TN 41 (10-17)

PR 05005.017 Indiana

A. PR 17-140 Divorced Spousal Benefits Claim

Date: August 16, 2017

1. Syllabus

The number holder (NH) died while domiciled in Indiana, so we will consider the Indiana law to determine if the claimant was validly married to the NH for the requisite 10 years before her divorce. Under the Indiana law, both at the time of the NH’s and the Claimant’s marriage and under the current statute, a marriage entered into where at least one person is under the age of sixteen is considered voidable under state law. However, parties to a voidable underage marriage may ratify the marriage, thus making the marriage not voidable, by remaining in the marriage a sufficient amount of time after the parties reach the age of consent. We believe that the NH and Claimant ratified their marriage well prior to the divorce proceedings, and the divorce was indeed a divorce proceeding and not an annulment proceeding. We conclude that the NH and the Claimant had a valid marriage that lasted for at least 10 years and ended in divorce.

2. Opinion

QUESTION

You asked whether S~ is entitled to divorced widow’s benefits based on her marriage to Number Holder M~, in light of the fact that both persons were under the age of consent at the time of their marriage. As discussed below, we conclude that S~ had a valid marriage that ended in divorce, and that marriage lasted for at least 10 years.

BACKGROUND

In May 2017, S~ filed for divorced spouse benefits on the record of M~. In support of her claim she submitted copies of the following documents: (1) a certified certificate of marriage issued by the State of Indiana between M~ and S~ on June XX, 1966, which incorrectly states that M~ was age 22 and S~ was age 19 at the time of the marriage; (2) a Decree for Dissolution of Marriage in the marriage of S~ and M~ dated March XX, 1982 granting their divorce; and (3) a Final Decree granting the Petition for Dissolution between J~ and S~ filed August XX, 2005 dissolving their marriage. Records provided by S~ indicate that she married M~ on June XX, 1966 when they were both fifteen years old, both providing incorrect dates of birth that stated they were twenty-two and nineteen years old, respectively.

DISCUSSION

To determine whether someone is entitled to widow’s benefits as a surviving divorced spouse, the agency considers, among other factors, whether the claimant was validly married to the insured for at least 10 years immediately before the claimant’s divorce became final. 20 C.F.R. § 404.336(a). When evaluating the validity of the marriage, we look to the law of the state where the insured had a permanent home when he died. 20 C.F.R. § 404.345. It appears that the insured in this case died in Indiana, so we will consider Indiana law to determine if the claimant was validly married for the requisite 10 years before her divorce.

Under Indiana law, both at the time of M~ and S~’s marriage and under the current statute, a marriage entered into where at least one person is under the age of sixteen is considered voidable under state law. See Demoss v. Demoss, 195 N.E. 2d. 496, 498-499 (Ind. App. Ct. 1964) (en banc) (finding the marriage between two persons below statutory threshold age and without parental consent was voidable under current law at the time of decision); See also IC 31-11-9-2 (“A marriage is voidable if a party to the marriage was incapable because of age . . . of contracting the marriage.”). “A voidable marriage is one which is valid when entered and which remains valid until either party secures a lawful court order dissolving the marital relationship.” McPeek v. McCardle, 888 N.E. 2d 171, 175 (Ind. 2008) (internal citation omitted). If a court dissolves a voidable marriage, is it declared void ab initio, essentially “that there was no marriage, and the rights of the parties are the same as if the marriage had never taken place.” Huffman v. Huffman, 99 N.E. 769, 771 (Ind. Ct. App. 1912) (internal citation omitted). Parties whose marriages are voidable based on state law cannot be legally divorced, since only persons who are legally married may be legally divorced. Rance v. Rance, 587 N.E. 2d. 150, 151 (Ind. Ct. App. 1992).

