Common Law Marriage

[Briandfox]

A participant is receiving standard distribution paperwork as part of a plan termination and claims to be married through a Common Law Marraige.

The participant says they don't have a copy of marriage certificate, which we standardly require and that such certificates do not exist in this case. Questions?

What is standardly requested (to protect the plan administrator) to prove the existence of a Common Law Marriage?

Is Common Law Marriage recognized under ERISA (I assume that it is, if it is a legal marriage in the state of "celebration" and because people in a common law marriage can file joint income tax returns)?

Thanks

[ESOP Guy]

it has been a long time since I looked into it but it has been my understanding is no state in the union has a common marriage law any more.

They repealed them as living together became more common and acceptable. Also, part of the reason for common law marriage in the first place was in the wilderness that was the US west you could go a very long time before you met a preacher to marry you.

In short I think you are right to ask for proof. It might start with even proof as to why this person thinks they are a common law married.

If you below you will see I am wrong about the idea that no state recognizes common law marriage.

[Belgarath]

I wonder - could they possibly have meant that they are in a Community Property State, for whatever that is worth? (just a thought that passed across the vast, empty spaces that formerly housed a sometimes working brain)

[Lou S.]

ESOP Guy, like you I thought common law marriage was an anachronism but wiki tells me some states still recognize it and the Federal Government will recognize it if the state does.

http://en.wikipedia.org/wiki/Common-law_marriage_in_the_United_States

If the OP is looking for "proof of marriage" perhaps asking for a copy of their tax return indicated they are filing as married might suffice. They can redact income information on P1 of 1040.

[My 2 cents]

Wikipedia says there are something like 9 states still permitting common law marriages (including that wilderness state, Rhode Island!), with a number of other states recognizing existing common law marriages. This perhaps should be considered to be an evolving area because of the Windsor decision.

Under what circumstances are ERISA plans required to recognize common law marriages, which are generally defined in terms of the absence of formal legal action? Is an ERISA defined benefit plan required to pay a pre-retirement death benefit when someone claims to be a surviving spouse based on a common law marriage?

[Kevin C]

I found the following page with a web search. It has links to cites for each state listed as recognizing common law marriage.

http://www.ncsl.org/research/human-services/common-law-marriage.aspx

Another search found a recent court case where someone received death benefits from an ERISA covered plan due to a common law marriage despite the participant later marrying someone else.

http://www.gpo.gov/fdsys/pkg/USCOURTS-kyed-5_12-cv-00201/pdf/USCOURTS-kyed-5_12-cv-00201-0.pdf

[Briandfox]

Thanks guys-

I am will to assume common law marraige is marraige and gives rise to an eligible spouse for purposes of benefits. My concern is more about proof.

I agree that a redacted page 1 of a joint income tax return is helpful.

Any other ideas?

Thanks

[jpod]

There are several lists of criteria/questions floating around on the WWW. In my experience insisting upon a copy of the most recent Federal tax return always knocks out some people because they don't file as married.

[My 2 cents]

There are several lists of criteria/questions floating around on the WWW. In my experience insisting upon a copy of the most recent Federal tax return always knocks out some people because they don't file as married.

Isn't one of the most frequent requirements for a couple being considered married under common law that they present themselves to the community as married? If they don't file their taxes as married (either jointly or married filing separately), why should they be considered married for purposes of ERISA?

That recent court case cited 2 or 3 postings above - how could it have been any more complicated?

[ESOP Guy]

I stand corrected on the idea there are no states that recognize common law marriage.

[david rigby]

Proof? Wouldn't you look to the definition in state law?

IMHO, neither the Plan nor the PA should spend anything (other than trivial costs) on this.

[Briandfox]

These definitions usually require a period of "cohabitation" and holding out as married.

It puts the Plan and PA in the situation of having to take a someone at their word.

[Peter Gulia]

Concerning claims to a retirement plan, a question about whether a common-law or informal marriage existed most often arises after a participant's death as competing claims between a claimant who asserts he or she is the participant's spouse and a claimant who would be a beneficiary if the participant did not have a spouse.

