TN 32 (11-16)

PR 05005.020 Kentucky

A. PR 16-201 Validity of Second Marriage – Kentucky

Date: September 26, 2016

1. Syllabus

We look to state law to determine whether an individual is married or remarried. We believe that the law of Kentucky should be applied because the marriage of the Claimant and her second husband occurred in that state. Kentucky law favors marriage and the presumption of a legally valid marriage is one of the strongest known in law. Marriage is prohibited and void where there is a husband or wife living, from whom the person marrying has not been divorced and a court may declare that marriage invalid if the marriage is prohibited.

The Claimant divorced the number holder (NH) in December 1982. The Claimant entered into a legal marriage with her second spouse in Kentucky in December 1994; therefore, the strong presumption in favor of marriage would apply to their marriage. The Claimant and her second husband separated after she discovered he was still married to another woman. However, neither the Claimant nor her second husband took action to have a court declare their marriage invalid and there has been no divorce proceedings. Therefore, her marriage to her second husband stands as valid. We conclude that the Claimant is married and she is not eligible for benefits as the divorced wife of the NH.

2. Opinion

QUESTION PRESENTED

You asked whether claimant J~’s marriage to H~ in 1994 is valid, where H~ was not divorced from his previous wife at the time of the marriage, thereby precluding J~’s entitlement to Divorced Spouse’s benefits on the account of wage earner J2~.

SHORT ANSWER

Yes. Under Kentucky law, J~’s marriage to H~ was voidable, rather than void from its inception. Accordingly, J~ should be considered married, as her marriage to H~ has not been legally terminated. As such, she is not entitled to Divorced Spouse’s benefits on J2~’s account.

FACTS

J~ divorced the wage earner, J2~, in December 1982. In December 1994, J~ married H~ in Kentucky. J~ reports that after her marriage to H~, she discovered that H~ was still married to I~, who he married in 1991. There is no evidence that the marriage between H~ and I~ was ever dissolved or otherwise legally terminated. J~ advises that she and H~ no longer live together, but they have not obtained a divorce or sought any other legal nullification of their marriage.

J~ has filed for divorced spouse benefits on J2~’s record. She currently lives in Ohio.

DISCUSSION

1. J~’s marriage to H~ is voidable, rather than void ab initio, and thus she should be considered married.

We look to state law to determine whether an individual is married or remarried. Social Security Act § 216(h)(1)(A), 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.345. However, neither the Act nor our regulations address which law governs the validity of a divorced spouse’s remarriage to a third party. See Social Security Act § 216(h)(1)(A); 20 C.F.R. § 404.345. Although the regulations do not specify which state law we should apply, we believe that the law of Kentucky should be applied because the marriage of J~ and H~ occurred in that state. Even if we looked to the law of Ohio, where J~ and H~ now live, under Ohio law, the validity of a marriage is determined based on the state where it was solemnized. See Mazzolini v. Mazzolini, 168 Ohio St. 357, 358, 155 N.E.2d 206, 208 (1958).

Kentucky law favors marriage, and the presumption of a legally valid marriage is one of the strongest known in law. See Pinkhasov v. Petocz, 331 S.W.3d 285, 293-94 (Ky. Ct. App. 2011). However, marriage is prohibited and void1 “[w]here there is a husband or wife living, from whom the person marrying has not been divorced.” Ky. Rev. Stat. Ann. § 402.020(1)(b) (West 2016). And, a court may declare a marriage invalid if the marriage is prohibited. See Ky. Rev. Stat. Ann. § 403.120(1)(c) (West 2016). But, significantly, a declaration of invalidity based on the marriage being prohibited may only be sought by one of the parties to the marriage and no later than one year after the petitioner obtained knowledge of the prohibited condition. See Ky. Rev. Stat. Ann. § 403.120(2)(b) (West 2016).

J~ and H~ entered into a legal marriage in Kentucky on December XX, 1994. Therefore, the strong presumption in favor of marriage would apply to their marriage. Significantly, the evidence supports that H~ was still married to I~ at the time of his marriage to J~. However, although the marriage of H~ and J~ was prohibited under Kentucky law because H~ was already married, we believe that Kentucky would find that the marriage was merely voidable, rather than void ab initio (from the start) because neither party acted within one year to obtain a court declaration that the marriage was void.

