TN 38 (07-17)

PR 05005.006 California

A. PR 17-096 Duration of Domestic Partnership/Marriage for Purposes of Widower's Benefits

Date: June 9, 2017

1. Syllabus

The deceased wage earner (DWE) died while domiciled in California. Accordingly, we look to the California law to determine whether the Claimant is the DWE’s widower for purposes of entitlement to widower’s benefits. The Claimant was age 62 when he and the DWE registered their domestic partnership with the State of California. Also, the Claimant was insured and eligible for Title II retirement benefits. The Claimant and the DWE met the requirements of the California law for a valid domestic partnership. There is no evidence that the DWE and the Claimant took steps to terminate their domestic partnership; therefore, the Claimant is eligible for widower’s benefits based on his California domestic partnership with the DWE.

2. Opinion

QUESTION

You asked whether T~ (Claimant) meets the duration requirement to qualify for widower’s benefits on the account of the deceased wage earner M~ (DWE). Claimant and the DWE were married only eight and one-half months but were domestic partners for thirteen years at the time of the DWE’s death.

SHORT ANSWER

Yes. Claimant meets the duration requirements to qualify for widower’s benefits on the DWE’s account.

SUMMARY OF EVIDENCE

Claimant and the DWE entered into an opposite-sex domestic partnership in California, filing their Declaration of Domestic Partnership with the Secretary of State on July XX, 2002. Claimant was 62 years old. Claimant and the DWE married on December XX, 2014.

The DWE died domiciled in California on September XX, 2015, eight and one-half months after she and Claimant married. Claimant applied for widower’s benefits on the DWE’s account on October XX, 2015.

RELEVANT LAW

Federal Law

To be entitled to widower’s benefits under Title II of the Social Security Act (Act), a claimant must establish that he is the widower of an individual who died fully or currently insured. See Social Security Act §§ 202(e); 216(c); 20 C.F.R. § 404.335(a).

Under Section 216(h)(1) of the Act, the agency will find a claimant to be the widow or widower of an insured individual if the courts of the State in which the insured individual was domiciled at the time of her death would find that the claimant was validly married to the insured individual when the death occurred. Social Security Act § 216(h)(1)(A)(i). The claimant must show that his marital relationship with the insured individual lasted for at least nine months immediately before the insured died. 20 C.F.R. § 404.335(a)(1).

However, even if the claimant was not validly married to the insured individual, the agency will deem the claimant to be the insured individual’s widow or widower if, under the laws of the State where the insured individual was domiciled at the time of his or her death, the claimant would inherit intestate from the insured as if he or she was the insured’s surviving spouse. Social Security Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345 (“The relationship requirement will also be met if under State law you would be able to 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 also Program Operations Manual System (POMS) GN 00210.004 (recognizing that a domestic partnership is a type of non-marital legal relationship that may convey spouse-like inheritance rights).

Here, the DWE died while domiciled in California. Accordingly, we look to California law to determine whether Claimant is the DWE’s widower for purposes of Claimant’s entitlement to widower’s benefits.

California Law

On January 1, 2000, California began allowing the registration of domestic partnerships with the California Secretary of State. See 1999 Cal. Legis. Serv. Ch. 588 (A.B. 26); In re Marriage Cases, 43 Cal. 4th 757, 801, 76 Cal. Rptr. 3d 683 (Cal. 2008); Cal. Fam. Code § 297. This initial legislation afforded domestic partners only limited substantive rights, such as hospital visitation privileges and health coverage under state employee benefit plans. Id. see also Cal. Health & Safety Code § 1261. However, in 2003, California expanded the rights of domestic partners. See In re Marriage Cases, 43 Cal. 4th at 802; 2003 Cal. Legis. Serv. Ch. 421 (A.B. 205). The California Domestic Partner Rights and Responsibilities Act amended the California Family Code to give domestic partners all of the same rights, protections, and benefits shared by spouses. See id.; Cal. Fam. Code § 297.5. Among the benefits extended was the right of a surviving domestic partner to inherit intestate to the same extent as a surviving spouse. Cal. Fam. Code § 297.5(c).

Under California Family Code section 297, two opposite sex persons may establish a domestic partnership by filing a Declaration of Domestic Partnership with the Secretary of State. In addition, at the time of filing, the persons must not be married to someone else or be a member of another domestic partnership with someone else that has not been terminated, dissolved, or adjudged a nullity; they must not be related by blood in a way that would prevent them from being married to each other in California; they must be at least 18 years of age, except as provided in Section 297.1; and one or both of the persons must meet the eligibility criteria under Title II of the Social Security Act as defined in Section 402(a) of Title 42 of the United States Code, for old-age insurance benefits or Title XVI of the Social Security Act as defined in Section 1381 of Title 42 of the United States Code for aged individuals. Persons of opposite sexes may not constitute a domestic partnership unless one or both of the persons are over 62 years of age. Furthermore, they must be capable of consenting to the domestic partnership. Cal. Fam. Code § 297.

To terminate a domestic partnership, the parties may file a notice of termination of domestic partnership with the Secretary of State, as long as both parties sign the notice; there are no children; the partnership did not last longer than five years; the parties waive support from each other; and other property and debt requirements are met. Cal. Fam. Code § 299(a). In other situations, the state superior courts have jurisdiction over all proceedings related to the dissolution of a domestic partnership. The dissolution follows the same procedures and the parties possess the same obligations and rights as apply to the dissolution of marriage. Cal. Fam. Code § 299(d). Parties to a registered domestic partnership who are also married to one another may petition the court to dissolve both their domestic partnership and their marriage in a single proceeding, in a form that shall be prescribed by the Judicial Council. Cal. Fam. Code § 299(e).

ANALYSIS

Here, it appears that the DWE and Claimant had a valid domestic partnership registered with the State of California. Claimant was 62 when he and the DWE registered their partnership. http://www.sos.ca.gov/registries/domestic-partners-registry/frequently-asked-questions/#question9 (age eligibility of opposite sex couples requires that at least one partner be at least 62. Claimant was first insured for Title II retirement benefits in December 2001 and he was first eligible for benefits in January 2002, the first month that he was 62 every day of the month.

Moreover, there is no evidence that the DWE and Claimant took steps to terminate their domestic partnership pursuant to California Family Code 299. The California Family Code indicates that both a marriage and a domestic partnership can exist concurrently. A domestic partnership may continue to exist even after the domestic partners enter into a marriage if the partners did not dissolve the partnership as provided by California law. See POMS PR 13-105 (citing Estate of Wilson, 211 Cal. App. 4th 1284, 1296 & n.7 (Cal. App. 2012)) (holding that the same-sex couple’s domestic partnership remained in effect after their 2008 marriage because they did not dissolve their domestic partnership pursuant to section 299 of the Family Code, and recognizing that a number of same-sex couples marrying in 2008 before the passage of Proposition 8 would be both a married couple and domestic partners); see also Cal. Fam. Code § 299 (procedures for terminating a domestic partnership). The DWE and Claimant’s marriage did not operate to terminate their domestic partnership. Thus, it is not necessary that their marriage have lasted nine months for purposes of Claimant’s entitlement to widower’s benefits. Because Claimant and the DWE entered into a valid domestic partnership that lasted thirteen years and existed at the time of the DWE’s death, Claimant qualifies for widower’s benefits.

CONCLUSION

Claimant is eligible for widower’s benefits based on his California domestic partnership with the DWE.

B. PR 17-084 Validity of Marriage Under Laotian Law

Date: May 11, 2017

1. Syllabus

The number holder (NH) was domiciled in California at the time of his death. Accordingly, we apply the California law in determining whether the couple was validly married for at least 10 years. The Claimant and the NH were married in December 1969 in Laos. However, we do not need to consider Laos law because the marriage has already been assessed under California law, the NH’s domicile state. In April 1981, the NH petitioned for a divorce from Claimant in the California Court and the Court issued a judgment dissolving the marriage. The court implicitly recognized the marriage as valid from its inception because it granted a divorce. We have no other evidence suggesting that the marriage began at any time other than the 1969 ceremony in Laos. The Claimant was validly married to the NH for more than 10 years and assuming that all other requirements are met, the Claimant is entitled to widow’s benefits as a surviving divorced spouse on the NH’s record.

2. Opinion

QUESTION

You asked whether Claimant and the Number Holder (NH) had a valid period of marriage for purposes of determining whether Claimant is entitled to widow’s benefits as a surviving divorced spouse on the NH’s account.

SHORT ANSWER

Yes. Claimant’s marriage was valid.

SUMMARY OF EVIDENCE

Claimant and the NH married on December XX, 1969 in Laos. In keeping with local custom, the NH’s uncle officiated the marriage ceremony of Claimant and the NH in the presence of their family members. Claimant’s parents also paid 30,000 Lao in dowry. At the time of their marriage, Claimant was 14 years old, and the NH was 15 years old.

