the cash balance on the number holder's Borden pension account. In August 1995, Borden determined that the claimant was eligible for a lump sum distribution of the number holder's pension account. In February 2007, the claimant filed for mother's benefits because she has an entitled child of the number holder in her care. The claimant's application is on hold, pending our determination whether Texas law would consider her the number holder's common-law spouse.

When determining who is a wife, husband, widow, or widower for purposes of entitlement to Social Security benefits, the Agency will look to the laws of the state where the insured had a permanent home at the time the application was filed, or at the time of the insured's death. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345. Thus, Texas law applies to determine whether the claimant and the number holder were married. Id.

Texas recognizes common-law marriages. Tex. Fam. Code Ann. § 2.401; Whaley v. Peat, 377 S.W.2d 855, 857 (Tex.Civ.App.-Houston 1964, writ ref'd n.r.e). Once a Texas common-law marriage exists, Texas courts treat it with the same dignity as a ceremonial marriage, and it may only terminate by death, divorce, or annulment. Claveria v. Claveria, 615 S.W.2d 164, 165, 167 (Tex. 1981). The burden of proving the existence of a common-law marriage rests with the party seeking to establish the marriage by a preponderance of the evidence. Welch v. State, 908 S.W.2d 258, 265 (Tex. App.-El Paso 1995, rehearing overruled).

At all times relevant to the facts alleged herein, former section 1.91 (now recodified as section 2.401 (Proof of Certain Informal Marriage)) of the Texas Family Code applied. Under former section 1.91, in the absence of a Declaration of Informal Marriage, the claimant had to prove three elements to establish a common-law marriage with the number-holder: (1) an agreement to be married, (2) representation to others that the couple was married; and (3) cohabitation in Texas as husband and wife. Tex. Fam. Code Ann. § 1.91(a) (Vernon 1994). In addition to the three elements outlined above, the claimant had to show that she commenced a proceeding to prove her common-law marriage to the number holder within one year after the date the relationship ended. Id. at § 1.91(b).

We believe that a Texas court would find that the claimant established a common-law marriage with the number-holder under section 1.91. The claimant did not present a Declaration of Informal Marriage. However, she presented proof that she and the number holder agreed to be married, represented to others that they were married, and cohabited in Texas as husband and wife. See Tex. Fam. Code Ann. § 1.91(a). Thus, the question is whether her July 1995 application for the cash balance on the number holder's Borden pension account amounts to a "proceeding" within one year of the number holder's death under section 1.91(b).

We believe that the claimant's application to obtain the number holder's pension benefits is a "proceeding" under section 1.91. The proceeding under this section could be judicial, administrative, or some other type of proceeding. See Nava v. Reddy Partnership/Quail Chase, 988 S.W.2d 346, 349-50 (Tex. App.- Houston [1st Dist] 1999). A Texas court found that an application for Social Security widow's benefits satisfied the "other proceeding" requirement under section 1.91. Id. at 350. We believe a Texas court would likewise consider the claimant's application for the cash balance of the number holder's pension account to be an "other proceeding" under section 1.91.

In conclusion, the private employer statements and actions in this case establish the claimant's common-law marriage to the number holder.

Footnotes:

[1]

^. ^. ^. Under the Act, the term “surviving spouse” means “widower” as defined in section 216(g) of the Act. See 42 U.S.C. § 416(a)(2), (g). Thus, we may use these terms interchangeably in this opinion.

[2]

^. ^. ^. To be eligible for widower’s insurance benefits and the LSDP, in addition to proving that he is the insured individual’s widower, L~ must satisfy other criteria that are outside the scope of this legal opinion request, which asks only if there is a valid marriage such that the claimant is the widower. See 42 U.S.C. § 402(f), (i); 20 C.F.R. §§ 404.335, 404.390, 404.391.

[3]

^. ^. ^. There is also evidence that L~ had marriages to two other women; however, both of these marriages began and ended by death prior to L~’s 1998 marriage to the NH, and thus, are not relevant to the analysis concerning the validity of L~’s marriage to the NH.

