TN 16 (07-14)
PR 05005.042 Pennsylvania
A. PR 14-109 Whether the second wife of the deceased NH qualifies as the NH’s widow for purposes of her claim for widow’s benefits and the lump sum death benefit.
DATE: May 30, 2014
The NH married his first wife, on June 1, 1941 in Mumbai, India. The NH married the claimant on October 14, 1946 in Mumbai, India. Both marriages were performed by a Hindu priest. Claimant asserts that, at the time of her marriage to NH, Hindu men were permitted to marry up to three wives. Pennsylvania’s statues prohibit bigamy, which is both a ground for divorce or annulment, as well as a crime. However, Pennsylvania looks to the jurisdiction of where the second marriage took place to determine its validity. Because the marriage between the claimant and the NH was valid when entered into, we believe a Pennsylvania court would find the marriage between the NH and the claimant as valid for the purpose of recognizing the claimant as the NH’s widow. Thus, the claimant can be considered for purposes of widow’s benefits and the lump sum death payment.
On February 28, 2014, you requested a legal opinion regarding whether S~, the claimant, qualified as the widow of deceased wage earner M~ (NH), who was already married to G~ on the date he married the claimant.
Our opinion is that Pennsylvania would recognize the claimant’s marriage to NH as valid for the purposes of her entitlement to widow’s benefits on the NH’s account.
The NH married his first wife, on June 1, 1941 in Mumbai, India. The NH married the claimant on October 14, 1946 in Mumbai, India. Both marriages were performed by a Hindu priest. Claimant asserts that, at the time of her marriage to NH, Hindu men were permitted to marry up to three wives. Claimant further asserts that the NH’s first wife went to live with her father after Claimant married NH. The NH’s first wife was entitled to spouse’s benefits effective beginning in 1986 and ending upon her death in 1998.
The NH and the claimant lived together continuously from the time of their marriage until his death on October 1, 2013. They had two children together. At the time of his death, the NH lived in Pittsburgh, Pennsylvania.
A surviving spouse of an insured who has died is entitled to widow’s benefits if, among other things, such surviving spouse (1) files an application; (2) is at least 60 years old;
(3) was validly married to the insured under State law; (4) was married to the insured for at least 9 months immediately before the insured died; and (5) is not currently married. Section 202(e) of the Social Security Act (the Act), 42 U.S.C. § 402(e); 20 C.F.R. § 404.335. Alternatively, if the State courts would not find the applicant and the insured individual were validly married at such time, the applicant shall be deemed to be the widow of the insured individual if she would, under the laws applied by such courts in determining the devolution of intestate personal property, have the same status with respect to the taking of such property as a widow of the insured individual. Section 216(h)(1)(A) of the Act, 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.
In determining the validity of the surviving widow’s marriage to the deceased insured, the Agency applies the law of the State where the insured was domiciled, i.e., had a permanent home, at the time of the insured’s death. Section 216(h)(1)(A) of the Act, 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.345. In this case, the NH was domiciled in Pennsylvania at the time of his death.
A. Pennsylvania Law
Pennsylvania’s statues prohibit bigamy, which is both a ground for divorce or annulment, 23 Pa. C.S.A. § 3301(a)(1), (4) (West 2014), as well as a crime, 18 Pa. C.S.A. § 4301 (West 2014). However, Pennsylvania looks to the jurisdiction of where the second marriage took place to determine its validity. See Commw. v. Seiders, 11 A.3d 495 (Pa. Super. Ct. 2010) (stating that subject-matter jurisdiction over the crime of bigamy is found in the place where the second marriage was contracted); 18 Pa. Cons. Stat. Ann. § 102 (West 2014) (stating that “a matter which would otherwise be a criminal offense will not be considered a criminal offense if the conduct which caused the particular result occurred outside the Commonwealth and would not constitute an offense if the result had occurred there.”). Pennsylvania law further provides that the surviving spouse’s intestate share of a decedent’s property is the entire intestate estate, if there is no surviving issue or parent of the decedent; the first $30,000 plus one-half of the balance of the intestate estate if there is no surviving issue of the decedent but he is survived by a parent or parents, or if there are surviving issue of the decedent all of whom are issue of the surviving spouse also; and one-half of the intestate estate if there are surviving issue of the decedent but one or more of whom are not issue of the surviving spouse. 20 Pa. Cons. Stat. Ann. § 2102 (West 2014).
