TN 3 (03-13)

A. PR 13-047 Reply to your request for a legal opinion on whether Meshele and Jacob were in a common law marriage in Mexico—Jacob (NH) – SSN~.

DATE: February 25, 2013

1. SYLLABUS

Under the Intestacy Law in Mexico the Act provides survivor’s benefits for children of a deceased NH who is fully insured, if, among other requirements, the child is the NH’s child and dependent on the deceased NH at the time of death. Act, § 202(d); 20 C.F.R. §§ 404.350(a)(1), .355(b)(1).  In determining whether an applicant is the natural child of a fully insured individual, the Commissioner looks to the law that would be applied in determining the devolution of intestate personal property by the courts of the state in which the insured individual is domiciled at the time of death. 

In this case,the child is deemed the child of the NH and entitled to survivor’s benefits on the NH’s account under section 216(h)(2)(A) of the Act because she could inherit from the NH under District of Columbia (D.C.) law, which looks to Mexican law.

The NH maintained domicile in Jalisco, Mexico, at the time of his death. We look to D.C. law, which looks to the law of the jurisdiction in which the NH’s marriage occurred, to determine the validity of the marriage. Mexico law does not provide for common-law marriages, and it is uncertain whether D.C. courts would recognize Mexican concubinage as a legal equivalent of common-law marriage. The state of Jalisco, Mexico, would, however, recognize the right of the claimant in this case to inherit from the NH’s estate in the event of his death. The claimant can, therefore, meet the relationship requirement as a spouse of the NH because under D.C. law, which looks to Mexican intestacy law, she could inherit as a spouse of the NH’s estate.

2. OPINION

QUESTIONS PRESENTED

1. Under which provision of the Social Security Act (Act) is Sierra (the child), born to Meshele (the mother or Meshele) in Mexico, entitled to survivor’s benefits on the account of Jacob (NH) who died while domiciled in Mexico?

2. Is Meshele a spouse of the NH for purposes of entitlement to mother’s benefits?

SHORT ANSWERS

1. The child could be deemed the child of the NH and entitled to survivor’s benefits on the NH’s account under section 216(h)(2)(A) of the Act because she could inherit from the NH under District of Columbia law, which looks to Mexican law.

2. Based on our review of the facts of this case, our research, and the Law Library of Congress’ research of the relevant Mexican laws, it is our opinion that the NH’s and the mother’s relationship is a concubinage under Mexican law, and would not be recognized as a common law relationship by the courts of the District of Columbia.  However, under the law of concubinage in Mexico, the mother would have the inheritance rights of a spouse, provided that neither party was legally married to another person. The Act provides that a mother can meet the spousal requirement if she would be able to inherit a spouse’s share of the NH’s personal property if he were to die intestate. Therefore, we believe that the mother would satisfy the requirements for mother’s benefits and the lump sum payment.

BACKGROUND

You provided us with a Notice of Award letter from the Mid-America Program Service Center indicating that the child was entitled to monthly child’s benefits on the record of the NH beginning in February of 2012, when the NH died in Mexico. You indicated that the field office had “erroneously adjudicated C1’s application with the incorrect relationship—natural/legitimate” under section 216(h)(3) of the Act. You requested a legal opinion so that the type of relationship could be corrected. We note that Meshele stated on her application for mother’s benefits that she and the NH were married on October 15, 2005 in Mexico. Apparently that information is erroneous even though submitted under penalty of perjury.  Although this statement is erroneous, there is no indication that the mother intended to submit a fraudulent application as the handwritten documents that you provided indicated that she believed that the couple had a common law marriage. 

 There is no documentation of marriage in the documents that you provided.

You provided a birth certificate dated June 28, 2007 from the civil register’s office in the state of Baja California Sur, Mexico, listing the NH and Meshele as the parents of Sierra. You also provided a United States of America, Department of State, Consular Report of Birth Abroad.   Generally, a birth certificate showing the child’s surname as the same as the parent’s name is sufficient proof of a natural parent-child relationship, but the POMS urges offices developing claims for children born outside the United States, including in Mexico, to be cautious. 

