Rescinded 1977

SSR 77-13c: Sections 202(g) and 216(h)(1)(A) (42 U.S.C. 402(g) and 416(h)(1)(A)—Mother's Insurance Benefits—Relationship—Validity of Marriage—Oklahoma

20 CFR 404.1101

SSR 77-13c

GOSS v. MATHEWS, U.S.D.C., N.D. OKLA., Civ. No. 75-C-223 (5/13/76)

Where two people of the opposite sex began living together as man and wife in the State of Oklahoma with the intent to eventually marry, held, the mere contemplation of marriage does not establish a common-law marriage. Such a marriage requires competent parties who enter the relationship by mutual agreement, exclusive of all others, consummating the arrangement by cohabitation and open assumption of other marital duties.


This is a suit under §205(g) of the Social Security Act (42 U.S.C. §405(g)) for judicial review of a final decision by the Secretary of Health, Education and Welfare. The parties have filed and agreed pre-trial order in this matter and the litigation is now ready for judicial review, in accordance with the Statute.

The proceeding leading to the request for judicial review in this case are as follows:

Debra K. Goss, hereinafter referred to as "Claimant", testified before the Administrative Law Judge, commencing at page 12 of the transcript as follows:

That Samuel L. Goss, the Wage Earner, departed this life on September 25, 1973, when he was accidentally injured, resulting in death, during the course of his employment. Claimant had known the deceased for some 10 years and decedent was 23 years of age at the time of his demise. Goss had served in the armed services, had been previously married, and was divorced sometime in February of 1972. Claimant was previously married to one Marshal Dodson and a child was born of said union, namely, Oliver Gene Dodson, who was born on November 11, 1971. Claimant was divorced from Dodson in June of 1971.

Claimant testified that she and the deceased commenced living at the Colony Club Apartments in July of 1973. The evidence shows that the deceased executed an application for the apartment, wherein he listed "Debbie Goss" as his spouse. The evidence further shows that both deceased and claimant executed the lease. Claimant testified that prior to the leasing of the apartment she and the decedent discussed marriage and he suggested they live with his mother and she declined, evidently having had a "bad" experience in living with relatives in her previous marriage. She testified that they then decided to rent the apartment and live together as man and wife and that they eventually planned on getting married. She further testified that about a week after moving into the apartment she and the deceased discussed marriage once again and concluded they didn't really need to get a "marriage certificate" since they were "common law man and wife" and if one decided to leave the other they would have to get a divorce. She stated the only reason they wanted the marriage license was for "Public—just for the public—for the public, really". Plaintiff testified, and was corroborated by two employees who worked with her, that she had introduced the decedent as her husband on several occasions; that at one time she discussed changing her name from Dodson to Goss at her place of employment, but did not do so because she had not made the same change on her social security card.

A neighbor testified, who lived next door at the apartment, that she believed they were husband and wife; that the mail box listed the names of Goss, Dodson and that her mail box only had the last name listed thereon. Claimant explained the two names as being for the purpose of receiving mail for her son, but that only one letter was received during the period in question.

Claimant's explanation for lack of certain evidence that could have been used to substantiate the claimed common-law marriage was lack of time to change their bank accounts (she testified that she had a checking and savings account(s) in her name and she did not know what kind of account the decedent had; they each had their own individual automobile insurance polices; neither had changed beneficiaries on insurance policies to the other). She testified that each paid one-half of the rent and she did not know what decedent did with his money. She testified that both had furniture and furnishings in the apartment.

With reference to the funeral, she testified that she did not make known that she was decedent's wife on the advice of counsel as she did not want to be responsible for payment of funeral expenses; that she sat with the family at the funeral and rode with the family to the funeral.

Testimony of co-employees indicated that no mention was made of claimant at the funeral service as being the surviving spouse and no mention was made of her in the obituary.

Contra to this testimony, Mr. and Mrs. Nichols, the step-father and maternal parent of the deceased, testified that the parties were not in fact married; that the deceased had commented that he would not marry again; that deceased told his mother he was renting the apartment to share with another man; that Mr. Nichols made the funeral arrangements.

Various documents submitted with the transcript indicated that the funeral register was signed by "Oliver and Debbie Dodson (sic)"; that the step-father signed as the party responsible for paying the funeral expenses; that decedent listed himself as single with no dependents at this place of employment. There are additionally various statements attached as to whether the parties were married or not.