We found no Pennsylvania judicial decisions directly on point to the facts of this case, but the Pennsylvania Supreme Court, in discussing how to resolve a conflict in laws, cited with approval a California case suggesting that polygamous marriage could be treated as valid for purposes of succession regardless of whether it might be valid for purposes of cohabitation. See In re L~’s Estate, 455 Pa. 225, 231 (Pa. 1974) (citing In re Dalip S~ B’s Estate, 83 Cal. App. 2d 256, 188 P.2d 499 (Ca. Dist. Ct. App. 1948) (finding that no public policy would be affected by dividing the intestate’s estate between two surviving wives where marriage took place in foreign province allowing polygamous marriages and where the marriages would be held valid in California to the extent of allowing the wives to share intestate’s estate equally)). That is, the court recognized that that a polygamous marriage, which would otherwise be considered invalid within the state, could be treated as valid for the purpose of intestate succession because doing so would not offend the public policy intent of prohibiting such marriages.
Given this background, we believe that a Pennsylvania court would likely find that public policy would not be offended by permitting the claimant to inherit a share of the NH’s intestate estate so long as their marriage was valid in India when contracted.
B. Indian Law
According to Mulla’s Principles of Hindu Law, “[a] Hindu may marry any number of wives, although he has a wife or wives living, except in those states in which anti-bigamy Acts have been passed.” Satyajeet , Mulla’s Principles of Hindu Law 654 (2000). In Mumbai, bigamous marriage was permitted by Hindus until the Bombay Prevention of Hindu Bigamous Marriage Act went into effect on November 6, 1946. The Bombay Prevention of Hindu Bigamous Marriage Act, No. 25 of 1946, § 3(1), Bombay Code 2311 (Government of Bombay, 6th ed. 1949).
In the instant case, the NH and claimant were married in Mumbai on October 14, 1946, three weeks before the Bombay Prevention of Hindu Bigamous Marriage Act went into effect. The claimant has submitted a statement and affidavit affirming that their marriage was performed by a Hindu priest and was in accordance with local customs. Accordingly, their marriage would have been valid in Mumbai because the prohibition on Hindu polygamous marriage had not yet become effective.
Because the marriage between the claimant and the NH was valid when entered into, we believe a Pennsylvania court would find the marriage between the NH and the claimant as valid for the purpose of recognizing the claimant as the NH’s widow.
Based upon our review of Pennsylvania law, the history of Indian law, and the facts you provided to us, we believe that the claimant can be considered the NH’s widow for purposes of widow’s benefits and the lump sum death payment.
Acting Regional Chief Counsel,
Melissa K. Curry
Assistant Regional Counsel
B. PR 09-126 ~, Number Holder: James Claimant: Mary Can Mary recover widow's benefits on James' record when she had an intervening dissolved common law marriage?
DATE: June 26, 2009
Under Pennyslvania law a common-law marriage affidavit signed for the purpose of obtaining health benefits does not establish the requisite present intent to be married. A void remarriage does not interrupt a surviving divorced spouse's entitlement to widow's benefits as opposed to reinstatement.
QUESTION PRESENTED AND BRIEF ANSWERS
Question: Can Mary become entitled to widow's benefits under James's Social Security record?
Answer: Yes. When a surviving divorced spouse remarries, and then divorces or obtains an annulment from her second husband, she is entitled to reinstatement of benefits on her first husband's account.
Question: Did Mary and James ever have a valid common law marriage?
Answer: Based on the facts available -- no. Under Pennsylvania law, an affidavit attesting to a common law marriage, if created solely for the purpose of obtaining health care benefits, does not establish a common law marriage. The Lycoming County Court decree, therefore, was not a divorce or an annulment, but rather a declaratory judgment that Mary and James were never married and their purported marriage was void from the beginning. As such, Mary is likely to be entitled to widow's benefits on James account as though she had no intervening marriage to Mr. K~.
