Erna M. S~ has applied for social security widow's benefits on the account of Leo
G. S~. Erna M. and Leo were married in Nevada on August 5, 1968. Mr. S~ previously
had married Lucy M~ and you have concluded that this marriage was never ended by an
alleged Mexican divorce. Erna M. had been married three times before. Her first marriage
was ended by her husband's death. The second marriage was terminated by divorce. With
respect to the third marriage, California court records indicate that an interlocutory
decree was issued to Erna M. and Vernon E. S~ on November 25, 1966, but that neither
party subsequently obtained a final decree. You asked "whether Erna M. is estopped
to deny the finality of her interlocutory divorce, so that she might be considered
the unmarried putative widow of S~ under Arizona law." l_/
To determine the effect of the interlocutory divorce decree, the Arizona courts would
look to the laws of California, the state in which it was rendered. See 24 Am. Jut. 2d, "Divorce and Separation" §§ 1101-1103; see also Depper v. Depper, 9 Ariz.App. 245, 451 P.2d 325 (1969) (valid foreign decree entered in divorce action
entitled to full faith and credit). As you recognize, under applicable California
law a marriage is not terminated by divorce until the entry of a final decree. GC
opinion re Albert E. ~, June 25, 1987. It follows that Erna M. remains legally married
to Mr. S~ and her attempted marriage to Mr. S~ is void. 2_/
Since Erna M. married Mr. S~ in reliance upon the interlocutory decree, she is estopped
from questioning the efficacy of that decree to terminate her prior marriage. See, e.g., GC opinion re Jack M~ , January 14, 1987. This does not mean, however, that she
is to be considered Mr. S~ wife. On the contrary, under Arizona law a spouse who has
obtained a patently invalid divorce remains legally married to that spouse and, moreover,
acquires no marital property rights from a subsequent "spouse." Accordingly, Erna
M. does not meet the requirements of section 216(h) (1) (A) in that neither is she
Mr. S~ legal widow, nor is she entitled to spousal inheritance rights from his estate.
We frequently have advised that for social security benefit purposes, it would be
inequitable to place a claimant in a position where, as a result of the estoppel doctrine,
she cannot qualify for benefits on the account of her legal husband or as the wife
of the subsequent putative spouse. See GC opinion re Albert E.~, cited above. This is not the situation here, however, since
Erna M. can readily clarify her legal status, clearing the way for entitlement on
the account of her legal husband, Mr. S~. 3_/ Despite the lapse of more than twenty
years, she may still petition for entry of a final judgment dissolving her marriage
to Mr. S~. Cal. Civil Code § 4514. 4_/ Once this judgment is entered, she may satisfy
the requirements for purposes of entitlement to divorced wife's benefits on Mr. S~
account. 5_/ Alternatively, she can do nothing, remaining legally married to Mr. S~
but equitably barred from denying the efficacy of the interlocutory decree. If she
elects this course, she will not be entitled to benefits on either account.
You also asked whether the Regional POMS Supplement GN R 00305.475(g) needs clarification
in. view of GC opinion re Philip R~ , October 21, 1985, indicating that the estoppel
doctrine may be applied to establish the "is-not-married" requirement in cases involving
state law determinations under section 216(h)(1)(A) but that the concept of estoppel
has no application for purposes of the Federal deemed marriage provision of section
216(h) (1) (B). The referenced POMS subsection addresses (federal) defacto (deemed)
marriages and (state) putative marriages only; putative status, in states which recognize
it, is in essence a state law equivalent of the federal deemed spouse status. We do
not believe that the referenced language in the R~ opinion 6_/ was meant to encompass
state law determinations of putative status; estoppel would be inconsistent with applicable
legal concepts in that context. Thus, we see no need for amendment of POMS GN R00305.475(g).
1_/ Mr. S~ was an Arizona domiciliary at the time of his death on February 27, 1979.
2_/ Of course, a valid marriage was also precluded by Mr. S~ preexisting marriage
to Lucy.
3_/ Even if estoppel were not applied against Erna M., in this case a valid marriage
could not be made out due to the preexisting, undissolved marriage between Mr. S~
and Lucy.
4_/ She also could move to have the final judgment signed, dated, filed, and entered
nunc pro tunc, granting the divorce as of the date when it could have been entered
under the law if applied for. Cal. Civil Code § 4515. The entry of a nunc pro tunc
decree would not legalize Erna M.'s marriage to Mr. S~ because of the independent
impediment of his prior, undissolved marriage to Lucy.
5_/ You indicated that Mr. S~ applied for disability insurance benefits in July 1986.
6_/ It is important to understand the limits of the Bly G~ holding, paraphrased in
Ronning: if, after application of state law, the claimant's divorce is found to be invalid
but he/she is estopped from asserting its invalidity, he/she may be considered "not
married" for social security benefit purposes.