The deceased's step-father and natural mother do not claim any benefits except the lump-sum benefit, which this Court is now advised has been paid to the funeral home.

Submitted with the transcript is a copy of an order (Exhibit 19) of the State Industrial Court, wherein the following find was made:

"That said deceased left as his sole and only dependent heir at law his widow, Debbie Dodson Goss, and that said Debbie Dodson Goss has suffered a pecuniary loss by reason of the death of Samuel Lee Goss."

Goldie Nichols, the mother of the deceased, was found not to be an independent heir at law of said deceased.

With reference to the above captioned State Industrial Court proceedings, the following comments are found at page 28 of the transcript:

Are they any objections to the exhibits that were selected?

MR. ASH: We have no objections, Your Honor.

ADMINISTRATIVE LAW JUDGE: Do you have any objections?

MR. NICHOLS: I've got some objections on 4, 19, and 25.

ADMINISTRATIVE LAW JUDGE: And what are those objections?

MR. NICHOLS: Statements by Debra and the Industrial Court, and statements referred to lease of the apartment.

ADMINISTRATIVE LAW JUDGE: 4, 19 and 25, you say? Is this Industrial Court Judgement final yet?

MR. ASH: It's on appeal to the Supreme Court by me, respondent, and by Mrs. Nichols; her attorney has appealed it.

ADMINISTRATIVE LAW JUDGE: And the respondent has appealed, also?

MR. ASH: Well, the respondent joined in. I don't think they really had any choice in that matter.

ADMINISTRATIVE LAW JUDGE: In case there is a reversal, they wouldn't have to pay two judges?

MR. ASH: If they hadn't, then they would have had to have paid, right.

The reason for quoting the above will become apparent later in this memorandum and order.

The general issues before the Administrative Law Judge were whether the claimant is entitled to mother's insurance benefits and whether she was the legal wife of Samuel L. Goss at the time of his death.

Section 202(g) of the Social Security Act, as amended, provides for the payment of benefits to the widow and every surviving divorced mother (as defined in section 216(d)) of an individual who died a fully or currently insured individual, if such widow or surviving divorced mother at the time of filing such application has in her care a child entitled to child's insurance benefits.

Section 216(h)(1)(A) of the Social Security Act, as amended, provides that an applicant is the wife, husband, widow, or widower of a fully or currently insured individual for purposes of this title if the courts of the State in which the insured individual was domiciled at the time of his death, would find that such applicant and such insured individual were validly married at the time the insured individual died. If such courts would not find that such applicant and such insured individual were validly married at such time, such applicant shall, nevertheless, be deemed to be the wife of such insured individual if such applicant would, under the laws applied by such courts in determining the devolution of intestate personal property, have the same status with respect to the taking of such property as a wife, husband, widow, or widower of such insured individual.

The Reconsideration Determination dated May 17, 1974, contains the following statement:

"***The finding by the industrial court in workmen's compensation claim is not binding upon the Social Security Administration."

The State Industrial Commission is established in Oklahoma by Title 85 O.S.A. §69.1. Oklahoma Courts have held that the State Industrial Commission is an "administrative tribunal" with limited jurisdiction, and its primary purpose is to adjust speedily settlements between injured workmen engaged in hazardous employment and their employers. Bryant-Haywary Drilling Co. v. Green (Okl., 1961) 362 P.2d 676.

The Court, therefore, finds that the State Industrial Commission of the State of Oklahoma is to a Court as contemplated by the statute here involved.

The Court notes with interest, however, that there is evidently a split in the decisions dealing with the problem of state courts.

In the case of Gray v. Richardson, 340 F.Supp. 680 (USDC, N.D. Ohio, E.D., 1972), the Court said:

"Plaintiff, relying on the above section, argues that there is a valid state judgment determining the question of whether Tamara Lynn is the child of Freddy and that the Secretary 'has no right to impeach or collaterally attack the judgment of the State of Ohio as to legitimacy." In support of her argument plaintiff relies on Collins v. Celebrezze , 250 F.Supp., 37, 41 (S.d.N.Y. 1966) which holds:

"If, as here, the state courts have decided the issue the Secretary cannot summarily disregard that adjudication and proceed to re-decide do novo the issue of status.'

