PR: Title II Regional Chief Counsel Precedents
TN 10 (08-18)
A. PR 18-103 Validity of Same-Sex Common Law Marriage in Colorado
1. SYLLABUS
The number holder (NH) was domiciled in Colorado at the time of death; therefore, Colorado law applies. Colorado recognizes common law marriage, which can be established if the parties mutually consent or agree to be spouses and demonstrate a mutual and open assumption of a marital relationship. Here, there is ample evidence demonstrating their mutual agreement to be married followed by the open assumption of their marital relationship. We believe the available evidence is sufficient to establish a common law marriage in Colorado between the NH and the CL and the agency would be justified in finding that the CL should be considered the NH’s widow for purposes of determining entitlement to widow’s benefits on the NH’s record.
2. OPINION
QUESTION
You have asked us to determine if a valid same-sex common law marriage existed in Colorado between the number holder, K~ (NH), and the claimant, R~ (CL), such that the CL is eligible to receive widow’s benefits and a lump sum death payment under the Social Security Act.
SHORT ANSWER
Yes. We believe that State courts in Colorado would find that a valid same-sex common law marriage existed between the NH and the CL under Colorado law at least since September XX, 2002, the date they allege of their marriage ceremony occurred. Accordingly, we believe the agency would be justified in finding that the CL should be considered the NH’s widow for purposes of determining entitlement to widow’s benefits on the NH’s record.
BACKGROUND
Based on the information provided, the NH and the CL began living together in November 1997. See, e.g., Form SSA-754, Statement of Marital Relationship. On September XX, 2002, they celebrated their relationship in a commitment ceremony, attended by friends and family. They resided in Colorado for the entirety of their relationship; the NH died in Colorado on April XX, 2013. See Form SSA-754, Statement of Marital Relationship; State of Colorado, Certificate of Death.
The CL filed for widow’s benefits and a lump-sum death payment in February 2017. She submitted evidence in support of that application, including real estate records, life insurance forms, bank records, and third-party statements from family and friends, discussed in more detail below.
DISCUSSION
Federal Law
A claimant must establish that he or she is the “widow” or “widower” of an individual who died fully insured to be entitled to benefits as a surviving spouse. See Social Security Act §§ 202(e)(1), (f)(1), (i); 216(a)(2), (c), (g); 20 C.F.R. §§ 404.335, 404.390. Under section 216(h)(1)(A)(i) of the Act, SSA will find a claimant to be the widow or widower of an insured individual if the courts of the State in which the insured individual was domiciled at the time of his or her death would find that the claimant was validly married to the insured individual when the death occurred.1 See also 20 C.F.R. § 404.345. Since the NH and the CL resided in Colorado at all relevant times, and the NH was domiciled in Colorado when she died, Colorado law applies.
State Law
Colorado recognizes common law marriage, which can be established if the parties mutually consent or agree to be spouses and demonstrate a mutual and open assumption of a marital relationship. POMS GN 00305.075; People v. Lucero, 747 P.2d 660, 663 (Colo. 1988); see also Colo. Rev. Stat. § 14-2-104(3). In addition, common law marriages entered into on or after September 1, 2006, are only valid if the parties were 18 years of age or older2 and not entering into a marriage otherwise prohibited by statute (i.e., marriages between certain blood relations or where a prior undissolved marriage or civil union exists). See Colo. Rev. Stat. §§ 14-2-109.5, 14-2-110; POMS GN 00305.075. However, even prior to September 1, 2006, some marriages were similarly prohibited under Colorado’s common law (see below).
Burden of Proof
The burden of proof for establishing a common law marriage in Colorado is by a preponderance of the evidence. See Colo. Rev. Stat. § 13-25-127(1) (unless otherwise specified, burden of proof in a civil action is by a preponderance of the evidence); Lucero, 747 P.2d at 664, n.6 (clarifying that earlier case law stating evidence “should be clear, consistent and convincing” did not establish a higher burden of proof, but instead merely indicated the need for “more than vague claims unsupported by competent evidence”) (internal citation omitted).
Marriage Not Prohibited by Statute or Common Law
Although the Colorado Constitution and a separate Colorado statute indicate a marriage is only valid if it is between one man and one woman, those provisions are unconstitutional in light of the decision of the United States Supreme Court in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). In Obergefell, the Supreme Court held state laws invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. 135 S. Ct. at 2604-05. Pursuant to Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 94-98 (1993), SSA should give Obergefell full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate Obergefell. As a result, SSA considers Colorado’s same-sex-marriage bans void and ineffective.
