PR 05805: State Recognition of Same-Sex Marriage
TN 8 (03-18)
A. PR 18-038 Would Rhode Island recognize a common-law marriage, allegedly contracted within the State by a same-sex couple, for entitlement to widower’s benefits
Date: January 3, 2018
1. Syllabus
The number holder (NH) had a permanent residence in Rhode Island at the time of his death; therefore, the agency looks to the Rhode Island law to determine whether the claimant can be considered to be the NH’s widower. The claimant alleges that he and the NH entered into a common-law marriage in Rhode Island in May 1977. Common law marriage was recognized in Rhode Island, but was not legalized until August 1, 2013. We believe that, in light of recent changes to Rhode Island’s statutory law, a Rhode Island court would adapt its common law to include those who cohabit as, and hold themselves out as, husband and husband or wife and wife. In this case, based on the evidence provided, we believe that the couple’s relationship satisfies the Rhode Island’s requirements to establish a valid, common-law marriage. For that reason, the agency would be justified in concluding that the claimant is the NH’s widower for the purpose of entitlement to widow’s benefits under Title II.
2. Opinion
I. Question Presented
Whether C~ (the claimant) is the widower of W~ (the NH) for purposes of determining the claimant’s entitlement to benefits under Title II of the Social Security Act (the Act).
II. Short Answer
Yes. We believe the claimant has satisfied the requirements to form a valid, common-law marriage in the state of Rhode Island. For that reason, the agency should also consider the claimant to be the NH’s widower.
III. Background
In August 2016, the claimant applied for widower’s benefits on the earnings record of the deceased NH. The claimant alleged that a common-law marriage was entered into in P~, Rhode Island on May XX, 1977, when same-sex marriages were not permitted by the State. The claimant states that he and the NH had an understanding of “total commitment [and] respect for one another” beginning in May of 1977 and that relationship remained the same through 2016 and the NH’s death. The NH died on April XX, 2016, while living in Rhode Island.
In support of his August 2016 application, the claimant provided the following evidence:
The NH’s death certificate issued by the State of Rhode Island, listing the claimant as his spouse;
The claimant’s Statement of Marriage (SSA-754);
Statements Regarding Marriage (SSA-753) provided by a friend, E~, and the claimant’s sister, B~;
A letter from the priest of C~ Church, indicating that the claimant and the NH had been in a “loving relationship” for 38 years and that at the untimely death of the NH, it had been the couple’s intention to have the “relationship” recognized by the church and the State of Rhode Island. The priest wrote of the couple, “It has been their devotion to each other, nearly four decades, they have lived out the promises made in the Marriage Blessing”;
A letter from E2~, the director of the W~ Senior Center, who stated the claimant and the NH were active members in the center and had lived as “domestic partners” for as long as she had known them, for ten years;
A copy of the NH’s obituary, which listed the claimant as his partner of 38 years;
A copy of the claimant’s last will and testament, showing that the claimant and the NH had formed “The P~-O~ Revocable Trust Agreement” on November XX, 2000, with the claimant and the NH serving as co-trustees. Further, the claimant’s will appointed the NH as his personal representative;
A warranty deed, dated August XX, 1988, identifying the claimant and the NH as tenants in common of real property in W~, Rhode Island;
Evidence showing that the claimant and the NH shared three joint bank accounts at Citizens Bank and owned a car or truck together.
IV. Applicable Law
A. Federal Law
To be entitled to widower’s insurance benefits under the Act, a claimant must show, among other things, that he is the widower of the insured. See Act § 202(f)(1), 42 U.S.C. § 402(f)(1). As pertinent here, the Act defines “widower” as “the surviving husband of an individual . . . .” 42 U.S.C. § 416(g)(1). Under the Act:
An applicant is the . . . widower . . . of a fully or currently insured individual for purposes of this title if the courts of the State in which such insured individual is domiciled at the time such applicant files an application, or, if such insured individual is dead, the courts of the State in which he was domiciled at the time of death . . . would find that such applicant and such insured individual were validly married . . . at the time he died . . . .
42 U.S.C. § 416(h)(1)(A)(i); see also 20 C.F.R. § 404.345. The relationship requirement will also be met if, under State law, the claimant would be able to inherit a husband’s share of the insured’s personal property if he were to die without leaving a will. 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.