[4]

^. ^. ^. Because of the States’ differing burdens of proof, other States applying a higher burden of proof may have an outcome different from the one in this case.

[5]

^. ^. ^. Parties to a common-law marriage may execute a declaration of informal marriage on a form prescribed by the bureau of vital statistics and provided by the county clerk, which affirms the elements of a common-law marriage and constitutes prima facie evidence of the marriage. Tex. Fam. Code Ann. §§ 2.402, 2.404(d). There is no such declaration in the present case.

[6]

^. ^. ^. Here, L~ has not provided preferred evidence of an common law marriage with the NH including his statements or statements from two of the NH’s relatives See 20 C.F.R. § 404.726(b)(2) (preferred evidence of a common-law marriage is the signed statement of the living spouse and statements from two blood relatives of the deceased spouse.). Rather, we have a statement from the NH’s daughter that the NH did not know that L~ was married to someone else at the time she married him. See 20 C.F.R. § 404.726(c) (if an applicant cannot obtain preferred evidence, the applicant can provide other convincing evidence of the marriage).

[7]

^. ^. ^. In a Report of Contact, R~, the NH’s daughter, stated that the NH had no idea that L~ was married to someone else at the time that she and L~ got married. R~ stated that her mother, the NH, “would be turning in her grave if she knew.” This statement suggests that the NH believed that she and L~ had an agreement to be married. However, while the NH did not know that L~ was married to someone else, L~ admitted that he knew he was still married to L2~ when he married the NH. And thus, this statement raises questions about whether he could have had an agreement to be in a present, immediate, and permanent marital relationship when he knew he was married to someone else. L~ also claimed that he “figured because it was a different state, it didn’t matter.” It is not entirely clear whether he thought that legally it did not matter or that he meant that he thought that no one would find out. Regardless, the issue here is whether evidence supports an ongoing agreement to be married after L2~ died in December 2006.

[8]

^. ^. ^. We also considered whether L~ satisfies the Act’s marital relationship requirement by proving that he could inherit a spouse’s share of the NH’s property under Texas intestate succession laws. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345. According to Texas intestate succession law, the estate of an individual who dies intestate descends and passes to his heirs, including any “surviving spouse.” See Tex. Estates Code Ann. §§ 22.015, 201.002, 201.003. Because his 1998 ceremonial marriage to the NH was void and L~ has not proven a valid common-law marriage to the NH under Texas law after L2~’s death in December 2006, we do not believe he qualifies as the NH’s “surviving spouse” entitled to inherit a spouse’s share of the NH’s property under Texas intestate succession law. Thus, L~ also cannot inherit a spouse’s share of the NH’s property under Texas intestate succession law, and is unable to prove his marital relationship with the deceased NH for purposes of his applications for widower’s insurance benefits and the LSDP. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. §§ 404.344 - 404.345.

[9]

^. ^. ^. ^. ^. The Act defines the term surviving spouse to mean a widow or widower. See Act § 216(a)(2), (c), (g), 42 U.S.C. § 416(a)(2), (c), (g).

[10]

^. ^. ^. ^. ^. Of note, the information provided to us indicated the Claimant previously filed for the lump sum death payment on the NH’s earnings record as his widow in November 2006, and the agency denied the claim for lack of evidence of a common-law marital relationship.

[11]

^. ^. ^. ^. ^. The marriage must have lasted for at least nine months immediately before the day the insured individual died. See 20 C.F.R. § 404.335(a); POMS GN 00305.100.

[12]

^. ^. ^. ^. ^. In addition to proving that she is the NH’s widow whose marriage lasted nine months, the Claimant must satisfy other criteria that are outside the scope of this legal opinion request. See Act § 202(e), (f), 42 U.S.C. § 402(e), (f), (i); Act § 216(c), (g), 42 U.S.C. § 416(c), (g); 20 C.F.R. §§ 404.335.

[13]

^. ^. ^. ^. ^. Because of the States’ differing burdens of proof, other States applying a higher burden of proof may have an analysis or outcome different from the one in this case.

