You have requested an opinion regarding whether the marriage between claimant, Sandra
W~, and the Number Holder, Howard W~ ("NH"), is valid under Virginia law. In addition,
because this case involves two individuals claiming to be the surviving spouse of
NH for purposes of entitlement to widows' benefits, a corollary issue is the type
of benefits, if any, to which each spouse is entitled.
For the reasons explained below, we conclude that further development is necessary
to confirm whether NH's marriage to Carolyn, his first wife, terminated or continued.
If his marriage to Carolyn terminated, Sandra presumably qualifies as the legal surviving
spouse and is entitled to widow's benefits. If his marriage to Carolyn continued,
Carolyn is the legal surviving spouse. Furthermore, Sandra is not entitled to benefits
based upon a deemed valid marriage.
As we understand the facts, on June XX, 1976, NH allegedly married Carolyn in P~,
Connecticut, in a ceremony performed by a clergyman or public official.
According to Carolyn, prior to their marriage in 1976, she and NH lived together and
had two children, Howard W~ III, born on March XX, 1969, and Joseph W~, born on November
XX, 1971. They lived in P~, Connecticut until 1978 when they moved to N~, Virginia.
In 1980, the couple separated; Carolyn moved to W~, Massachusetts with the children
and NH remained in Virginia. Carolyn never lived with NH again, although he stayed
with her in Connecticut for a couple of days in 1993 before returning to Virginia.
Carolyn contends that she and NH were separated but never divorced.
On June XX, 1984, NH married Sandra M~ in S~, Virginia, in a ceremony performed by
a minister. On the marriage register, NH indicated that this was his first marriage
and that he was neither widowed nor divorced. According to Sandra, before they were
married, NH told her that his only marriage to a seventeen year old woman named Frances
was annulled within ten days. (A woman named Frances purportedly contacted Sandra
in 2004 and confirmed that her marriage to NH had been annulled). NH stated that he
had no previous marriages besides his marriage to Frances.
NH also told Sandra that he had lived in Massachusetts as a young man and had fathered
two children there, but his sons would have nothing to do with him since he had left
their mother, a woman named Carolyn. Sandra lived with NH in Suffolk, Virginia until
1994 when NH left her and moved to N~, Virginia.
On January XX, 2004, NH died in N~, Virginia. The certificate of death lists Sandra
W~ as his wife. Carolyn W~ claims that she did not know of NH's family in Virginia
until his death.
On April XX, 2004, Carolyn W~ applied for Social Security lump sum death benefit and
widow's benefits in P~, Connecticut.
Her application was granted and she currently receives $XX per month.
On August XX, 2004, Sandra W~ applied for widow's insurance benefits.
On November XX, 2004, the Commonwealth of Virginia confirmed that no divorce records
were found for either Howard W~ and Sandra M~ or Howard W~ and Carolyn [sic].
A report of contact from February XX, 2005 indicates that no divorce records were
found for Howard W~ and Sandra W~ in P~, Connecticut. No inquiry was made with regard
to Carolyn W~.
Under the Social Security Act, the widow or widower of an insured individual is entitled
to benefits as the insured's surviving spouse provided he or she meets certain requirements.
See 20 C.F.R. § 404.355 (2004). To decide the relationship of a claimant as the insured's
widow or widower, the Commissioner will look to the laws of the State where the insured
had a permanent home when he or she died. 20 C.F.R. § 404.345. If a claimant is validly
married under State law at the time of the insured's death, the relationship requirement
is met. 20 C.F.R. § 404.345. The relationship requirement can also be met if State
law would allow the claimant to inherit a widow's or widower's share of the insured's
personal property if the insured died without leaving a will. 20 C.F.R. § 404.345.
In addition, the Act permits the Commissioner to find that a marriage is valid if
the claimant establishes that he or she had a "deemed valid marriage" with the insured.
20 C.F.R. § 404.346. A "deemed valid marriage" is created when the claimant in good
faith participates in a marriage ceremony with the insured resulting in a purported
marriage between them which, but for a legal impediment not known to the claimant
at the time of the ceremony, would have been a valid marriage. 20 C.F.R. § 404.346.
However, a deemed valid marriage is created only if the parties to the marriage were
living in the same household when the insured died. 20 C.F.R. § 404.346.
A. Further Information is Needed to Determine Whether Sandra's Marriage to NH Was
Valid Under Virginia Law Because NH died a Virginia domiciliary, Sandra's marital
status must be evaluated under Virginia law. Under the laws of Virginia, Sandra's
marriage to NH was not valid because a marriage entered into prior to the dissolution
of an earlier marriage of one of the parties is prohibited and considered void. Va.
Code Ann. §§ 20-38.1(a)(1); 20-45.1(a). However, in Virginia, where two marriages
of the same person are shown, the second marriage is presumed to be valid, and such
presumption is stronger and is accorded greater weight because it is presumed that
the prior marriage was terminated by death or divorce. Parker v. American Lumbar Corp., 56 S.E.2d 214, 216 (Va. 1969). The presumption is strong but rebuttable. Hewitt v.Firestone Tire & Rubber Co., 490 F.Supp. 1358, 1362 (E.D.Va. 1980). The party challenging the second union is
required to "introduce such evidence as, in the absence of all counter testimony,
will afford reasonable grounds for presuming that the former marriage was not dissolved."