Additionally, to be considered a “widower,” a claimant must show that “he . . . was married to [his spouse] for a period of not less than nine months immediately prior to the day on which [his spouse] died . . . .” 42 U.S.C. § 416(g)(1)(E).
Here, the NH resided in Rhode Island at the time of his death. Therefore, the agency must determine whether the State courts of Rhode Island would consider the claimant and the NH to be validly married at the time the number holder died.
With respect to the agency’s application of State marriage laws, we note that in Obergefell v. Hodges, 135 S. Ct. 2584, 2604-05 (2015), the Supreme Court held State laws invalid to the extent they exclude same-sex couples from marriage on the same terms and conditions as opposite-sex couples. Pursuant to Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 94-98 (1993), SSA should give Obergefell full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate Obergefell. As a result, SSA will consider State-law same-sex-marriage bans, whether based on State constitutional or statutory provisions or case law void and ineffective. SSA will apply the relevant law to the facts as usual to evaluate marital status.
B. Common-Law and Same-Sex Marriage in Rhode Island
Common law marriage has long been recognized in Rhode Island. Holgate v. United Electric Railways Co., 47 R.I. 337, 339, 133 A. 243, 244 (1926). Such unions can be established by clear and convincing evidence that the parties seriously intended to enter into the spousal relationship, Ibello v. Sweet, 47 R.I. 480, 482, 133 A. 801, 801-02 (1926), and that their conduct was of such a character as to lead to a belief in the community that they were married, Williams v. Herrick, 21 R.I. 401, 402, 43 A. 1036, 1037 (1899).
The serious intent requirement has also been construed as a “present intent” requirement. For example, in Zharkova v. Gaudreau, the Supreme Court of Rhode Island stated that, “[i]n order to establish a common-law marriage . . . , plaintiff was first required to provide clear and convincing evidence of each party’s mutual present intent to be [married].” 45 A.3d 1282, 1291 (R.I. 2012). See also Smith v. Smith, 966 A.2d 109, 114 (R.I. 2009) (“the parties must mutually and presently intend to be husband and wife rather than merely become engaged to be husband and wife at some point in the future”).
The requisite intent and belief may be inferred from cohabitation, declarations, reputation among kindred and friends, and other competent circumstantial evidence. Sardonis v. Sardonis, 106 R.I. 469, 472, 261 A.2d 22, 24 (1970). However, “cohabitation alone is not conclusive of intent to be husband and wife, and such evidence may be rebutted by counter-proof.” Smith, 966 A.2d at 114 (citing Peck v. Peck, 12 R.I. 485, 488 (1880)).
Intent may also be demonstrated by the actions of the couple while a legal impediment exists. In Fravala v. City of Cranston ex rel. Baron, the Supreme Court of Rhode Island held that “[b]ecause intent of the parties is crucial in determining whether a common-law marriage exists, the conduct of the parties, even at a time when an impediment precludes the lawful existence of a common-law marriage, could be probative of the parties’ intent after the impediment is removed.” 996 A.2d 696, 703 (R.I. 2010) (emphasis supplied).
Rhode Island legalized same-sex marriage on August 1, 2013.1 See R.I. Gen. Laws Ann. § 15-1-1 (West 2015) (“Any person who otherwise meets the eligibility requirements of chapters 15-1 and 15-2 may marry any other eligible person regardless of gender.”); see also POMS GN 00210.003. Although the case law refers to common-law marriage using the gendered phrases “husband” and “wife,” we believe that, in light of recent changes to Rhode Island’s statutory law, discussed below, a Rhode Island court would adapt its common law to include those who cohabit as, and hold themselves out as, “husband and husband” or “wife and wife.” The law that allows for same-sex marriages states:
Marriage is the legally recognized union of two (2) people. Terms relating to the marital relationship or familial relationship shall be construed consistently with this section for all purposes throughout the law, whether in the context of statute, administrative or court rule, policy, common law, or any other source of civil law.
R.I. Gen. Laws Ann. § 15-1-7 (West 2015) (emphasis supplied). We interpret this statutory provision to mean that same-sex couples who satisfy Rhode Island’s common-law marriage requirements will be considered married under State law, at least as of August 1, 2013.