Mary married James in 1969, and they divorced on September 27, 1990. James died on December 21, 1990. On February 11, 1995, Mary and Mr. K~ signed an affidavit stating that they had a common law marriage. Thereafter, Mary sought widow's benefits on James' Social Security record. When the Commissioner denied benefits because she was married to Mr. K~, Mary and Mr. K~ provided a stipulation to the Pennsylvania Court of Common Pleas, Lycoming County, attesting that the prior affidavit of common law marriage was executed solely for the purpose of allowing Mary to obtain health insurance from a plan provided by Mr. K~'s employer. The stipulation further provided that although Mr. K~ and Mary lived together, they never spoke words in the present tense that could be construed as vows, they did not hold themselves out as married, and they did not share finances.
Under the Social Security Act, 42 U.S.C. § 402, a widow or a surviving divorced wife is entitled to benefits. "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) (2009); see also 20 C.F.R. §§ 404.331(e), 404.336(e) (2009). Therefore, a surviving spouse's right to benefits depends on whether she remarried. State law determines whether she is married. See Legory v. Finch, 424 F.2d 406, 409-10 (3d Cir. 1970); Slessinger v. Sec'y of Health and Human Welfare, 835 F.2d 937, 939-40 (1st Cir. 1987).
A. Under Pennsylvania Law, Mary Never Remarried.
Mary and Mr. K~ never entered into a common law marriage because a common law marriage affidavit signed for the purpose of obtaining health benefits does not establish the requisite present intent to be married. Bell v. Ferraro, 849 A.2d 1233 (Pa. Super. 2004). A common law marriage is created by an agreement to marry, not a wedding ceremony. Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1020 (Pa. 1998). Although Pennsylvania abolished common law marriage in 2005, it continues to recognize lawful common law marriages created on or before January 1, 2005. 23 Pa.C.S. § 1103 (2009).
A lawful common law marriage is established by "words in the present tense, uttered with the view and for the purpose of establishing the relation of husband and wife." In re G~, 284 A.2d 742, 743 (Pa. 1971). A present tense utterance is not the sole method by which common law marriage is established. Steadman v. Turner, 516 A.2d 21, 23 (Pa. Super. 1986). Evidence of cohabitation and the parties' reputation as a married couple can also establish a rebuttable presumption of common law marriage. Id. This is only a presumption, however, and can be rebutted by circumstances and facts showing that the parties did not intend to be married. Id. The key issue is whether the evidence establishes the parties' intent to enter into a marital relationship. Id.
Here, Mary and Mr. K~ likely did not have the requisite intent to marry. B~, 849 A.2d at 1235. In B~, the parties executed an "Affidavit of Common Law Marriage." Id. The appellant claimed that she and the appellee intended to marry and they informed their friends and relatives that they were married. Id. The appellee claimed that they were never married and testified that "the affidavit was executed solely to enable him to add Appellant to his health insurance and that they did not present themselves to the community as married persons." Id. Based on this testimony, the court affirmed a declaratory judgment finding that the parties never created a valid common law marriage. Id.
Similarly, Mr. K~ and Mary have both sworn that they executed their common law marriage affidavit solely to allow Mary to obtain health insurance. Mary and Mr. K~ expressly stipulated that they never intended to be married; they never held themselves out in the community as married; they were never introduced as husband and wife; and they never had joint financial accounts. Based on this stipulation, the Lycoming County Court confirmed that they never entered into a common law marriage. Under B~, therefore, Mr. K~ and Mary were never married and their affidavit is insufficient evidence of intent because it was created to obtain health benefits, not to actually create a marriage.