Id. (citations omitted). It is not incumbent upon the party seeking to overcome the presumption
of the validity of the last marriage to document the absence of a divorce in every
jurisdiction where one could have been obtained. Id. at 1364. "The Virginia litigant seeking to negate the existence of a divorce generally
does have a burden, however, of showing that no divorce was entered in jurisdictions
where the parties resided or where on any reasonable basis a decree might have been
obtained." Id. At 1364.
Based upon these principles, we believe that further development of the record is
necessary. We have documentary proof that no divorce between Carolyn and NH occurred
in Virginia from 1960 through August 2004. However, a search of Connecticut divorce
records should be obtained since Carolyn and NH lived in Connecticut after they were
married and Carolyn eventually resumed living in Connecticut. In the event that no
divorce records are found in Connecticut, we believe that Carolyn can overcome the
presumption that Sandra's marriage to NH is valid and, therefore, Carolyn would qualify
as NH's legal surviving spouse.
The Program Operations Manual System (POMS) also supports further development of this
case to determine whether NH's prior marriage was terminated before applying the validity
of the last marriage presumption.
POMS GN ATL00305.0305 Presumption Validity of Last Marriage (PVLM) provides that,
in order to determine whether the prior marriage terminated or continued, the whereabouts
of the parties to a prior marriage must be traced from the time of separation to the
date of the insured's death.
Thus, a presumption that the prior marriage terminated and the current marriage is
valid is applied "[o]nly if the whereabouts of the parties cannot be traced for the
entire period in question, thus, making it impossible for all divorce records to be
searched." POMS GN ATL00305.0305. See also POMS GN 00305.040 Development - Presumption of Validity of Last Marriage (stating that if the information
obtained covers all of the involved parties' places of residence from the date of
separation until death and the evidence shows the marriage did not terminate, presumption
of validity of last marriage cannot be applied).
The POMS also directs that certain evidence is required where two persons claim to
be a worker's surviving spouse, as is the case here. See POMS GN 00305.050. Evidence required from both the previous spouse and the latest spouse includes,
in part, "written confirmation of the spouse's statement from persons likely to know
the facts, including: the places the worker lived, and when, from the date of the
marriage to the claimant until the date of death; any information they have about
the possible termination of the marriage; and the basis of their knowledge of the
facts." POMS GN 00305.050(1)(c), (2)(c).
In this case, we have statements only from the interested parties, Carolyn and Sandra.
Accordingly, if necessary, evidence from other individuals may assist SSA in obtaining
evidence concerning the dissolution of Carolyn's marriage to NH.
B. A Virginia Court Would Likely Find that Sandra Could Not Inherit a Widow's Share
of NH's Personal Property Sandra would be entitled to widow's benefits upon a finding
that Virginia courts would determine that she could inherit a widow's share of NH's
personal property if he were to die without leaving a will. 20 C.F.R. § 404.345. Under
Virginia law, a surviving spouse is entitled to a share of the spouse's personal property
if the deceased spouse dies without leaving a will. Va. Code Ann. § 64.111. Virginia
does not statutorily define "surviving spouse" nor is that term defined in Virginia's
Nevertheless, we believe that Virginia would probably decline to find that Sandra
is the "surviving spouse" for purposes of inheriting NH's personal property if it
is proven that she was not validly married to him at the time of his death.
C. A "Deemed Valid Marriage" Does Not Exist Between Sandra and NH In this case, Sandra
cannot establish all of the criteria necessary to qualify for benefits under the deemed
valid marriage provision of the Act.
Although Sandra participated in a ceremonial marriage with NH in good faith, and was
unaware that he was previously married, she was not living in the same household with
him when he died. Sandra and NH separated in 1994 and lived in different cities until
his death ten years later. See POMS RS 00210.035 (providing that living in same household (LISH) requirement cannot be established
where parties were apart due to incompatibility, ill treatment or other domestic difficulty).
Thus, the Commissioner would not deem their marriage valid at the time of NH's death
in January 2004.
Furthermore, a deemed marriage between Sandra and NH cannot be established based upon
Virginia law. Virginia recognizes that the belief of the parties to a lawful marriage
can validate certain defects in the marriage. Va. Code Ann. § 20-31. However, this
exception applies only when the person solemnizing the marriage lacked the legal authority
to do so or when the marriage license is defective or absent. Va. Code Ann. § 20-31.
We have found no authority in Virginia which otherwise recognizes the putative spouse
doctrine, which enables a second spouse to enjoy many of the rights of an actual spouse
when he or she entered into a good faith ceremonial marriage even though the marriage
was not valid. See, e.g., W~ v. W~, 97 P.3d 1124, 1128 (Nev. 2004) (explaining the putative spouse doctrine).
Therefore, Sandra could not show that she was legally married to NH or his putative
For the reasons discussed above, we believe that complete development regarding whether
the marriage between NH and Carolyn terminated or continued is necessary. The answer
to that issue dictates whether NH's subsequent marriage to Sandra was valid and whether
Sandra may receive widow's benefits based upon her relationship to NH.
We hope that the above information has sufficiently answered your inquiry. We would
be happy to revisit this matter once complete development has concluded.
Donna L. C~
Regional Chief Counsel
By: Maija P~
Assistant Regional Counsel