"Spouse" can produce no evidence of legal marriage.

[mal]

Plan is in Ohio which has banned common law marriage

since roughly 1991. A participant dies and his "spouse"

seeks a survivor annuity. Unfortunately, she is unable

to produce a marriage certificate or other proof they

were married. Absent this proof, she is not the person

who will be receiving a benefit from the plan.

How is this best handled? Do we give her a deadline

to produce some proof? Do we file a declaratory

judgment action and let the court decide who to pay?

It would seem the ball is in her court to go to

the county where the marriage allegedly took place

and seek the proof the plan needs. However, we

do not want to end up paying the benefit twice.

Input is appreciated.

[david rigby]

As you state, the ball is in her court. Generally, a plan may (and should) establish reasonable documentation requirements before authorizing any distribution. For example, it is probably common to require a copy of a death certificate before paying any benefit which is triggered on death. A birth certificate can also be required to prove age, and a marriage license similarly.

What documentaion accepted is up to the plan administator. For example, do you require certified copies of the documentian? This is a procedure of plan administration, not of plan provisions. Procedures should be written, and applied equally (or is that "equivalently"). The procedure may also include what to do if fraud is suspected.

[Ron Snyder]

A reasonable period of time should be given to the surviving spouse to prove the relationship. Beyond that time the plan is holding a benefit that it owes to someone.

You would not file a "declaratory action". Most states have interpleader statutes. The plan could file using the interpleader statute under the probate action and permit the putative spouse to prove her case there.

[david rigby]

Probably wise to make sure the plan uses its own claim procedures first, as outlined in plan provisions and administrative procedures.

[mbozek]

Veba: Only a participant or bene can commence an action in state ct for ERISA benefits. Under ERISA 502(e) Fids must bring actions in Fed ct. Interpleader requires that all possible beneficaries who can receive benefits under the plan be made parties to the action. What is the basis for the claim that the employee was married at death?

[Kirk Maldonado]

mbozek:

You said that only a participant or bene can commence an action in state ct for ERISA benefits.

Wouldn't the alleged spouse have at least a colorable claim of beneficiary status?

[Guest Harry O]

Why not ask for copies of tax returns (to see if she filed jointly with her "husband") or copies of social security death benefit notification (one would think she has also claimed survivor benefits there as well). Did they own a home together? If so, was it held in tenants by the entirety (only available to married individuals)?

[david rigby]

Perhaps this is oversimplifying, but I disagree with the plan going to court here, or asking for tax records, etc. The important points should be

- the plan defines who is eligible for a benefit,

- the plan administrator should have procedures for documentation,

- the plan has claims procedures. It is the responsibility of the PA to follow them, which might include providing the claimant a copy.

Follow the plan.

[Guest P A Weick]

You may want to speak with your attorney for guidance. Not all common law marriages are invalid in Ohio. Those entered into in Ohio before October 10, 1991 and those validly originating in other states then moving to Ohio are still marriages despite the law change. And given the factual nature of the tests for whether one is common law married or not you very well may end up in court to resolve the matter in a way that protects you.

[mbozek]

Kirk: She could only go to ct after exhausting her claims for benefits under ERISA 503. In order to make a colorable claim she would need some evidence of being a spouse such as demonstrating compliance with state law requirements for common law marriage which would be reviewed by the Plan admin. Filing of tax returns and joint ownership of property is not indicative of marriage. The facts dont indicate when the ee and "spouse" resided in OH. The Er could remove the case from st ct to fed ct and use Fed interpleader.

[mal]

Assuming all potential beneficiaries ("spouse" and children) were in agreement would you allow them to sign a waiver specifying who is to take the benefit? I know some courts have recognized waivers in divorce decrees so long as they have the elements required in a QDRO. I would prefer this option as it is burdensome and costly to the family to file an interpleader action.

[mbozek]

If the waiver is drafted properly and all partes sign, it is preferrable to interpleader. However if minors are beneficaries then a ct. appointed guardian must sign on the child's behalf and that will cost money to get the guardian appointed. Also the court may not approve a waiver of benefits by a child.

[Kirk Maldonado]

mbozek:

I agree that there must be some evidence of the existence of a marriage for there to be a "colorable claim."

Other than a copy of the marriage license (which obviously isn't available), what would be something that you think would consitute acceptable evidence?

I don't think that her taking his name would suffice, because that would only be proof that they think that they are married; not proof that they were actually married.

[mbozek]

States that recoginze common law marriage have certain requirements, e.g., parties must live together for a period of time in the same residence, hold themselves out as husband and wife to the public, etc. The spouse should provide evidence that she and the ee begain the relationship in a state that recognized CL marriage and fulfilled the requirements for CL marriage under state law. Merely living in a state that recognizes CL marriage may not be not enough if the relationship begain in another state (remember William Hurt?) You can find the requirements in the Martindale-Hubble law summary for the state.