TN 43 (01-18)
PR 05005.052 Virginia
A. PR 18-022 Validity of Second Marriage under North Carolina Law
Date: November 27, 2017
The number holder (NH) died in Virginia, but the NH was a resident of North Carolina; therefore, we look to the North Carolina law to determine if the Claimant and the NH were validly married. The North Carolina court reviewing the Virginia law would find the purported marriage between NH and Claimant was void from the outset because on the date of the marriage as set out on the marriage license. The NH and Claimant were not validly married under the Virginia law and a North Carolina court reviewing these facts would not recognize their purported marriage as valid. Since the NH was still married to his first wife, the Claimant would not be eligible as the NH’s legal widow to receive WIB or the LSDP on the NH’s earnings record under the Act. Likewise, the Claimant would not be considered the NH’s legal spouse for the purpose of establishing eligibility for stepchild benefits under the NH’s account for her two children from a previous marriage. Although the Claimant does not qualify as the NH’s legal widow under the North Carolina law, the Agency could find the Claimant to be a deemed widow entitling her to survivors’ benefits provided the proper development of the record pursuant to POMS GN 00305.055C.1.
You asked whether the purported marriage between number holder M~ (NH) and K~ (Claimant) was valid for the purposes of surviving spouse and stepchild benefits on NH’s earnings record under the Social Security Act (Act).
The purported marriage between NH and Claimant was not valid under state law for the purposes of survivors’ benefits on NH’s earnings record under the Act. Nevertheless, the Agency could find Claimant to be a deemed widow entitling her to survivors’ benefits if after proper development of the evidence, the criteria of POMS GN 00305.055.C.1 is met.
On August XX, 2015, the Circuit Court of N~, Virginia issued a final decree of divorce, dissolving the marriage of NH and his first wife, V~ (V~). There was one minor child of the marriage, J.D.B., born in 2008. The divorce decree indicated that NH and V~ had been lawfully married since 1994. The Circuit Judge signed the divorce decree on August XX, 2015. The N~ Circuit Clerk received and signed the decree on the same day.
Five days earlier, on August XX, 2015, the P~ County, Virginia Registrar’s Office issued a marriage license naming NH as the groom and Claimant as the bride. The Marriage Commissioner for the Circuit Court of N~ County, Virginia signed the marriage license on August XX, 2015. The date of the marriage was listed on the document as August XX, 2015, and the Marriage Commissioner certified that he joined NH and Claimant in marriage on August XX, 2015. The marriage license was filed with the clerk of court on August XX, 2015.
NH died on July XX, 2017, in M~, Virginia. The Virginia death certificate listed NH’s residence at the time of his death as K~, North Carolina. The death certificate indicated that NH was married at the time of his death and listed his wife as Claimant.
Following NH’s death, Claimant filed for the Lump Sum Death Payment (LSDP) and survivor’s benefits for herself as NH’s widow and for NH’s two stepchildren, Claimant’s children from a prior marriage.
Under the Act, a claimant may be eligible for widow’s insurance benefits (WIB) if she is the widow of an individual who died a fully insured individual. See Act § 202(e)(1); 20 C.F.R. § 404.335 (2017); Program Operations Manual System (POMS) RS 00207.001A.1 A claimant also may be eligible for the LSDP if she is the widow of an individual who died fully or currently insured. See Act § 202(i); 20 C.F.R. §§ 404.390, 404.391; POMS RS 00210.001B. A claimant may qualify as the widow of an insured individual for purposes of WIB or the LSDP if the claimant was validly married to the insured individual under the laws of the state where the insured individual was domiciled when the individual died. See Act § 216(c)(1), (h)(1)(A)(i); 20 C.F.R. §§ 404.335(a), 404.344, 404.345, 404.391(a); POMS RS 00207.001A.1.a; POMS RS 00210.001C. Even if an applicant is determined not to be the legal widow of the insured individual under the laws of the state where he was domiciled at the time of his death, she may still be eligible for benefits as a “deemed widow” if:
“such applicant in good faith went through a marriage ceremony with such individual resulting in a purported marriage between them which, but for the legal impediment not known to the applicant at the time of such ceremony would have been a valid marriage, and such applicant and the insured individual were living in the same household at the time of [his] death . . . .”
Section 216(h)(1)(B)(i) of the Act; POMS GN 00305.055. NH’s death certificate indicates he was a resident of North Carolina when he died. Therefore, we look to North Carolina law to determine if Claimant and NH were validly married when NH died.
Under North Carolina law, a valid marriage is created when two persons who may presently lawfully marry consent to marry in the presence of one another either in the presence of an ordained minister, a minister authorized by a church, or a magistrate, and the minister or magistrate consequently declares that the persons are married. See N.C. Gen. Stat. Ann. § 51-1 (West 2017). “To constitute a valid marriage in [North Carolina], the requirements of [N.C. Gen. Stat. Ann. § 51-1] must be met.” State v. Lynch, 272 S.E.2d 349, 353 (N.C. 1980). To determine the validity of a purported marriage that occurred in another state, the North Carolina courts will defer to the other state’s law. See State v. Lynch, 272 S.E.2d 349, 353 (N.C. 1980) (“The question of [a marriage’s] validity must be determined by the law of the state in which the ceremony was performed”). As noted above, because the purported marriage between NH and Claimant took place in Virginia, a North Carolina court determining the validity of the marriage would look to Virginia law.