However, parties to a voidable underage marriage may ratify the marriage, thus making the marriage not voidable, by remaining in the marriage a sufficient amount of time after the parties reach the age of consent. Henneger v. Lomas, 44 N.E. 462, 465 (Ind. 1896). “When one of the parties [to the marriage] is incapable from want of age the marriage is voidable and may be declared void upon application . . . . However, the ability to annul the marriage will terminate upon ratification.” Note, Annulment of Marriages: An Analysis of Indiana Law, Ind. L. J. 80, 91 (1957). Continued co-habitation after reaching the legal age of consent to marriage is generally considered sufficient to ratify a voidable marriage. Id. (citing Holtz v. Dick, 42 Ohio St. 23, 51 Am. Rep. 791 (1884).

S~ married M~ on June XX, 1966 when they were both fifteen years old, both providing incorrect dates of birth that stated they were twenty-two and nineteen years old, respectively. Because this was a voidable marriage, the parties were validly married at the time, but the marriage was subject to annulment proceedings that would have rendered the marriage void (non-existent) from the outset. And, the parties 1982 divorce proceedings would likely have been considered an annulment proceeding that rendered their marriage a nullity, if the marriage was still voidable at the time of the divorce. However, we believe that the parties ratified their marriage well prior to the divorce proceedings, and thus the divorce was indeed a divorce proceeding and not an annulment proceeding. Specifically, S~ and M~ would have reached the age of consent in 1969, at which time the marriage would have been ratified due to their continued co-habitation and marriage. Thus, the ratification occurred well before the 1982 divorce proceedings.

CONCLUSION

In sum, the claimant and the insured were validly married for 16 years before their divorce became final. As discussed above, the parties initially had a voidable (but valid) marriage that was later ratified (and thus rendered not subject to annulment). Since the marriage was ratified, the divorce should be considered a valid divorce, and not an annulment proceeding (which would have rendered the parties marriages invalid from the outset).

Kathryn Caldwell

Regional Chief Counsel

Region V

By: Benjamin Sardinas

Law Clerk

B. PR 16-174 Validity of Second Marriage

Date: August 10, 2016

1. Syllabus

The validity of a marriage between an insured individual and a divorced wife is determined by the law of the state in which the insured individual is domiciled at the time the divorced wife files her application. We believe that the law of Indiana should be applied because the remarriage of the claimant to a third party occurred in Indiana and both the claimant and the third party continue to live in that state. To be legally married in Indiana, the couple must obtain a marriage license from the clerk of the circuit court located in either person’s county of residence and present the marriage license to an individual authorized to solemnize marriages. The individual solemnizing the marriage must complete a marriage certificate and then file both the marriage certificate and marriage license with the clerk of the circuit court that issued the license. The clerk must record both the certificate and license. Indiana does not recognize common law marriages.

The evidence does not show that the claimant and the third party ever obtained a valid marriage license, that the marriage was solemnized by an authorized individual, or that a marriage license and marriage certificate were recorded by an Indiana clerk of court. Therefore, under Indiana law, the claimant and the third party were never legally married. We conclude that the claimant is not married for purposes of entitlement to Divorced Spouse’s benefits on her ex-husband’s account.

2. Opinion

QUESTION PRESENTED

You asked whether J~’s Holy Covenant Marriage to D~, which occurred after she became legally divorced from the number holder, M~, precludes her entitlement to Divorced Spouse’s benefits on M~’s account.

SHORT ANSWER

No. Under Indiana law, J~’s Holy Covenant Marriage to D~ was not valid. Accordingly, J~ should be considered not married for purposes of entitlement to Divorced Spouse’s benefits on M~s account.

FACTS

J~ legally married M~ on July XX, 1967. The divorce between J~ and M~ was legally finalized on November XX, 1998.

After her divorce from M~, J~ entered into a Holy Covenant Marriage with D~ on April XX, 1999 while living in the state of Indiana. This Holy Covenant Marriage ended on August XX, 2013 as evidenced by a document entitled Lawful Bill of Divorce. Both the Holy Covenant Marriage and the Lawful Bill of Divorce appear to be home-made marriage documents.