In 1976, Claimant and the NH entered the United States together as refugees and settled in San Diego, California. Claimant’s resident alien card with an entry date of September XX, 1976, lists Claimant’s surname as “V~,” the NH’s surname, and middle name as “T~,” Claimant’s maiden name. During the course of their marriage, Claimant and the NH had seven children. The birth certificate of their fourth child, V2~, lists both Claimant and the NH as his parents.

In April 1981, the NH petitioned for a divorce from Claimant in the California Superior Court for the County of San Diego. The NH claimed that “irreconcilable differences have arisen in our marriage.” On October XX, 1981, the California Court issued a judgment dissolving the marriage.

In June 2016, the NH died domiciled in California. On July XX, 2016, Claimant filed for widow’s benefits on the NH’s record.

APPLICABLE LAW

Federal Law

A surviving divorced spouse is entitled to widow’s benefits under Title II of the Social Security Act (Act) if, among other things, the surviving divorced spouse was validly married to the insured individual for at least 10 years prior to the divorce.1 Social Security Act §§ 202(e)(1), 216(d)(1); 20 C.F.R. § 404.336. In determining whether a valid period of marriage existed, the agency looks to the laws of the state where the insured had a permanent home at the time of the insured’s death. Social Security Act § 216(h)(1)(A)(i); 20 C.F.R. § 404.345; Program Operations Manual System (POMS) GN 00210.006.B.1.

California Law

Here, the NH was domiciled in California at the time of his death. Accordingly, we apply California law in determining whether the couple was validly married for at least 10 years.

The validity of a marriage contracted outside of California is determined by laws of that jurisdiction. Cal. Fam. Code § 308. In California, “[a] ceremonial marriage is presumed to be valid.” Cal. Evid. Code § 663.

ANALYSIS

Claimant and the NH were married in Laos. However, we need not consider Laos law because the marriage has already been assessed under California law, the NH’s domicile state. California recognized the Claimant’s ceremonial marriage to the NH as valid as evidenced by the California court’s 1981 divorce judgment.2 We have no other evidence suggesting that the marriage began at any time other than the 1969 ceremony in Laos. In other words, the California court implicitly recognized the marriage as valid from its inception because it granted a divorce.

CONCLUSION

Claimant was validly married to the NH for more than 10 years. Accordingly, assuming all other requirements are met, Claimant is entitled to widow’s benefits as a surviving divorced spouse on the NH’s record.

C. PR 16-139 Lump-Sum Death Payment: Opposite-Sex Domestic Partnership Under California Law

Date: May 31, 2016

1. Syllabus

The number holder (NH) died while domiciled in California; therefore, we look to California law to determine whether the claimant is the deceased NH’s widow for purposes of the claimant’s entitlement to the lump sum death payment (LSDP). California Family Code law permits an opposite sex couple to enter into a registered domestic partnership if at least one partner is over 62 years of age and eligible for old-age Social Security insurance benefits. As state-registered domestic partners, the claimant and the deceased wage earner (DWE) shared the same rights and benefits as a married couple, including the right for the surviving partner to inherit intestate to the same extent as a surviving spouse. In this case, the claimant would inherit intestate from the DWE to the same extent as a surviving spouse. For entitlement purposes, the agency deems claimant to be the DWE’s widow under the Act. The claimant is entitled to the LSDP because she is the DWE’s widow and she was living in the same household with the DWE at the time of his death.

2. Opinion

QUESTIONS PRESENTED

You asked whether T~ (Claimant) is entitled to a lump-sum death payment (LSDP) on the record of the deceased wage earner (DWE), A~, where the couple entered into an opposite-sex domestic partnership in the State of California on August XX, 2006.

SHORT ANSWER

Yes. Under California law, Claimant would inherit intestate from the DWE to the same extent as a surviving spouse. Thus, for entitlement purposes, the agency deems Claimant to be the DWE’s widow under section 216(h)(1)(A)(ii) of the Social Security Act (Act). Claimant is entitled to the LSDP because she is the DWE’s widow and she was living in the same household with the DWE at the time of his death.

SUMMARY OF EVIDENCE

On March XX, 2000, the DWE filed an application for old-age retirement benefits on his own earnings record, and the agency began paying him benefits as of April 2000. On August XX, 2006, Claimant and the DWE entered into a domestic partnership by filing a declaration of domestic partnership with the California Secretary of State. In the declaration of domestic partnership, the DWE and Claimant averred that they met each of the eligibility requirements set forth under California Family Code section 297. At the time the couple registered their domestic partnership, the DWE was 68 years old. The DWE died on January XX, 2016, while domiciled in S~, California. On March XX, 2016, Claimant filed an application for the LSDP on the DWE’s record.

APPLICABLE LAW

a. Federal Law

To be entitled to the LSDP under Title II of the Act, a claimant must establish that he or she is the widow or widower of an individual who died fully or currently insured, and he or she was living in the same household as the insured at the time of his or her death. See Social Security Act §§ 202(i), 216(c); 20 C.F.R. § 404.390. Under Section 216(h)(1) of the Act, the agency will find a claimant to be the widow or widower of an insured individual if the courts of the State in which the insured individual was domiciled at the time of his death would find that the claimant was validly married to the insured individual when the death occurred. Social Security Act § 216(h)(1)(A)(i). However, even if the claimant was not validly married to the insured individual, the agency will deem the claimant to be the insured individual’s widow or widower if, under the laws of the State where the insured individual was domiciled at the time of his death, the claimant would inherit intestate from the insured as if he or she was the insured’s surviving spouse. Social Security Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345 (“The relationship requirement will also be met if under State law you would be able to 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 also Program Operations Manual System (POMS) GN 00210.004 (recognizing that a domestic partnership is a type of non-marital legal relationship that may convey spouse-like inheritance rights).

Here, the number holder died while domiciled in California. Accordingly, we look to California law to determine whether Claimant is the DWE’s widow for purposes of Claimant’s entitlement to the LSDP.

b. California Law

In California, two people may establish a domestic partnership if they file a declaration of domestic partnership with the California Secretary of State, and meet the following requirements: (1) neither person has an ongoing marriage or domestic partnership with someone else, (2) the two persons are not related by blood, (3) both persons are at least 18 years of age, (4) both persons are capable of consenting to the domestic partnership, and (5) either (A) both persons are members of the same sex or (B) at least one of the persons meet the eligibility requirements for old-age Social Security insurance benefits, provided one or both of them is over 62 years of age. Cal. Fam. Code § 297(b).3

California Family Code section 297.5 provides that registered domestic partners have the same rights, protections, benefits, responsibilities, obligations, and duties “as are granted to and imposed upon spouses.” Cal. Fam. Code § 297.5(a). Moreover, each domestic partner has a right to inherit intestate from the other domestic partner to the same extent as a surviving spouse. Cal. Fam. Code § 297.5(c).

ANALYSIS

California law permits an opposite sex couple to enter into a registered domestic partnership if at least one partner is over 62 years of age and eligible for old-age Social Security insurance benefits. See Cal. Fam. Code § 297(b). At the time Claimant and the DWE registered their domestic partnership, the DWE was 68 years old and he was receiving old-age retirement benefits under Title II of the Act. Accordingly, assuming the veracity of the couple’s representations that they met the other eligibility criteria,4 the domestic partnership between Claimant and the DWE was valid under California law.

As state-registered domestic partners, Claimant and the DWE shared the same rights and benefits as a married couple, including the right for the surviving partner to inherit intestate to the same extent as a surviving spouse. See Cal. Fam. Code § 297.5(c). Because Claimant may inherit intestate from the DWE to the same extent as a surviving spouse, the agency will deem Claimant to be the DWE’s widow for entitlement purposes. See Social Security Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345. Accordingly, Claimant is entitled to the LSDP on the DWE’s record because she is the DWE’s widow and she was living in the same household as the DWE at the time of his death.

CONCLUSION

Under California law, Claimant would inherit intestate from the DWE to the same extent as a surviving spouse. Accordingly, the agency deems Claimant to be the DWE’s widow and, because Claimant was living with the DWE at the time of his death, Claimant is entitled to the LSDP on the DWE’s record.

D. PR 16-076 Entitlement to Surviving Spouse Benefits – Overlapping Marriages

DATE: January 28, 2016

1. Syllabus

The Claimant married the NH in California in 1976. The Claimant knew she was not divorced from the NH, but she entered into a second marriage in California in 1982. The Claimant divorced her second spouse in California in 1990. The NH died in West Virginia in 2004. Neither marriage was contracted in West Virginia, but in the state of West Virginia, the law of the jurisdiction in which a marriage was contracted or celebrated governs the validity of the marriage.