Other statutorily prohibited marriages in Colorado include (1) marriage entered into prior to the dissolution of an earlier marriage or civil union; (2) marriage between an ancestor and descendant, or sister and brother; and (3) marriage between an uncle and niece or aunt and nephew. Colo. Rev. Stat. §§ 14-2-109.5, 14-2-110. These prohibitions were made specifically applicable to common law marriages entered into on or after September 1, 2006. See id. § 14-2-109.5. Although the statutory prohibitions are part of Colorado’s Uniform Marriage Act (UMA), which existed prior to that date, the Colorado Court of Appeals has held that common law, not the UMA, governs common law marriage (absent a clear expression of legislative intent to modify or abrogate the common law). In re Marriage of J.M.H. & Rouse, 143 P.3d 1116, 1120 (Colo. App. 2006). Under the common law, Colorado still recognized that a common law marriage cannot arise while one party is still married to a third party. See, e.g., In re Morrow’s Estate, 68 P.2d 36, 39 (Colo. 1937).
Mutual Agreement to Be Spouses, Followed by Open Assumption of Marital Relationship
The Colorado Supreme Court has recognized that the mutual agreement to be spouses need not be express; instead, such agreement may be inferred from evidence of cohabitation and general reputation. “In such cases, the conduct of the parties provides the truly reliable evidence of the nature of their understanding or agreement.” Lucero, 747 P.2d at 664. And “[t]he two factors that most clearly show an intention to be married are cohabitation and a general understanding or reputation among persons in the community . . . that the parties hold themselves out as husband and wife.” Id. at 665; see also Whitenhill v. Kaiser Permanente, 940 P.2d 1129, 1132 (Colo. App. 1997) (cohabitation and general reputation in the community are most reliable factors in determining intent to be married). In this regard, where the agreement to marry is not shown directly, the same or similar evidence might be sufficient to establish both elements, i.e., (1) the parties’ mutual agreement to be spouses; and (2) the open assumption of a marital relationship. No specific form of evidence is required, but parties must present more than vague claims unsupported by competent evidence. Lucero, 747 P.2d at 663-64 & n.6. Examples of evidence that might be probative include maintenance of joint banking and credit accounts; purchase and joint ownership of property; and the filing of joint tax returns; but “there is no single form that any such evidence must take.” Id. at 665. Indeed, the Colorado Supreme Court has suggested that the testimony of one party regarding the elements can be sufficient to establish a common law marriage—if that testimony is credible and believed by the trier of fact.3 Id.
We note that the “mutual consent or agreement to be [spouses] must exist in the present, since an agreement to marry in the future does not create a common law marriage.” Crandall v. Resley, 804 P.2d 272, 276 (Colo. App. 1990) (citing Radovich v. Radovich, 269 P. 22 (Colo. 1928)). In Crandall, the court rejected an alleged common law marriage where both parties were aware that they could not presently marry due to a legal impediment; the putative wife remained married to someone else, and the parties did not intend to be married until that impediment was formally removed. Under these circumstances, the parties could not evince the state of mind needed to “mutually consent” and therefore did not have a valid common law marriage. Id. at 276. We view this case as limited to the circumstance where a party has some control over removing the impediment to marriage—because in that circumstance the impediment necessarily affects the parties’ states of mind. Where the impediment to marriage is an invalid and unconstitutional statute, over which the parties had no control, we think the parties could acknowledge the existing state of law yet still manifest between themselves the mutual agreement to be married (or to be in a long-term, committed and monogamous relationship equivalent to marriage).4
ANALYSIS
Here, there is no evidence that the NH and CL’s marriage was prohibited by statute (there is no evidence of prior undissolved marriages or that the NH and CL were closely related), and there is ample evidence demonstrating their mutual agreement to be married followed by the open assumption of their marital relationship. The supportive evidence includes:
A Statement of Marital Relationship from the CL in which she reported that she and the NH lived together continuously since 1997; considered themselves to be married even though the law at the time would not recognize them as such5 ; celebrated their relationship with friends in a September XX, 2002, commitment ceremony; and confidentially registered as domestic partners around 2006 with the City of Boulder, Colorado.
The NH’s last will and testament, dated February 2013, which left her entire estate to the CL, who was described as her domestic partner.
Statements Regarding Marriage from NH’s sisters, brother, and sister-in-law, all of whom indicated that NH and CL were spouses and referred to each other as such. They also reference attending the “wedding ceremony” or “wedding” between the NH and the CL. Each relative also referred to their relationship with the CL as “sister-in-law,” indicating their understanding of a familial relationship through marriage.
Statements Regarding Marriage from the CL’s brother and sister, who likewise considered the NH and the CL to be married and noted that they held themselves out as spouses. The CL’s siblings described the NH as “in-law,” and one sibling reported that her children referred to the NH as “Aunt K~.”