[14]

^. ^. ^. ^. ^. Parties to a common-law marriage may execute a declaration of informal marriage on a form prescribed by the bureau of vital statistics and provided by the county clerk, which affirms the elements of a common-law marriage and constitutes prima facie evidence of the marriage. Tex. Fam. Code Ann. §§ 2.402, 2.404(d). There is no such declaration in the present case.

[15]

^. ^. ^. ^. ^. In context of neither party changing his or her last name, it appears the Claimant may have intended to write “did not want to get married,” which would directly conflict with the requirement of an agreement to marry. Either way, the statement supports the assertion that the Claimant and NH did not have an agreement to marry.

[16]

^. ^. ^. ^. ^. Of note, Claimant did indicate she had taken a life insurance policy for the NH, but had to cancel it because she could not afford it. However, this statement, without any evidence of the statements made when establishing the policy, is insufficient to determine whether the policy would be relevant evidence in evaluating whether a common-law marriage existed.

[17]

^. ^. ^. ^. ^. ^. ^. Under the Act, the term “surviving spouse” means “widow” as defined in section 216(c) of the Act. See 42 U.S.C. § 416(a)(2), (c). Thus, we may use these terms interchangeably in this opinion.

[18]

^. ^. ^. ^. ^. ^. ^. To be eligible for widow(er)’s insurance benefits and the LSDP, in addition to proving that he or she is the insured individual’s widow(er), the claimant must satisfy other criteria that are outside the scope of this legal opinion request, which asks only if there is a valid marriage such that the claimant is the widow(er). See 42 U.S.C. § 402(e), (f), (i); 20 C.F.R. §§ 404.335, 404.390, 404.391.

[19]

^. ^. ^. ^. ^. ^. ^. Because of the States’ differing burdens of proof, other States applying a higher burden of proof may have an outcome different from the one in this case.

[20]

^. ^. ^. ^. ^. ^. ^. Parties to a common-law marriage may execute a declaration of informal marriage on a form prescribed by the bureau of vital statistics and provided by the county clerk, which affirms the elements of a common-law marriage and constitutes prima facie evidence of the marriage. Tex. Fam. Code Ann. §§ 2.402, 2.404(d). There is no such declaration in the present case, however.

[21]

^. ^. ^. ^. ^. ^. ^. The agency’s preferred evidence of an informal marriage is the signed statement of the living spouse and statements from two blood relatives of the deceased spouse. See 20 C.F.R. § 404.726(b)(2). Here, we do not have preferred evidence of an informal marriage because we do not have statements from two of the NH’s relatives. Rather, with K~’s statement, her mother’s statement, and J2~’s statement, we have only one statement from the NH’s relative. See 20 C.F.R. § 404.726(c) (if an applicant cannot obtain preferred evidence, the applicant can provide other convincing evidence of the marriage).

[22]

^. ^. ^. ^. ^. ^. ^. We also considered whether K~ satisfies the Act’s marital relationship requirement by proving that she could inherit a spouse’s share of the NH’s property under Texas intestate succession laws. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345. According to Texas intestate succession law, the estate of an individual who dies intestate descends and passes to his heirs, including any “surviving spouse.” See Tex. Estates Code Ann. §§ 22.015, 201.002, 201.003. Because K~ has not proven a valid common-law marriage to the NH under Texas law, we do not believe she qualifies as the NH’s “surviving spouse” entitled to inherit a spouse’s share of the NH’s property under Texas intestate succession law. Thus, K~ also cannot inherit a spouse’s share of the NH’s property under Texas intestate succession law, and is unable to prove her marital relationship with the deceased NH for purposes of her applications for widow’s insurance benefits and the LSDP. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. §§ 404.344 - 404.345.

[23]

^. ^. ^. ^. ^. ^. ^. ^. ^. In the applications, B2~ also listed P~ as the NH’s dependent child. P~ was born

January XX, 2008, to another woman (J~). According to the evidence provided, the NH and P~’s mother were never married. A DNA test and Texas Court Order Adjudicating Parentage established the NH as P~’s father. You have not asked for a legal opinion regarding P~’s eligibility for surviving child’s benefits.

