SECTIONS 202(g) (1) and_216(h) (1) (42_U.S.C. 402(g) (1) and 416(h)(1)) MOTHER'S INSURANCE BENEFITS-FAMILY RELATIONSHIPS-RECOGNITION OF COMMON-LAW MARRIAGE-PA. 20 CFR 404.335 and 404.1101(a) and (b) SSR 79-23c MCFERREN v. CALIFANO, Civ. No. 77-164 (W.D. PA. Sept. 29, 1978) The claimant filed an application for mother's insurance benefits alleging that a valid common-law marriage existed between herself and the deceased wage earner. They lived together several years in the Commonwealth of Pennsylvania which recognizes common-law relationships. When the parties started living together there were 'no conditions or arrangements discussed.' The claimant stated that they planned to live together and get married at a future date. Under Pennsylvania law, a common-law marriage is established by words in the present tense, uttered with the purpose of establishing the relation of husband and wife. The Social Security Administration denied her application on the basis that the evidence showed the claimant understood the difference between living together and marriage and that her expressions of future intentions to marry negated the existence of a valid common-law marriage at the time of the wage earner's death. Held, under Pennsylvania law the present intent of the parties to form a valid marriage is the crucial element in proving a common-law marriage. An agreement to marry in the future even if followed by cohabitation is not sufficient to establish common-law marriage. Therefore, there was substantial evidence to support the determination that a recognizable common-law marriage under Pennsylvania law did not exist in accordance with section 216(h)(1) of the Social Security Act. KING, District Judge: Claimant Ruby J. McFerren brings this action under §205(g) of the Social Security Act, 42 U.S.C.A. §405(g), to review a final decision of the Secretary of Health, Education, and Welfare denying her application for mother's insurance benefits and the Magistrate's report recommending affirmance of the Secretary's decision. The matter is currently before the Court on claimant's exceptions to the Magistrate's report and cross motions of the parties for summary judgment. Claimant filed an application for mother's insurance benefits on July 25, 1975 alleging that she was the common-law wife of the deceased wage earner, Malcolm D. Daniels, at the time of his death. Her claim was denied by the Bureau of Retirement and Survivors Insurance, MidAtlantic Program Service Center on April 26, 1976. The claimant then appealed this denial by filing a timely request for hearing. A hearing was held before an Administrative Law Judge (ALJ) on May 4, 1977 after which claimant was denied benefits. The Appeals Council affirmed the findings of the ALJ on September 20, 1977 and on May 31, 1978 the Magistrate recommended to this Court that the Secretary's decision be affirmed. The sole question for determination is whether there is substantial evidence in the record to support the finding of the Secretary. 42 U.S.C.A. §405(g). Mellon v. Richardson, 466 F.2d 524, 526 (3d Cir 1972). The Secretary's findings are conclusive when supported by substantial evidence. Harris v. Weinberger, 377 F Supp 141, 142 (W D Pa 1974). "Substantial evidence means evidence which a reasoning mind would accept as sufficient to support a conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance of the evidence." Ginsburg v. Richardson, 436 F 2d 1146, 1148 (3d Cir 1971) In order to be eligible for mother's insurance benefits the claimant must prove that she was the wage earner's common-law wife at the time of his death. 42 U.S.C.A. §416(h) (1) provides that a claimant is the wife of an insured individual for purposes of entitlement to mother's insurance benefits if the courts of the state in which such insured individual was domiciled at the time of his death would find that the claimant and the insured individual were validly married. The complainant and the deceased were at all material times domiciled in Pennsylvania and therefore the law of Pennsylvania is controlling in determining whether the claimant is the widow of the wage earner. Warrenberger v. Folson, 239 F 2d 846,848 (3rd Cir 1956). Under Pennsylvania Law, a common-law marriage is established by words in the present tense, uttered with the view and for the purpose of establishing the relation of husband and wife. Gower Estate, 445 Pa 554,556; 284 A 2d 742,743 (1971). The present intent of the parties to form a marriage contract is the crucial element in proving a valid common law marriage. Words in the future tense, that is agreeing to enter into the marriage relation sometime in the future, even if followed by cohabitation are not sufficient in this State to establish a common-law marriage. Commonwealth ex rel. De Marco v. De Marco, 166 Pa. Sup 69; 70 A 2d 384 (1950). There is substantial evidence in the record in this case to support the Secretary's finding that claimant and the deceased wage earner did not establish a common-law marriage. The claimant stated that she and the