"Plaintiff also cites Zeldman v. Celebrezze, 252 F.Supp. 167,171 (E.D.N.Y 1965) which holds:

"'If a state court has previously determined the very issue before the Secretary, then he should accept such determination as the law of the state.'

There is no question that the Secretary must apply state law to determine questions of family status. 42 U.S.C. §416(h). Accordingly, if a state court has conducted a hearing to determine legitimacy and has made express findings under its state law, the Secretary must refer to and apply the law of the state as determined by the court.* * *."

The Court went on to say:

"***it still would not be binding on the Secretary. The Secretary was not a party to the proceeding and he is entitled to make an independent determination of whether Tamara Lynn Gray is the child of the wage earner, and, as such, whether Tamara Lynn Gray is entitled to child's benefits pursuant to 42 U.S.C., Section 402(d). See Dowell v. Gardner, 6 Cir., 386 F.2d 809; Old Kent Bank and Trust Company v. United States, 6 Cir., 362 F.2d 444; Cruz v. Gardner, 7 Cir., 375 F.2d 453; Schultz v. Celebrezze, D.C., 267 F. Supp. 880; Cain v. Secretary of Health, Education and Welfare, 4 Cir., 377 F.2d 55."

But to the contrary, see Collins v. Celebrezze, 250 F.Supp. 37 (USDC, S.D.N.Y., 1966), wherein it was held:

"There is authority for the proposition that a state probate decree declaring a claimant to be the widow of the deceased has neither a res judicate nor a collateral estoppel effect as to the Secretary where he was not a party to the state proceeding. E.g., Miller v. Ribicoff, 198 F.Supp. 819 (and other cases cited)."

The Court went on to say:

"It seems to me beyond cavil that the initial inquiry of the Secretary as to what the courts of the state 'would find' with respect to an issue of marital status must necessarily focus upon whether or not the courts of the state have already made an adjudication on that precise issue. If, as here, the state courts have decided the issue the Secretary cannot summarily disregard that adjudication and proceed to re-decide de novo the issue of status. He cannot ignore what the state courts already determined on the spurious ground that he was not a party to the proceedings."

But the Court does state, with reference of State law by the Secretary at page 40, 41:

"Congress has frequently provided that state law is determinative of the ingredients upon which federal rights depend. See generally Hart & Wechsler. The Federal Courts and the Federal System, 456-57 (1953). But in the Social Security Act it has gone farther and has laid down a specific standard to be applied by the Secretary in ascertaining the state law relevant to the question of status. Thus the crucial basis for a determination of widow's status under section 216(h)(1)(A) of the Act is whether the 'courts of the state' of the deceased wage earner's domicile 'would find' that the wage earner and the applicant were validly married at the time of death. The standard is not what the Secretary himself conceives the result under state law should have been."

The requisite elements of a common law marriage in Oklahoma are set forth in Maxfield v. Maxfield. 258 P.2d 915 (Okla., 1953).

Such a marriage requires competent parties, who enter the relationship by mutual agreement, exclusive of all others, consummating the arrangement by cohabitation and open assumption of other marital duties.

In Re Estate of Hornback, 475 P.2d 184 (Okla., 1970) the Court said:

"***However, the mere contemplation of marriage does not establish a common law marriage. A common law marriage is based on a present assumption of an existing relationship not upon what the parties intended to have agreed to do at a future time. To constitute a valid marriage per verba de praesenti there must be an agreement to become husband and wife immediately from the time when the mutual consent is given.

The sole question remaining is whether the Secretary's determination that plaintiff was not the legal wife of Samuel L. Goss at the time of his death so as to make her eligible for mother's insurance benefits is supported by substantial evidence and is conclusive. In this regard, the scope of review within which this Court is to act is clearly defined by 42 U.S.C. §405(g). The findings of the Secretary as to any facts are to be final if supported by substantial evidence. Mere disagreement on the part of the reviewing court with the Secretary's decision is insufficient to warrant reversal if, upon review of the record it is shown that the Secretary relied upon substantial evidence in reaching his conclusions.

The Court finds that the Secretary's determination is supported by substantial evidence and should be affirmed.


Back to Table of Contents