This is in response to your request for our opinion.
               ISSUE
               Whether Katherine J~ is entitled to widow's benefits as a putative spouse of Dellhue
                  J~ under Minnesota law.
               
               FACTS
               Dellhue J~ married Jewel B~ (now Jewel T~ ) in Arkansas on January 8, 1944. Apparently
                  Jewel recorded her date of birth differently at different times in her life. Her marriage
                  certificate lists her age as 18 years. She has written on the record that she raised
                  her age at that time in order to get married and that in fact she was only 17 years
                  old. (In recent years, she has moved her birth date the other way in order to lower
                  her age by one year.) No birth certificate or other document which definitively proves
                  her age has been found.
               
               It is somewhat difficult to tell from our record, but it appears as if the couple
                  had two, and possibly three, children: a daughter and two sons. Jewel and Dellhue
                  separated in Arkansas in 1954. She never filed for divorce. She stated that she assumed
                  that when he remarried, Dellhue had obtained a divorce from her and that she herself
                  therefore remarried in 1963. It is interesting to note that Jewel's second marriage
                  occurred prior to Dellhue's. She separated from her second husband in 1970. She states
                  that she saw Dellhue in 1977 and that he told her he had never gotten a divorce from
                  her.
               
               After his separation from Jewel, Dellhue moved to Minnesota. There, on August 23,
                  1966, he married Katherine W~. There appear to be no children from this marriage but
                  it is possible that one of the sons is Katherine's. The couple separated in 1975.
                  Katherine states that Dellhue told her he was divorced from Jewell at the time of
                  their marriage. She never saw the divorce decree and has no knowledge of when or where
                  it took place. At the time of his initial application for disability benefits in February,
                  1975, Dellhue listed "Katharyn B~' as his spouse.
               
               Dellhue died in Minnesota on December 8, 1978. Both women have applied for the widow's
                  benefits.
               
               DISCUSSION
               The Social Security Act 42 USC § 416(h)(1) provides that:
               (A) An applicant is the wife, ..... of a fully or currently insured individual for
                  purposes of this subchapter .... if such insured individual is dead, the courts of
                  the State in which he was domiciled at the time of death, ..... would find that such
                  applicant and such insured individual were validly married ..... at the time he died.
               
               (B) In any case where under subparagraph (A) an applicant is not (and is not deemed
                  to be) the wife, ...... of a fully insured individual, or ....... is not the wife,
                  ...... of such individual, but it is established to the satisfaction of the Secretary
                  that such applicant in good faith went through a marriage ceremony with such individual
                  resulting in a purported marriage between them which, but for a legal impediment not
                  known to the applicant at the time of such ceremony, would have been a valid marriage,
                  and such applicant and the insured individual were living in the same household at
                  the time of death of such insured individual ... then ..... such purported marriage
                  shall be deemed to be a valid marriage.
               
               Paragraph B is inapplicable on its face because neither of the claimants resided with
                  the insured at the time of his death.
               
               The regulations further specify that the determination of the relationship as "the
                  insured's widow ..... under Paragraph A is made under the laws of the State where
                  the insured had a permanent home when he or she died." 20 CFR §404.345. We must therefore
                  look to the laws of Minnesota where Katherine and Dellhue were married and where Dellhue
                  died to determine whether Katherine was validly married to Dellhue.
               
               Since April 26, 1941, Minnesota has not recognized common law marriages, M.S.A. §517.01
                  (West). The marriage must be performed under a valid license and in a manner specified
                  by Minnesota law. However, effective March 1, 1979, Minnesota recognizes a 'putative
                  spouse":
               
               Any person who had cohabited with another to whom the person is not legally married
                  in the good faith belief that the person was married to the other is a putative spouse
                  until knowledge of the fact that the person is not legally married terminates the
                  status and prevents acquisition of further rights ....... Minn. Stat. Ann. § 518.055
                  (1987 Cum. Annual Pocket Part)
               
               Dellhue, however, died on December 8, 1978, several months prior to the effective
                  date of this Minnesota statute.
               
               There is no Minnesota case law on the issue of whether this statutory provision is
                  to be applied retroactively. We have previously concluded that this statute is not
                  to be applied retroactively because generally survivors' rights of inheritance are
                  determined at the time of death and further because retroactive application of the
                  statute might be considered to partially divest those heirs whose rights had become
                  fixed at the time of the individual's death. A reading of the statute which results
                  in divestment would potentially make the putative spouse statute unconstitutional,
                  and courts do not usually read a statute in a manner which would render it unconstitutional.
                  Thus, the courts are unlikely to apply the statute retroactively. H~ Robert A., ~
                  :V (Abrams) to ARC Programs V, 10/8/86. See also S~ William , RAV Dorn)to ARC-Programs
                  V, 3/7/83; and G~ , Anbers Harlan, RA V (Abrams) to ARC-Programs V, 12/11/80.
               
