TN 26 (04-16)

PR 05005.005 Arkansas

A. PR 16-039 Arkansas State Law-Status of NH’s Third Wife (NH: O~; SSN ~) -- REPLY

Date: December 3, 2015

1. Syllabus:

The NH passed away while domiciled in Arkansas, therefore, we look to the Arkansas state Law to determine the validity of the marriage. Although an Arkansas marriage certificate shows Claimant 1978 marriage to the NH, we also have evidence showing that such a marriage was void because the NH was still married to his first wife, when he married the Claimant. Accordingly, because the Claimant’s marriage to the NH was void, the Claimant has not proven that she was validly married to the NH under Arkansas law at the time of his death in 2001.

Also, the Claimant’s marriage to the NH cannot be considered a valid deemed marriage.  The Claimant stated that she knew that the NH was married to his first wife when he married her and that she did not believe her marriage to the NH was a legal marriage, but she also indicated that she learned about this after her marriage ceremony. Thus, there is some evidence to support a finding that she met the good faith requirement, but regardless, because the evidence indicates that the Claimant and the NH were not living in the same household when he died in 2001, the agency will not deem their marriage valid. We conclude that the marriage between the Claimant and the NH was void due to the NH’s prior undissolved marriage to his first wife. The Claimant is not the NH’s surviving spouse, or widow, under the Act for purposes of widow’s benefits.

2. Opinion

QUESTION PRESENTED

For purposes of the claimant G~s (G~’s or second wife’s) application for surviving spouse benefits on the record of O~, the number holder (NH), you asked us to determine whether the NH was validly married to G~, his purported second wife, at the time of his death in 2001.

ANSWER

Based on the evidence submitted, we believe that the marriage between G~ and the NH was void under Arkansas law because at the time of their marriage, the NH was not yet divorced from his first wife. As such, G~ was not validly married to the NH at the time of his death in 2001 and is not entitled to benefits on the NH’s account as a surviving spouse, or widow.1

BACKGROUND

The NH passed away on October XX, 2001 while domiciled in Arkansas. There is evidence indicating that the NH potentially had three marriages to three different women, and it is our understanding that the Social Security Administration (SSA or agency) has been paying widow’s benefits to the NH’s third wife, C~, on his record since 2002. Because your legal opinion request concerns only the NH’s purported second wife, G~, and her entitlement to widow’s benefits as the NH’s widow, we focus on G~’s status as the NH’s widow. To the extent helpful in examining G~’s status as the NH’s widow, we summarize the evidence submitted as to the NH’s three marriages.

The NH’s First Purported Marriage To R~

An Arkansas marriage certificate shows that the NH and R~(R~ or first wife) were married in a solemnized marriage ceremony in Arkansas on September XX, 1972. The evidence indicates that R~ and the NH filed for a divorce in Minneapolis, Minnesota on June XX, 1992, and that on December XX, 1992 “judicial review” was “approved.” See R~ v. O~, No. 27-FA-00018XXXXX (Hennepin Family Court, Minnesota). We do not have a copy of the final divorce decree showing the exact date the divorce was final.2 R~ died on August XX, 1998.

The NH’s Second Purported Marriage to G~

On March XX, 2015, G~ filed a claim for benefits on the NH’s record as a surviving spouse, and it is this claim that is the subject of this present legal opinion request.3 The evidence includes a copy of an Arkansas marriage certificate showing that G~ and the NH married in a solemnized marriage ceremony in Arkansas on May XX, 1978, while he was still married to R~. In a May 2015 statement to the agency, G~ stated that she did not list her marriage to the NH in her February 2015 disability application because she did not think it was legal. She stated that after she married the NH, she found out that he was still married to his previous wife, R~, and that the NH and R~ never divorced. The evidence includes an undated statement by the NH in which the NH similarly stated that he did not divorce R~ before he married G~, as he did not know he needed to divorce R~ in order to marry G~. In March 2015, the field office contacted the St. Francis County, Arkansas circuit clerk’s office to inquire whether there was record of a divorce between G~ and the NH, and the clerk’s office search of records for the years 1979 through 2001 found no record of a divorce.