B. A Void Remarriage Does Not Interrupt A Surviving Spouse's Entitlement To Widow's Benefits.
Courts have consistently held that when a surviving divorced spouse obtains a divorce or Annulment from an intervening second marriage, she is entitled to reinstatement of benefits on her deceased first husband's Social Security account. See Legory v. Finch, 424 F.2d 406, 411 (3d Cir. 1970); Yeager v. Flemming, 282 F.2d 779, 781-82 (5th Cir. 1960); Folsom v. Pearsall, 245 F.2d 562, 565-66 (9th Cir. 1957); Starace v. Celebrezze, 233 F. Supp. 452, 453-54 (W.D. Pa. 1964). "[W]hen the remarriage is subsequently annulled, benefits should be reinstated." Legory v. Finch, 424 F.2d 406, 411 (3d Cir. 1970). Social Security Ruling (SSR) 67-4p accepts this rule and explains that upon receiving a divorce, benefits are reinstated as of the date the divorce became final. "[B]eginning with the month in which the divorce became final, the widow 'is not married' within the meaning of [the Act] . . . and accordingly, may become reentitled to mother's insurance benefits upon proper application." SSR 67-4p, 1967 WL 2988.
If the second marriage is declared void, the surviving divorced spouse is entitled to benefits uninterrupted as though the second marriage never existed, as opposed to reinstatement as of the date of divorce. Starace v. Celebrezze, 233 F. Supp. 452, 453 (W.D. Pa. 1964). "A void marriage does not preclude initial entitlement to benefits of claimants who must not be married, nor does the date of entitlement depend on the date of the Annulment." POMS GN 00305.125(B)(1).
In Starace, a widow married another man following the death of her first husband, but within six months brought a suit to annul her second marriage. 233 F. Supp. at 453. She claimed that upon marrying her second husband, she discovered he was an alcoholic and she received no support from him. Id. The Pennsylvania Court of Common Pleas granted an annulment, declaring "that the alleged marriage was and is wholly and absolutely null and void as to all intents and purposes whatsoever." Id. Thereafter, she sought Social Security benefits, and the court ruled that she was entitled to benefits for the entire period that she was "married" to her second husband. Id. The court reasoned that an Annulment under Pennsylvania law does not end a marriage, but instead decrees that it never existed in the first instance. Id. at 454 (citing Knode v. Knode, 27 A.2d 536, 538 (Pa. Super. 1942), Faivre v. Faivre, 128 A.2d 139 (Pa. 1956)). "It does not create a new status, it affirms that there has been no change in status." Id. Therefore, the second marriage was void, and never existed for Social Security benefits purposes. Id.
Mary's marriage to Mr. K~ was also void for Social Security purposes because the Lycoming County Court of Common Pleas declared that no common law marriage ever existed. Under Pennsylvania law, this ruling is neither a divorce nor an Annulment, but amounts to a declaratory judgment that no marriage ever existed. Steadman v. Turner, 516 A.2d 21, 23-24 (Pa. Super. 1986). Accordingly, based on the current facts, Mary was entitled to benefits as though she was never married to Mr. K~.
The Lycoming County Court of Common Pleas' declaration, while certainly highly relevant evidence, is not binding on the Commissioner. See L~, 424 F.2d at 410 (citing Cain v. Sec'y of Health, Educ., & Welfare, 377 F.2d 55, 58 (4th Cir. 1967)). The Commissioner may disregard the declaration if it is "demonstrably inconsistent with the general law of the state." Id. Here, however, the Lycoming Court's declaration is consistent with Pennsylvania law. As stated in B~, an affidavit created for the purpose of obtaining health benefits does not establish a common law marriage.
As such, the Commissioner would need to challenge the factual, not the legal, basis for the Lycoming County decree. Given that Mary's affidavit stating she was married directly contradicted her stipulation before the Lycoming County Court, she presented false information in one of the documents. If the Commissioner gathers evidence that the facts in her stipulation are false, then he would not have to recognize the Lycoming County Court's decree. For example, the Commissioner could gather additional evidence to determine if Mr. K~ and Mary actually held themselves out as married in the community, or purchased property together as a married couple. However, this would require an independent investigation involving a public records search and locating witnesses who knew Mr. K~ and Mary. Based on the records currently available, there is insufficient evidence to disprove the facts in Mr. K~ and Mary's stipulation. As such, it appears that the affidavit for health insurance purposes, not the stipulation, contained false statements.