DISCUSSION

Under the Social Security Act, a divorced wife may be entitled to benefits if she meets certain requirements. 42 U.S.C. § 402(b). "[E]very divorced wife (as defined in section 416(d) of this title) of an individual entitled to old-age or disability insurance benefits, if …such divorced wife--(A) has filed application for wife’s insurance benefits, (B)(i) has attained age 62,… (C)… is not married, and (D) is not entitled to old-age or disability benefits…shall…be entitled to a wife's insurance benefit..." 42 U.S.C. 402(b)(1)(A)-(D); see also 20 C.F.R. § 404.331. Therefore, a divorced wife's right to benefits depends on her age, her entitlement to benefits otherwise, and whether she is married at the time of the claim.

We look to state law to determine whether an individual is married. 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.345. The validity of a marriage between an insured individual and a divorced wife is determined by the law of the state in which the insured individual is domiciled at the time the divorced wife files her application. 42 U.S.C. §§ 416(d)(1), 416(h)(1)(A); 20 C.F.R. §§ 404.331, 404.345. However, neither the Act nor the regulations address which law governs the validity of the divorced wife’s remarriage to a third party. Although the regulations do not specify which state law we should apply, we believe that the law of Indiana should be applied because the Holy Covenant Marriage of J~ and D~ occurred in Indiana and both J~ and D~ continue to live in that state.

Indiana law requires that two individuals complete a multi-step process before they can be legally married. See McPeek v. McCardle, 888 N.E.2s 171, 176 (Ind. 2008). First, the parties must obtain a marriage license from the clerk of the circuit court located in either person’s county of residence. Ind. Code Ann. §§ 31-11-4-1, 31-11-4-3 (West). This marriage license is the legal authority needed for an authorized individual to solemnize a marriage. Ind. Code Ann. § 31-11-4-14 (West). Then, the parties must present the marriage license to an individual authorized to solemnize marriages; the list of authorized individuals includes judges, religious clergy, clerks of court, and mayors. Ind. Code Ann. § 31-11-6-1 (West). The individual solemnizing the marriage must complete a marriage certificate and then file both the marriage certificate and marriage license with the clerk of the circuit court that issued the license. Ind. Code Ann. § 31-11-4-16 (West). Lastly, the clerk must record both the certificate and license. Id. Additionally, common law marriages are not recognized under Indiana law and are regarded as void. Ind. Code Ann. § 31-11-8-5 (West).

Here, J~ and D~’s Holy Covenant Marriage does not comply with Indiana’s marriage laws. The evidence does not show that the couple ever obtained a valid marriage license, that the marriage was solemnized by an authorized individual, or that a marriage license and marriage certificate were recorded by an Indiana clerk of court. Furthermore, given Indiana’s statutory prohibition of common law marriage, compliance with the above multi-step process is the only way to legally form a marriage in Indiana. Ind. Code Ann. § 31-11-8-5 (West); see also Sutton v. State, 714 N.E.2d 694, 698 (Ind.Ct.App. 1999); Williams v. Williams, 460 N.E.2d 1226, 1228 (Ind.Ct.App. 1984). Consequently, under Indiana law, J~ and D~ were never legally married.1

CONCLUSION

For the above reasons, we conclude that J~ is not married for purposes of entitlement to Divorced Spouse’s benefits on M~’s account.

Kathryn Caldwell

Acting Regional Chief Counsel, Region V

By: Alex Schmidt

Legal Intern

C. PR 16-098 - Validity of Marriage in Indiana—REPLY

Date: March 15, 2016

1. Syllabus

The number holder’s (NH) true and fixed home was Indiana at the time of his death; therefore, we apply Indiana law to determine the validity of marriage. Due to their relationship as uncle and niece, the claimant was not a legal spouse, deemed spouse, or putative spouse of the NH at the time of his death. As such, the parties did not have a valid marriage, and the claimant is not entitled to program benefits on the NH’s earnings record.