In California, a subsequent marriage contracted during the life of a former husband, is illegal and void from the inception unless the former marriage was dissolved or adjudged a nullity. The Claimant’s marriage to the NH was valid under California law at inception, so it was also valid under West Virginia law. Under California and West Virginia law, because Claimant never divorced the NH, she remained validly married to him until his death. Accordingly, Claimant is entitled to surviving spouse benefits on the NH’s account.

2. Opinion

QUESTION

You asked whether the Claimant, K~, is entitled to surviving spouse’s benefits on the record of her first husband, deceased wage earner (DWE) K2~, where Claimant never divorced the DWE but subsequently married and divorced R~ prior to the DWE’s death.

SHORT ANSWER

Yes. Under California and West Virginia law, because Claimant never divorced the DWE, she remained validly married to him until his death. Accordingly, Claimant is entitled to surviving spouse benefits on the DWE’s account.

SUMMARY OF EVIDENCE

On August XX, 1976, Claimant married the DWE in V~, California. Claimant alleges they lived together in V~ until the military transferred the DWE to Korea in 1977, and Claimant had no communication with him after 1978.

Claimant alleges that although she knew she was not divorced from the DWE, she entered into a second marriage with R~ on February XX, 1982 in Oakland, California. Claimant explained that she had no way to locate the DWE at that time, and she and R~ were planning to have a baby. Claimant reported telling R~ she divorced the DWE. Claimant lived with R~ in San Lorenzo, California from February XX, 1982 until May XX, 1990. On December XX, 1990, Claimant divorced R~ in H~, California.

On August XX, 2004, the DWE died in W~, West Virginia. The City of W~ straddles Brooke and Hancock Counties. The DWE’s death certificate lists him as divorced; and Claimant alleges that the DWE’s brother erroneously reported the DWE’s marital status as divorced.

On April XX, 2015, Claimant filed for surviving spouse’s benefits on the DWE’s record. She submitted letters from Brooke and Hancock Counties in West Virginia, and from Alameda, Riverside, and San Bernardino Counties in California, showing no divorce on file between Claimant and the DWE.

ANALYSIS

Under the Social Security Act (Act), the widow5 of an insured individual is entitled to widow’s insurance benefits if she applies for such benefits, meets the age and/or disability requirements set forth in the Act, and is not married. Social Security Act § 202(e); 42 U.S.C. § 402(e); see also 20 C.F.R. § 404.335 (requirements for widow’s benefits); Program Operations Manual System (POMS) RS 00207.001 (definitions and requirements for widow’s benefits).6 Claimant’s entitlement to widow’s benefits on the record of her first husband, the DWE, depends on whether Claimant remained validly married to the DWE until he died despite her intervening, and allegedly bigamous, marriage to R~. If so, Claimant qualifies as the DWE’s widow and is entitled to benefits on his earnings record.

To determine a claimant’s status as the widow of an insured person under the Act, the agency must consider whether the courts of the State where the insured was domiciled would find that the claimant and the insured were validly married at the time of the insured’s death. See Social Security Act § 216(h)(1)(A), 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. Since the DWE’s domicile at death was in West Virginia, we apply West Virginia law. See id.

In West Virginia, a subsequent and allegedly bigamous marriage was void ab initio (from the beginning) under common law, but later became only voidable based on statutory law. Sledd v. State Compensation Com’r, 111 W.Va. 509, 510-11 (1932). Thus to annul an allegedly bigamous marriage in West Virginia, an order or decree must be entered in a court of competent jurisdiction. Harvey v. Harvey, 171 W.Va. 237, 243 (1982); see also W.Va. Code § 48-3-103.

Here, though, neither marriage was contracted in West Virginia—Claimant married both the DWE and R~ in California. In West Virginia, the law of the jurisdiction in which a marriage was contracted or celebrated governs the validity of the marriage. Matter of Estate of Foster, 376 S.E.2d 144, 147 (W.Va. 1988) (citing Meade v. State Compensation Com’r, 125 S.E.2d 771, 777 (W.Va. 1962)); see also POMS PR 05005.054.A; cf. W. Va. Code. § 48-2-602 (West Virginia law may govern an out of state marriage where the marriage is contracted with a West Virginia resident and (1) the marriage would be voidable under West Virginia law, (2) the parties contracted the marriage with the purpose of evading West Virginia law, and (3) the parties intended to return and reside in West Virginia). Accordingly, although Claimant’s second marriage would not be void ab initio under West Virginia law, California law is dispositive in determining whether Claimant remained validly married to the DWE at the time of his death.In California, a subsequent marriage contracted during the life of a former husband, is illegal and void from the inception unless the former marriage was dissolved or adjudged a nullity; the former spouse was absent and not known to the person to be living for the 5 years immediately preceding the subsequent marriage; or the former spouse was generally reputed or believed by the person to be dead at the time the subsequent marriage was contracted. Cal. Fam. Code § 2201.

This rule is in tension with another California rule that when a person has entered into two successive marriages, the second marriage is presumed valid and the burden is on the party attacking the validity of the second marriage to prove that the first marriage was never dissolved. See Vargas v. Superior Court, 88 Cal. Rptr. 281, 283 (Cal. Ct. App. 1970). The presumption can be overcome through evidence from the relevant jurisdictions showing that no divorce was granted for the first marriage—though such evidence is not necessary to overcome the presumption in every case. Id. at 283-84.

There is no question that Claimant’s marriage to the DWE was valid under California law at inception, so it was also valid under West Virginia law. The only question, then, is whether Claimant’s intervening marriage to R~ invalidated the first marriage, or if any other evidence proves that her first marriage otherwise ended before the DWE’s death.

When Claimant married R~, the DWE was absent for approximately four years, and Claimant does not allege that she believed the DWE died prior to her marriage to R~. Thus, under California law, Claimant’s subsequent marriage to R~ was void ab initio. Any presumption in favor of the validity of the second marriage is overcome by reports from the superior courts of the relevant counties certifying that no record exists of a divorce between Claimant and the DWE.7

Therefore, under California law, absent evidence that Claimant divorced the DWE,8 Claimant’s marriage to R~ was void, and Claimant remained validly married to the DWE until the date of his death.

CONCLUSION

The Claimant is entitled to surviving spouse’s benefits on the DWE’s record because her second marriage to R~ was void from its inception, and she remained validly married to the DWE under California and West Virginia law.

Deborah Lee Stachel

Acting Regional Chief Counsel, San Francisco

E. PR 15-195 Validity of Marriage under California Law

September 21, 2015

1. Syllabus

The blessing ceremony between Claimant and S~ did not create a valid marriage under California law because it did not meet the state’s statutory requirements for marriage. They did not comply with California’s marriage licensing, authentication, and recording requirements and as a result, they never legally married under California law. Because the Claimant never validly remarried, she did not lose her entitlement to widow’s benefits on the DWE’s account. The evidence shows that Claimant and S~ never intended to enter into a legal marriage. Accordingly, the Claimant did not remarry after the DWE’s death and remains unmarried for purposes of establishing her entitlement to widow’s benefits on the DWE’s account. To the extent the agency based its overpayment assessment on a determination that Claimant remarried, that determination should be reconsidered.

2. Opinion

QUESTION PRESENTED

You asked whether D~ (Claimant) validly remarried such that she was not eligible for widow’s benefits on the record of her former husband, deceased wage earner (DWE) F~.

SHORT ANSWER

No. The blessing ceremony between Claimant and S~ did not create a valid marriage under California law because it did not meet the state’s statutory requirements for marriage. Because she never validly remarried, Claimant did not lose her entitlement to widow’s benefits on the DWE’s account.

BACKGROUND

Claimant validly married the DWE on September XX, 1956, and they remained married until his death on December XX, 1992. On December XX, 1997, Claimant filed for widow’s benefits on the DWE’s account and stated that she was not married at the time of her application. The agency granted widow’s benefits beginning in February 1998 when Claimant reached the age of 60.9

On December XX, 2014, Claimant filed for widow’s benefits on S~s record. In support, she presented a “Certificate of Marriage” for “S~” and “D~,” dated May XX, 1996, and signed by Father M~ of St. Lawrence Martyr Catholic Church. Claimant stated that she remained married to S~ until his death on May XX, 2011 (15 full years). Claimant stated that she and S~ lived as a married couple in the community, shared a residence, and that she was listed as S~’s spouse on his death certificate.10 When Claimant applied for widow’s benefits on the DWE’s account in December 1997, she did not disclose her remarriage to S~. Claimant explained that S~ advised her not to report their marriage because she could obtain higher benefits on the DWE’s account.