G~ also provided a copy of an Arkansas marriage certificate showing that she married J~ in Forrest City, St. Francis County, Arkansas on October XX, 1988, and that they divorced on February XX, 1996 in Forrest City, Arkansas. J~ passed away on October XX, 2005.

The NH’s Third Purported Marriage to C~

There is evidence that the NH married C~(C~ or third wife) on October XX, 1992, while domiciled in Arkansas. C~ filed an application for widow’s benefits on the NH’s account on October XX, 2001, in which she stated that she and the NH had lived together in 1988, that the NH left her in 1993, that she later moved to Missouri, but that she did not file for a divorce from the NH and had not been notified that the NH filed for divorce. Instead, she reported that their marriage ended with the NH’s death on October XX, 2001. A 2002 letter from the agency shows that the agency had a marriage license showing a marriage between the NH and C~, and that the agency had searched for a divorce decree between C~ and the NH in St. Francis County, Arkansas and in St. Louis County, Missouri and did not find such a decree.4 In 2002, the agency granted C~’s application for widow’s benefits on the NH’s record, and she currently receives widow’s benefits on the NH’s record.

ANALYSIS

A. Entitlement to Widow’s Benefits Under the Social Security Act

Your legal opinion request concerns whether the NH was validly married to G~, his purported second wife, at the time of his death in 2001. The Social Security Act (Act) provides that a claimant may be eligible for benefits as an insured NH’s widow if she was validly married to the NH at the time of his death, or if not validly married, she would be able to inherit a spouse’s share under state intestate succession laws. See 42 U.S.C. §§ 402(e)(1), 416(c)(1), (h)(1)(A); 20 C.F.R. §§ 404.335(a), 404.345.5 There are additional requirements for entitlement to widow’s benefits that we do not address, as they are not relevant to this legal opinion. See 42 U.S.C. § 402(e)(1)(A)-(D); 20 C.F.R. § 404.335(b)-(e). Because the Act directs the agency to apply the law of the state where the NH had a permanent home at the time of his death to determine the validity of a marriage and inheritance as a spouse under intestate succession laws, Arkansas law controls. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.345;20 C.F.R. § 404.303 (permanent home means the true and fixed home or legal domicile of the insured individual).

B. Under Arkansas Law, G~ has not Proven that She had a Valid Marriage to the NH at the Time of the NH’s Death in 2001, Per 42 U.S.C. § 416(h)(1)(A)(i)

Given that the NH has had multiple marriages, we begin our analysis by recognizing that Arkansas law presumes that C~ is the NH’s legal widow because C~’s 1992 marriage to the NH was his last marriage and because the agency is currently paying benefits to C~ as his surviving spouse based upon evidence of her marriage to the NH. See Stokes v. Heckler, 773 F.2d 990, 991-92 (8th Cir. 1985) (under Arkansas law, the last ceremonial marriage is presumed valid and is one of the strongest presumptions under Arkansas law); Blythe v. Blythe, 410 S.W.2d 379 (Ark. 1967) (“the presumption in favor of the validity of a marriage is so strong that the one who attacks a subsequent marriage . . . has the difficult burden”); Sims v. Powell’s Estate, 432 S.W.2d 838, 840 (Ark. 1968) (“positive proof” is necessary to rebut the presumption); Bruno v. Bruno, 256 S.W.2d 341, 344 (Ark. 1953) (“where a man and woman are married and it is later discovered that one of them has a living former spouse it will be presumed, in the absence of proof to the contrary, that the former spouse had been divorce[d] at the time of said marriage.”). For G~ to prove that she is the NH’s legal widow based on her valid marriage to the NH, G~ has the heavy burden of providing “clear and decisive” evidence to rebut the presumption of validity as to the NH’s marriage to C~. See Stokes, 773 F2d at 991-992 (it is a “heavy burden of proof imposed under Arkansas law on one who would invalidate an apparently legal marriage”) (citing Missouri Pacific R.R. Co. v. Harris, 120 S.W.2d 695, 696 (Ark. 1938)).

