The number holder (NH) was domiciled in Florida when he died; therefore, we look to Florida law to determine if Claimant and NH’s domestic partnership was valid. The Claimant and the NH registered their opposite sex Non-Marital Legal Relationship (NMLR) in Broward County, Florida, pursuant to the Broward County Domestic Partnership Act of 1999, (DPA). We believe the Florida courts would find that Claimant’s and NH’s Broward County domestic partnership did not qualify the Claimant as the NH’s widow under Florida law, or allow the Claimant to inherit as the NH’s widow under the Florida interstate succession law. Accordingly, we believe the agency cannot find that the Claimant is the NH’s widower or deemed widower for purposes of determining Claimant’s entitlement to WIB on NH’s earnings record.

Question

You asked whether C~ (Claimant) is the widow of M~, the number holder (NH), based on their Broward County, Florida NMLR for purposes of determining Claimant’s entitlement to WIB on NH’s earnings record.

Answer

We believe the Florida courts would find that Claimant is not NH’s widow under Florida law by virtue of their Broward County NMLR. Therefore, Claimant would not qualify as NH’s widow for purposes of WIB on NH’s earnings record.

Background

On April XX, 2019, Claimant applied for WIB benefits on NH’s account. Claimant described NH as her spouse and husband. She stated they married in New York on January X, 2001, as the result of entering into a domestic partnership in New York and Florida. She provided a Broward County, Florida Declaration of Domestic Partnership, NH’s last will and testament, NH’s death certificate, and a New York City certificate of domestic partnership.

The documentation submitted showed that on January XX, 2005,Claimant and NH, an opposite sex couple, registered their NMLR in Broward County, Florida, pursuant to the Broward County Domestic Partnership Act of 1999, enacted on January 26, 1999 (DPA). Claimant and NH never married. NH died on March XX, 2019. NH’s death certificate shows he resided in Florida when he died. The death certificate lists his marital status as divorced and notes Claimant as his domestic partner, not his wife or spouse.

In his will, NH named Claimant, whom he describes variously as his “domestic partner” or his “friend,” as the personal representative of his estate. NH’s will indicates that a separate collateral letter, not included in the materials, details the distribution of his estate. However, in his will, NH left the entirety of any residuary estate to Claimant and he entrusted her with his funeral arrangements as well as the care of his ashes following his cremation.

Discussion

A. Federal Law

A claimant may be eligible for WIB if she is the widow of an individual who died fully insured. See Social Security Act (Act) § 202(e)(1); 20 C.F.R. § 404.335(a) (2020); ^[1] Program Operations Manual System (POMS) RS 00207.001A.1.b.1. A claimant may qualify as the widow of an insured individual if the courts of the state where the insured was domiciled when he died would find that the claimant and insured were validly married when the insured died or would find that the claimant had the same status as a widow with respect to taking the insured individual’s personal property through intestacy. See Act § 216(h)(1)(A); 20 C.F.R. §§ 404.335(a), 404.345; POMS GN 00305.001A.2.a; POMS RS 00207.001A.1.a.1.

Where a claimant alleges a NMLR, such as a domestic partnership, as the basis for entitlement, the agency must determine whether the state would recognize the NMLR as a marriage or whether the claimant could inherit a spouse’s share of the insured’s personal property. See Act § 216(h)(1)(A); 20 C.F.R. § 404.345; cf. POMS GN 00210.004A (discussion of NMLR involving same sex couples); POMS GN 00305.005 (determining marital status). Thus, for the agency to recognize parties to a NMLR as married: (1) the NMLR must be valid in the state where it was established; and (2) the NMLR must qualify as a martial relationship or allow the claimant to inherit a spouse’s share of the insured individual’s personal property if the insured individual died without a will under the laws of the state of the insured individual’s domicile when he died. ^[2] Cf. POMS GN 00210.004C.

B. State Law

NH’s death certificate indicates that he was domiciled in Florida when he died. Thus, we look to Florida law to determine if Claimant and NH’s domestic partnership was valid and, if so, whether their domestic partnership qualified as a marital relationship or would allow Claimant to inherit a spouse’s share of NH’s personal property if he had died without a will.