Mary will likely be able to obtain Social Security benefits on James' account and her eligibility was not interrupted by a marriage to Mr. K~. Mr. K~ and Mary's affidavit attesting to a common law marriage does not establish the necessary intent to marry because it was created to allow Mary to obtain health insurance benefits. Therefore, the marriage was void and never existed for the purpose of Social Security benefits. Granting benefits may appear inequitable given that Mary clearly provided false information either on her affidavit to obtain health insurance or on the stipulation in Lycoming County Court. However, a false affidavit to Mr. K~'s health insurer does not establish a common law marriage, but would possibly be evidence that Mr. K~ and Mary defrauded Mr. K~'s insurer. Alternatively, Mary and Mr. K~ may have submitted a false stipulation to the Lycoming County Court, but an investigation into the facts asserted in the stipulation would be necessary to attack the Lycoming County Court's decree. Regardless, without additional evidence that the stipulation was false and that Mary and Mr. K~ were actually married, Mary's eligibility for surviving divorced spouse benefits was uninterrupted.
Eric P. Kressman
Acting Regional Chief Counsel,
Edward C. Tompsett
Assistant Regional Counsel
C. PR 09-120 Reply to Your Request for a Legal Opinion Regarding the Validity of Marital Relationship Between the Number Holder (Lawrence) and Maureen
DATE: June 19, 2009
Under limited circumstances, Pennsylvania law recognized the existence of a common-law marriage where a ceremonial marriage was void because of a legal impediment. The evidence submitted would not constitute clear and convincing evidence to establish a common-law marriage between the insured and claimant. There is no evidence as to whether the number holder was aware that the claimant was still married at the time of their marriage. A deemed marriage does not exist since the claimant did not marry in good faith.
You requested our opinion as to whether a valid common-law marriage arose under Pennsylvania law between Lawrence, the Number Holder (NH), and Maureen upon the death of Norman, Maureen first husband to whom she was still married when she ceremonially married the NH.
Based upon our review of the facts of this case and our research of relevant Pennsylvania statutes and case law, we have determined that a Pennsylvania court applying the state's law on common-law marriage would likely find that the evidence submitted to date would not constitute clear and convincing evidence sufficient to establish a common-law marriage between the Number Holder and Maureen; however, a valid common-law marriage could be established with the submission of additional evidence.
According to the information you provided, Maureen married Norman on August 7, 1965 in McKeesport, Pennsylvania. They were never divorced. On January 6, 1992, Maureen then ceremonially married the NH in West Mifflin, Pennsylvania, despite the fact that her existing marriage to Lawrence constituted a legal impediment to her marrying the NH.
From the information provided, Maureen was aware at the time that she ceremonially married the NH that she had never divorced Norman. We do not know whether the NH was aware that Maureen was still married to Lawrence at the time of the NH's ceremonial marriage to Maureen. Two years and two months after Maureen ceremonially married the NH, Norman died.
Generally, if parties enter into a ceremonial marriage that was void because of a legal impediment, a common-law marriage may later come into being in some states if: (a) the impediment is later removed and (b) the parties continue to live together as husband and wife after removal of the impediment. GN 00305.070(1). State laws vary, however, on the requirements needed to establish a common-law marriage after removal of the legal impediment to marriage.
Pennsylvania law prospectively abolished common-law marriages effective January 1, 2005. For common-law marriages existing prior to 2005, however, Pennsylvania law, under limited circumstances, recognized the existence of a common-law marriage where a ceremonial marriage was void because of a legal impediment.
The Marriage Law of 1953, enacted on January 1, 1954, and in effect at the time of Maureen void ceremonial marriage to the number holder, stated:
If a person, during the lifetime of a husband or wife with whom a marriage is in force, enters into a subsequent marriage pursuant to the requirements of this act, and the parties thereto live together thereafter as husband and wife, and such subsequent marriage was entered into by one or both of the parties in good faith in the full belief that the former husband or wife was dead, or that the former marriage has been annulled or terminated by a divorce, or without knowledge of such former marriage, they shall, after the impediment to their marriage has been removed by death of the other party to the former marriage, or by annulment or divorce, if they continue to live together as husband and wife in good faith on the part of one of them, be held to have been legally married from and immediately after the removal of such impediment. 48 P.S. § 1-17.