POMS GN00307.240, .669, .671, .673 (Baja California Sur is not listed as a source from which documents cannot be accepted on their face). 

The Consular Report of Birth Abroad states that the child “Sierra ” was born on June, in the state of Baja California Sur, Mexico, and acquired United States citizenship at birth as established by documentary evidence presented on March 15, 2012. The Consular Report of Birth Abroad lists the NH as the father of the child, and Mesheleas the mother of the child. 

Based on the information you provided, the NH and Meshele were United States citizens, who lived together as a couple in Mexico from October 2005 until the NH died in Mexico on February 29, 2012.  Meshele was previously ceremonially married to Willard in British Columbia and purportedly was divorced in 1995 in California.  It would be advisable to obtain documentation to confirm the divorce, because, as explained below, if Meshele is still married she would not be entitled to benefits. It does not appear that the NH was previously married. 

According to statements signed under penalty of perjury from Meshele and the NH’s parents, Gerald and Sandra , the NH and Meshele lived together in Mexico between October 2005 – February 2012 and they conceived a child together, Sierra, who was born on June . The couple lived in Cancun, Mexico (state of Quintana Roo) from October 15, 2005 – October 30, 2005, in San Jose del Cabo (state of Baja California Sur) from November 1, 2005 – December 2010, and in Puerto Vallerta (state of Jalisco) from December 2010 - February 29, 2012. 

 In Meshele’s Statement of Marital Relationship, she explained that the couple lived together as husband and wife; they had an understanding that “they were having a baby together, would raise her together, grow old together and no stronger bond could anyone have.” Meshele stated that she intended to live with the NH forever.  Meshele also stated that they held themselves out to the public, including friends and family, as “Jacob and Meshele .” In the NH’s father’s Statement Regarding Marriage, he indicated that the NH and Meshele “loved each other and had a child together and lived together and [his] son was crazy about her.” The NH’s mother similarly stated in her Statement Regarding Marriage that the couple “lived as husband and wife,” “had a baby together,” and “would still be together if my son was still alive.” The NH’s mother also explained that they lived next door to the NH and Meshele in Mexico between December 2010 and March 2011 and saw them every day during that period, and afterwards saw the family on her granddaughter’s birthday. 

Meshele’s parents, Dianna and Gary , also submitted a notarized letter stating that Meshele called to tell them that she was going to have a baby, and that they went to Mexico to visit the couple in July 2007 after the child was born.  When the Roses saw the couple and the child in Mexico, they saw a “loving relationship with Jacob, Meshele, and new baby.” The Roses planned to return in 2010 “to marry them” as Gary is a minister, but due to the death of Dianna’s father and job demands, they were not able to return to Mexico. 

The NH was murdered in Mexico on February 29, 2012. According to a United States of America, Department of State, Report of Death of an American Citizen Abroad, the NH died as a result of severe cranio-encephalic trauma. The “traveling/residing abroad with relatives or friends” section of the report is blank. In the remarks, the consular associate noted “[S]ubject was a wanted fugitive at the time of his death.  Due to the advanced state of decomposition in which his remains were found, identification of subject was based on secondary evidence rather than direct biological evidence. Subject’s common law wife made the official identification based on the clothes subject was wearing and a handwritten note found among his effects.”  A subsequent Report of Contact from the American Consulate General stated that no one had been found responsible for the murder of the NH and that Meshele was not mentioned as a suspect. 

 On the date of his death, the NH was domiciled in the state of Jalisco, Mexico. In April 2012, Meshele applied for mother’s benefits,  The claimant, age 44 at the time of application, is too young to qualify for widow’s insurance benefits under the Act. 20 C.F.R. § 404.335(c). a lump-sum death benefit, and for child’s survivor benefits, on the NH’s account.  In support of the applications, Meshele alleged a common law marriage in Mexico with the NH and stated that the child was living with the deceased at the time of his death. Meshele further stated that the child was in her care subsequent to the NH’s death.   