[24]

^. ^. ^. ^. ^. ^. ^. ^. ^. We located information in eView showing B2~ filed for supplemental security income benefits in November 2006. In her application she stated she was married to R~ in a common-law marriage, she and her husband were in the process of getting a divorce, and they separated in September 2006. However, we have no information indicating that they ever divorced.

[25]

^. ^. ^. ^. ^. ^. ^. ^. ^. Although not submitted as evidence, the funeral home website also has the NH’s obituary and submitted condolences. The funeral home obituary is consistent with the obituary submitted into evidence. Two condolences written on December XX, 2013, and one on December XX, 2013, refer to the NH’s wife (B2~) and children (viewed June - XX, 2017).

[26]

^. ^. ^. ^. ^. ^. ^. ^. ^. You did not provide the date of the agency’s determinations awarding benefits to B2~, B~, and H~. We believe the date was in March 2014.

[27]

^. ^. ^. ^. ^. ^. ^. The POMS instructs that the agency “should not think, suppose, suspect, or speculate that fraud or similar fault exists,” rather, the agency “should be able to prove it.” POMS GN 04020.010.D.1. For the reasons set forth in this legal opinion explaining that we do not find good cause to reopen and revise the agency’s favorable determinations, we similarly do not find sufficient evidence that would constitute fraud or similar fault as a basis for reopening. See 20 C.F.R. § 404.988(c)(1); POMS GN 04020.010.A.

[28]

^. ^. ^. ^. ^. ^. ^. Consistent with the scope of your legal opinion request focusing upon B2~’s status as the NH’s widow with the NH’s child in her care, we do not address the other criteria for her entitlement to mother’s benefits or the LSDP.

[29]

^. ^. ^. ^. ^. ^. ^. Because of the States’ differing burdens of proof, other States applying a higher burden of proof may have an outcome different from the one in this case.

[30]

[31]

^. ^. ^. ^. ^. ^. ^. Consistent with the scope of your legal opinion request focusing on B~’s status as the NH’s natural child, we do not address the other criteria for entitlement to surviving child’s insurance benefits.

[32]

^. ^. ^. ^. ^. ^. ^. Consistent with the scope of your legal opinion request focusing on H~’s status as the NH’s stepchild based on her mother’s common-law marriage to the NH, we do not address the other criteria for entitlement to surviving child’s insurance benefits as a stepchild.

[33]

^. ^. ^. ^. ^. ^. ^. Our opinion is consistent with an Atlanta OGC legal opinion that the agency could not reopen an application based on a DNA test showing a zero percent probability of paternity because the DNA test was not admissible under Mississippi law. See POMS PR 01215.027 Mississippi at PR 08-176. When the DNA tests showing a zero percent probability of paternity were valid under state law, our office and other offices have issued legal opinions that arrived at the opposite conclusion—finding that the agency could reopen the application and deny benefits. See, e.g., POMS PR 01115.005 Arkansas at PR 06-119; POMS PR 01115.017 Indiana at PR 06-196; POMS PR 01210.012 Georgia at PR 06-088 and PR 06-087.

[34]

^. ^. ^. ^. ^. ^. ^. ^. ^. The request for legal opinion states that the parties lived in Texas until “sometime in 2001,” but the claimant’s own statement indicates that she lived in Texas until 2000.

[35]

^. ^. ^. ^. ^. ^. ^. The fact that the parties underwent a legal ceremonial marriage in 2015 should not affect the validity of their common law marriage that originated in Texas in 1998. Intent to marry ceremonially does not necessarily negate an inference that the parties believed that they were already married by common law. Aguilar v. State, 715 S.W.2d 645, 648 (Tex. Crim. App. 1986)(“If [the parties] had agreed that they were already married, a future ceremony would be only a reaffirmation of that promise, and of the already existing marriage.”).