Additional Statements Regarding Marriage from several friends of the couple, which consistently indicate that the NH and the CL referred to each other as “wife” and were considered to be married based on their long-term, committed relationship:
o “They were a couple from the moment I met them to the moment [the NH] took her last breath. . . . They co-owned a house, shared a bed, and commingled all their resources. They loved each other.”
o “I was present for their joining ceremony in 2002. They were devoted to each other, lived together, and were each other’s legal beneficiaries.”
o “[They] introduced themselves to me as a married couple when I met them in 2003. Some time later . . . I saw photos of their wedding ceremony and their signed commitment document. These hung in their home.”
o “They presented in every way as a married couple. They lived together, they had a commitment ceremony, they referred to themselves as married. . . . They were known and admired for their long, committed relationship. They had the symbols of marriage (rings, houses, commitments, language) and lived as a married couple.”
o “Because it was illegal to marry, they had a commitment ceremony. They lived together & shared expenses, as well as a bed, until [the NH’s] death. . . . They were a model for a successful, loving, committed marriage.”
o “The depth of their love, their loyalty and devotion to one another, their willingness to stay at each other’s side no matter what—these are extremely rare qualities in the world of relationships.”
o “I have seen their wedding photo & heard about their courtship & ceremony. . . . They live together just as any other married couple in my experiencing—sharing finances, etc. etc.”
o “They lived together in a committed, monogamous relationship for the entire time I knew them.”
Additional financial, insurance, and medical documents showing that the NH and the CL bought a home together, shared a bank account, listed each other as the primary beneficiary on various accounts, and that the CL was covered as a domestic partner on the NH’s health insurance from 2002 through her death in 2013.
The parties’ commitment ceremony, which was witnessed by multiple family members and friends, is convincing and direct evidence of the express agreement to marry as well as the open assumption of the marital relationship. All witnesses (including blood relatives of both the NH and the CL) uniformly indicated that the parties cohabited and publicly presented themselves as spouses. See 20 C.F.R. § 404.726(b)(2) (statements from two blood relatives of the deceased are preferred evidence of common law marriage); POMS GN 00305.065(B)(3). Witnesses also confirmed the existence of marriage accoutrements, such the wearing of rings and public display of wedding photos and commitment document; and two witnesses indicated they provided the couple with relationship counseling/therapy. Additional corroborating evidence was also presented, as the parties maintained joint bank accounts, purchased property jointly and provided for one another through health insurance benefits and wills. This is the type of evidence that Colorado courts consider to be probative. See Lucero, 747 P.2d at 664-65.
The only potentially contrary evidence is not significant. The NH applied for disability benefits in February 2013 indicating she was never married; the NH’s April 2013 death certificate indicates she was never married; and the NH’s 2013 tax return (completed after her death) reflects a filing status of single. But these statements must be viewed in context. All of the statements pre-dated Obergefell, as well as the earliest decisions specifically addressing Colorado’s same-sex marriage ban (which were issued in July 2014). See Brinkman v. Long, No. 13-cv-32572 (Colo. Dist. Ct. July 9, 2014); Burns v. Hickenlooper, 2014 WL 3634834 (D. Colo. July 23, 2014); see also Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) (Utah). It is not surprising, and not particularly probative, that the parties made statements consistent with the state of the law on these types of formal legal documents. In this context, the statements do not detract from the otherwise significant and uniform evidence that the parties considered themselves married and acted accordingly in the community. Consequently, we think the evidence is more than sufficient to satisfy the preponderance of evidence standard, and a Colorado court would likely conclude that the NH and the CL had established a common law marriage.
CONCLUSION
We believe the available evidence is sufficient to establish a common law marriage in Colorado between the NH and the CL from at least September XX, 2002, until the NH’s death on April XX, 2013. Therefore, we believe the agency would be justified in finding that the CL should be considered the NH’s widow for purposes of determining entitlement to widow’s benefits on the NH’s record.
Footnotes:
. For widow’s benefits, the claimant must also show that she meets one of the following conditions:
(1) her relationship to the insured as a wife lasted for at least 9 months immediately before the insured died;
(2) her relationship to the insured as a wife did not last for at least 9 months but another qualifying condition is satisfied;
(3) she and the insured had a child together; or
(4) the month before marrying the insured, she was entitled to or could have been entitled to certain benefits or payments.
20 C.F.R. § 404.335; see also Social Security Act, § 202(c). For the lump-sum death payment, in addition to establishing that she is the NH’s widow, the claimant must also (1) apply for the payment within two years of the insured’s death, and (2) have been living in the same household as the insured at time of his death. 20 C.F.R. § 404.391.
. Prior to September 1, 2006, the common law age of consent for marriage applied—which was 14 for a male and 12 for a female. In re Marriage of J.M.H. & Rouse, 143 P.3d 1116, 1120 (Colo. App. 2006).
. In Lucero, the trial court was presented with testimony from the respondent’s purported common law wife, who testified that she considered herself to be married to the respondent; they held themselves out to friends as being married; and the respondent agreed with her conclusion that they were married. Id. at 662. The Colorado Supreme Court concluded that this testimony, “if believed, would have established the existence of a common law marriage.” Id. at 665.
. We are aware of one Colorado probate court that recognized a same-sex common law marriage notwithstanding Crandall. See A Probate Judge Finds Same Sex Common Law Marriage in Colorado, http://denverelderlaw.org/same-sex-common-law-marriage-ruling-in-colorado (last visited April 27, 2018).
. As noted above, this legal impediment does not undermine the intent to be married.