A claimant filed for widow’s social security benefits after the death of her purported common law husband. The claimant and the deceased worker began living together in 1949 or 1950 in Ohio, while the worker was still married to another woman. The claimant had been divorced since 1946. The worker obtained a divorce from his wife in 1951.

While they were cohabiting, the claimant and the worker had children together, bought a house together and, in general, had raucous and hilarious times together. Both of them were listed on the deed to the house. During their time together, they would introduce themselves as husband and wife. In 1959, after living together for more than 8 years, the worker abruptly left the claimant and moved to Florida, without giving her any notice that he was leaving.

After he moved to Florida, the worker was married twice in ceremonial marriages. One of the marriages ended in divorce; the other ended when his wife passed away, leaving him a widower. Meanwhile, the claimant entered into a common law marriage, which terminated in a divorce.

In 1986 the worker passed away. The claimant, upon learning of his death, applied for widow’s benefits based on his earnings record. She claimed that they had a common law marriage.

The agency needed to determine whether, in fact, a common law marriage existed. In making this determination, the agency needed to look to state law. First, it looked to Florida state law, because that was the state in which the worker was domiciled at his death. Florida would have recognized a common law marriage from another state. In determining whether a common law marriage existed, it would have used conflict of laws principles and applied the “most significant relationships” test, finding that ultimate issues were to be determined according to Ohio law. Therefore, the agency next looked to Ohio law, where the claimant and worker resided together, in order to determine whether or not the claimant and worker had a valid common law marriage.

Under Ohio law, which did not favor common law marriage, one needed to prove by clear and convincing evidence that three elements were met in order to establish common law marriage, to wit: 1) the parties agree in praesenti (in the present); 2) the parties cohabit for an extended period of time; and 3) the parties hold themselves out to be husband and wife.

The agency agreed that the last two elements were met in the instant case. However, it held that the first element was not met. In making this ruling, the agency found three facts particularly salient.

First, the claimant had not asserted that her relationship with the worker was a common law marriage until 28 years after the relationship ended, when it became financially beneficial for her to do so.

Second, although the claimant and worker had children together, bought a house together as joint tenants, were listed on the house deed as husband and wife, and generally had raucous and hilarious times together, they did not treat each other as husband and wife. They never agreed on the length of the relationship or on how it could be terminated

Third, after their relationship with each other ended, each felt free to enter into new and more legally binding relationships.

The upshot of this decision was that benefits were denied.

Social Security Ruling (SSR) 88-14.

I am far from an expert on 1980’s Ohio common law marriage law. However, I do not find the agency’s reasoning very persuasive in this case.

With respect to the first salient fact, in my experience with Utah law, the only time anyone ever initiates a legal or administrative action to establish a common law marriage is when it is in their financial interest to do so. After all, common law marriage, by its very nature, is a situation where the parties did not even obtain a marriage license, let alone undertake an intensive fact finding legal procedure, in order to solemnize their relationship. It seems unlikely, then, that they would later elect the more rigorous and invasive legal procedure if there were no perceived pecuniary prize in doing so.

With respect to the second salient fact, I find that it rather supports the idea of a common law marriage than otherwise. The claimant and worker had children together, bought a home together, and held each other out to the world as husband and wife. The fact that they did not contemplate how long the relationship would last or how it would end seems to me a feature they shared in common with the vast majority of spouses who elect a ceremonial marriage.

With respect to the third salient fact, I find it logically puzzling to suggest that pursuing a new relationship after an old one ends indicates something of special legal significance in this context, rather than that the parties simply pursued a course characteristic of universal human nature.

There may have been other compelling reasons to deny the claimant’s benefits, but the way this particular decision is written does not highlight these reasons.

Probably the fact that gives me the most pause is that the parties entered into their relationship at a time when the worker was still married. Thus, if they had had a present intent to be married, this would have made them bigamists, with the claimant as a “sister wife.” The law would not presume they intended such a result.

Another fact that gives me pause is that the claimant did not seek a common law divorce. But there may be several reasons for this, including the possibility that she could not locate the worker after he left for Florida without notifying her. Perhaps the parties had already split all of their assets, or simply did not have enough assets to worry about dividing formally in a divorce. The claimant apparently kept the child in her custody and was not too worried about the worker taking the child away from her. A common law divorce would have established custody, visitation, and a child support obligation. But a paternity action would have done the same thing, and there is no indication either party filed a paternity case. These issues do not seem adequately explored in the case.

I agree with the end result in this case but not it’s reasoning.

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.