2. Opinion

QUESTION PRESENTED

You asked whether Y~ and A~ were parties to a valid marriage for purposes of A~’s entitlement to Surviving Mother With Child in Care benefits or Disabled Widow’s Benefits, based on Y~’s earnings record. We conclude that due to their relationship as uncle and niece, A~ was not a legal spouse, deemed spouse, or putative spouse of Y~ at the time of his death. As such, the parties did not have a valid marriage and A~ is not entitled to program benefits on Y~’s earnings record.

FACTS

Y~ married A~ on June XX, 2013. The parties were related as uncle and niece, but they did not disclose this fact in seeking their marriage license. Y~ died on April XX, 2015 in Indianapolis, Indiana.

On May XX, 2015, A~ filed a claim for Surviving Mother With Child in Care benefits on the record of Y~. A~ further inquired about her future eligibility for Disabled Widow’s Benefits. She also filed a claim for her son, J~, as the stepson of Y~.

DISCUSSION

A~ is not entitled to program benefits on the record of Y~ because she was not his legal, deemed, or putative spouse at the time of his death.

To be entitled to Surviving Mother With Child in Care or widow’s benefits, a claimant must meet the relationship requirements of the Social Security Act. See Program Operations Manual System (POMS) RS 01310.001; RS 00208.001; RS 00207.001(A)(1)(a). A claimant can meet those relationship requirements by either having been the legal spouse, putative spouse, or deemed spouse of the number holder at the time of his death. POMS RS 00207.001(A)(1)(a).

First, the Act provides that a claimant is the legal spouse of an insured individual if “the courts of the State in which such insured individual is domiciled . . . would find such that such applicant and such insured individual were validly married. . . at the time he died.” 42 U.S.C. § 416(h)(1)(A)(i).

Second, the Act permits the Commissioner to find a “deemed marriage” where an applicant in good faith went through a marriage ceremony with the insured individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage. 42 U.S.C. § 416(b)(1)(B)(i), POMS GN 00305.055.

Third, the Act allows a finding of a “putative marriage” if the courts of the State in which the insured is domiciled would determine that the applicant could inherit a widow’s share of the insured’s personal property if he died without leaving a will. 42 U.S.C. § 416(h)(1)(A)(ii); see also 20 C.F.R. § 404.345.

Here, A~ was not the legal spouse, deemed spouse, or putative spouse of Y~ at the time of his death, and thus she is not entitled to benefits on his earnings record.

1. A~ was not the legal spouse of Y~ because their marriage was void.

First, A~ was not the legal spouse of Y~ because their marriage was void. A void marriage is a marriage “which is legally nonexistent from the beginning under State law, with or without a judicial decree.” POMS GN 00305.125(A). Parties who enter into a void marriage are considered never to have been husband and wife. Id. As such, a void marriage requires no formality to terminate. Id.

For purposes of determining the validity of marriage, we look to the law of the state where the insured had a permanent home when he died. 20 C.F.R. § 404.345. Permanent home is defined as “the true and fixed home (legal domicile) of a person. It is the place to which a person intends to return whenever he or she is absent.” 20 C.F.R. § 404.303. Here, the death certificate indicated that Y~ died in Indiana. The marriage license reflected that they were married in Indianapolis. A~ reported that Y~ moved to Indiana from New York in 2012. She stated that he traveled back and forth from Indianapolis to New York, where he had his own apartment. Despite his travel, the bulk of the evidence reflects that Y~’s true and fixed home was Indiana at the time of his death. As such, we apply Indiana law.

Under Indiana law, a marriage is void if “the parties to the marriage are more closely related than second cousins.” Ind. Code Ann. § 31-11-8-3. This encompasses the relationship of uncle and niece. However, in certain cases, Indiana allows marriages of relatives more closely related than second cousins. Such a marriage is not void if: (1) the marriage was solemnized after September 1, 1977; (2) the parties to the marriage are first cousins; and (3) both of the parties were at least sixty-five (65) years of age when the marriage was solemnized. Ind. Code Ann. § 31-11-8-3. The marriage here does not meet the requirements of sections two and three. Y~ and A~ were uncle and niece, rather than first cousins. Additionally, only Y~ was over 65 years old at the time the marriage was solemnized, rather than both parties being over age 65 as required by the statute. Thus, the marriage was void at the outset and without any legal proceedings. See Ind. Code Ann. § 31-11-8-1. A~ does not meet the relationship requirement for benefits because she was not the legal spouse of Y~ at the time of his death.