As explained below, we find that G~ has not met her burden to overcome Arkansas’s strong presumption in favor of the validity of the NH’s marriage to C~ because G~’s 1978 marriage to the NH was void.

Although an Arkansas marriage certificate shows G~’s 1978 marriage to the NH, we also have evidence showing that such a marriage was void because the NH was still married to R~, his first wife, when he married G~. See Smiley v. Smiley, 448 S.W. 2d 642, 646 (Ark. 1970) (a ceremonial marriage to a person who has previously been married and has never obtained a divorce is void from its inception and no court decree is required to declare it void). Under Arkansas law, a void6 marriage includes a subsequent marriage to an individual who was not yet divorced from a living “former” spouse. See Acuna v. Sullivan, 765 F.Supp. 510, 513 (E.D. Ark. 1991) (finding a subsequent marriage before dissolution of the prior marriage is void); Bruno, 256 S.W.2d at 343 (a ceremonial marriage to a person who has previously been married and has never obtained a divorce is void); Ark. Code Ann. § 9-12-101. Such a marriage is void even if one of the parties to the second marriage entered it in good faith. See Standridge v. Standridge, 769 S.W.2d 12, 14 (Ark. 1989). As discussed below, the NH’s first wife, R~, was still living and married to the NH at the time G~ and he purportedly married in 1978.

An Arkansas marriage certificate shows that the NH and R~ were married in a solemnized marriage ceremony in Arkansas on September XX, 1972. The field office contacted the Hennepin County and the 4th District Family Court in Minneapolis, Minnesota, and the county records showed that R~ and the NH’s divorce was filed and finalized around 20 years later in 1992.7 An Arkansas marriage certificate showing that G~ and the NH married in a solemnized marriage ceremony in Arkansas on May XX, 1978. But because the NH was not divorced from his first wife R~ (who was still living at the time) until 1992, the 1978 marriage between G~ and the NH was not valid and was void under Arkansas law. See Ark. Code Ann. § 9-12-101; Acuna, 765 F.Supp. at 513 (finding a subsequent marriage before dissolution of the prior marriage is void).

Given that G~’s marriage to the NH was void, the lack of a divorce decree showing that G~ and the NH were divorced is not determinative. See Smiley, 448 S.W. 2d at 642 (a ceremonial marriage to a person who has previously been married and has never obtained a divorce is void from its inception and no court decree is required to declare it void); Bruno, 256 S.W.3d at 341; Goset v. Goset, 164 S.W. 759, 762 (Ark. 1914). Indeed, G~ advised the agency that she did not list her marriage to the NH in a February 2015 disability application she had filed because she did not think it was legal. She stated that after she married the NH, she found out that he was still married to his previous wife, R~. The evidence includes an undated statement by the NH in which the NH similarly stated that he did not divorce R~ before he married G~. Furthermore, in 1988, G~ married another man in Arkansas and was married to him until they divorced in 1996. Thus, if G~ did not believe her marriage to the NH was legal, it follows that she never sought a divorce from the NH. Further, her subsequent marriage to another man contradicts her present claim that she thought she had a valid marriage to the NH.

Accordingly, because G~’s marriage to the NH was void, G~ has not proven that she was validly married to the NH under Arkansas law at the time of his death in 2001. Therefore, she has not established her status as the NH’s widow under the Act. See 42 U.S.C. § 416(h)(1)(A)(i).8