Claimant and NH’s domestic partnership certificate shows that they registered as domestic partners pursuant to Broward County Ordinance 1999-18 on January XX, 2005, and that they recorded the registration in the official records of Broward County, Florida. Broward County Ordinance 1999-18 amended the DPA, enacted on January 26, 1999. See Broward County, Fla., Code of Ordinances, Pt. II - Code of Ordinances, Chapter 16½ - Human Rights, Art. VIII - Domestic Partnership Act, https://www.broward.org/Purchasing/Documents /DomesticPartnership.pdf; Ordinance 1999-18; http://www.broward.org/RecordsTaxesTreasury /Records/Documents/OrdinanceNo199918.pdf.

In Lowe v. Broward County, 766 So. 2d 1199 (Fla. Dist. Ct. App. 2000), rev. den. 789 So. 2d 346 (Fla. 2001), the Florida District Court of Appeals for the Fourth District considered the validity of the DPA. 766 So. 2d at 1201-03. The court held that Florida’s constitution and statutes did not prohibit counties or other local governments from enacting laws allowing domestic partnerships. Id. at 1203-11. Thus, Claimant and NH’s domestic partnership was valid under Florida law.

However, Florida does not consider a Broward County domestic partnership to be a marriage or a relationship that would allow Claimant to inherit a spousal share of NH’s personal property. In Lowe , the court held that the DPA “does not legislate within that domestic relations zone that is reserved for the state” because the DPA “does not curtail any existing rights incident to a legal marriage, nor does it alter the shape of the marital relationship recognized by Florida law.” Id . at 1205. The court also noted that the DPA did not “address the panoply of statutory rights and obligations exclusive to the traditional marriage relationship,” such as a surviving spouse’s right to a share of an intestate estate. Id. In addition, the court held that the DPA “does not reflect a legislative value judgment that elevates a non-traditional personal relationship to equal status with the marital relationship created under” Florida law, and the DPA “does not create a legal relationship that, because of the interest of the state, gives rise to rights and obligations that survive the termination of the relationship.” Id. at 1206.

The court in Lowe agreed with the trial court “that the DPA’s extension of limited employment benefits does not create a ‘marriage-like relationship’ . . . .” Id. at 1208. The court further noted that “[t]he DPA is not limited to persons of the same sex. The [DPA] provides benefits to domestic partners. It does not create that plethora of rights and obligations that accompany a traditional marriage.” Id. Furthermore, the court held that the DPA did not violate Florida’s prohibition against common-law marriage because “a domestic partnership created by the [DPA] does not rise to the level of a traditional marital relationship.” Id. at 1211. Therefore, Claimant and NH’s Florida NMLR would not qualify as a marriage under Florida law.

Further, we conclude that the agency would not deem Claimant to be NH’s spouse. See 20 C.F.R. §§ 404.335(a), 404.345; POMS GN 00305.001A.2.a. Under Florida intestacy law, a surviving spouse is entitled to a share of the decedent’s estate. Fla. Stat. Ann. § 732.102 (West 2019). Florida courts typically base the determination of whether an individual is a surviving spouse on the validity of the marriage. See, e.g. , In re Estate of Perez , 470 So. 2d 48, 50 (Fla. Dist. Ct. App. 1985) (reviewing validity of marriage to determine lawful spouse in intestate matter); In re Kant’s Estate , 265 So. 2d 524, 526 (Fla. Dist. Ct. App. 1972) (same). Because Claimant and NH’s domestic partnership did not grant any of the rights conferred on married individuals under Florida law, Claimant is not NH’s widow under Florida law and she could not inherit a spouse’s share of NH’s personal property under Florida’s intestacy law on the basis of her domestic partnership with NH. Although NH named Claimant his personal representative in his will and left her the bulk of his residuary estate, this designation does not change the fact that absent his will, Claimant would not be entitled to inherit from NH.

Conclusion

We believe the Florida courts would find that Claimant’s and NH’s Broward County domestic partnership did not qualify Claimant as NH’s widow under Florida law, or allow Claimant to inherit as NH’s widow under Florida interstate succession law. Accordingly, we believe the agency cannot find that Claimant is the NH’s widower or deemed widower for purposes of determining Claimant’s entitlement to WIB on NH’s earnings record.

The record contains evidence of a valid foreign divorce between the NH and his first wife (the claimant) as well as NH's subsequent marriages. Both Florida and New York recognize a strong presumption in favor of holding the last of subsequent ceremonial marriages valid. Thus, NH's marriage to his last wife is presumptively valid under NY law. This presumption may be rebutted if the claimant proves by clear and convincing evidence the fact of the absence of a divorce. The NY Family Court's decision that the Cuban divorce was void should not be binding in a subsequent administrative hearing wherein it will be determined whether the claimant is the legal widow of NH. The Family Court's finding is not determinative and the claimant can rely on it only as evidence. If the claimant is unable to carry her burden of proof, the presumption of validity attaching to NH's marriage with his last wife will continue, and she cannot receive benefits as the NH's widow.

You have asked for advice on whether a valid marriage still exists between the claimant, Tomasa R~, and the number holder, Amado R~ ("NH"); whether the New York Family Court had jurisdiction to declare their subsequent Cuban divorce void; and thus whether Tomasa R~ is the widow of Amado R~. As we understand the facts of this case, Tomasa R~ contends that she remained the legal wife of Amado R~ until he died because the Cuban divorce was fraudulent. Based on the factual record presented to us, Tomasa has not provided clear and convincing evidence that the Cuban divorce is invalid.

FACTUAL BACKGROUND

Tomasa R~, formerly Tomasa Maria J~, had two children with Amado R~ in Cuba: Amado Lazaro and Rosalba R~ (Ex. 5). Both Tomasa and NH were natives of Cuba, and according to Tomasa they had an agreement to get married so they could bring their children to the United States. Tomasa came to Brooklyn some time in 1956 and Amado came shortly after. Tomasa and NH were married in New York, N.Y. on September 22, 1957 in a ceremony solemnized by clergyman, Reverend Antonio G~ (Ex. 7). Tomasa and NH listed Brooklyn as the place of their residence (Ex. 7).

Tomasa and NH separated some time around 1960, and NH returned to Cuba while Tomasa remained in New York (Ex. 5). The record contains a Cuban Divorce Decree dated May 25, 1960 (Ex. 1). The decree identifies Tomasa, represented by "Solicitor Francisco Rodriguez," as the plaintiff (Ex. 1). NH's statement to the Social Security Administration ("SSA") explains that Tomasa was living in Brooklyn at the time of the divorce but sent power of attorney to Cuba (Ex. 3). Leonor, NH's third wife, similarly told the SSA that Tomasa signed away power to NH in order for him to obtain the divorce from her (Ex. 13). Yet, in Tomasa's request for hearing Tomasa maintained that she is the legal wife of NH (Ex. 9). Tomasa denied receiving any divorce papers (Ex. 2). She claims that the divorce was fraudulent and denied any knowledge of the proceeding and signing her name to any consent or acknowledgment of the divorce action (Ex. 5).

On or about December 31, 1960, NH married Isabel R~, formerly Isabel P~, in Cuba (Ex. 4). They remained married for approximately twenty one years until NH brought a divorce action in Elizabeth, N.J. and the Honorable John P. W~ ordered that the marriage be dissolved on September 16, 1982 (Ex. 4). Isabel remarried on March 18, 1983 to Jose H~ and is still legally married to him (Ex. 12). She does not receive, nor is she entitled to, any benefits on NH's record (Ex. 12).

The record indicates that in 1963, subsequent to NH's marriage to Isabel, Tomasa instituted a proceeding for support against NH under Article 4 of the Family Court Act (Ex. 8). In this proceeding the Family Court of the State of New York issued an Order of Support, finding NH legally chargeable with the support of "Wife, Tomasa R~." The Order further directed that NH's "Alleged Cuban Divorce is Void" (Ex. 8). According to Tomasa, it was not until she filed for this Order of Support that she became aware of the fraudulent divorce proceedings (Ex. 5).

The State of New Jersey Certificate of Marriage contained in the file demonstrates that NH was then married a third time on December 7, 1984 to Leonor Maria R~ (now Leonor R~) in Elizabeth, N.J. (Ex. 10). NH died in Miami, Florida on April 27, 2002 (Ex. 11). The Certificate of Death acknowledges that NH was a Florida resident at that time (Ex. 11). In her statement to the SSA, Leonor certified that she and NH were married and living together up until the day NH passed away (Ex. 13).

After NH's death, Tomasa applied for surviving spouse benefits on NH's record (Ex. 14). On or about November 29, 2002 the SSA notified Tomasa that she was not entitled as a wife because of NH's subsequent marriages, and she was not entitled as a divorced wife because she did not meet the duration of marriage (Ex. 14). Upon reconsideration, that determination was affirmed, reiterating that the divorce has been proven and that the marriage did not last for the requisite ten years (Ex. 14). Still, Tomasa maintains that she is the legal wife of NH, entitled to widow's benefits.

ANALYSIS

In examining widow's benefit claims, the SSA must look to the laws of the state where the wage earner was domiciled at the time of his death to determine whether claimant qualifies as the wage earner's widow. Social Security Act, 42 U.S.C. § 416(h)(1)(A) (2004). In this case, NH apparently was domiciled in Florida at the time of his death. As such, we must determine whether Florida would recognize the existence of a valid marriage between Tomasa and NH.Under Florida law, the validity of a marriage is determined by the law of the state in which the marriage was contracted. See Smith v. Anderson, 821 So.2d 323, 325 (Fla. Dist. Ct. App. 2002). Thus, according to Florida law, the marriage between Tomasa and NH will be considered valid if it is valid under the law of New York, where the marriage occurred.

1. The Presumption of Validity Attaching to the Amado-Leonor Marriage:

The record indicates that NH had two other marriages subsequent to his marriage to Tomasa. NH married his third wife, Leonor, in New Jersey in 1984 and remained married to her until he died in 2002. Both Florida and New York recognize a strong presumption in favor of holding the last of subsequent ceremonial marriages valid. See Grabois v. Jones, 89 F.3d 97, 100 (2d Cir. 1996); In re Lee's Estate, 360 So.2d 1111, 1111 (Fla. Dist. Ct. App. 1964). See also Seidel v. Crown Industries, 517 N.Y.S.2d 310, 311 (N.Y. App. Div. 1987) (stating that the presumption in favor of validity of the last marriage is stronger than the presumption that the prior marriage continued); Grace v. Grace, 162 So.2d 314, 317 (Fla. Dist. Ct. App. 1964)(describing the presumption as so great that in the absence of competent proof to the contrary, it is to be assumed that the previous marriage has been dissolved either by death or legal action). This presumption operates to effectuate "a particular public policy such as upholding legitimacy, favoring the participation in the decedent's estate of one who lived with him as his spouse, and preserving the validity of a marriage where no strong public policy would be served by doing otherwise." See Dolan v. Celebrezze, 381 F.2d 231, 237 (2d Cir. 1967). Accordingly, NH's marriage to Leonor is presumptively valid under New York law, and she appears to be the legal widow of NH.

However, it is well established that a marriage is void if contracted by a person whose spouse by a former marriage is living and that former marriage has not legally been dissolved. See Gonzalez v. Gonzalez, 228 N.Y.S.2d 4, 5 (N.Y. Sup. Ct. 1962). Thus, the presumptive validity of the Amado-Leonor marriage may be rebutted if Tomasa provides evidence which, when weighted collectively, establishes with reasonable certainty the fact of the absence of a divorce. See Teel v. Nolen Brown Motors, Inc., 93 So.2d 874 (Fla. 1957). Since the file contains a Cuban divorce decree, Tomasa must provide sufficient evidence to prove the Cuban divorce invalid in order to demonstrate that she is the widow of NH.

2. Effect of the New York Family Court's Determination:

A judgment in rem is res judicata as to all the world with regard to the res that is determined therein. Presbrey v. Presbrey, 179 N.Y.S.2d 788, 792 (N.Y. App. Div. 1958). In a matrimonial action there is a marital res subject to in rem jurisdiction, therefore a judgment determining marital status subsists as a judicial declaration and is binding on the whole world. Id. at 792. The record indicates that in 1963 the Family Court of the State of New York issued an Order of Support, finding NH legally chargeable with the support of "Wife, Tomasa R~." The Order further directs that NH's "Alleged Cuban Divorce is Void." On its face, the Family Court's decision appears to be a judicial declaration of a subsisting marriage between NH and Tomasa, which rests upon a foundation of an invalid divorce.

a. Issue of Subject-Matter Jurisdiction

In this case, there is a question as to whether the Family Court had jurisdiction to determine that the divorce is void, and thus whether that court's finding is binding on an Administrative Law Judge deciding Tomasa's entitlement to widow's benefits. The Family Court, formerly known as the Domestic Relations Court, was established and the Legislature conferred such jurisdiction upon it as was essential to permit it to oblige the support of a wife by a husband who had neglected to support her. See N.Y. Const. of 1894, art. VI, § 18 (1925, repealed 1962); N.Y. Dom. Rel. Ct. Act. § 91 (L. 1933, c. 482, as amended); N.Y. Const. art. VI, §§ 13 and 32 (1961, amended 2001, effective 2002). In the exercise of its limited jurisdiction the Family Court is authorized to determine whether the parties are husband and wife, but such determination is incidental to the exercise of any jurisdiction. Loomis v. Loomis, 42 N.E.2d 495, 496 (N.Y. 1942). For that limited purpose the court has jurisdiction of the subject matter of the marriage. Consequently, New York law does not recognize a Family Court's pronouncement of marital status as a "decree of a court of competent jurisdiction rendered on the merits," and such a determination is not binding on the parties in a subsequent action outside the Family Court in which there is directly involved the question of whether the same marriage exists or has been terminated. Id. at 496.

In Loomis, the Court of Appeals of New York held that a determination by the Domestic Relations Court of the marital status of the parties is a preliminary matter to exercising or declining jurisdiction and is not binding on the parties in a subsequent action in the Supreme Court where the existence of a valid marriage is directly involved because there is no identity of jurisdiction or cause of action. Id. at 496 (explaining that one is incidental, the other primary, and that one is for support only, the other for an adjudication of marital status). Similarly, the Family Court's direction that the "Cuban Divorce is Void" should not be binding in a subsequent administrative hearing wherein it will be determined whether Tomasa is the legal widow of NH. The Family Court's decision was only incident to its finding that NH was responsible for supporting Tomasa. Thus, the preliminary matter of the marital status in Family Court is not res judicata.

Since the jurisdiction to determine the subject of marriage, where the validity of such marriage is a primary issue, lies exclusively in the Supreme Court, the Family Court's finding is not determinative and Tomasa can rely on it only as evidence. See Graves v. Graves, 675 N.Y.S.2d 843, 846 (N.Y. Sup. Ct. 1998)(stating the New York Supreme Court has exclusive subject matter jurisdiction over divorce actions).

b. Issue of Failure to Include an Indispensable Party

Assuming arguendo that a court is unconvinced by subsection (a) supra, and avers the Family Court's decision should be res judicata for public policy reasons such as consistency, an additional defect remains in such an assertion. The noncompulsory nature of the court's judgment regarding marital status is evident with an acknowledgment that Isabel, NH's second wife to whom he was married at the time of the proceeding, was not a party to the action.

It is well-known that a court may always consider whether there has been a failure to join a necessary party. See First Nat. Bank v. Shuler, 47 N.E. 262, 264 (N.Y. 1897); Matter of Lezette v. Bd. of Educ., 319 N.E.2d 189, 195 (N.Y. 1974). Necessary parties are those persons who might be "inequitably affected by a judgment in the action." N.Y. C.P.L.R. 1001 (M~ 2005). With regard to necessary parties, the N.Y. C.P.L.R. 3001 provides that an action for a declaration of legal relations serves a legitimate purpose only where all persons who are interested in or might be affected by enforcement of such rights and legal relations are parties to the action and have the opportunity to be heard. N.Y. C.P.L.R. § 3001 (M~ 1991)(derived from N.Y. C.P.A. of 1920 § 473). This insures fairness to third parties who should not be "embarrassed by judgments purporting to bind their rights or interest where they have had no opportunity to be heard." First Nat. Bank, 47 N.E. at 264.

New York Courts have held that, where in an action by one spouse for a judgment declaring that a foreign divorce decree is null and void, it appears that subsequent to the procurement of the divorce the defendant married a third person, such third person must be joined as a party defendant, since that person is an indispensable party without whom no effective judgment can be rendered. See, eg., Cominos v. Cominos, 258 N.Y.S.2d. 545, 545 (N.Y. App. Div.), app. dismissed, 213 N.E.2d 687, 687 (N.Y. 1965); Bard v. Bard, 228 N.Y.S.2d 294, 294 (N.Y. App. Div. 1962); Varrichio v. Varrichio, 53 N.Y.S.2d 326, 326 (N.Y. App. Div.), app. denied, 56 N.Y.S.2d 527, 527 (N.Y. App. Div. 1945).

Here, NH was married to Isabel at the time of the Family Court's proceeding. Although the court's declaration of the nullity of the Cuban divorce related primarily to the marital status of NH and Tomasa, it also necessarily implied that the Amado-Isabel marriage was void, thus affecting the rights and legal relation of Isabel. Consequently, Isabel was a necessary and indispensable party without whom no effective judgment regarding marital status could have been rendered. Accord Bard, 228 N.Y.S.2d at 296; see also First Nat. Bank, 47 N.E. at 264 (stating that the rule requires that without the presence of all persons whose rights may be affected by the judgment there cannot be a final and complete determination of the controversy). The fact that Isabel was not a party to the action confirms that the court's finding of a surviving marriage is not binding in Tomasa's administrative hearing concerning her eligibility for widow's benefits. It is, thus, our opinion that the ALJ may form his own conclusion with respect to whether a marriage subsists or whether the Cuban Divorce is valid.

3. Recognition of the Cuban divorce decree

In determining whether Tomasa is the legal widow of NH, the issue of marital status is complicated by the contradictory evidence regarding the divorce. Tomasa contends that she was separated from NH for over 39 years, but was never served with divorce papers. However, NH submitted proof of the Cuban divorce when he applied for Social Security benefits. The first question to be determined is the extent to which recognition must be accorded the Cuban divorce decree in a New York court. Secondly, the possibility that the divorce may have been fraudulently obtained must be considered.

a. The Doctrine of Comity

New York courts will generally accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States. See, e.g., Greschler v. Greschler, 414 N.E.2d 694, 697 (N.Y. 1980); see, generally, Restatement (Second) of Conflict of Laws § 98 (1971); Robert A. L~, American Conflicts Law § 84, at 169-171 (3d ed. 1968). A party who properly appeared in a foreign divorce action is precluded from attacking the validity of the foreign judgment in a collateral proceeding brought in the New York courts, absent some showing of fraud in the procurement of the judgment or some showing that recognition of the judgment would violate a strong public policy of the State. See Greschler, 414 N.E.2d at 697-698.

In the case at bar, Tomasa has failed to adduce evidence demonstrating that the Cuban court did not have personal jurisdiction over her. The record includes the translation of the Cuban Decree which indicates that Tomasa was the plaintiff and was represented by Solicitor Francisco Rodriguez. Thus, her appearance, through an attorney, in the divorce action gave the Cuban court jurisdiction to grant the divorce unless such appearance was unauthorized. Accordingly, the ALJ would recognize the Cuban divorce decree under the doctrine of comity unless Tomasa can demonstrate fraud or a violation of public policy. See Bourbon v. Bourbon, 751 N.Y.S.2d 302, 304 (N.Y. App. Div. 2002).

b. Demonstrating Fraud

The Social Security Act authorizes the Commissioner to adopt reasonable and proper rules and regulations regarding the nature and extent of proof and evidence necessary to establish the right to benefits. 42 U.S.C. § 405(a) (2006). SSA regulations clearly identify a claimant's responsibilities for proffering convincing evidence to fulfill eligibility requirements for benefits. 20 C.F.R. §§ 404.704, 404.708 (2006). In deciding whether evidence is convincing, the SSA will look to whether "information contained in the evidence agrees with other available evidence, including our records." 20 C.F.R. § 404.708(f) (2006).

Here, the record contains evidence of a valid divorce between NH and Tomasa as well as NH's subsequent marriages. This evidence conflicts with Tomasa's claim that she is the widow of NH as well as the determination of the Family Court that the Cuban divorce is void. Since Tomasa bears the ultimate burden of proving that she is entitled to benefits as NH's widow, it is her obligation to provide clear and convincing evidence that the divorce is invalid on the ground of fraud. Here, the evidence is inconclusive. Tomasa has not produced any records which tend to show that she did not bring the divorce suit or that her power of attorney was unauthorized. Tomasa, therefore, has not carried her burden of proof. Consequently, if no further evidence is submitted, the presumption of validity attaching to NH's marriage with Leonor will continue, New York courts will give recognition to the divorce decree, and Tomasa cannot receive benefits as NH's widow.

4. Divorced Wife's Benefits

Section 202(e) of the Social Security Act provides that widow's insurance benefits may be paid to a divorced wife. Social Security Act, 42 U.S.C. § 402e (2006). An applicant for a surviving divorced spouse's insurance benefit must meet several requirements: she must have been validly married to a fully insured worker for a period of at least ten years immediately preceding a final divorce; must have attained age 60, or have attained age 50 and be under a disability; and must also be unmarried. 42 U.S.C. §§ 402(e), 402(b)(1), 416(d)(1) (2006).

It is evident that Tomasa R~ is ineligible for divorced wife's benefits. Although she meets the second two requirements - she is 85 years of age and has never been remarried - the duration requirement has not been met. The divorce occurred in 1960, less than three years after Tomasa and NH married. Since the marriage subsisted for less than ten years, Tomasa cannot receive divorced wife's benefits on NH's account.

In conclusion, on our understanding of the current factual record, Tomasa cannot be entitled to widow's benefits on NH's account because she has not proven through clear and convincing evidence that she is the legal wife of NH. See Seidel v. Crown Industries, 517 N.Y.S.2d 310, 311 (N.Y. App. Div. 1987). A further development of the facts may establish that the Cuban divorce is void. However, Tomasa bears the burden of proof and if no further evidence is provided she has not met her burden.

New York law states a foreign divorce will not be recognized if none of the parties were residents of the foreign country. NH's divorce from his first wife was invalid and his subsequent marriage to claimant is void. Florida looks to the jurisdiction where the marriage took place to determine its validity. Florida courts would decline to recognize the marriage as valid, thus the claimant could not inherit a spouse's share of NH's personal property if he were to die without a will.

QUESTION

When determining entitlement for Lydia Perez A~ (Claimant) to benefits as the spouse of Florida resident Daniel A~ (NH), should the Social Security Administration (SSA) apply any provisions of New York or California law to determine whether NH's Dominican Republic divorce from Gloria Frazier A~ (first wife) would be recognized in Florida as a valid divorce?

ANSWER

For the reasons stated below, it is our opinion that the divorce obtained in the Dominican Republic would not be valid for SSA purposes, Claimant's marriage to NH is void, and Claimant has not presented sufficient evidence to qualify for benefits as a deemed spouse.

BACKGROUND

According to the file, NH married his first wife on October 20, 1969. NH and his first wife separated some time in 1985. On September 29, 2004, while NH resided in New York and his first wife resided in California, NH obtained a divorce in the Dominican Republic without personally appearing in the Dominican Republic or being domiciled there. NH's first wife states she never divorced NH. On December 15, 2004, NH married Claimant in New York. NH and Claimant currently reside in Florida. On June 8, 2005, Claimant filed an application seeking spouse's benefits on NH's account.

DISCUSSION

The Social Security Act (Act) provides that "an applicant is the wife, husband, widow, or widower" of an insured individual if "the courts of the State in which such insured individual is domiciled at the time such applicant files an application . . . would find that such applicant and such insured individual were validly married at the time such applicant files such application . . . ." § 216(h)(1)(A)(i) of the Act, 42 U.S.C. § 416(h)(1)(A)(i). The Act also allows a finding that the applicant is the wife, husband, widow, or widower if the courts of that state would determine the applicant could inherit a wife's, husband's, widow's, or widower's share of the insured's personal property if he or she were to die without leaving a will. See § 216(h)(1)(A)(ii) of the Act. Finally, the Act permits the Commissioner to deem that a marriage is valid if she is satisfied that an applicant in good faith went through a marriage ceremony with the insured 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. See § 216(h)(1)(B)(i) of the Act. Claimant cannot establish entitlement under any of these three methods.

1. a. 

   Claimant and NH Were Not Validly Married.

   At the time of Claimant's application, NH was domiciled in Florida. So, we first look to Florida law to determine whether she and NH have a valid marriage. It is well established in Florida that a presumption of validity attaches to one's last marriage, and this presumption is referred to as "one of the strongest known to the law." King v. Keller, 117 So. 2d 726 (Fla. 1960). To overcome the presumption of the validity of the last marriage, there must be some evidence showing that the previous marriage was not dissolved by death or divorce. In this case, NH's first wife states she and NH never divorced.

   However, once a marriage is shown to have been ceremonially entered into, it is presumed to be legal and valid. All presumptions necessary to make a marriage valid, including capacity to contract, attach on proof of a ceremonial marriage and cohabitation by the parties under the belief that they were lawfully married. Grace v. Grace, 162 So. 2d 314 (Fla. App. 1964). The presumption in favor of the validity of the subsequent marriage formally entered into is so great that in the absence of competent proof to the contrary, it is to be assumed that the previous marriage has been dissolved either death or legal action. Id., at 317. Here, there is a question regarding the validity of Claimant and NH's marriage. Under Florida law, the validity of a marriage is determined by the law of the jurisdiction where the marriage occurred. See Smith v. Anderson, 821 So.2d 323, 325 (Fla. Dist. Ct. App. 2002). Because NH and Claimant were married in New York, we must look to that state's law.

   Under New York law, once a ceremonial marriage has been performed, there is a strong presumption in favor of holding the latest ceremonial marriage valid. See Grabois v. Jones, 89 F.3d 97, 100 (2d Cir. 1996). Furthermore, the presumption of validity of the latter marriage becomes "stronger and stronger where a substantial injustice would be created by invalidating that marriage." See Grabois, 89 F.3d at 100; see also Dolan v. Celebrezze, 381 F.2d 231, 237-38 (2d Cir. 1967) (finding that a review of New York case law indicates that the presumption favoring the validity of the second marriage varies in force with the attendant facts and circumstances). The court in Dolan noted that the presumption for validating subsequent ceremonial marriages in New York operates to effectuate "a particular public policy such as upholding legitimacy, favoring the participation in the decedent's estate of one who lived with him as his spouse, and preserving the validity of a marriage where no strong public policy would be served by doing otherwise." Dolan, 381 F.2d at 237; see also Boyd v. Heckler, 588 F.Supp. 31, 34-35 (E.D.N.Y. 1984) (stating that "[c]hief among the equities to be considered is whether there are children of the second marriage" in holding that testimonial evidence, absence of divorce records, and no children in the second marriage were sufficient to rebut the presumption of validity of the second marriage for purposes of awarding widow's social security benefits).

   Here, a question remains regarding the validity of NH's divorce from his first wife, which affects the validity of his subsequent marriage to Claimant. According to New York law, "a marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living and the prior marriage has not been dissolved legally." Gonzalez v. Gonzalez, 34 Misc.2d 193, 194 (N.Y. Sup. Ct. 1962). In this case, NH sought a divorce from his first wife in the Dominican Republic while residing in New York. New York law states that a foreign divorce will not be recognized if none of the parties were residents of the foreign country. See Walsh v. Andorn, 41 A.D.2d 720, 721 (N.Y. App. Div. 1973); Rosenbaum v. Rosenbaum, 130 NE.2d 902, 903-04 (N.Y. 1955). Information contained in the file states neither NH nor his first wife resided in the Dominican Republic at the time of the divorce. Moreover, neither party personally appeared in the Dominican Republic for the divorce proceedings. Consequently, NH's divorce from his first wife was invalid and his subsequent marriage to Claimant is void. Neither Florida nor New York would look to California law to determine the validity of Claimant's marriage.

2. b. 

   Claimant Could Not Inherit a Widow's Share of NH's Personal Property.

   Claimant could also be entitled to spousal benefits upon a finding that Florida courts would determine that she could inherit a widow's share of NH's personal property if he were to die without leaving a will. See § 216(h)(1)(A)(ii) of the Act.

   If NH were to die without a will, Florida law states that a surviving spouse is entitled to a share of a spouse's personal property. See FLA. STAT. § 732.102 (2005). However, Florida, as noted above, looks to the jurisdiction where the marriage took place to determine its validity. New York would not recognize the validity of the marriage of NH and Claimant. Because we believe New York would not recognize Claimant's marriage as valid, we believe that Florida courts would also decline to recognize their marriage as valid. Therefore, we further feel Florida would not find Claimant was NH's surviving spouse within the meaning of the statute.

   It is our opinion that Claimant could not inherit a spouse's share of NH's personal property if he died intestate, because she was not his lawful wife. Therefore, Claimant is not entitled to spousal benefits on NH's account under subparagraph (ii) of § 216(h)(1)(A) of the Act.

3. c. 

   The Commissioner Could Not Find A Valid Deemed Marriage.

   As stated above, the Act also permits the Commissioner to find that a marriage is valid if she is satisfied that an applicant in good faith went through a marriage ceremony with the insured individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of the ceremony, would have been a valid marriage. See § 216(h)(1)(B)(i) of the Act. Here, there was a clear legal impediment to Claimant's marriage to NH. Moreover, it is clear that Claimant had knowledge of NH's prior marriage and participated in his acquiring the foreign divorce. However, it is unclear from the records provided whether Claimant had knowledge that the foreign divorce would not be recognized as valid. Because there is insufficient evidence in the record, we are unable to determine that Claimant meets the definition of a deemed wife under § 16(h)(1)(B)(i) of the Act. Further development may be appropriate.

CONCLUSION

Thus, Claimant is not entitled to spousal benefits, because her marriage to NH is void, and she has not met her burden of proving she qualifies as a deemed wife.

Mary Ann S~

Regional Chief Counsel

By:

Jennifer P~

Assistant Regional Counsel