V. Analysis
The NH had a permanent residence in Rhode Island at the time of his death in 2016. Thus, the agency looks to Rhode Island law to determine whether the claimant can be considered to be the NH’s widower. 42 U.S.C. § 416(h)(1)(A)(i); see also 20 C.F.R. § 404.345.
The claimant alleges that he and the NH entered into a common-law marriage in Rhode Island on May XX, 1977, except that same-sex marriages was not permitted by the State until August 1, 2013. See R.I. Gen. Laws Ann. § 15-1-1 (West 2015). However, as we previously explained, under Obergefell, SSA will consider State-law same-sex-marriage bans, whether based on State constitutional or statutory provisions or case law void and ineffective. Instead, SSA will apply the relevant law to the facts as usual to evaluate marital status.
As discussed above, Rhode Island will find that a common-law marriage has been established if clear and convincing evidence shows the following: (1) that the parties seriously intended to enter into the husband-wife relationship, Ibello, 47 R.I. at 482, 133 A. at 801; and (2) that their conduct was of such a character as to lead to a belief in the community that they were married, Williams, 21 R.I. at 402, 43 A. at 1036.
A. Evidence of Serious Intent to Enter into a Spousal Relationship
The claimant alleges that he entered a common-law marriage with the NH on May XX, 1977. However, because same-sex marriages were not recognized in Rhode Island until May 2, 2013, we will use this later date to determine whether claimant meets Rhode Island’s common-law marriage requirements—specifically the “belief in the community” requirement. 2
A review of Rhode Island case law suggests that “clear and convincing evidence” of serious (and present) intent to enter a common-law marriage largely turns on the consistency of the evidence presented. The Supreme Court of Rhode Island has found requisite intent to be lacking where, despite cohabitation, the parties present contradictory narratives about their intentions. In such cases, the court also considers the financial affairs of the couple, e.g., whether they own property jointly, beneficiary designations for life insurance policies and retirement plans, and their representations as being either “single” or “married” on official documents.
For example, in a recent case, the court held that the plaintiff had not provided clear and convincing evidence of mutual, present intent where the parties presented conflicting evidence. Zharkova v. Gaudreau, 45 A.3d 1282 (R.I. 2012). Specifically, the plaintiff testified that the defendant proposed marriage in 2000 or 2001, to which she replied, “What’s the point?” Zharkova, 45 A.3d at 1291. The defendant testified that he did not recall proposing to the plaintiff and that, had he intended to do so, he would have purchased a ring. Id. The court characterized the plaintiff’s testimony about when she believed the common-law marriage came into existence as “vague and inconsistent.” Id. Although the plaintiff and the defendant filed joint tax returns, the defendant testified that this action based on a friend’s advice that they would save money that way. Id. at 1292. The couple also owned property as tenants by the entirety; however, the defendant testified that he did not understand the distinction in property ownership and “knew that two people could own properties together when they were not married.” Id. at 1288. The defendant also testified that he moved in with the plaintiff so they “could help each other out,” that there was never an “official arrangement of how any finances would be handled,” and that he and the plaintiff never shared bank accounts. Id. at 1287-88. Additionally, the defendant’s daughter—not the plaintiff—was the beneficiary of both his 401(k) plan and his life insurance policy. Id. at 1288.
In another case, Smith, the court described the evidence of intent as, “[a]t best, . . . conflicting.” 966 A.2d at 115. The plaintiff testified that the defendant proposed marriage in 1989, which she allegedly accepted. Id. at 111. She testified that she believed the marriage began in 1991 and that the defendant gave her a ring in 1998. Id. The court found, however, that “[t]he ring was not a clear indication of [the defendant’s] intent because it was given on Christmas and may have been intended as a Christmas gift.” Id. at 115. Additionally, the defendant “gave her the ring about nine years after his proposal and about seven years after [the plaintiff] contended that they already were living as husband and wife.” Id. The court concluded that “the timing of these circumstances negates any inference that [the defendant] believed he had been married from 1991 to 1998.” Id. The court also noted that the plaintiff declared herself, under penalty of perjury, to be a single person on her income tax returns and on her bankruptcy petition, and that the defendant listed himself as single on his tax returns and on a mortgage application. Id. at 109.