C. G~ Has Not Established a Deemed Valid Marriage to the NH under the Act, 42U.S.C. § 416(h)(1)(B)

Finally, we consider whether the agency will deem G~’s marriage to the NH valid under section 216(h)(1)(B). See 42 U.S.C. § 416(h)(1)(B). If, under state law, an applicant is determined not to be a NH’s spouse, the agency will nevertheless consider the claimant to be the NH’s surviving spouse if she went through a marriage ceremony with the NH in good faith that would have resulted in a valid marriage except for a legal impediment. See 42 U.S.C. § 416(h)(1)(B); 20 C.F.R. §§ 404.346(a), 404.727; POMS GN 00305.055. A legal impediment includes only an impediment that results because a previous marriage had not ended at the time of the ceremony or because there was a defect in the procedure followed in connection with the intended marriage. See 42 U.S.C. § 416(h)(1)(B)(iv); 20 C.F.R. § 404.346(a). “Good faith” means that at the time of the ceremony, the applicant did not know that a legal impediment existed, or if she did know, the applicant thought that it would not prevent a valid marriage. See 20 C.F.R. § 404.346. To be entitled to benefits as a widow based on a deemed marriage, the claimant and the insured must have been living in the same household at the time the insured died. See 42 U.S.C § 416(h)(1)(B)(i); 20 C.F.R. §§ 404.346, 404.347.

Here, G~ stated that she knew that the NH was married to R~ when he married G~ and that she did not believe her marriage to the NH was a legal marriage, but she also indicated that she learned about this after her marriage ceremony. Thus, there is some evidence to support a finding that she met the good faith requirement. See 20 C.F.R. § 404.346. Regardless, because the evidence indicates that G~ and the NH were not living in the same household when he died in 2001, the agency will not deem their marriage valid. See id.

CONCLUSION

We conclude that the marriage between the G~ and the NH was void due to the NH’s prior undissolved marriage to R~. As such, because G~ was not validly married to the NH at the time of his death in 2001 under Arkansas law, she is not the NH’s surviving spouse, or widow, under the Act for purposes of widow’s benefits.

Michael McGaughran

Regional Chief Counsel

By: ________________________

Una McGeehan

Assistant Regional Counsel

B. PR 07-226 Arkansas State Law - Presumption of Validity of Last Marriage (Including Presumption of Death) (NH W~; SSN ~) - REPLY

DATE: September 28, 2007

1. SYLLABUS

Under Arkansas law a marriage that is not recorded is not void. The evidence presented does not support a conclusion that the claimant's prior marriage was terminated by a presumed death of her prior spouse. Nevertheless, Arkansas law presumes the validity of the last marriage. The party contesting the validity of the last marriage must prove by “clear and decisive evidence” that a prior marriage did not terminate before the last marriage occurred.

2. OPINION

You requested our opinion on whether a marriage between W~ (W~), the number holder, and P~ (P~), the claimant, is presumed valid under Arkansas law. Specifically, you asked whether P~'s prior marriage was void because she did not record the marriage license. You also asked whether P~'s prior marriage was terminated by the presumed death of her spouse under Ark. Code Ann. § 9-11-108 (2007). Finally, you asked whether the Agency requires any further development to resolve the issue of whether P~'s prior marriage was terminated by death or divorce prior to her marriage to W~. We conclude that under Arkansas law a marriage that is not recorded is not void. Further, the present evidence does not support a conclusion that P~'s prior marriage was terminated by a presumed death of her prior spouse. Nevertheless, we conclude the marriage between W~ and P~ is valid because Arkansas law presumes the validity of the last marriage.

As we understand the facts, P~ married R~ (R~) on March XX, 1986. P~ and R~ obtained a marriage license and P~'s brother, a minister, officiated the marriage ceremony. The couple did not return the marriage license to the county court clerk for recording. Instead, P~ stated that R~ became angry at her two days after the ceremony, tore up the marriage license, and told her he was divorcing her in the custom of his country. P~ reported that she never saw R~ again. She stated she believes he returned to Mexico.

On August XX, 2005, P~ and W~ were married. The couple never lived together as husband and wife. P~ stated that she married W~ so she could help him handle his affairs. On April XX, 2007, W~ died in Arkansas. P~ later filed an application for disabled widow's benefits on W~'s record.

The Social Security Act provides that a disabled widow is entitled to benefits if she was validly married to the number holder and meets the other requirements for eligibility. 20 C.F.R. § 404.336. When determining who is a widow for purposes of entitlement to Social Security benefits, the Agency looks to the laws of the state where the deceased number holder had a permanent home at the time of his death. See 42 U.S.C. § 416(h)(1); 20 C.F.R. § 404.345. Because W~ died while domiciled in Arkansas, we look to Arkansas law.