DISCUSSION

1. The Child is Deemed the NH’s Child Because She Could Inherit the NH’s Property Under the Intestacy Law in Mexico.

   The Act provides survivor’s benefits for children of a deceased NH who is fully insured, if, among other requirements, the child is the NH’s child and dependent on the deceased NH at the time of death. Act, § 202(d); 20 C.F.R. §§ 404.350(a)(1), .355(b)(1). In determining whether an applicant is the natural child of a fully insured individual, the Commissioner looks to the law that would be applied in determining the devolution of intestate personal property by the courts of the state in which the insured individual is domiciled at the time of death. If an insured individual is not domiciled in any state, then the Commissioner looks to the law that the courts of the District of Columbia would apply. Act, § 216(h)(2)(A), 20 C.F.R. § 404.355(b)(4).  If a child would be considered a child under the applicable state or D.C. intestacy law, then the child is deemed the child of the NH for purposes of entitlement to benefits. Id. 

   At the time of his death, the NH was domiciled in Jalisco, Mexico. Therefore, we look to D.C. for guidance in whether the child could inherit from the NH under D.C. law.  The United States District Court for the District of Columbia has held that the law of the domicile of the decedent governs the distribution of personal property. In Re Estate of G~, 168 F. Supp. 124, 126 (D.D.C. 1958). More recently, relying upon In Re Estate of G~, the United States Court of Appeals for the District of Columbia Circuit held that the law of the Philippines applied in determining a child’s entitlement to benefits on the wage earner’s record. Javier v. Commissioner of Social Security, 407 F.3d 1244, 1247 (D.C. Cir. 2005). 

   Therefore, in order to determine whether the child could inherit the NH’s intestate property, we asked the Law Library of Congress whether a child born out of wedlock in Mexico would be able to inherit from the deceased father. The law librarian informed us that a child, whose birth was registered with a Civil Registrar, would have the right to inherit the NH’s personal property. Therefore, because such a registration certificate is in the child’s file, we believe that the child would be deemed to be the dependent child of the NH and entitled to benefits on the NH’s account under section 216(h)(2)(A) of the Act. 

2. The Mother’s Entitlement to Benefits on the NH’s Account

After we determined that the child is entitled to benefits, we next looked at whether the mother is also entitled to benefits on the NH’s account. The Act provides mother’s survivor’s benefits to the spouse of a deceased NH who is fully insured, subject to five conditions. Act, § 202(g); 20 C.F.R. § 404.339; POMS RS 00208.001. As the Commissioner’s regulations explain, to be eligible: (a) she must be the widow of the insured and meet the conditions described in 404.335(a); (b) she must apply for benefits; (c) she must be unmarried; (d) she must not be entitled to widow’s benefits; and (e) she must have in her “care” the insured’s child (under 16) who is entitled to child’s benefits. 20 C.F.R. § 404.339; POMS RS 00208.001, .005.  Similarly, to be entitled to a lump-sum death benefit, the claimant must be the spouse of the NH. Act, § 202(i); 20 C.F.R. § 404.391(a). 

Accordingly, we analyzed whether the mother qualifies as the NH’s “widow” and meets the spousal relationship requirement. 20 C.F.R. §§ 404.335(a); 404.339. See also Garcia v. Sec’y of Health & Human Servs., 760 F.2d 4, 5 (1st Cir. 1985) (to qualify for mother’s benefits, mother must establish that she is the NH’s widow). 