               Thus, Katherine is not entitled to benefits as a putative spouse. If Dellhue was validly
                  married to Jewel at the time of her marriage to him, Katherine was not Dellhue's wife
                  or widow. Questions remain, however, about the validity of Dellhue's marriage to Jewel
                  inasmuch as Jewel was apparently underage when she married Dellhue.
               
               The validity of a marriage is generally determined in the state where it occurred.
                  Specifically, Minnesota recognizes as valid, a marriage which was valid in the state
                  where it was contracted unless such a marriage is contrary to strong state public
                  policy, Johnson v. Johnson, 214 Minn. 462, 8 N.W.2d 620 (1943); Bogen v. Bogen, 261N.W,2d 606 (1977). '
               
               Jewel and Dellhue were married in Arkansas. We must look to Arkansas law to determine
                  the validity of that marriage.' Currently, Arkansas law provides that:
               
               No license shall be issued to persons to marry unless and until the female shall attain
                  the age of sixteen (16) years and the male the age of seventeen (17) years and then
                  only by written consent by a parent or guardian until the male shall have attained
                  the age of eighteen years (18) and the female the age of eighteen (18) years. 9-11-208
                  Arkansas Code of 1987
               
               In all cases where the consent of the parent or parents or guardian is not provided
                  or there has been a misrepresentation of age by a contracting party, the marriage
                  contract may be set aside and annulled upon the application of the parents or guardian
                  to the chancery court having jurisdiction of the cause. 9-11-104 Arkansas Code of
                  1987
               
               (b) All marriages contracted prior to March 26, 1964, where one (1) or both parties
                  were under minimum age prescribed by law for contracting marriage, are declared to
                  be voidable only and shall be valid for all intents and purposes unless voided by
                  a court of competent jurisdiction. 9-11-105 Arkansas Code of 1987
               
               Although no license should have been issued for the marriage of Jewel and Dellhue
                  in the absence of parental consent because Jewel was underage, present statutes render
                  the marriage voidable and valid until voided by a court. Thus, under current law,
                  the parties would be validly married in the absence of a court approved annulment
                  or divorce.
               
               POMS GN 00305.055 indicates that in the state of Arkansas, "if one of the parties to an underage marriage
                  contracted after February 5, 1941, and before March 27, 1964 relied on its invalidity
                  without court action and entered into a subsequent marriage before March 27, 1964,
                  the subsequent marriage is valid and the underage marriage remains void. No reference
                  to such a provision could be found in the statutes or the case law or attorney general
                  rulings. However, in a memo from OGC: RA: VII (Hebert) to Fort Smith DO 10/26/65 interpretation
                  is made of Act 5 of the Extraordinary Session of the Arkansas General Assembly of
                  1964 which amended Arkansas law regarding underage marriages. The memo stated that
                  the law of 1964 making underage marriages voidable did not apply 'if one of the parties
                  had died prior to the effective date of the Act. It is possible that, similarly, if
                  one of the parties had remarried prior to the date of the Act, the original, underage,
                  marriage is void. In that case, since Jewel remarried in 1963, her marriage to Dellhue
                  may have been voided.
               
               The Office of the General Counsel Region VI told us that prior to 1941, underage marriages
                  in Arkansas were voidable and that in 1941 such marriages became void. In 1964, the
                  statute was changed again to render underage marriages voidable once more. The 1941
                  Arkansas Statute Section 55-102 reads as follows:
               
               Every male who shall have arrived at the full age of 18 years, and every female who
                  shall have arrived at the full age of 16 years, shall be capable in law of contracting
                  marriage; if under those ages, their marriages shall be absolutely void.
               
               Provided that males under the age of 21 years and females under the age of 18 years
                  shall furnish the clerk, before the marriage license can be issued, satisfactory evidence
                  of the consent of the parent or parents or guardian to such marriage, and, in all
                  cases where the consent of the parent or parents or guardian is not provided or there
                  shall have been a misrepresentation of age by a contracting party, such marriage contract
                  may be set aside and annulled upon the application of the parent or parents or guardian
                  to the Chancery Court having jurisdiction of the cause.
               
               The 1964 Statute makes the marriage of females under the age of 16 years and males
                  under the age of 18 years voidable. In addition, the 1964 Statute validated prior
                  underage marriages which were void. The 1964 Act reads as follows:
               
               55-102 Every male who shall have arrived at the full age of eighteen (18) years and
                  every female who shall have arrived at the full age of sixteen (16) years shall be
                  capable in law of contracting marriage; if under those ages, their marriages shall
                  be voidable.
               