[36]

^. ^. ^. ^. ^. ^. ^. The Social Security Act defines the term surviving spouse to mean a widow or widower. See 42 U.S.C. § 416(a)(2), (c), (g). Thus, we use the terms interchangeably in this opinion.

[37]

^. ^. ^. ^. ^. ^. ^. To be eligible for surviving spouse’s, or widow(er)’s, benefits, in addition to proving that she is the insured’s widow based on a relationship described in 20 C.F.R. §§ 404.345 and 404.346 and proving that the relationship met the 9-month duration requirement, the claimant must also satisfy other criteria (including that the claimant must be of a certain age and that the claimant be unmarried) that we do not address in this legal opinion as we have only been asked to determine whether the relationship requirement for surviving spouse’s benefits has been established and, if so, when the relationship began. See 42 U.S.C. §§ 402(e)(1), 416(c); 20 C.F.R. § 404.335 (explaining entitlement to widow’s benefits). If a claimant was not married to the insured individual for 9 months before the insured’s death, there are other ways to establish her status as the widow, which do not apply here. See 42 U.S.C. § 416(c)(1); 20 C.F.R. § 404.335(a)(1)-(4). Thus, J~ must prove that she had a valid marriage and meets the 9-month duration requirement. See 20 C.F.R. § 404.335(a)(1).

[38]

^. ^. ^. ^. ^. ^. ^. Separating and ceasing living together includes the death of one of the spouses of a purported common-law marriage. See Prince v. Foreman, 2010 WL 87334, at *1-2 (Tex. App. – Ft. Worth 2010, pet. denied); Lopez-Rodriguez v. City of Levelland, 2004 WL 1746045, at *7 (N.D. Tex. Aug. 3, 2004).

[39]

^. ^. ^. ^. ^. ^. ^. In contrast, section 1.91 of the Texas Family Code, the precursor to the current section 2.401, created a statute of limitations that required an individual to commence a suit to prove the existence of a common-law marriage within one year of the end of the relationship. See Wilson, 99 S.W.3d at 644. However, this provision was amended in 1995 and repealed and replaced in 1997 with the current version of section 2.401. See id. The Texas Legislature made the current version of section 2.401 applicable in all suits commenced on or after September XX, 1995. Lavely v. Heafner, 976 S.W.2d 896, 898 n. 2 (Tex. App. – Houston [14th District] 1998, no pet.) (citing 74th Leg., R.S., ch. 891, § 2(b), Tex. Gen. Laws 336). Therefore, section 2.401 is the relevant provision governing this matter.

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PS: Title XVI Regional Chief Counsel Precedents

POMS Reference

PR: Title II Regional Chief Counsel Precedents

A. PR 18-075 Marital Status for Alleged Common-Law Marriage in Texas

1. Syllabus

2. Opinion

B. PR 18-068 -Texas State Law – Status of Claimant’s Marriage for Widower’s Application

1. Syllabus

2. Opinion

C. PR 18-055 Marital Status for Alleged Common-Law Marriage for Widow's Benefits

1. Syllabus

2. Opinion

D. PR 18-044 Texas State Law- Marital Status for Alleged Common Law Marriage

1. Syllabus

2. Opinion

E. PR 17-150 Marital and Child Status after Settlement and Judgment

1. Syllabus

2. Opinion

F. PR 16-108 Validity of Common Law Marriage – REPLY

1. Syllabus

2. Opinion

G. PR 16-062 Marital Status for Alleged Common-Law Marriage With Subsequent Ceremonial Marriage – Texas

1. Syllabus

2. Opinion

H. PR 14-052 Texas State Law – Underage Common Law Marriage (NH C~; SSN ~) – REPLY

1. SYLLABUS

2. OPINION

I. PR 13-023 Texas State Law – Questionable Texas Declaration and Registration of Informal Marriage (NH L~ , SSN~) – REPLY

1. SYLLABUS

2. OPINION

J. PR 08-009 Texas State Law Standards for an Administrative Determination to Establish a Valid Common-Law Marital Relationship (NH J~; SSN ~) - REPLY

1. SYLLABUS

2. OPINION

Footnotes: