You have requested an opinion regarding whether a decree of annulment renders Tappy
M~’s marriage to Scott R. B~ void or voidable under Arkansas law. If Ms. M~’s marriage
to Mr. B~ were void under Arkansas law, the agency would consider Ms. M~ never to
have married, and the agency would reinstate her disabled adult child’s insurance
benefits [1] (child’s insurance benefits) from the date the agency terminated her child’s insurance
benefits. If Ms. M~’s marriage to Mr. B~ was voidable under Arkansas law, her child’s
insurance benefits would end one month before the month she married Mr. B~. If a court
annuls the voidable marriage, however, agency policy permits reentitlement to child’s
insurance benefits the first full month the agency considers the claimant to be no
longer married. After reviewing the facts and the relevant law, it is our opinion
that Ms. M~’s marriage to Mr. B~ was voidable under Arkansas law. In our opinion,
therefore, Ms. M~’s entitlement to child’s insurance benefits ended effective September
1991, the month before the month Ms. M~ married Mr. B~. The agency, however, may reinstate
her child’s insurance benefits as of December 1991, the first full month the agency
considers her to have been no longer married.
As we understand the facts, Charles R. B~, the number holder (NH), has been receiving
Title II disability benefits as a resident of Arkansas since May 1979. Ms. M~, the
NH’s daughter, was born on January 12, 1971. Ms. M~ received child’s insurance benefits
on the NH’s record from May 1979 through January 1989, when she reached age 18. Ms.
M~ applied for and became entitled to Title II disability benefits on her own record
in February 1990. At that time, the agency did not consider Ms. M~’s potential benefits
as a disabled adult child on the NH’s record. The agency, however, subsequently established
Ms. M~’s entitlement to child’s insurance benefits as a disabled adult on the NH’s
record, with an effective date of May 1989.
In October 1989, Ms. M~ married Robin D~. The agency did not consider Ms. M~’s marriage
to Mr. D~ a terminating event for purposes of child’s insurance benefits because Mr.
D~ was a Title II disability beneficiary [2] Ms. M~ and Mr. D~ divorced in March 1991. In October 1991, Ms. M~ married Mr. B~.[3] In November 1991, the Chancery Court of Mississippi County, Arkansas, annulled the
marriage between Ms. M~ and Mr. B~ on grounds that Ms. M~ was incapable of consenting
to the marriage for want of understanding.
Under section 202(d)(1) of the Social Security Act, a child of a worker may become
entitled to child’s insurance benefits if, among other conditions, the child is unmarried. See 42 U.S.C. 402(d)(1); 20 C.F.R. §§ 404.350(a), 404.352(b)(2). “[A] person who is entitled
to child’s insurance benefits and whose entitlement is terminated because of marriage
. . . may not be reentitled to those benefits when the marriage ends by divorce.”
Social Security Ruling (SSR) 84-1, 1984 WL 49790, *1 (SSA). However, “[i]f a voidable marriage is annulled by
court action . . . reentitlement to child’s . . . benefits is ordinarily permitted . . . no
earlier than the month in which the marriage is annulled,” so long as the annulling
court does not award or retain jurisdiction to award permanent alimony. Id. Thus, for individuals whose entitlement to child’s insurance benefits ended due
to marriage and whose marriage ended by annulment, the date of reentitlement to child’s
insurance benefits depends upon whether the marriage was void or voidable.[4]
If a child who is entitled to child’s insurance benefits on a parent’s record marries
and late divorces, the agency must determine whether the child is reentitled to receive
benefits. If the agency considers a child’s marriage void under applicable state law,
the agency considers the child never to have married, and she will be reentitled to
child’s insurance benefits as of the date the agency first terminated her benefits.
SSR 84-1, 1984 WL 49790, *1 (SSA). If, on the other hand, the agency considers the
child’s marriage voidable under applicable state law and a court annuls the marriage,
the child may be reentitled to benefits as of the date of the first full month the
agency considered her to be no longer married. Id.; see e.g., 20 C.F.R. § 404.620(a)(1) (Social Security regulations provide that a claimant who
files an application for benefits before the first month she meets the requirements
for entitlement may receive benefits from the first month she meets all the requirements).
In this case, Arkansas law controls because Ms. M~ resided in Arkansas at all relevant
times. See Ark. Code Ann. § 9-12-202 (proceedings for annulment shall be by equitable proceedings
in the county where the complainant resides). In her November 1991 Petition for Annulment
from Mr. B~, Ms. M~ alleged that she was incapable of consenting to the marriage for
want of understanding. Tappy J. B~ vs. Scott R. B~, Chancery Court of Mississippi County, Arkansas, Case No. E-91-631. On November 15,
1991, the Arkansas Chancery Court ordered that the marriage between Ms. M~ and Mr.
B~ be “set aside and held for naught and annulled.” Id. The Arkansas Chancery Court did not award or retain jurisdiction to award permanent
alimony in this case.[5] Id.
You asked whether the November 1991 decree of annulment rendered Ms. M~’s marriage
to Mr. B~ void or voidable under Arkansas law. Arkansas law provides that when a party
“to a marriage is incapable from want of age or understanding of consenting to any
marriage . . . the marriage shall be void from the time its nullity shall be declared
by a court of competent jurisdiction.” See Ark. Code Ann. § 9-12-201. The word “void” in section 9-12-201 means “voidable.” See Vance v. Hinch, 261 S.W.2d 412, 497(1953) (under statute providing that marriage of person unable
to consent to marriage for want of understanding is void from the time a court declares
its nullity, a reasonable interpretation of that statute is that such marriage is
voidable and not void). Thus, Arkansas treats a marriage that a court annuls for want
of understanding, like the situation in the instant case, as a voidable marriage.
In conclusion, Ms. M~ married Mr. B~ in October 1991, and the Arkansas Chancery Court
annulled the marriage in November 1991. The marriage between Ms. M~ and Mr. B~ was
voidable because the laws of the state of Arkansas treat a marriage that a court annuls
for failure of consent by virtue of a want of understanding as a voidable marriage.
Thus, Ms. M~’s entitlement to child’s insurance benefits ended in September 1991,
the month before Ms. M~ married Mr. B~. The agency may reinstate her child’s insurance
benefits in December 1991, the first full month the agency considers her to be no
longer married.
Michael M~
Regional Chief Counsel
By: ___________
Ruben M~
Assistant Regional Counsel