               55-102.1 All marriages heretofore contracted where one or both of the parties to the
                  contract were under the minimum age prescribed by law for contracting marriage are
                  hereby declared to be voidable only, and shall be valid for all intents and purposes
                  unless voided by a court of competent jurisdiction.
               
               Because of their ages, Jewel and Dellhue entered into a voidable marriage under the
                  1941 statute. Paragraph 55-102.1 of the 1964 Act applies mainly to those women of
                  less than sixteen years of age and those men of less than eighteen years of age who
                  had married after the 1941 statute was enacted. Although it has little effect on the
                  marriage of Jewel and Dellhue because their marriage was voidable at its inception,
                  it probably explains POMS paragraph GN
                     00305.055. If parties whose marriages were void under the 1941 Act remarried in reliance on
                  that fact, it is logical to assume that, until the 1964 Act was passed, their second
                  marriages are valid and their first marriages are void; there is, however, no case
                  law to substantiate this.
               
               There is no Arkansas case law precisely on the issue of a marriage by a seventeen
                  year old who was married under the 1941 Act and who later remarries without the benefit
                  of a divorce.
               
               Although we are not certain of Jewel's age at the time of her marriage, the facts
                  tend to indicate that she was seventeen. Under the applicable statute at the time,
                  her marriage could have been avoided by her parents. In the absence of evidence that
                  they did so, the plain reading of the statute makes her marriage to Dellhue valid.
               
               When a party has undergone more than one ceremonial marriage, however, states frequently
                  have presumptions as to which marriage is valid. In the case of, In Re O'Rourke, 310 Minn. 373, 246 N.W.2d 461 (1976), the Supreme Court of Minnesota was asked to
                  recognize a presumption that the later of successive marriages is valid. The court,
                  while recognizing that the majority of U.S. jurisdictions have such a presumption,
                  refused to make such a rule. Instead, the court held that the courts of Minnesota
                  could recognize a presumption toward either the earlier or the later marriage. The
                  presumption was to be determined on a case by case basis in an effort to reach an
                  equitable result. Two factors which were to be considered in determining whether the
                  later marriage was to be recognized were the birth of children and the length of the
                  later marriage. The court did not rule out consideration of other factors which might
                  affect equity in a given situation.
               
               Applying the court's decision to our case, Jewel lived with Dellhue for ten years
                  before their separation. She rarely saw him after the separation and remarried nine
                  years later. Katherine lived with Dellhue for nine years before they separated. She
                  did not remarry and appears to have seen her husband during the years that they lived
                  apart. It is not entirely clear from the record, but it appears that Jewel and Dellhue
                  had two or three children. Katherine and Dellhue do not appear to have had children.
                  (It is possible that one of the children discussed in the record is Katherine's.)
                  All the children appear to be grown. (The record does not reflect any request for
                  benefits for them. )
               
               Based on these facts, the equities might appear somewhat equal. However, Jewel remarried
                  on reliance on the termination of her marriage to Dellhue. Until his death, she took
                  little interest in him after their initial separation. In fact, there is some indication
                  that their children lived with their father during some, or all, of the time between
                  the separation of the parents and his death. Katherine relied on her marriage to Dellhue.
                  Although they had separated, she continued to see him. She did not remarry.
               
               CONCLUSION
               Katherine is not a putative spouse because the effective date of the Minnesota putative
                  spouse statute occurs after Dellhue's death. Because Jewel may have been age seventeen
                  and underage under Arkansas law at the time of her marriage to Dellhue, her marriage
                  was voidable by her parents. In the absence of evidence that her parents petitioned
                  the court to have her marriage annulled, she was validly married to Dellhue. In cases
                  where someone has had more than one ceremonial marriage, Minnesota applies a presumption
                  of validity on a case by case basis to whichever marriage will produce the most equitable
                  result on the facts of the situation. Here, each spouse lived with Dellhue for approximately
                  the same number of years. Although it is unclear whether Katherine and Dellhue had
                  children, the children of the first marriage are now grown and may have lived with
                  their father during the years after his separation from his first wife. Perhaps the
                  greatest factor in determining the equities is that Jewel considered the marriage
                  at an end and remarried; Katherine, while physically separated from her husband, considered
                  herself married to him and continued to see him until his death. Given these facts,
                  we believe that the courts of Minnesota would hold a presumption of validity in favor
                  of the second marriage. That would make Katherine Dellhue's widow and entitled to
                  widow's benefits under Social Security.