2. A~ was not the deemed spouse of Y~ because she did not meet the requirements of 42 U.S.C. § 416(h)(1)(B)(i).

Second, A~ does not meet the relationship requirement for benefits because she was not the deemed spouse of Y~ at the time of his death. In order to be considered a deemed spouse under federal law, the evidence must show that A~ went through the marriage ceremony in good faith with no knowledge, at the time of the ceremony, of any legal impediment that would invalidate the marriage. 42 U.S.C. § 416(h)(1)B); 20 C.F.R. § 404.346(a); POMS GN 00305.055(A)(1).

A~ cannot be considered the deemed spouse of Y~ because their legal impediment was not one of those listed in the Social Security regulations. The regulations specify that the only qualifying legal impediments are either (1) a previous marriage that had not ended at the time of the ceremony or (2) a defect in the procedure followed with the intended marriage. 20 C.F.R. § 404.346(a); POMS GN 00305.055(A)(1) (emphasis added). Here, the legal impediment was the uncle-and-niece relationship between the parties. This is not one of the legal impediments listed in the regulations, and thus A~ is not entitled to benefits as the deemed spouse of Y~. See POMS GN 00305.055(B)(3)(b) (“When the marriage is invalid for reasons under State law other than those listed in a. above, do not apply the deemed marriage provision.”).

3. A~ was not the putative spouse of Y~ under 42 U.S.C. § 416(h)(1)(A)(ii).

Finally, A~ was not the putative spouse of Y~ at the time of his death. Under the laws of some states, a good faith party to a void marriage may acquire inheritance rights as a spouse. This relationship is considered a putative marriage. POMS GN 00305.085(A)(1); 20 C.F.R. §§ 404.344, 404.345. Social Security regulations provide that a putative marriage occurs where there “is a good faith belief in the existence of a valid marriage at its inception and . . . good faith until the worker dies.” POMS GN 00305.085(A)(1); 20 C.F.R. §§ 404.344, 404.345. The POMS further explains that a “marriage may be invalid because of some defect of which the putative spouse was unaware, such as a prior undissolved marriage of one of the parties, or failure to meet the requirement of solemnization.” POMS GN 00305.085(A)(1). A putative marriage permits a widow to share in the distribution of the number holder’s intestate personal property, and thus satisfy the relationship requirement for benefits.

The Indiana intestate succession statutes provide that a decedent’s surviving spouse is entitled to a share of the decedent’s intestate estate. Indiana Code Annotated (West 2015) (Ind. Code Ann.) § 29-1-2-1(b). The term “surviving spouse” is not defined in the Indiana probate code. See Ind. Code Ann. § 29-1-1-3 (Definitions). Nor does the probate code contain provisions allowing for inheritance by a putative spouse. Although some states have enacted statues that adopt putative marriage, Indiana is not one of them. See Ind. Code Ann. §§ 29 (Probate), 31 (Family Law and Juvenile Law); POMS GN 00305.085; Christopher L. Blakesley, The Putative Marriage Doctrine, 60 Tul. L. Rev. 1, 60 (1985); 55 C.J.S. Marriage § 44.

We could find no Indiana cases allowing a putative spouse of a void marriage to share in the distribution of intestate personal property. Indiana abides by the general rule that a “void marriage is good for no legal purpose,” and has held that its invalidity may be shown in any court, between any parties, either in the lifetime of the ostensible husband and wife or after the death of either or both of them. See Wiley v. Wiley, 123 N.E. 252, 255 (Ind. Ct. App. 1919). In Wiley, the court noted that if the ostensible marriage was void, then the purported wife would have no interest in the estate. Id. at 254. Accordingly, A~ is not entitled to benefits as the putative spouse of Y~.