Kentucky previously treated bigamous marriages as void ab initio, but in 1980, the Kentucky Court of Appeals upheld a bigamous marriage from challenges from the son of the deceased and his first wife. Ferguson v. Ferguson, 610 S.W.2d 925 (Ky. Ct. App. 1980) (citing Ky. Rev. Stat. § 403.120). The son challenged the second wife’s ability to act as the administratrix of the deceased’s estate arguing the second wife’s marriage was void ab initio because it occurred prior to the deceased’s divorce from his first wife. Id. at 926. The court held that although a bigamous marriage was described as “prohibited and void” under Ky. Rev. Stat. § 402.020(1)(b), a third party could not collaterally attack the marriage. Id. Instead, the court found that a declaration of invalidity of marriage could only be obtained by one of the parties to the marriage, and only within one year after obtaining knowledge of the prohibitive condition. Id. The court found that the son could not maintain a collateral attack on the marriage because the enactment of Ky. Rev. Stat. § 403.120 “represented a conscious recognition on the part of the legislature that a previous policy of allowing a collateral attack on marriages created unfair, economic penalties for the surviving spouse.” Id. at 927 (citation omitted).

In 1993, the Comptroller General issued an opinion that under Ferguson, a bigamous marriage was not void ab initio, but merely voidable. Matter of: Myrtle O. Morris, B-251520, 1993 WL 284903, at *2 (Comp. Gen. 1993). The Comptroller General found that a Federal Survivor Benefit Plan annuity could be paid to the member’s second wife, whom the member married more than two years before obtaining a divorce from his first wife, because under Kentucky law the second marriage was not challenged within one year and therefore was valid. Id. Because no action was taken to void the marriage, the Comptroller General found that the marriage was valid and that the second wife qualified as an eligible widow entitled to an annuity.

In the instant case, J~ reports that she separated from H~ after discovering that he was still married to I~, but there is no evidence that either party took action to have a court declare their marriage invalid. Under the reasoning in Ferguson and the Comptroller General’s 1993 opinion, J~’s marriage to H~ was not void ab initio, but merely voidable and subject to challenge under Ky. Stat. Rev. §403.120 (West 2016) 2 . Because neither J~ nor H~ took any action to void their marriage, and because there has been no divorce proceeding, the marriage stands as valid, despite being “prohibited and void.”

Of note, we considered that this case differs from the subject marriages in Ferguson and Matter of: Myrtle O. Morris, as well as the recently examined marriage analyzed in POMS PR 05005.020 (PR 16-137), in that the parties to those bigamous marriages believed that they were validly married, and held themselves out as such. Here, J~ reports that she believed that her marriage to H~ was not legal, and that she and H~ no longer live together or hold themselves out as a married couple. We do not find such distinctions material to the analysis of bigamous marriages in Kentucky. Instead, we believe that consideration of an individual’s belief about the validity of the marriage, or whether the parties hold themselves out as a married couple, is immaterial to Kentucky’s established view of bigamous marriages as voidable, and not void ab initio.

2. The marriage of J~ and H~ precludes J~’s entitlement to benefits on J2~’s record.

Under the Social Security Act, 42 U.S.C. § 402, a divorced wife may be entitled to benefits if she meets certain requirements, including that she is not married. 42 U.S.C. 402(b)(1)(A)-(D); see also 20 C.F.R. §§ 404.331(c), 404.336(e). Therefore, a divorced wife's right to benefits depends on whether she is married at the time of the claim.

As discussed above, J~’s marriage to H~ was merely voidable, rather than void ab initio, under Kentucky law. Because neither J~ nor H~ has sought to have the marriage invalidated or annulled and there has been no divorce, J~ should be considered married, and thus, she is not eligible for benefits as the divorced wife of J2~.

CONCLUSION

For the above reasons, we conclude that J~ is married and she may not obtain Divorced Spouse’s benefits on J2~’s account.