1. The Mother and the NH were not Validly Married Under Mexican Law

   The Act defines, in relevant part, a “widow” as the surviving wife of the deceased wage earner who is the mother of his son/daughter. Act, § 216(c)(1)(A).  Therefore, we analyzed whether the mother met the spousal relationship requirement through a valid marriage to the NH. Act, § 216(h)(1)(A)(i), 20 C.F.R. § 404.345. To establish the mother’s relationship to the NH, the Commissioner looks to state laws. 20 C.F.R. § 404.344. See also Act, § 216(h)(1)(A)(i),(ii) (Act looks to state law to establish the status of particular family relationships as they relate to receipt of program benefits). As explained in section I above, because the NH was domiciled outside of the United States, D.C. law applies. Under D.C. law, the validity of a marriage is to be determined by the law of the jurisdiction “where the marriage occurred.” Bansda v. Wheeler, 995 A.2d 189, 198-99 (D.C. 2010). Accordingly, the Commissioner looks to Mexican law to determine whether the mother was validly married to the NH for Social Security purposes.

   Because Mexico is a civil law country, its laws do not provide for “common law” marriage. 

   See, e.g., Jaimez-Revolla v. Bell, 598 F.2d 243, 244 (D.C. Cir. 1979) (noting in dicta that Mexico does not recognize common law marriages). The law librarian has advised that the states of Baja California Sur and Jalisco have laws that cover “concubinage,” which is similar to the concept of common law marriage. POMS GN 00307.257.  The POMS recognizes the existence of concubinage in Mexico.  The POMS explains that common law marriage in Mexico has not been recognized through February 1986, and further explains an exception that: recognize a state of “*Concubinage” in certain death cases where the couple lived together for 5 years prior to the date of death (without prior unresolved marriages).

   Some of the Mexican states and the Mexican Federal District *Concubinage is the state of a woman or man in an ongoing, usually matrimonially oriented, relationship with somebody to whom they cannot be married often because of a difference in social status or economic condition. POMS GN 00307.257. 

   The law librarian has advised that Baja California Sur, where the couple lived together from November 2005 – December 2010, defines concubinage as the union of one man and one woman, free of any impediments to marriage, who “choose to cohabit with the tacit purpose of forming a family, offering mutual respect and protection, and preserving humankind.”  To legally establish a concubinage relationship in Baja California Sur, the relationship must be publicly sustained for five uninterrupted years, or it may be established by the birth of a child, even if this occurs before the five years have elapsed.  After the concubinage relationship has been established, i.e., they had a child, the rights and obligations of the concubinage relationship may be judicially enforced.  In addition, if the concubinage relationship lasts until the death of one of the parties, the surviving concubine has the right to inherit in the same proportion and conditions as a spouse. Therefore, assuming that neither the NH or mother was legally married to another person (or had another concubine), it is our opinion that the couple meets the requirements to establish a concubinage relationship under the laws of Baja California Sur due to the birth of the child in June 2007.

   The law librarian has also advised that in Jalisco, where the couple lived together from December 2010 until February 2012, the person with whom a deceased individual lived in the same domicile, as if they were spouses during the three years prior to his death, has the right to inherit from the deceased individual (provided that both parties were unmarried during the concubinage relationship) if a child was born of the relationship.  The Jalisco Civil Code further provides that certain property of individuals in the concubinage relationship may be judicially declared exempt from liens (such as a home, vehicle, and household goods).  Again, assuming that neither the NH nor the mother was legally married to another person, it is our opinion that the couple established a concubinage relationship under the law of Jalisco.   The law librarian has also advised that under the Mexican Federal Social Security Law, in the absence of a spouse, a widow’s pension may be granted to a person who lived with an insured individual as if they were married during the five years immediately preceding his death or if they had children together (provided they were both unmarried during the concubinage relationship). 