CONCLUSION

For the above reasons, we conclude that A~ does not meet the relationship requirements, and thus she is not entitled to program benefits on the record of Y~ .

Kathryn Caldwell

Acting Regional Chief Counsel, Region V

By: Cristen Meadows

Assistant Regional Counsel

D. PR 07-167 Indiana: Validity of a Columbian Marriage by Proxy

Date: July 2, 2007

1. Syllabus

If the proxy marriage was valid in the place where it was celebrated, Indiana would consider the marriage valid. Columbia law provides that a marriage can be celebrated even if one of the parties to the marriage is not present if a special power of attorney to represent the absent spouse is issued before a public notary. The marriage certificate was duly recorded in the marriage registry of the parish where the marriage was celebrated, therefore, under Columbian law the marriage is presumed valid unless judicially challenged.

2. Opinion

You asked whether a proxy marriage in Columbia is valid and whether it would be recognized in the State of Indiana. The answer to both questions is yes.

BACKGROUND

Alba F~ has applied for wife's benefits on the earning's record of Miguel F~. Ms. F~ provided a marriage certificate from Columbia showing that she and Miguel F~ were married there on September XX, 1965. Apparently, the marriage took place by proxy because Miguel was in New York at that time. Miguel's father, who was also named Miguel, stood in for his son at the ceremony in Columbia. The couple began living together in New York shortly after the ceremony, and they are still living together. They now reside in Indiana.

DISCUSSION

The Agency will find that an applicant is the wife of the insured "if the courts of the State in which such insured individual is domiciled at the time such applicant files an application . . . would find that such applicant and such insured individual were validly married at the time such applicant files such application." 42 U.S.C. § 416(h)(1)(A)(i); see also 20 C.F.R. § 404.345. Here, the insured lives in Indiana.

With the exception of same-sex marriages, Indiana would accept as legitimate a marriage validly contracted in the place where it was celebrated. See Bolkovac v. State, 98 N.E.2d 250, 254 (Ind. 1951) (validity of marriage depends on the law of the place where it occurs-looking to law in England to determine validity of marriage there); Ind. Code Ann. § 31-11-1-1(b) (West 2007) (same sex marriage is void in Indiana even if it was valid where contracted); Ind. Att'y Gen'l Op. No. 2004-3 (with exception of same-sex marriages, Indiana follows the general rule that validity of marriage is governed by the law of the place of its celebration); Mason v. Mason, 775 N.E.2d 706, 709 (Ind. App. 2002) (Indiana court recognized validity of Tennessee marriage of first cousins, even though such a marriage would not be permitted in Indiana). Therefore, if the proxy marriage in this case was valid under Columbian law, Indiana would consider the marriage valid.

We sought the advice of the Library of Congress regarding the validity of proxy marriages in Columbia at the time this marriage was contracted. According to a Senior Foreign Law Specialist at the Library of Congress, Columbia law provides that a marriage can been celebrated even if one of the parties to the marriage is not present if a special power of attorney to represent the absent spouse is issued before a public notary. Until 1990, the law provided only that men could enter into a marriage by proxy, since the marriage had to be celebrated before authorities of the wife's domicile. After the law was changed in 1990, either party to the marriage could marry by proxy. Here, the man was represented by proxy, so this is not an issue. The Library of Congress further advised that, since the marriage certificate in this case was duly recorded in the marriage registry of the parish where the marriage was celebrated, the marriage is presumed valid unless judicially challenged. Thus, the marriage in this case should be presumed valid under Columbian law. Since it is valid under Columbian law, Indiana would recognize it as valid, as well.

CONCLUSION

In sum, we conclude that the Agency can assume that the Columbian proxy marriage should be presumed valid and that Indiana would recognize the marriage. .

Donna L. C~
Regional Chief Counsel, Region V

By Suzanne L~ D~
Assistant Regional Counsel


Footnotes:

[1]

. Given that the marriage in question is not valid, the issue as to the legality of the accompanying divorce is moot.


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