In the course of investigating her entitlement on S~’s account, the service representative contacted St. Lawrence Martyr Catholic Church by telephone. Rev. M~. P~ told the service representative that the church typically performs a convalidation ceremony to bless the union of a couple who are already married. He further stated that the ceremony that the church performs constitutes a ceremonial marriage, and that no filing with the state was required. The agency initially recognized Claimant’s remarriage to S~ as valid.

On December XX, 2014, Claimant withdrew her application for benefits on S~’s account, stating that she never married him and that the ceremony was actually a church “blessing.” On February XX, 2015, the agency notified Claimant that she was not eligible for benefits on the DWE’s account because of her remarriage. The agency also assessed an overpayment of $221,123.20 on the same date. On February XX, 2015, the agency denied the claim on S~’s account based on Claimant’s withdrawal of the claim.

Claimant retained an attorney to represent her before the agency in her appeal of the termination and overpayment decisions. In her appeals, Claimant stated that what she previously asserted was a marriage ceremony was actually a church blessing. She alleged that she never entered into a valid marriage with S~ under California law. Therefore, she alleged that the agency incorrectly terminated her benefits on the DWE’s account. Claimant’s requests for reconsideration remain pending.

The priest who performed the blessing ceremony is now deceased. Claimant’s attorney submitted a signed but unsworn letter from Rev. Msgr. D~ dated December XX, 2014. Rev. Msgr. D~ stated that church records reflect that Father L~ did not obtain a copy of a civil marriage license or marriage certificate. Rev. Msgr. D~ wrote that the church should have titled the marriage certificate a “convalidation,” which is a church blessing.

The church marriage certificate states that S~, Jr. witnessed the ceremony.11 S~, Jr. is the eldest son of S~, co-trustee of his estate while he was living, and sole trustee and executor of his estate after his passing. In a written statement, S~, Jr. advised that Father L~ told Claimant and his father that the ceremony would not result in a legal marriage. Further, S~, Jr. stated that the parties did not obtain or file a civil marriage license. S~, Jr., explained that S~ was a devout Catholic and had obtained a church annulment of his prior marriage so that he could continue to participate in the sacraments of the church. He further stated that, with respect to estate planning, his father did not provide for Claimant in his estate pursuant to his intent that he and Claimant would maintain separate estates.

In a signed but unsworn letter dated February XX, 2015, Claimant stated that she lived with, but did not marry S~. She stated that S~ was a devout Catholic and wanted the blessing of the Catholic Church in order to live with Claimant. She further stated that S~’s priest, Father L~, counseled them that a blessing did not constitute a legal marriage. Claimant stated that she never obtained a marriage license because she did not want to remarry after the DWE’s death, and she did not want to lose the medical insurance or Social Security benefits she received on the DWE’s account. Finally, she stated that she was not named as S~’s spouse on any trust, property documents, or income tax filings, and that she did not have power of attorney over his estate.

Claimant requested that the Los Angeles County Registrar-Recorder/County Clerk search the county’s public indexes for marriage documents recorded from December 1992 (the month of the DWE’s death) to November XX, 2014 in her full name (D~). She also requested that the clerk search the county’s public indexes for marriage documents recorded from January 1996 (the year of the church blessing ceremony) to December 2011 (the year that S~ passed away) under her first and last names (D~). The clerk certified that there were no marriage records within these search parameters.

LEGAL STANDARDS

Federal Law

For entitlement to widow’s benefits, a claimant must show that he or she was the spouse of the number holder and that he or she remains unmarried.12 See 20 C.F.R. § 404.335(e); Program Operations Manual System (“POMS”) RS 00207.001.A.1.b; POMS RS 00207.003.A (“Generally, a claimant for widow(er)’s…benefits must be unmarried in order to be entitled”).13 Here, there is no question that Claimant was married to the DWE. However, the question remains whether her blessing ceremony with S~ constituted a remarriage such that she was not entitled to widow’s benefits on the DWE’s account.

The Social Security Act (the Act) recognizes a spousal relationship when the claimant and a number holder were validly married under state law. See Act §§ 202 & 216(h)(1)(A)(i), 42 U.S.C. §§ 402 & 416(h)(1)(A)(i); see also 20 C.F.R. §§ 404.335, 404.344, 404.345. The Act looks to the law of the state where the deceased wage earner lived at the time of his death to determine whether a claimant’s marriage to an insured individual is valid. See Act § 216(h)(1)(A)(i); 20 C.F.R. § 404.345; POMS RS 00202.001.A.1 (“A legal spouse must be validly married to the NH under the laws of the State of the NH’s domicile at the time the claimant files an application or during the life of the application.”) However, neither the Act nor our regulations address which law governs the validity of the surviving spouse’s remarriage to a third party. See Act § 216(h)(1)(A), 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.345; POMS PR 05005.006 (Feb. 4, 2015).

Here, the DWE and S~ lived in California at the time of their deaths, and Claimant resided in California at all relevant times. Accordingly, although the Act is silent in this regard, we need not resolve the question because California law is the only state law that is relevant to determining the validity of Claimant’s purported remarriage to the DWE.

If a marriage does not satisfy state law, the Act permits the agency to consider the marriage valid in limited circumstances. See Act §§ 216(h)(1)(A)(ii) (treating a claimant as a putative spouse if she could inherit under state laws for intestate succession), 216(h)(1)(B)(1) (deeming the marriage valid if, in good faith, the claimant went through a marriage ceremony with the insured but there was a legal impediment); 20 C.F.R. §§ 404.345, 404.346; see also POMS GN 00305.055 (defining deemed marriage), GN 00305.085 (defining putative marriage), RS 00207.001 (a claimant is entitled to widow’s benefits if she was the NH’s legal souse, putative spouse, or deemed spouse). These provisions ordinarily assist a claimant seeking benefits when there is an otherwise invalid marriage. However, these provisions do not apply when determining whether remarriage would preclude payment of widow’s benefits in California. See POMS RS 00207.003.C (a putative remarriage in California will not affect entitlement to widow’s benefits).

California Law

There are five statutory requirements for creating a valid marriage in California. First, the parties must consent to the marriage. Second, the parties must obtain a valid marriage license. Third, the marriage must be solemnized. Fourth, the person solemnizing the marriage must authenticate the marriage by signing the certificate of registry on the marriage license form and arranging for at least one witness’s signature. Finally, the certificate of registry must be filed with the county clerk, at which point the marriage license becomes a marriage certificate. Cal. Fam. Code §§ 300, 306, 420; see In re Estate of DePasse, 97 Cal. App. 4th 92, 101 (Cal. App. 2002).

California courts expressly hold that the failure to comply with statutory licensing, certification, or solemnization requirements render a marriage invalid. In re Estate of DePasse, 97 Cal. App. 4th at 102-103 (holding that California Family Code requirements are mandatory, which means a marriage is invalid in the absence of a marriage license); see also Burnham v. Cal. Pub. Employees Ret. Sys., 208 Cal. App. 4th 1576, 1584–85 (Cal. Ct. App. 2012) (failure to solemnize wedding renders it invalid); In re Estate of Tollefsen, No. A123071, 2009 WL 3470401, at *6 (Cal. Ct. App. Oct. 9, 2009) (citing In re Estate of DePasse, 97 Cal. App. 4th at 92; Lockyer v. San. Fran., 33 Cal. 4th 1055, 1116 (Cal. 2004)); see also POMS PR 05405.006.C (except under special circumstances, “a marriage license must be procured to render a marriage valid in California”).14

DISCUSSION

Although Claimant withdrew, and the agency denied, her application for widow’s benefits on S~’s account, the validity of her marriage to S~ remains the key issue for determining her entitlement to widow’s benefits on the DWE’s account. Under California law, Claimant did not meet the statutory requirements for a valid marriage to S~. See Cal. Fam. Code §§ 300, 306 (requiring consent, license, solemnization, authentication, and recording); accord POMS PR 05405.006.C (recognizing California’s marriage license requirement).15

First, the parties did not consent to legally marry each other. The available evidence indicates that Father L~ counseled Claimant and S~ that the blessing ceremony did not create a legal marriage. Claimant stated that she did not want to remarry after the DWE’s death, in part because she wanted to preserve her status as his widow for purposes of obtaining Social Security benefits. Additionally, S~ had faith-based reasons for not seeking a full remarriage. Further, by maintaining separate legal estates, the parties did not treat each other as spouses. These facts indicate that neither party consented to marriage.

Second, the parties did not obtain a marriage license. Claimant and S~’s son, who witnessed the blessing, affirmed that the parties intentionally did not obtain a marriage license or state recognition of the marriage. The church records did not note the existence of a marriage license or marriage certificate; Father L~ did not record the blessing ceremony as a civil marriage or ceremony with proof of a prior civil marriage. See Cal. Fam. Code § 421 (before solemnizing a marriage, the person solemnizing the marriage shall require the presentation of the marriage license).