In DeMelo v. Zompa, 844 A.2d 174, 177-78 (R.I. 2004), the court held that the plaintiff had not presented clear and convincing evidence of serious intent because she had “merely testified that [the couple] had discussions about spending their lives together, not necessarily as a married couple,” and that “[a]lthough plaintiff testified that she always wore a diamond ring on her left hand, which plaintiff says defendant gave her to signify that they were married, a picture was admitted in evidence clearly showing plaintiff wearing the ring on her right hand.” DeMelo, 844 A.2d at 177. The Court also discussed documents that listed the plaintiff as “single,” such as tax returns, a mortgage application, and insurance applications. Id. at 178. Additionally, the court considered the fact that the plaintiff did not designate the defendant as a beneficiary on her pension or 401(k), that their condominium was owned as tenants in common (not as tenants by the entirety or joint tenants), and that they kept separate bank accounts. Id., See also Lovegrove v. McCutcheon, 712 A.2d 874, 874 (R.I. 1998) (mem.) (holding parties cohabitating for fifteen years were not in common-law marriage because evidence revealed that the plaintiff designated herself as single on employment applications, the home was purchased under the defendant’s name alone, and they did not pool their assets).
Unlike the plaintiffs in those cases, the claimant offered an abundance of evidence of the couple’s intent to enter into a spousal relationship. In his application for benefits, the claimant reported that he and the NH entered into a common-law marriage on May XX, 1977 and from that day through the NH’s death, the couple had an understanding of “total commitment [and] respect for one another.” Further, in a letter from the couple’s church, a priest wrote, “It has been their devotion to each other, nearly four decades, they have lived out the promises made in the Marriage Blessing.” He also wrote that prior to the NH’s death3 it had been the couple’s intention to also have their marriage recognized by the church and the State of Rhode Island.
The claimant’s relationship with the NH has more in common with relationships recognized as common-law marriages. For example, in Fravala, the Supreme Court of Rhode Island affirmed the Superior Court’s finding that an alleged widow had demonstrated the requisite intent to enter a common-law marriage based on evidence that the couple had lived together for thirty-five years, pooled their finances, held joint shares in a credit union, were joint borrowers on a loan, lived in a home that was jointly leased for no specified term, listed each other as emergency contacts on important documents, and that the plaintiff was designated as the primary beneficiary of the deceased’s life insurance policy. 996 A.2d at 705-06. The plaintiff also testified that she paid for the deceased’s funeral expenses. Id. at 700. Although there was no marriage ceremony, the Superior Court found that the couple “were as committed to one another for over thirty-five years as they would have been were they formally married[,]” noting that their relationship was arguably “a stronger relationship than many married couples today or over the course of time.” Id. at 705.
As in Fravala, the claimant and the NH did not have a formal ceremony but lived together as a couple for many years (since 1977) and shared assets, such as three joint bank accounts, real property as tenants in common since 1988, and a car or a truck. The couple were also co-trustees of the P~-O~ Revocable Trust, formed in 2000. Additionally, the claimant had appointed the NH as his personal representative in his last will and testament. Finally, the clamant is identified as the NH’s spouse on his death certificate.
Based on our analysis, we believe a Rhode Island court would consider the documents submitted to be clear and convincing evidence of a serious and present intent to enter a common-law marriage. Although same-sex marriages were not recognized in 1977, the Supreme Court of Rhode Island has held that “Because intent of the parties is crucial in determining whether a common-law marriage exists, the conduct of the parties, even at a time when an impediment precludes the lawful existence of a common-law marriage, could be probative of the parties’ intent after the impediment is removed.” 996 A.2d at 703. The impediment in this case was removed in 2013 when Rhode Island began recognizing same-sex marriages, thus allowing same-sex couples to provide evidence of belief in the community that the couple was married—the second requirement to establish a common-law marriage in the State.
B. Evidence of a Belief in the Community
To establish the second element of a common-law marriage, an individual must also provide clear and convincing evidence of a belief in the community that the couple were married. See Smith, 966 A.2d at 116-17 (citing Sardonis, 106 R.I. at 472, 261 A.2d at 24). Such a belief may be inferred from cohabitation, declarations, and reputation among friends and family. Id. The reputation, however, must be general and uniform. Smith, 966 A.2d at 116-17 (citing Williams, 21 R.I. at 403, 43 A. at 1037).