If your participant is alive and choosing his or her form of distribution, does the plan provide a subsidized survivor annuity or some other benefit that is better for having a spouse? Could an incorrect finding that the participant has a spouse harm the plan?

If not, is there some other reason the retirement plan's administrator must or should decide whether the participant does or does not have a spouse?

[Briandfox]

Sure,

What if the person the participant claims to be the spouse, who is waiving the QJSA to support a lump sum distribution is not the spouse and someone else is?

What back up does the PA have to support the distribution of the lump sum if another spouse comes forward?

Would be good to have something to support the distribution form. It's just such a shady concept in practice and the only reason why it came up in this context is because the PA requires a copy of a marriage certificate.

[Peter Gulia]

Thank you for explaining the reasoning.

[GMK]

Check with the plan's ERISA counsel, but I think that the plan could rely on their tax filing status as "proof" of whether or not they are married.

The 1040 instructions for lines 1, 2, ... are pretty clear that you have to be married to file under a 'married' category, and that you cannot file as 'single' if you are married.

[K2retire]

Just out of curiosity, what proof is required of traditional marriages? After 31 years I would be hard pressed to find a copy of my marriage license, and I'm better organized that many people.

[jpod]

K2retire, great question. I have seen the issue raised only when an employee volunteers that information in connection with some benefits matter, usually health insurance enrollment: "I have a common law wife/husband . . . ."

[Peter Gulia]

For different kinds of employee-benefit plans and benefits under them, there are differences about whether the existence or non-existence of a marriage helps or hurts a claimant on his or her particular claim. For example:

For a health plan, a participant might want to say that he or she has a spouse, to obtain coverage (or ostensible coverage) for the person described as his or her spouse.

For a retirement plan, a participant might say that he or she does not have a spouse, so the participant may elect against a survivor annuity or name a beneficiary other than the participant's spouse.

How a participant's or other claimant's statement affects a benefit is among the factors a plan's administrator might consider in reasoning how much evidence and evaluation is prudent.

[GMK]

In the OP, the plan requires proof of marriage as a standard, uniformly applied practice. Probably a good idea for others, for example, for the reasons in post #14. So the question is how to prove a common law marriage.

K2retire - no rush, but look for the license. Eventually, as in a long, long time from now in a galaxy not so far away, you may (or may not) need it when you and your spouse apply for Social Security.

[david rigby]

IMHO, one tax filing is insufficient, but maybe that's just me.

BTW, don't forget to coordinate with the plan's definition of "spouse": 12 months?

[jpod]

I wasn't suggesting that a tax return by itself was enough proof. I was suggesting that the request for the tax return usually makes the person claiming to have a common law marriage drop the marriage. Frankly, most people who claim they have a CL marriage are, how shall i say this, a little bit flakey, and quite offten they don't file as joint or married filing separately.

[K2retire]

K2retire - no rush, but look for the license. Eventually, as in a long, long time from now in a galaxy not so far away, you may (or may not) need it when you and your spouse apply for Social Security.

Hopefully they have it at the courthouse. But meanwhile, he's already collecting Civil Service Retirement until he's eligible for Social Security.

[cmg28025]

Income tax returns are one of the best proofs of common law marriage. Another is how they filled out any beneficiary forms for the plan or insurance policies--is the person listed as a spouse? if the participant received Social Security benefits--disability or retirement--how was the person who is alleging a common law marriage treated, as a spouse or not?

I have the common law situation which relates back to the 1960's and early 1970's when it was recognized in my state. A participant recently died and has many children and grandchildren. His alleged "common law" wife did not file federal or state income tax returns indicating that she was married. No beneficiary forms can be found. On his death certificate, she is the informant but her status is not that of a wife but as a companion. No wife or former wife is listed in his death notice. I have told the plan sponsor that the matter has to be decided by Probate Court since there are many claimants. The sponsor is reluctant to do so since it will require considerable time and expense.

[jpod]

If she did not file as a person married to the decedent, i don't see the problem/risk in denying treatment as a surviving spouse. Is there any chance that she is willing to go into a court and say that while she was perfectly willing to lie to the IRS nonetheless she was the spouse (especially with none of the other usual indicia)?