In similar circumstances, a California appellate court held that a religious commitment ceremony did not result in a valid marriage in the absence of a marriage license. In the case of In re Marriage of Left, 208 Cal. App. 4th 1137 (Cal. Ct. App. 2012), a woman was unable to remarry because her divorce was not yet finalized, and the parties elected to proceed with a commitment ceremony. Id. at 1141. The parties informed the rabbi 30 minutes before the ceremony that they did not have a marriage license. Id. The wife’s first husband later petitioned the court to terminate spousal support on the grounds that she remarried. Id. at 1142. The court concluded that the commitment ceremony did not constitute a valid marriage, as the parties did not have a marriage license and the rabbi knew this fact. Id. at 1145-46. The decision in Marriage of Left indicates that a California court would not find Claimant’s blessing ceremony resulted in a legal marriage, principally because the parties did not obtain a marriage license.

Third, neither Father L~ nor the witnesses authenticated a certificate of marriage registry. S~, Jr., affirmed that he did not sign such a document, in keeping with his understanding that the ceremony did not create a legal marriage.

Fourth, the available county records do not show an authenticated certificate of registry. Claimant conducted two searches of the county marriage records during the relevant time period, and the county certified that no marriage records existed.

In conclusion, the blessing ceremony did not result in a valid marriage under California law due to defects with the consent, licensing, authentication, and recording requirements for marriage.

CONCLUSION

The evidence shows that Claimant and S~ never intended to enter into a legal marriage. In addition, they did not comply with California’s marriage licensing, authentication, and recording requirements. As a result, they never legally married under California law. See Cal. Fam. Code §§ 300, 306, 420; In re Estate of DePasse, 97 Cal. App. 4th at 102-103. Accordingly, Claimant did not remarry after the DWE’s death and remains unmarried for purposes of establishing her entitlement to widow’s benefits on the DWE’s account. See 20 C.F.R. § 404.335(e); POMS GN 00305.125. To the extent the agency based its overpayment assessment on a determination that Claimant remarried, that determination should be reconsidered.

F. PR 15-152 Validity of Gypsy Marriage under California and Nevada Law

June 22, 2015

1. Syllabus

The NH was domiciled in Nevada at the time of his death, so the agency looks to Nevada law to determine whether Claimant was the NH’s legal, putative or deemed spouse. Nevada follows the general rule, recognizing the validity of an out-of-state marriage so long as it is lawful and valid according to the law of the location where the marriage was celebrated. In this case, the marriage took place in California, therefore we look to the California law to determine if the marriage was valid. In California, in order to effectuate a valid marriage, the marriage shall be licensed, solemnized, and authenticated, and the authenticated marriage license shall be returned to the county recorder of the county where the marriage license was issued and failure to comply with statutory licensing, certification, or solemnization requirements render a marriage invalid. The NH and the claimant did not obtain, authenticate, and return a marriage license issued by the county clerk as required by California law. California may recognize a putative marriage even where the parties to a purported marriage fail to execute the licensing and solemnization requirements, but based on the evidence and facts in this case, the claimant is not NH’s legal, putative or deemed spouse. Therefore, a Nevada court would not acknowledge Claimant’s out-of-state “gypsy marriage” to the NH as a legally valid marriage. Further, because Nevada does not recognize common law marriage, Nevada courts would find the Claimant is not eligible to inherit from the NH’s intestate estate as his spouse. Claimant is not entitled to widow’s benefits on the NH’s record.

2. Opinion

You asked whether, D~ (Claimant) was validly married to S~, the number holder (NH), for purposes of determining Claimant’s entitlement to widow’s insurance benefits;16 where the parties did not have a state-registered marriage, but publicly celebrated a gypsy marriage in California and thereafter lived in Nevada.

SHORT ANSWER

No. Claimant and NH were never validly married. Despite engaging in a public wedding celebration in California, Claimant and the NH did not obtain, authenticate, and return a marriage license as required by California law, and the record reflects no good faith effort to do so or belief that they had. Further, Nevada does not recognize common law marriage. Therefore, Claimant is not entitled to widow’s benefits on the NH’s account because she is not NH’s legal, putative or deemed spouse.

BACKGROUND

In his February XX, 2010 application for Disability Insurance Benefits (DIB), the NH stated that he married the Claimant on October XX, 1972. However, in his Supplemental Security Income (SSI) application filed on the same date, the NH clarified his belief that he was married to Claimant because they had “lived together so long that [they were] considered to be legally married . . . .”

In her December XX, 2014 application for widow’s insurance benefits, Claimant stated that she was married “by a clergyman or public official” on October XX, 1972 in California. However, according to her January XX, 2015 SSA-795 declaration, she stated that during the public ceremony which took place in an Elks Lodge in Anaheim, California, the uncle and aunt of the groom (not specifically identified as the NH) took her hand and walked her across the dance floor to her new in-laws, which purportedly “made the marriage official in our gypsy culture.” Claimant also provided a news clipping from the Los Angeles Times, which was originally published on October XX, 1972, that described the arranged “gypsy wedding” of “D~” to “S~”. According to the article, after exchanging money, an unidentified man led the bride “running away from the crowd”, which constituted the marriage rite. The parties were above the age of consent to marry at the time of this ceremony.17

The Orange County Clerk-Recorder (California) has no record of a public marriage between Claimant and the NH from August 1, 1889 through the time of the NH’s death.

Claimant submitted evidence that she and the NH filed their 2006 and 2009 U.S. Income Tax Returns jointly, purporting to be married. Claimant also provided a letter dated September 21, 1988, which was apparently sent by the NH to an unknown party in which the NH referred to Claimant as his wife, and asserted that the name on Claimant’s birth certificate was a “joke name” (identified as L~ and that they could not afford a legal name change.

The NH’s Certificate of Death issued by Nevada’s Department of Human Resources states that the NH died on November XX, 2010, in Las Vegas, and lists Claimant as his spouse.

Claimant provided an additional Form SSA-795 declaration dated February XX, 2015, in which she affirmed that she and the NH were domiciled in Nevada at the time of the NH’s death.

LEGAL STANDARDS

Federal Law

To be entitled to widow’s insurance benefits under Title II of the Social Security Act (Act), a claimant must establish that he or she is the widow or widower of an individual who died fully insured. See Social Security Act §§ 202(e), 216(c); 42 U.S.C. §§ 402(e), 416(c); 20 C.F.R. § 404.335. Under Section 216(h) of the Act, the agency will find a claimant to be the widow or widower of an insured individual if the courts of the State in which the insured individual resided at the time of his death would find that the claimant was validly married to the insured individual when the death occurred. Social Security Act § 216(h)(1)(A)(i); 42 U.S.C. § 416(h)(1)(A)(i). However, even if the claimant was not married to the insured individual, the agency will deem the claimant to be the insured individual’s widow or widower if, under the laws of the State where the insured individual was domiciled at the time of his death, the claimant would inherit the surviving spouse’s share of the insured individual’s personal property if he or she died intestate (without leaving a will). Social Security Act § 216(h)(1)(A)(ii); 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345 (“The relationship requirement will also be met if under State law you would be able to 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.”); Program Operations Manual System (POMS) GN 00305.085 (guidelines for entitlement based upon “putative marriage”);18 POMS RS 00207.001 (“The claimant is the widow(er) of a deceased NH if he or she was related to the NH as the NH’s legal spouse, putative spouse, or deemed spouse.”). Further, the agency will find the claimant to be the insured’s widow(er) if “it is established to the satisfaction of the Commissioner of Social Security that such [claimant] 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.” Social Security Act § 216(h)(1)(B)(i); 42 U.S.C § 416(h)(1)(B)(i); 20 C.F.R. § 404.346; POMS GN 00305.055 (guidelines for entitlement based upon “deemed marriage.”)

Nevada Law

The NH was domiciled in Nevada at the time of his death, so the agency looks to Nevada law to determine whether Claimant was the NH’s legal, putative or deemed spouse. Nevada considers marriage a civil contract to which the parties, who are capable in law of contracting, must consent. Nev. Rev. Stat. § 122.010(1). However, consent alone will not constitute marriage; it must be followed by solemnization. Id. Nevada does not recognize common law marriages (except those in effect prior to March 29, 1943). Nev. Rev. Stat. § 122.010(2); see also POMS GN 00305.075.