Although Arkansas law provides that any person who obtains a marriage license must return the license to the county court clerk for recording within 60 days, Ark. Code Ann. § 9-11-218 (2007), the Arkansas Supreme Court held that the marriage licensing statutes are “merely directory,” rather than mandatory. DePotty v. DePotty, 295 S.W.2d 330, 330-31 (Ark. 1956). Thus, a couple's failure to properly record their marriage under section 9-11-218 does not make the marriage void. Fryar v. Roberts, 57 S.W.3d 727 (Ark. 2001). In Fryar, a couple obtained a marriage license and took part in a wedding ceremony officiated by the husband's cousin, who was a minister. After the ceremony, the wife took possession of the marriage license and, with the husband’s consent, burned it. She stated that the couple did not intend the marriage to be legal. Later, the husband filed for divorce and requested a division of property acquired during the marriage. The Arkansas Supreme Court found that evidence that the couple obtained a marriage license and were married by a minister could establish a legal marriage. The Court stated returning the license was only evidence that a marriage had been performed and did not constitute the marriage itself. Id., at 441.

The fact that R~ destroyed the marriage license and did not return it to the county court clerk does not make the marriage between P~ and R~ void. As in Fryar, the couple obtained a marriage license and solemnized their marriage before a minister. Thus, the marriage between P~ and R~ was valid under Arkansas law.

Arkansas law also recognizes a presumption of a spouse's death under certain circumstances. Ark. Code Ann. § 9-11-108 (2007). Specifically, the law provides that:

In all cases where any husband abandons his wife, or a wife her husband, and resides beyond the limits of this state for the term of five (5) successive years, without being known to the other spouse to be living during that time, the abandoning party's death shall be presumed. Any subsequent marriage entered into after the end of the five (5) years shall be valid as if the husband or wife were dead.

Id. The party relying on the presumed death of a spouse has the burden to produce evidence to establish the presumption. There must be an abandonment where one spouse deserts the other without consent or justification and with no intention of returning. Watson v. Palmer, 240 S.W.2d 875, 876 (Ark. 1951). In addition, the evidence must establish that the abandoning spouse left the state. The court does not infer the abandoning spouse's death nor his absence from the state simply from his disappearance. Baxter v. Baxter, 334 S.W.2d 714, 715 (Ark. 1960). In Baxter, a woman sought a declaratory judgment that her first husband was dead and that her marriage to her second husband was valid. The woman stated that she did not know where her first husband grew up, and she did not know anything about his relatives or friends. After he left her, the woman simply never heard from her first husband again. The court denied the woman's request, stating that she had the burden of producing evidence that her first husband had lived continuously outside Arkansas for at least five years before her remarriage. The court stated that the woman was required to provide sufficient evidence of the first husband's intent to leave the state or of a diligent, but unsuccessful, search for him. But the court held that the woman's ex parte request for a declaratory judgment was unsupported by comparable testimony that might take her first husband's whereabouts out of the realm of pure speculation. Id., at 715.

P~ has also not supplied sufficient information from which we can presume that R~ is dead. Like the woman in Baxter, P~ reported that she does not know any of R~'s relatives. Although she stated she believes that R~ returned to Mexico, there is no supporting evidence to establish either that R~ actually left Arkansas or that P~ performed a diligent, but unsuccessful, search for him prior to her marriage to W~. Rather, P~ stated she married W~ believing that her marriage to R~ was not valid because the couple did not return the license. Thus, we conclude that P~ is unable to meet her burden of providing sufficient evidence to establish the presumption of R~'s death.

Even though P~ cannot rely upon the presumption of death of her spouse, her marriage to W~ is valid because Arkansas law presumes the validity of the last marriage. The burden of proving that the last marriage is not valid is on the party attacking the marriage, and the presumption is a strong one. The party contesting the validity of the last marriage must prove by “clear and decisive evidence” that a prior marriage did not terminate before the last marriage occurred. Thus, the Agency is required to “prove the negative,” that the earlier spouse did not divorce the number holder. Stokes v. Heckler, 773 F.2d 990, 991-92 (8th Cir. 1985).