deceased began living together in March, 1971 because "we wanted to," and that "there were no conditions or arrangements discussed." She explained, "(W)e planned to live together and get married 7/4/75, but he died 6/16/75." She stated that the deceased had indicated that they should live together until death and that she had no intention of ending the relationship. Claimant explained that she and the deceased did not use the same last name "because we weren't legally married," and she stated that she filed an insurance claim as the beneficiary on a policy which she believed listed her relationship to the deceased as "friend." The evidence shows that claimant distinguished between living together and marriage and her expressions of future intentions to marry negate the existence of a common-law marriage at the time of the wage earner's death. Commonwealth ex rel. De Marco v. De Marco, supra. The wage earner's federal income tax return for 1974, filed several months before his death, listed his filing status as "single." The court inferred the intention of the parties to enter into a valid common-law marriage from evidence that the decedent's federal income tax return listed the claimant as his wife and claimed an exemption for her in Wagner's Estate, 398 Pa 531; 159 A 2d 495 (1960). By contrast, in this case, the decedent's tax return which lists his filing status as single suggests that he regarded his marital status as single. The Reconsideration Determination of the Mid-Atlantic Program Service Center states that the decedent's application for disability insurance benefits shows his marital status as "divorced." Decedent signed the application on June 16, 1975, the date of his death, and the application was subsequently filed on July 7, 1975. The decedent said nothing about a marriage to the claimant in either the federal tax return or the application for disability insurance benefits. The evidence clearly establishes that complainant and the decedent cohabitated from March, 1971 until the decedent's death. The record contains conflicting evidence as to whether the wage earner and complainant were regarded as husband and wife by relatives and friends. Under Pennsylvania law, evidence of cohabitation and reputation do not establish a marriage; they are but circumstances from which a marriage may be presumed and such presumption may wholly disappear in the face of proof that no marriage has occurred. Wagner's Estate, supra; Bowden v. Workmen's Compensation Appeal Board, 31 Pa Cmwlth 476, 376 A 2d 1033 (1977). Even assuming that the presumption arises in this case, the crucial element in proving a valid common-law marriage, the present intent of the parties to form a valid marriage, is lacking, and therefore the presumption disappears. The requisite exchange of present tense declarations for the purpose of establishing the relation of husband and wife never took place. The Reconsideration Determination of the Mid-Atlantic Program Center states that at the time claimant began living with the decedent the decedent was married to Irene Settler. They were not divorced until April 28, 1972, more than one year subsequent to the date claimant and the decedent began living together. Under Pennsylvania law there must be a new arrangement to be married after the removal of the impediment, the divorce. Mellon v. Richardson, 466 F 2d 524 (3d Cir 1972). In that case the decedent and his alleged wife had lived together for seven years, owned real estate jointly, operated a business jointly, and filed a joint tax return. All of the various dates given for the beginning of the wage earner's relationship with the alleged wife predated the decree of divorce from the wage earner's first wife. The court denied relief on that basis and for the reason that the present intent of the parties to marry was lacking. By comparison, in this case, there is no evidence of a present intent to marry or evidence of an agreement to enter into a valid common-law marriage after April 28, 1972. Claimant maintains that the purpose of mother's insurance benefits is to assist mothers financially when the father has died. Congress has provided that a claimant's entitlement to mother's insurance benefits depends upon the claimant's relationship to the wage earner. 42 U.S.C.A. §416(h) (1). Entitlement does not depend upon the paternity of the child. The record shows that the child of the claimant and the decedent, Marcus A. McFerren, is currently receiving child's insurance benefits. IT IS ORDERED that claimant's exceptions to the report and recommendation of the Magistrate be and the same hereby are overruled. IT IS FURTHER ORDERED that claimant's motion for summary judgment be denied, that defendant's motion for summary judgment be granted, and summary judgement is hereby entered in favor of defendant and against claimant. The decision of the secretary is affirmed. LUMP-SUM DEATH PAYMENT SECTION 202(i) (42 U.S.C. 402(i)) LUMP-SUM 20 CFR 404.1112 DEATH PAY SSR 79-24 The claimant, the wage earner's widow, applied for the