Nevada has no explicit choice of law statute.19 However, in the absence of a conflicting statutory provision, it appears that Nevada follows the “general rule;” recognizing the validity of an out-of-state marriage so long as it is lawful and valid according to the law of the location where the marriage was celebrated. See U.S. v. Sacco, 428 F.2d 264, 268 (9th Cir. 1970) (“The general rule is that the validity of a marriage is determined by the law of the state where it took place”) (citing Loughran v. Loughran, 292 U.S. 216, 223 (1934) (“Marriages not polygamous or incestuous, or otherwise declared void by statute, will, if valid by the law of the state where entered into, be recognized as valid in every other jurisdiction”)); POMS GN 00305.005 (“The law of the place where a marriage occurred ordinarily determines the validity of a marriage. If the marriage is valid in that jurisdiction, it is usually held valid in other places.”) Here, Claimant alleges that her ceremonial marriage to the NH took place in California. As such, we must look to California law.

California Law

In order to effectuate a valid marriage in California, the marriage “shall be licensed, solemnized, and authenticated, and the authenticated marriage license shall be returned to the county recorder of the county where the marriage license was issued . . . .” Cal. Fam. Code § 306.20 California courts expressly hold that the failure to comply with statutory licensing, certification, or solemnization requirements render a marriage invalid. In re Estate of DePasse, 97 Cal. App. 4th 92, 102-103 (Cal. App. 2002) (holding that California Family Code requirements are mandatory, which means a marriage is invalid in the absence of a marriage license); see also Burnham v. Cal. Pub. Employees Ret. Sys., 208 Cal. App. 4th 1576, 1584–85 (Cal. Ct. App. 2012) (failure to solemnize wedding renders it invalid); In re Estate of Tollefsen, 2009 WL 3470401, at *6 (Cal. Ct. App. Oct. 9, 2009) (citing In re Estate of DePasse, 97 Cal. App. 4th at 92); POMS PR 05405.006.C (except under special circumstances, “a marriage license must be procured to render a marriage valid in California”).21

Even where the parties to a purported marriage fail to execute the licensing and solemnization requirements, California may recognize a putative marriage. “A putative marriage is one in which at least one of the parties to an invalid marriage has a good faith belief that the marriage is valid.” Estate of Leslie, 37 Cal. 3d 186, 191 n.4 (Cal. 1984) (citing Cal. Civ. Code § 4452, now Cal. Fam. Code § 2251); POMS GN 00305.085.B.1 (in California, “where at least one of the parties to an invalid [ceremonial] marriage . . . entered into the marriage in good faith believing that it was valid, the spouse had status as a putative spouse and inheritance rights as a spouse so long as such good faith belief continued”).22

DISCUSSION

Under section 216(h)(1)(A) of the Act, the agency will find that Claimant is the widow of the NH if the courts of Nevada would find either: (1) that Claimant and the NH were validly married at the time of the NH’s death or (2) that Claimant would have the same status as the NH’s widow for purposes of sharing in his intestate personal property.

Here, Claimant cannot show that she had a valid marriage with the NH. See 20 C.F.R. §§ 404.345, 404.346. The parties did not obtain, authenticate, and return a marriage license issued by the county clerk as required by California law. See POMS PR 05405.006.C; Cal. Fam. Code § 306.23

Additionally, Claimant and the NH did not have a deemed marriage because their marriage was not merely invalidated by a legal impediment resulting from the lack of dissolution of a previous marriage or a defect in the procedure followed in connection with the purported marriage. See POMS GN 00305.055. Rather, the parties never attempted to register their purported marriage with any state. Indeed, according to the record, they sought only to make “the marriage official in [their] gypsy culture.”

Similarly, Claimant cannot show that she held a good faith belief in the existence of a valid marriage at its inception because she never sought to obtain, authenticate, and return a marriage license as required by California law. See Cal. Fam. Code § 306. Indeed, as indicated by the NH’s February 1, 2010 Supplemental Security Income application, the couple merely believed that they had “lived together so long that [they were] considered to be legally married[.]” However, even if Claimant held a good faith belief that Nevada permits common law marriage, her mistaken belief cannot overcome the requirements of Nevada law. See Nev. Rev. Stat. § 122.010(2). The putative spouse doctrine is intended only to protect parties without knowledge of factual or legal impediments to marriage. See Cal. Fam. Code § 2251; Nev. Rev. Stat. § 122.090; see also POMS GN 00305.085. Therefore, it is inapplicable here.

In sum, a Nevada court would not acknowledge Claimant’s out-of-state “gypsy marriage” to the NH as a legally valid marriage. Further, because Nevada does not recognize common law marriage, Nevada courts would find Claimant ineligible to inherit from the NH’s intestate estate as his spouse.

CONCLUSION

Because Claimant failed to prove a valid ceremonial marriage, or a good faith belief that her ceremonial marriage was valid, she is not entitled to widow’s benefits on the NH’s record. See 20 C.F.R. §§ 404.330, 404.345, 404.346.

G. PR 15-077 Validity of Marriage under California and Nevada Law Deceased Wage Earner: A~ Claimant: M~

DATE: February 4, 2015

1. Syllabus

Neither the Act nor the regulations address which law governs the validity of the surviving spouse’s remarriage to a third party. In this case, the deceased wage earner was domiciled in California at the time of death, but the marriage between the claimant and the third party was celebrated in Nevada. Because all the parties to both marriages were domiciled in California at all relevant times, we believe California law applies to determine the validity of the claimant’s Nevada marriage to the third party.

Under California law, a marriage contracted outside the state of California would be valid in California if it would be valid by the laws of the jurisdiction in which the marriage was contracted. In this case, California courts would defer to Nevada law in determining the validity of a marriage contracted in Nevada.

2. Opinion

QUESTION

You asked whether M~ (Claimant)’s marriage to S~ before the finalization of her divorce from the deceased wage earner (DWE), A~ , precluded her entitlement to mother’s benefits on the DWE’s account.

SHORT ANSWER

No. Under California law, Claimant’s April XX, 2010 marriage to S~ was void from its inception. Accordingly, Claimant was unmarried at the time of the DWE’s death, and she is entitled to mother’s benefits on the DWE’s account if she meets the other applicable requirements.24

SUMMARY OF EVIDENCE

Claimant and the DWE married in Nevada on June XX, 2000. Their child, N~, was born on October.

On September XX, 2008, Claimant filed for divorce from the DWE in a California Superior Court. The divorce did not become final until August XX, 2010, when the Court issued a judgment dissolving the marriage between Claimant and the DWE. The Court identified N~ as a child of the marriage, awarded his sole legal and physical custody to Claimant, and ordered the DWE to pay $349.00 per month in child support.

On April XX, 2010, Claimant married S~ in Reno, Nevada. In an April XX, 2011 declaration (Form SSA-795), Claimant admitted that she knew she was not legally divorced from the DWE when she married S~. Claimant reported that she, S~, and the DWE all resided in Modesto, California, in April 2010.

DWE died on November XX, 2010, while domiciled in California. Claimant filed an application for mother’s insurance benefits on January XX, 2011 and the agency approved the application.

On June XX, 2014, a California Superior Court issued a judgment nullifying the April 5, 2010 marriage between Claimant and S~, based on Claimant’s previous existing marriage to DWE.

ANALYSIS

Federal Law

Under the Social Security Act (the Act), a surviving divorced wife may be entitled to mother’s benefits on a deceased former husband’s earnings record if she meets the following criteria:

  1. She was validly married to the insured under state law, but the marriage ended in a final divorce;

  2. She is the mother of the insured’s child;

  3. She applied for mother’s benefits;

  4. She is unmarried;

  5. She is not entitled to widow’s benefits or to an old-age benefits; and

  6. She has in her care the insured’s child who is under age sixteen.

Social Security Act §§ 202(g)(1), 216(d)(3),(7); 42 U.S.C. §§ 402(g)(1), 416(d)(3),(7); see also 20 C.F.R. §404.340 (requirements for mother’s or father’s benefits as a surviving divorced spouse); Program Operations Manual System (POMS) RS 00208.010.25 Based on the information you provided, Claimant’s entitlement to mother’s benefits as the DWE’s surviving divorced spouse turns on whether she was unmarried at the time of the DWE’s death.26

If Claimant’s April XX, 2010 marriage to S~ was valid and she remained married at the time of the DWE’s death, she would be ineligible for mother’s benefits on the DWE’s account. See POMS RS 00208.035.A (generally, remarriage bars entitlement to mother’s benefits).

California and Nevada Law

Although the Act specifies that the validity of a marriage between a surviving spouse and an insured decedent is determined by the law of the State in which the decedent was domiciled at the time of his death, neither the Act nor our regulations address which law governs the validity of the surviving spouse’s remarriage to a third party. See Social Security Act § 216(h)(1)(A), 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.345. Here, the information you provided indicates that the DWE was domiciled in California at the time of death but the marriage between Claimant and S~ was celebrated in Nevada. However, because all of the parties to both marriages were domiciled in California at all relevant times, we believe that California law applies to determine the validity of Claimant’s Nevada marriage to S~. See POMS PR 05010.004 (applying Connecticut law to determine the validity of a surviving spouse’s remarriage to a third party because all parties to the matter resided in Connecticut, even though the marriage was celebrated in Arizona). Here, California would also consider Nevada law.