Kathryn Caldwell

Regional Chief Counsel, Region V

By: Tiffani Jake

Assistant Regional Counsel

B. PR 16-137 Legal opinion regarding validity of second marriage

Date: May 25, 2016

1. Syllabus

We look to state law to determine whether an individual is married or remarried. 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. In this case, we believe that the law of Kentucky should be applied because the marriage of the claimant’s and current spouse occurred in that state. The claimant submitted a valid marriage certificate showing that she married her current spouse in 1987 while she was still married to the deceased number holder (NH). The claimant reported that she remains legally married to her current spouse, and there is no evidence that either party has sought to have the marriage invalidated or annulled and there has been no divorce. The strong presumption in favor of marriage would apply to their marriage. Under the Kentucky law, the claimant’s marriage to her current spouse was voidable, rather than void from its inception. Therefore, claimant should be considered remarried, and thus she is not entitled to Surviving Divorced Widow’s benefits on the deceased wage earner’s account.

2. Opinion

QUESTION PRESENTED

You asked whether P~’s marriage to G~, which occurred before she was divorced from the deceased wage earner (DWE), L~, precludes her entitlement to Surviving Divorced Widow’s benefits on the DWE’s account.

SHORT ANSWER

Yes. Under Kentucky law, P~’s marriage to G~ was voidable, rather than void from its inception. Accordingly, P~ should be considered remarried, and thus she is not entitled to Surviving Divorced Widow’s benefits on the DWE’s account.

FACTS

P~ married the DWE, L~, on June XX, 1971 in Kentucky. P~ separated from L~ on April XX, 1985. The divorce between P~ and L~ was finalized on April XX, 1989, when the R~, Kentucky Circuit Court entered a Decree of Dissolution of Marriage.

While P~ was still married to L~, she married G~ on October XX, 1987 in Kentucky. She reports that they separated in 1988, but they have not obtained a divorce or annulment.

L~ died on November XX, 1998. At the time of his death, he was domiciled in Kentucky. P~ has filed for Surviving Divorced Widow’s benefits on L~’s record. P~ currently lives in Cincinnati, Ohio.

DISCUSSION

a. P~’s marriage to G~ is voidable, rather than void ab initio, and thus she should be considered remarried.

We look to state law to determine whether an individual is married or remarried. Social Security Act § 216(h)(1)(A), 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.345. 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. In this case, that state is Kentucky. However, 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. Although the regulations do not specify which state law we should apply, we believe that the law of Kentucky should be applied because the marriage of P~ and G~ occurred in that state. Even if we looked to the law of Ohio, where P~ now lives, under Ohio law, the validity of a marriage is determined based on the state where it was solemnized. See Mazzolini v. Mazzolini, 168 Ohio St. 357, 358, 155 N.E.2d 206, 208 (1958).

Kentucky law favors marriage, and the presumption of a legally valid marriage is one of the strongest known in law. See Pinkhasov v. Petocz, 331 S.W.3d 285, 293-94 (Ky. Ct. App. 2011). However, marriage is prohibited and void “[w]here there is a husband or wife living, from whom the person marrying has not been divorced.” Ky. Rev. Stat. Ann. § 402.020(1)(b) (West 2016). And, a court may declare a marriage invalid if the marriage is prohibited. See Ky. Rev. Stat. Ann. § 403.120(1)(c) (West 2016). But, importantly, a declaration of invalidity based on the marriage being prohibited may only be sought by one of the parties to the marriage and no later than one year after the petitioner obtained knowledge of the prohibited condition. See Ky. Rev. Stat. Ann. § 403.120(2)(b) (West 2016).

P~ submitted a valid marriage certificate showing that she married G~ on October XX, 1987. Therefore, the strong presumption in favor of marriage would apply to their marriage. The evidence also shows that P~ was still married to L~ at the time of her marriage to G~. Although this marriage was prohibited under Kentucky law because P~ was already married, we believe that Kentucky would find that the marriage was merely voidable, rather than void ab initio (from the start) because neither party acted within one year to obtain a court declaration that the marriage was void.

