Office of the General Counsel

S9601281

Re: [XXX]

Dear Mr. [XXX]:

We have reviewed the disputed claim for unpaid compensation of a deceased employee, [XXX], that you submitted to the General Accounting Office on January 12, 1996. For the reasons discussed herein, we deny the claim of [XXX], and grant the claims of the decedent's children, [XXX].

[XXX] asserts that she was the common law spouse of the decedent employee. Because matters of marital status are determined according to the applicable State law, we must turn in this case to the law in Iowa, which was the decedent's residence at the time of his death. See Ankenbrandt v. Richards, 504 U.S. 689 (1992); Trammel v. United States, 445 U.S. 40, 50 (1980); and Payne v. OPM, 42 M.S.P.R. 389, 392-394 (1989).

As explained by the Iowa Supreme Court in In re Marriage of Winegard, 278 N.W.2d 505, 510 (Iowa 1979):

There are three elements requisite to a common law marriage [in Iowa]: (1) intent and agreement in praesenti [at the present time] to be married by both parties; (2) continuous cohabitation; and (3) public declaration that the parties are husband and wife. In re Estate of Fisher, 176 N.W.2d 801, 805 (Iowa 1970). The burden of proof lies on the party asserting its existence, and such a claim of marriage will be regarded with suspicion, there being no public policy in Iowa favoring common law marriage. In re Marriage of Reed, 226 N.W.2d 795, 796 (Iowa 1975).

It is our conclusion that [XXX] has failed to meet her burden to establish the existence of a common law marriage with [XXX] immediately prior to [XXX] death. More specifically, we find that [XXX] has failed to establish that she satisfied the second requirement for a common law marriage that there be continuous cohabitation.

In support of her claim, [XXX] submitted a Federal Employees Health Benefits Program (FEHBP) Health Benefits Registration Form (Standard Form 2809) dated July 3, 1991, on which she was listed as a member of [XXX] family. However, in the remarks section of an FEHBP Notice of Change in Health Benefits Enrollment form (Standard Form 2810) dated November 16, 1995, [XXX], the Personnel Officer at the Medical Center in Des Moines, reported as follows:

For the last two years prior to [XXX] death, [XXX] has not lived with [XXX], and is residing in Chattanooga, Tennessee.

The lack of continuous cohabitation was confirmed by one of [XXX] former co-workers, [XXX], who reported in a telephone conversation with this office on March 20, 1997, that [XXX] had been living alone at the YMCA in Des Moines prior to his death. Both [XXX] and another co-worker, [XXX], stated that Mr. [XXX] had never indicated that he was married during the period prior to his death.

Sincerely yours,

Murray M. Meeker
Senior Attorney

cc: [XXX]