lump-sum death payment, stating that she and the wage earner lived together in Connecticut until he went to New York to work. He was killed 3 months after moving to New York. The wage earner's brother, who paid the burial expenses, maintained the claimant and the wage earner were not living together prior to his death and that the lumpsum death payment should be made to him. Held, the claimant and the wage earner were "living in the same household" at the time of his death as his absence was only a temporary absence, less than 6 months, due to employment reasons. The general issue is whether the claimant is entitled to the lump-sum death payment based on the earnings record of her husband, the wage earner. The specific issue is whether the claimant was living in the same household with her husband at the time of his death. The claimant filed an application for the lump-sum death payment based on the earnings record of the wage earner, who died on December 2, 1972, in New York as a result of gunshot wounds. He had moved to New York in September or October 1972 for employment purposes. He lived with his sister in New York for about 2 months and had just leased his own apartment the day before he was killed. The claimant was living with her mother in Connecticut at the time of her husband's death. The claimant and her husband were married in Connecticut in 1963. They began living with the claimant's mother at her home in 1966. They paid $75 per month toward rental of the house, and except for temporary absences when her husband was incarcerated, they continued to live there until he went to New York in 1972 for employment purposes. He was last incarcerated in 1971 for approximately 1 month. The claimant and her husband always resumed living together after his release from prison. While residing in New York prior to his death, the wage earner returned to Connecticut several times to visit his wife. In support of the claimant's testimony, her mother stated that the wage earner had lived in her house since 1966 except for absences due to incarceration and that he received his mail at her home while living there. The wage earner's brother, who paid the burial expenses, supplied information on the certificate of death which indicated that the wage earner resided in New York City for 6 years immediately prior to his death. The wage earner's brother and sister also supplied information which indicated that the claimant and her husband were having marital difficulties and were separated for several years prior to his death. He also stated the claimant did not attend the wage earner's funeral. The claimant furnished several documents which conteracted the brothers allegation and established her husband's intent to resume living together. She also stated that she did not attend her husband's funeral because she was threatened by her husband's brother and told not to have anything to do with the funeral or to attend the services. Section 202(i) of the Social Security Act provides that the lump-sum death payment will be paid to the widow of the deceased wage earner if she and the deceased were "living in the same household" at the time of his death. Section 404.1112 of Social Security Regulations No. 4, provides that the determination as to whether the parties were "living in the same household" shall be based upon the facts and circumstances as of the time of death of the deceased. A temporary absence of one spouse from the place of abode does not preclude a finding that they were "living in the same household." If a period of absence from the place of abode did not exceed 6 months and the absence was due to business or employment reasons, then this absence shall be considered temporary in the absence of evidence to the contrary. After evaluating all the evidence of record, it is concluded that claimant and her husband lived together in the same house until September or October 1972, when he left for New York City because of employment reasons. Except for the statements made by the wage earner's brother and sister, there is no indication that the claimant and her husband did not intend to resume living together when her husband found a permanent place of residence. The period of absence did not exceed 6 months and was due to employment reasons. The Social Security regulations, referred to above, would consider this a temporary absence and permit a finding that claimant and her husband were "living in the same household" at the time of his death. The fact that the claimant did not pay any of the funeral expenses for her husband does not preclude her from receiving the lump-sum death payment. As long as the claimant and her husband were "living in the same household," as defined by the regulations, at the time of his death, she is entitled to the lump-sum death payment. It is held that claimant and the wage earner were "living in the same household" at the time of his death and that the claimant is, therefore, entitled to the lump-sum death payment under Section 202(i) of the Social Security Act. |