The California Family Code provides that “[a] marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state.” Cal. Fam. Code § 308; see also In re Marriage of Seaton, 200 Cal. App. 4th 800, 807, 133 Cal. Rptr. 3d 50, 56 (Cal. Ct. App. 2011) (applying Nevada law under Family Code § 308 to determine whether a bigamous marriage entered in Nevada was valid). Claimant married S~ in Reno, Nevada. Accordingly, if Claimant’s second marriage were valid under Nevada law, California would also recognize it as valid.

Under Nevada law, a marriage is prohibited by law and void, even without decree of divorce or annulment, if either party to the marriage had a currently living spouse. Nev. Rev. Stat. §§ 122.020, 125.290; but see Williams v. Williams, 120 Nev. 559, 564, 97 P. 3d 1124, 1127 (Nev. 2004) (parties agreed that the marriage was void under section 125.290, but annulment proceedings were necessary to determine the would-be wife’s entitlement to joint property as a putative spouse based on her good faith belief that the marriage was valid when she entered into it).27

Claimant married S~ on April XX, 2010, before her divorce from the DWE was finalized on August XX, 2010. Because Claimant remained married to the DWE at the time she wed S~, that marriage was void and prohibited under Nevada law. See Nev. Rev. Stat. §§ 122.020, 125.290. Because the marriage was invalid under Nevada law, California, likewise, would consider the marriage invalid. See Cal. Fam. Code § 308.

California courts defer to Nevada law in determining the validity of marriages contracted in Nevada. See, e.g., In re Marriage of Seaton, 200 Cal. App. 4th at 807-808. However, California applies its own law to determine whether a marriage, invalidly contracted in another state, was void from inception or merely voidable. See Cal. Fam. Code § 308. Thus, we look to California law to determine this issue. The California Superior Court, in the June XX, 2014 judgment, nullifying the April XX, 2010 marriage, therefore correctly relied upon California law in nullifying the marriage between Claimant and S~.28

Under California law, when a person knowingly enters into a bigamous marriage, that marriage is illegal and void from its inception. See Cal. Fam. Code § 2201(a); In re Marriage of Seaton, 200 Cal. App. 4th at 806; accord POMS GN 00305.125 (“A void marriage is a marriage that is legally nonexistent from the beginning under state law. The parties to a void marriage are considered never to have been validly married. Therefore, a void marriage requires no formality to terminate.”). By contrast, when a person enters into a bigamous marriage in good faith, the bigamous marriage is voidable. See Cal. Fam. Code § 2210(b). A voidable marriage “is valid for all purposes until it is judicially declared a nullity.” In re Marriage of Seaton, 200 Cal. App. 4th at 807 (citing Estate of Gregorson, 160 Cal. 21, 26-27 (Cal. 1911)); see also POMS GN 00305.130 (“A voidable marriage is a marriage which is defective and can be adjudged void (annulled), but which is considered valid unless and until declared void as a result of a court action on its validity”). Even when a marriage is voidable, it may be adjudged a nullity, and such judgment may “‘relate back’ and erase the marriage” from the outset. In re Marriage of Seaton, 200 Cal. App. 4th at 807 (citation omitted); see also Cal. Fam. Code § 2210(b).

Here, a California Superior Court issued a June 18, 2014 judgment nullifying Claimant’s marriage to S~ under section 2210(b) of the California Family Code, which applies to a voidable marriage. However, Claimant admits that she was aware at the time of her marriage to S~ that she was still married to the DWE. Thus, Claimant’s marriage to S~ was void from its inception even absent a decree of nullity. See Cal. Fam. Code § 2201(a);29 Ceja v. Rudolph & Sletten, Inc., 56 Cal. 4th 1113, 302 P.3d 211, 216 (Cal. 2013) (recognizing that putative spouse doctrine applies only when spouse has genuine belief in validity of marriage).

Because Claimant married S~ with full knowledge that she was still currently married to the DWE, her marriage to S~ was void from inception. See Cal. Fam. Code § 2201(a). As the marriage was void from its inception, Claimant was unmarried at the time of the DWE’s death, and her marriage to S~ did not preclude her entitlement to mother’s benefits. See POMS GN 00305.125 (“A void marriage does not preclude initial entitlement to benefits of claimants who must not be married.”). Although a court decree nullifies Claimant’s marriage to S~, the date of that decree is “irrelevant to entitlement as the marriage never existed.” Id.

CONCLUSION

Claimant’s marriage to S~ was void from inception, and, therefore, Claimant was not married at the time of DWE’s death. Accordingly, assuming all other requirements were met, Claimant’s marriage to S~ did not preclude her entitlement to mother’s benefits as a surviving divorced spouse of the DWE.


Footnotes:

[1]

. To be entitled to widow’s benefits, the claimant must also show that he or she: (1) has filed an application for widow’s insurance benefits; (2) has attained age 60 or is under a disability; (3) is unmarried; and (4) is either not entitled to old-age benefits, or is entitled to such benefits which is less than the primary insurance amount of such deceased individual. Social Security Act §§ 202(e)(1); 20 C.F.R. § 404.336. As we have not been asked to provide an opinion on whether Claimant meets these additional requirements, our opinion will focus on whether Claimant and the NH were validly married for at least 10 years prior to their divorce.

[2]

. Even if the marriage did not meet all legal requirements under either Laos or California law, California would recognize Claimant as a putative spouse. See Ceja v. Rudolph & Sletten, 56 Cal. 4th 1113, 1128 (Cal. 2013) (court evaluates alleged putative spouse’s subjective, good faith belief that the marriage to the decedent was valid); In Re Marriage of Tejeda,179 Cal. App. 4th 973, 979-980 (Sixth Dist. 2009) (codification of the putative spouse doctrine at Family Code 2251 was not intended to narrow application of doctrine to only void or voidable marriages; the legislature intended to protect innocent parties who believed that they were validly married even though the marriage was invalid due to some legal infirmity).

Claimant stated that she married the NH in good faith. She and the NH lived together as husband and wife for approximately 12 years and had seven children together. When Claimant and the NH entered the United States in 1976, Claimant used the NH’s surname as is customary for a married woman. This further supports her good faith belief in the validity of their marriage. That the couple obtained a court-adjudicated divorce further indicates that Claimant and NH believed that they had a valid marriage.

[3]

. On June 26, 2015, the United States Supreme Court held that it is unconstitutional for a state to bar same-sex couples from marriage on the same terms as accorded to opposite-sex couples. Obergefell v. Hodges, 135 S. Ct. 2584, 2607-08 (2015). It follows that it may be unconstitutional for a state to preclude opposite-sex couples from entering into a non-marital legal relationship on the same terms as same-sex couples. However, neither California nor the federal courts have yet addressed the possible inequity of California placing an age restriction on opposite-sex domestic partnerships. See Cal. Fam. Code § 297(b); California Secretary of State, Domestic Partners Registry, available at http://www.sos.ca.gov/registries/domestic-partners-registry (last visited April 12, 2016) (“The June 26, 2015, United States Supreme Court ruling in Obergefell v. Hodges (regarding the right to a same-sex marriage and whether states must recognize same-sex marriages from other states) did not invalidate or change any of the California Family Code sections related to registered domestic partners.”).

[4]

. In their notarized declaration of domestic partnership, Claimant and the DWE claimed that they were not married or in a domestic partnership with another person, were not related by blood, were both at least 18 years old, and were capable of consenting to the domestic partnership.

[5]

. The Act defines a widow as the surviving wife of an individual who either is the mother of the individual’s child or was married to the individual for a period of not less than nine months immediately prior to his death. Social Security Act § 216(c); 42 U.S.C. 416(c). Claimant and the DWE have no children. However, assuming their marriage was still intact at the time of the DWE’s death, the marriage was of the requisite duration.

[6]

. For purposes of this opinion, we will assume Claimant meets the other requirements for entitlement if her marriage to the DWE was still valid at the time of the DWE’s death.

[7]

. The relevant counties include the California counties where Claimant and the DWE married and resided together before the DWE left for Korea (Riverside and San Bernardino counties), the county where she married and resided with R~ (Alameda county), and the West Virginia counties where the DWE resided at the time of his death (Brooke and Hancock counties).

[8]

. The only evidence tending to show that Claimant and the DWE divorced comes from the DWE’s death certificate, which lists the DWE as divorced. In West Virginia, the personal data listed on a death certificate is obtained from the next of kin rather than from any official source. See W.Va. Code § 16-5-19(b). This is consistent with Claimant’s allegation that the DWE was listed as divorced based on the DWE’s brother’s unconfirmed report. Thus, the notation on the death certificate is of minimal probative value.