   Although the D.C. courts have not yet adjudicated the issue of whether Mexican concubinage is the legal equivalent of a common law marriage, it is our opinion that D.C. courts would not recognize Mexican concubinage as the legal equivalent of common law marriage. See B~, 995 A.2d at 198-99 (D.C. 2010) (upholding trial court’s ruling that woman had not established common law marriage in the Netherlands – another civil law country). See also Jaimez-Revolla, 598 F.2d at 244 (noting in dicta that Mexico does not recognize common law marriages); Rosales v. Battle, 113 Cal. App.4th 1178, 1183 (Cal. App. Dep’t Super. Ct. 2003) (determining that concubinage under the law of Baja California Sur is not the equivalent of common law marriage).  At your request, we also analyzed whether the union between the NH and the claimant was a void marriage under D.C. law – one that is legally nonexistent from the beginning under State law with or without a judicial decree. The D.C. Code declares the marriages void ab initio without being decreed if the parties to the marriage have certain familial relationships, i.e., the marriage of a person with a parent’s grandparent, or spouse’s child, or the marriage of any persons previously married and whose previous marriage has not been terminated by death or a decree of divorce. DC Code § 46-401.01.  Neither of the situations appear to apply to the union between the NH and the insured. 

2. The Mother Would Have the Same Status as a Spouse of the NH Under Mexican Intestacy Law.

Because we determined that the mother and the NH were not validly married, we next analyzed whether there is another way that she can qualify as the “widow” of the NH and be entitled to mother’s benefits under § 404.339. Section 404.339 cites to the conditions described in section (a) of 404.335. Section 404.335(a) provides that an individual is an insured’s “widow” if (1) she meets one of the conditions set forth in paragraphs (a)(1)-(4) of that section and (2) she has a relationship described in §§ 404.345-.346 with the insured. 20 C.F.R. §§ 404.335(a).  We reviewed the conditions set forth in paragraphs (a)(1)-(4) and determined that the mother and the NH satisfied the third condition because they were the natural parents of a child. Id. at (a)(3). As the regulations direct, we next looked at whether the NH and the mother met requirements for a relationship described in section 404.345.   In addition to through a valid marriage, the relationship requirement will also be met if the mother could inherit a widow’s/wife’s share from the NH under D.C. law if he were to die intestate. 20 C.F.R. § 404.345; Act, § 216(h)(1)(A)(ii). Therefore, once again, the Commissioner looks to the laws of the state where the insured had a permanent home when the claimant applied for benefits, and if the insured’s permanent home was not in one of the 50 states, the Commissioner looks to the laws of D.C. 20 C.F.R. § 404.345; POMS GN 00307.257. 

Therefore, even though the mother is not validly married to the NH, she will be entitled to benefits under the law applied by the courts of D.C. in determining devolution of intestate personal property, if she has the same status as a wife or a widow of the NH with respect to the taking of such property. Act, § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345; POMS GN 00307.257. See also Chambers v. Harris, 687 F.2d 332, 334 (10th Cir. 1982) (in mother’s benefits case, the court explained that the requirements of 42 U.S.C. § 402(g)(1) are clear – claimant had to either demonstrate that she was the legal widow of the insured or that she would be considered the widow under the California laws of intestate succession).  As explained above, under D.C. law, intestate inheritance rights are determined by the law of the decedent’s domicile. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.C. Cir. 2005) (citations omitted). 

Here, the NH was domiciled in Jalisco, Mexico. Accordingly, to determine whether the mother has the requisite status with respect to inheritance of the NH’s intestate property, we apply Mexican law. The law librarian has advised that the state of Jalisco would recognize and give legal effect to the right of the NH’s concubine to inherit from the NH’s estate in the event of his death.  Thus, assuming that neither the NH nor the mother is validly married to another person, we believe that the mother should qualify for benefits based upon her right to inherit the NH’s intestate property if he were to die in Mexico without leaving a will. 

 CONCLUSION

For the reasons stated above, it is our opinion that the child qualifies for benefits under section 216(h)(2)(A) of the Act because she can inherit the NH’s property in Mexico.  We also conclude that the mother qualifies for benefits under section 216(h)(1)(A)(ii), because she could inherit a spouse’s share of the NH’s estate under Mexican intestacy law, and she has the NH’s child in her care. 

Respectfully submitted,

Eric P. Kressman
Regional Chief Counsel

Katie M. Gaughan
Assistant Regional Counsel.