Kentucky previously treated bigamous marriages as void ab initio, but in 1980, the Kentucky Court of Appeals upheld a bigamous marriage from challenges from the son of the deceased and his first wife. Ferguson v. Ferguson, 610 S.W.2d 925 (Ky. Ct. App. 1980) (citing Ky. Rev. Stat. § 403.120). The son challenged the second wife’s ability to act as the administratrix of the deceased’s estate arguing the second wife’s marriage was void ab initio because it occurred prior to the deceased’s divorce from his first wife. Id. at 926. The court held that although a bigamous marriage was described as “prohibited and void” under Ky. Rev. Stat. § 402.020(1)(b), a third party could not collaterally attack the marriage. Id. Instead, the court found that a declaration of invalidity of marriage could only be obtained by one of the parties to the marriage, and only within one year after obtaining knowledge of the prohibitive condition. Id. The court found that the son could not maintain a collateral attack on the marriage because the enactment of Ky. Rev. Stat. § 403.120 “represented a conscious recognition on the part of the legislature that a previous policy of allowing a collateral attack on marriages created unfair, economic penalties for the surviving spouse.” Id. at 927 (citation omitted).

In 1993, the Comptroller General issued an opinion that under Ferguson, a bigamous marriage was not void ab initio, but merely voidable. Matter of: Myrtle O. Morris, B-251520, 1993 WL 284903, at *2 (Comp. Gen. 1993). The Comptroller General found that a Federal Survivor Benefit Plan annuity could be paid to the member’s second wife, whom the member married more than two years before obtaining a divorce from his first wife, because under Kentucky law the second marriage was not challenged within one year and therefore was valid. Id. Because no action was taken to void the marriage, the Comptroller General found that the marriage was valid and that the second wife qualified as an eligible widow entitled to an annuity.

Although P~ reportedly separated from G~ in 1988, there is no evidence that either party took action to have a court declare their marriage invalid. Indeed, P~ reported that she remains legally married to G~. Under the reasoning in Ferguson and the Comptroller General’s opinion, P~’s marriage to G~ was not void ab initio, but merely voidable and subject to challenge under Ky. Stat. Rev. §403.120 (West 2016). Because neither P~ nor G~ took any action to void the marriage, and because there has been no divorce proceeding, it stands as valid, despite being “prohibited and void.”

b. The marriage of P~ and G~ precludes P~s entitlement to benefits on L~’s record.

Under the Social Security Act, 42 U.S.C. § 402, a surviving divorced wife may be entitled to benefits if she meets certain requirements. "The widow (as defined in section 416(c) of this title) and every surviving divorced wife (as defined in section 416(d) of this title) of an individual who died a fully insured individual, if such widow or such surviving divorced wife -- (A) is not married . . . shall be entitled to a widow's insurance benefit." 42 U.S.C. 402(e)(1)(A)-(D); see also 20 C.F.R. §§ 404.331(e), 404.336(e). Therefore, a surviving divorced wife's right to benefits depends on whether she is married at the time of the claim.

As discussed above, P~’s marriage to G~ was merely voidable, rather than void ab initio, under Kentucky law. Because neither P~ or G~ has sought to have the marriage invalidated or annulled and there has been no divorce, P~ should be considered married at the time of her claim and thus she is not eligible for benefits as the surviving divorced wife of L~.

CONCLUSION

For the above reasons, we conclude that P~ is married and she may not obtain Surviving Divorced Widow’s benefits on L~’s account.

Kathryn Caldwell

Acting Regional Chief Counsel, Region V

By: Cristen Meadows

Assistant Regional Counsel


Footnotes:

[1]

. A void marriage 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. By contrast, a voidable marriage is a marriage which is defective and can be adjudged void, but which is considered valid unless and until declared void as a result of a court action on its validity. POMS GN 00305.130(A).

[2]

. We note that Ky. Rev. Stat. § 402.250 also permits a party to seek declaratory judgment to determine the validity of a marriage, but without mention of a time limitation. Despite some potential tension between these statutory provisions, given the unchallenged holding in Ferguson, we believe that the Kentucky Courts would still view a bigamous marriage as valid if not challenged within one year pursuant to § 403.120.


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PR 05005.020 - Kentucky - 11/02/2016
Batch run: 11/02/2016
Rev:11/02/2016
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