[9]

. . . Claimant applied for, and received, disability benefits beginning October XX, 1999.

[10]

. . . S~’s death certificate lists “D~,” Claimant’s maiden name, as the surviving spouse. In California, a death certificate is created with information that medical facilities or funeral directors enter into the California Electronic Death Registration System (CEDRS). The state does not require verification of marital information entered into the CEDRS. Thus, this information is not reliable evidence of a legally valid spousal relationship.

[11]

. The second witness, K~, is deceased.

[12]

. You did not ask for an opinion, and we did not review, whether Claimant meets the other criteria for widow’s benefits.

[13]

. If a claimant for widow’s benefits is remarried, the agency will disregard the marriage for purposes of determining widow’s benefits in limited circumstances that are not applicable here: (1) the claimant remarried after the age of 60; (2) the claimant remarried between the ages of 50 and 60, is now age 60 or older, and at the time of remarriage was entitled to disabled widow’s benefits; (3) the claimant is now between age 50 and 60, remarried after age 50, and met certain disability-related requirements before remarriage. See 20 C.F.R. § 404.335(e); POMS RS 00207.003.

[14]

. The failure of a nonparty to the marriage to comply with the statutory requirements does not invalidate the marriage, such as would be the case if the person performing the marriage ceremony did not return the authenticated certificate of registry to the county recorder. Cal. Fam. Code § 306; see also Estate of DePasse, 118 Cal. Rptr. 2d 143, 155 (Cal. Ct. App. 2002) (explaining that, “a failure by the person solemnizing the marriage to return the certificate of registry would not invalidate the marriage”).

[15]

. Pursuant to POMS GN 00305.030, where a ceremonial marriage is alleged and accompanied by cohabitation and repute, a presumption arises that a marriage existed. POMS GN 00305.030.A. However, this presumption only applies when preferred and secondary proof of marriage is unobtainable. Id. Moreover, the presumption is rebuttable with evidence to the contrary. See id.

Here, the presumption does not arise because evidence indicates that the blessing ceremony was not intended to be a ceremonial marriage within the understanding of the church that performed the ceremony. In addition, even if the presumption was applicable, it would be rebutted due to the evidence that the parties never formally executed or registered their marriage through the procedures required under State law. See Wiles v. Pratt, No. G047286, 2013 WL 1774076, at *3 (Cal. Ct. App. Apr. 25, 2013) (finding that the presumption of a ceremonial marriage is rebutted by the absence of a marriage license).

[16]

. . . We offer no opinion as to whether Claimant meets the other criteria for widow’s insurance benefits.

[17]

. The NH reported his date of birth as June 1951, and Claimant’s date of birth as August 1952, in his DIB and SSI applications. However, Claimant listed her date of birth as August 1951, and the NH’s date of birth as July 1954, in her application for widow’s benefits. This discrepancy is not dispositive, however, because both parties met the minimum age of marriage for California and Nevada, which is 18 years of age, according to all reported birth dates. See Cal. Fam. Code § 301; Nev. Rev. Stat. § 122.020.

[18]

. State law putative marriages should be distinguished from the Federal deemed marriage provision described in POMS GN 00305.055. POMS GN 00305.0085.

[19]

. Additionally, an exhaustive review of Nevada case law does not reveal what law Nevada would apply in determining the validity of an out-of-state marriage.

[20]

. Only a county clerk may issue a marriage license, which must be presented to the person solemnizing the marriage. Cal. Fam. Code §§ 350, 421. The person solemnizing a marriage shall provide the requisite information and sign the license, and must return the authenticated license to the county recorder within 10 days after the ceremony. Cal. Fam. Code §§ 422-23.

[21]

. The failure of a nonparty to the marriage to comply with the statutory requirements does not invalidate the marriage, such as would be the case if the person performing the marriage ceremony did not return the authenticated certificate of registry to the county recorder. Cal. Fam. Code § 306; see also In re Estate of DePasse, 97 Cal. App. 4th at 106 (explaining that “a failure by the person solemnizing the marriage to return the certificate of registry would not invalidate the marriage”).

[22]

. Pursuant to the POMS, should the parties learn of the defect during their marriage, they must undertake, within a reasonable time, to legalize their marriage in order to maintain their putative spouse status. POMS GN 00305.085.B.1.3.

[23]

. Pursuant to POMS GN 00305.030, where a ceremonial marriage is alleged and accompanied by cohabitation and repute, a presumption arises that a marriage existed. POMS GN 00305.030.A. However, this presumption only applies when preferred and secondary proof of marriage is unobtainable. Id. Moreover, the presumption is rebuttable with evidence to the contrary. See id. Here, the presumption is rebutted due to the affirmative evidence that the parties never formally executed or registered their marriage through the procedures required under State law.

[24]

. . . This analysis does not include any consideration of possible fraud by Claimant, and its impact on her application for benefits.

[25]

. The ten-year marriage duration requirement does not apply to surviving divorced mother’s benefits. See Social Security Act § 216(d)(3); 42 U.S.C. § 416(d)(3); POMS RS 00208.010.

[26]

. You did not ask, and we did not analyze, whether Claimant met the other criteria for mother’s benefits. Presumably, the agency found that, other than for her remarriage to S~, Claimant was entitled to mother’s benefits, as the agency initially awarded her benefits in January 2011.

[27]

. Despite the plain language of Nevada Rev. Stat. sections 125.290 and 125.300 (specifying bases for voidable marriages, which do not include bigamous marriage), the Williams Court stated that “[a]lthough [the] marriage was void, an annulment proceeding was necessary to sever [the] relationship. An annulment proceeding is the proper manner to dissolve a void marriage and resolve other issues arising from the dissolution of the relationship.” Id. This language suggests that a bigamous marriage is voidable in Nevada by annulment decree, rather than void from inception, as section 125.290 indicates. See POMS GN 00305.075 (defining “void” and “voidable” marriages”). No published Nevada case has yet addressed the conflict created by the Williams decision. However, in In re Marriage of Seaton, 200 Cal. App. 4th at 807, a California appellate court directly considered the problem while interpreting Nevada law to determine the status of a bigamous marriage. In that case, the wife married her second husband in Nevada before she obtained a divorce from her first husband, and then married her third husband without dissolving or annulling the second marriage. Id. at 803-04. The California appellate court held that the second marriage was void at inception because the wife remained married to her first husband at the time of her second marriage. Id. at 807-08. Specifically, the Court rejected as dicta the statement in Williams suggesting that annulment was a necessary precondition to dissolving a void marriage because it was “unnecessary to the determination of the questions involved in the case.” Id. at 808.

[28]

. Social Security Ruling 83-37c, adopting the holding in Gray v. Richardson, 474 F. 2d 1370 (6th Cir. 1973), provides that the agency should accept a State court determination if: “(1) an issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction; (2) this issue was genuinely contested before the State court by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the State trial court is consistent with the law enunciated by the highest court in the State.” Here, the agency need not accept the State court ruling because at least one element was not met. Specifically, the court proceedings were “default or uncontested,” and, therefore, not genuinely contested by parties with opposing interests. The Court’s determination was, however, generally consistent with our understanding of California law with the exception that the Court cited Family Code § 2210(b) as the basis for nullifying the marriage, while State law supported reliance on Family Code § 2201(a) to hold the marriage void at its inception.

[29]

. The distinction is material because, had the April XX, 2010 marriage merely been voidable, i.e. entered with a good faith belief that Claimant’s prior marriage had ended, the fiction that the annulment decree “related back” to the inception of the marriage may not apply under all circumstances. See e.g., Purganan v. Schweiker, 665 F. 2d 269 (9th Cir. 1982) (holding that, under California law, an annulment of marriage operates to relate back and erase the marriage and all its implications from the outset only between the parties to the marriage; “[w]hen the rights of third parties or entitlement to public benefits are involved the rule is applied only when it promotes sound policy”); compare Sentuelli v. Folsom, 165 F. Supp. 224, 225-26 (N.D. Cal. 1958) (holding that the annulment of a voidable marriage entered in Nevada, had the effect of making the marriage void from its inception, thus reviving the claimant’s entitlement to widow’s benefits under the Social Security Act); Pearsall v. Folsom, 138 F. Supp. 939, 943-44 (N.D. Cal. 1956) (providing that the “relation back” doctrine is not without limits; but “An exception should not be made to the California rule of ‘relation back’ so as to deprive an innocent plaintiff of Social Security [mother’s] benefits at least where, as here, it is clear that defendant has not been prejudiced”).


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1505005006
PR 05005.006 - California - 07/17/2017
Batch run: 07/17/2017
Rev:07/17/2017