Thus, where only one party to a ceremonial marriage knew it was void because of an impediment, the marriage was considered legal by statute without a new agreement to marry if the parties continued to live together as husband and wife as of the date of removal of the impediment. See Leroy Roofing Co. v. Workmen's Compensation Appeal Bd. , 327 A.2d 876, 877-78 (Pa. Cmwlth. 1974) (validating a marriage under 48 P.S. § 1-17 where a second wife was unaware at the time of her wedding that her husband was already married, despite the second wife's inability to satisfy all of the requirements of common marriage after her husband divorced his first wife).
Where both parties knew the marriage was void because of an impediment and therefore entered into the void ceremonial marriage in bad faith, however, courts will presume that the parties continued to live together unmarried even after the impediment is removed, absent clear and convincing evidence of a change of status required to rebut this presumption. In re G~' Estate, 378 A.2d 307, 474 (Pa. 1977). A common-law marriage may thereafter be created by the parties uttering words in present tense with intent to establish a marital relationship. Commonwealth v. Sullivan, 398 A.2d 978, 980 (Pa. 1979). No marriage is created if words are used in the future tense, and cohabitation and reputation cannot establish marriage if the requisite "contract" was not entered into. Id.
From the information received, Maureen was aware of the legal impediment to her marriage to the NH. We have no information as to whether the NH was aware that Maureen was still married to Norman at the time the NH married Maureen.
We recommend obtaining a Statement of Marital Relationship from two blood relatives of the NH addressing whether he was aware of the legal impediment to his ceremonial marriage to Maureen at the time of their wedding. GN 00305.065(2)(a). If the NH was unaware of Maureen existing marriage to Norman at the time the NH married Maureen, the agency should also obtain corroborating evidence that the NH and Maureen continued to live together after Norman's death, as husband and wife, until the NH's death. Such evidence could include mortgage/rent receipts, insurance policies, medical records, and bank records that would establish that the couple considered and held themselves out as husband and wife.
If the NH was aware of Maureen existing marriage to Norman at the time the NH married Maureen, a subsequent common-law marriage must then be proven by evidence that the NH and Maureen made a new agreement to marry after the removal of the impediment, i.e., after the death of Norman on March 1, 1994. In re ~'s Estate, 379 A.2d at 474. The agency should then obtain a Statement of Marital Relationship from two blood relatives of the NH to determine if the NH and Maureen ever made a new agreement to marry after Norman's death. If no new agreement to marry was made, a valid common-law marriage cannot be established. GN 00305.065(2)(a).
We also note that no deemed marriage could exist between the NH and Maureen under the Agency's regulations. Pursuant to 20 C.F.R. § 404.346 and GN 00305.055(A)(1), for an entitlement to widow's benefits, a deemed marriage is created when the claimant's marriage to the worker would have been valid except for a legal impediment. However, for the agency to establish a deemed marriage, the claimant is required to have gone 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. 20 C.F.R. § 404.346(a), GN 00305.055(A)(1)(b). Because the evidence demonstrates that Maureen knew of her existing marriage to Norman when she married the NH, she did not marry the NH in good faith and, therefore, her relationship with the NH cannot be considered a deemed marriage.
Accordingly, we recommend that the Agency take reasonable steps to obtain additional evidence, including, but not limited to that suggested above, prior to making a decision in this case. Corroborative evidence of the NH was unaware of Maureen existing marriage to Norman at the time of his ceremonial marriage to Maureen, coupled with evidence that the NH and Maureen continued to live together as husband and wife after Norman's death, would likely constitute clear and convincing evidence of a legal marriage under the Pennsylvania statute from the relevant period. If the NH was aware of Maureen legal impediment at the time he married Maureen, corroborative evidence of a new agreement to marry between the NH and Maureen, made after Norman's death, coupled with evidence that the NH and Maureen thereafter lived together as husband and wife, would likely constitute clear and convincing evidence of a common-law marriage.
Eric P. Kressman
Acting Regional Chief Counsel,
By: Stephen T. Giacchino
Assistant Regional Counsel