The Arkansas Supreme Court has found that a widow was entitled to receive damages for the negligent death of her spouse, despite evidence that a divorce from her prior husband did not become final until after she married her second husband. The court stated that there was no “clear and decisive evidence” that her previous husband had not divorced her prior to her later marriage. Missouri Pacific R.R. v. Harris, 120 S.W.2d 695, 696 (Ark. 1938).

The Eighth Circuit cited Missouri Pacific as support for its holding in Stokes. In Stokes, the number holder married the claimant in 1942, even though he did not divorce his first wife until 1963. The Agency denied the claimant's application for benefits on the number holder's record, arguing that the 1963 divorce decree rebutted the presumption of the validity of the later marriage. The Eighth Circuit disagreed, stating that the 1963 divorce was evidence that the number holder had not previously divorced his first wife. The court held that the Agency had not “proved the negative” by showing that the first wife had not divorced the number holder prior to his marriage to the claimant. Stokes, 773 F.2d at 992-93.

Thus, we conclude that the marriage between P~ and W~ was valid because Arkansas law presumes the validity of the last marriage. Although P~ admittedly never divorced R~, the possibility remains that R~ previously divorced P~. As in Stokes, the Agency is unable to establish the negative that R~ did not divorce P~ prior to her marriage to W~. In summary, we believe that Arkansas law would uphold the validity of the marriage between P~ and W~.

Tina M. W~
Regional Chief Counsel
By: ________________________
James D. S~
Assistant Regional Counsel


Footnotes:

[1]

The Social Security Act defines the term surviving spouse to mean a widow or widower. See 42 U.S.C. § 416(a)(2), (c), (g). Thus, we use the terms interchangeably in this opinion.

[2]

Even though the agency further developed the record to obtain additional information about this divorce, they did not obtain a copy of a divorce decree showing the precise effective date of the divorce. Moreover, there is contradicting information from R~ in her own statements as to when her marriage to the NH began and when it ended. In the disability application R~ filed with the agency in 1992, she stated she was still married to the NH. However, in disability applications she filed with the agency in 1995 and 1997, she claimed, respectively, that she divorced the NH in 1990 and in 1994.

[3]

You advised that the NH’s Master Beneficiary Record (MBR) shows that the agency had previously found G~ entitled to spouse with child in care benefits effective May 1979. She had five children entitled on the NH’s record born between 1978 and 1985. You advised that the file pertaining to this application had been destroyed, and that it appeared that the agency may have found G~ entitled to benefits as the NH’s deemed spouse. The agency terminated G~’s spousal benefits in October 1987, but you advised that the termination reason is unknown.

[4]

The evidence submitted does not include a copy of the marriage license or certificate showing a marriage between C~ and the NH and, in this opinion, we do not analyze the agency’s 2002 determination that C~ was entitled to benefits as the legal opinion request concerns only whether G~ is the NH’s widow for purposes of widow’s benefits on the NH’s record.

[5]

These provisions state that a claimant can meet the relationship requirement if the claimant and the NH were validly married under state law at the time the NH died, or if the claimant would be able to inherit a spouse’s share of the insured’s personal property if the insured were to die without leaving a will.

[6]

A void marriage is one that has no legal force or effect, and its invalidity may be maintained in any proceedings between any parties. Black’s Law Dictionary 987 (Rev. 7th ed. 1999).

[7]

As described above, the evidence consists of a court docket sheet (a “Register of Actions”) showing that R~ and the NH filed for a divorce in Minneapolis, Minnesota on June XX, 1992, and that on December XX, 1992 “judicial review” was “approved.” See R~ v. O~, No. 27-FA-000185170 (Hennepin Family Court, Minnesota). We do not have a copy of the final divorce decree showing the exact date the divorce was final.

[8]

The relationship requirement will also be met if under state law, a claimant would be able to inherit a widow’s share of the insured