Again, the court has been more instructive on the type of evidence that does not satisfy the requirement. In Smith, the court found that this requirement had not been proven because the parties presented conflicting evidence. Id. at 115. In that case, for example, while the plaintiff testified that she often introduced the defendant as her husband to various people, including her doctor, her son’s substance-abuse counselor, her business associates, and her home decorator, the defendant testified that the people who knew the parties were aware that they were not married. Id. at 116. The court wrote,
The record is simply devoid of any testimony that any member of Todd’s family believed that the couple was married. Indeed, Todd’s sister testified that in 1999 she made a family tree and displayed it at a family party, but she did not list Paulette or her children on the family tree. She also testified that the family occasionally would ask the couple why they would not get married, and they would respond that they did not want to “ruin a good thing.”
Id. In another case, DeMelo, the court noted the paucity of evidence, where plaintiff’s only evidence was the testimony of her brother, who said the defendant referred to him as his brother-in-law. 844 A.2d at 177-78. In contrast, long-time friends of both the plaintiff and the defendant testified that they never planned to get married, nor did they refer to each other as husband and wife. Id.
This case does not lend itself to a direct comparison because the couple, based on their same-sex status, were not open to establish belief of their marriage in the community prior to Rhode Island’s legalization of same-sex marriages in 2013 – a prohibition the Supreme Court has since held to be unconstitutional. See Obergefell, 576 U.S. at ___, 135 S.Ct. 2584. Thus, others could not have considered them to be legally married, even under common-law, until such marriages were recognized in the State.
Despite the prohibition against same-sex marriage in the State prior to 2013, the claimant provided ample evidence of others in the community who corroborated his characterization of his relationship with the NH. For example, the priest from the couple’s church wrote in a letter that the NH and the claimant had lived in a “loving” relationship for 38 years and had “lived out the promises made in the Marriage Blessing.” E2~, the director of the W~ Senior Center, wrote a letter stating the claimant and the NH were active members in the center and had lived as “domestic partners” for as long as she had known them, for ten years. In addition, E~ also completed a “Statement of Marriage,” indicating she believed the couple had maintained a home and lived together as spouses continuously since 1982. The claimant’s sister completed a “Statement Regarding Marriage” where she indicated she had known the NH for 38 years and had met with the NH on all holidays and at all family “get togethers.” The claimant’s sister stated that the NH and claimant were generally known as spouses and she herself considered them spouses because they “did everything together,” “shared together,” attended all functions together, and bought and owned a home together.
These statements are similar to those provided in Fravala, which the Superior Court found to be “overwhelming evidence supporting the fact that the community recognized the parties to be in a husband-wife relationship for over thirty-five years.” 996 A.2d at 706. The evidence in Fravala included testimony from three of the plaintiff’s children, who told the court that the deceased was a father figure during their childhood, four friends who described the plaintiff and the deceased as a “couple,” and the plaintiff’s grandson, who testified that he called the plaintiff and the deceased his “grandparents.” Id. at 700-01.
In addition to these statements, the couple cohabitated starting in 1977, purchased a home together in 1988, shared joint bank accounts, co-owed a car or a truck, and served as co-trustees of the P~-O~ Revocable Trust (formed in 2000). Based on the evidence, we believe a Rhode Island court would conclude that the claimant provided clear and convincing evidence of a belief in the community that the couple were married.
VI. Conclusion
We believe that the couple’s relationship satisfies Rhode Island’s requirements to establish a valid, common-law marriage, at least as early as 2013. For that reason, the agency would be justified in concluding that the claimant is the NH’s widower for the purpose of entitlement to widow’s benefits under Title II.
Michael J. Pelgro
Regional Chief Counsel
By: Sarah E. Choi
Assistant Regional Counsel
Footnotes:
. On May 2, 2013, the Governor of Rhode Island signed into law legislation enacted by the Rhode Island General Assembly recognizing same-sex marriage. The law, entitled “An Act Relating to Domestic Relations – Persons Eligible to Marry,” took effect on August 1, 2013. See 2013 R.I. Pub. Laws, ch. 004, Bill No. H 5015B.
. See 2013 R.I. Pub. Laws, ch. 004, Bill No. H 5015B. Additionally, we note that same-sex couples might conceivably show “belief in the community” as early as February 2007, when Rhode Island began recognizing same-sex marriages formed in Massachusetts. See R.I. Att’y Gen. Op. (Feb. 20, 2007).
. The NH’s obituary indicates that he passed away after surgery for complications from his Type I diabetes.