A marriage entered into prior to the dissolution of an earlier marriage is prohibited under Virginia law. See VA Code Ann. § 20-38.1(a) (West 2017). “All marriages that are prohibited by [VA Code Ann.] § 20-38.1 are void.” VA Code Ann. § 20-45.1 (West 2017); see also Levick v, MacDougall, ___ S.E.2d ___, 2017 WL 4979772, at *6 (Va. 2017) (stating VA Code Ann. § 20-38.1 declares bigamous marriages “absolutely void”). Further, a person commits bigamy when being married, during the life of their husband or wife, they marry another person. VA Code Ann. § 18.2-362 (West 2017); see also Stuart v. Commonweath, 397 S.E.2d 533, 534 (Va. App. 1990) (discussing the criminal offense of bigamy and holding “a reasonable belief that a prior marriage has been ended by divorce is not a defense to the charge of bigamy”). “Virginia follows the traditional view that ‘a bigamous marriage is void ab initio’ and yet ‘persons who engage in such a marriage may be subject to criminal prosecution.’” Cole v. Commonwealth, 712 S.E.2d 759, 763 (Va. App. 2011) (quoting Hager v. Hager, 349 S.E.2d 908, 909 (1986)).
In the present case, a North Carolina court reviewing Virginia law would find the purported marriage between NH and Claimant was void from the outset because on the date of the marriage as set out on the marriage license, August XX, 2015, NH was still married to his first wife V~. See Lynch, 272 S.E.2d at 353; VA Code Ann. § 20-45.1 (West 2017). Further, neither the subsequent granting of NH’s divorce from his first wife V~ by the N~ Circuit Court on August XX, 2015, nor the filing of the new marriage license by the N~ County Clerk on August XX, 2015, was effective to validate the void marriage between NH and Claimant. See VA Code Ann. § 20-38.1(a) (West 2017). Because NH and Claimant were never validly married under Virginia law, a North Carolina court reviewing these facts would not recognize their purported marriage as valid. Therefore, Claimant would not be eligible as NH legal widow to receive WIB or the LSDP on NH’s earnings record under the Act. See Act §§ 202(e)(1), (i), 216(c)(1); 20 C.F.R. §§ 404.335(a), 404.344, 404.345, 404.391(a).
Likewise, Claimant would not be considered NH’s legal spouse for the purpose of establishing eligibility for stepchild benefits under NH’s account for her two children from a previous marriage. A claimant may be eligible for child insurance benefits as the stepchild of an individual who died fully or currently insured, after their birth, the claimant’s natural parent married the insured. See Act §§ 202(d)(1), 216(a)(2); 20 C.F.R. § 404.357. The marriage between the insured and the natural parent of the claimant seeking benefits as the stepchild of the insured must be a valid marriage under state law. See 20 C.F.R. § 404.357. As discussed above, NH and Claimant were not validly married under Virginia law and a North Carolina court reviewing these facts would not recognized their purported marriage as valid. Therefore, Claimant’s children from her previous marriage would not meet the criteria for stepchild benefits on NH’s earnings record under the Act.
Finally, although Claimant does not qualify as NH’s legal widow under North Carolina law, the Agency could nevertheless find her eligible for benefits as a “deemed widow,” assuming the procedures set out in POMS GN 00305.055.C.1 were applied for developing the record on such a relationship. Those procedures require the Agency to develop documentation of a ceremonial marriage that Claimant entered into in good faith and proof that NH and Claimant were living together in the same household at the time of NH’s death. See POMS GN 00305.055.C.2 - C.4. The information provided suggests that evidence may exists to determine Claimant’s status as a deemed widow, but the field office would need to further develop the record in accordance with this POMS section to make that determination.
The purported marriage between NH and Claimant was not valid under state law for the purposes of survivors’ benefits on NH’s earnings record under the Act. However, the Agency could find Claimant to be a deemed widow entitling her to survivors’ benefits provided the proper development of the record pursuant to POMS GN 00305.055.C.1.
B. PR 05-137 (Virginia) Validity of Marital Relationship Between Number Holder (Howard W~) and Sandra W~, SSN ~
Date: April 20, 2005
The Agency must determine if the NH's prior marriage terminated before applying the validity of the last marriage presumption. Under Virginia law, if it is proven that the last spouse was not validly married to the NH at the time of his death, the law would probably decline to find the spouse the "surviving spouse" for purposes of inheriting NH's personal property if he were to die without leaving a will. The last marriage does not meet the criteria necessary to qualify for benefits under the deemed valid marriage provision of the Act or under Virginia law. A deemed valid marriage is created only if the parties to the marriage were living in the same household when the NH died (§404.346).
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 case law.
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 spouse.
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
Our office consulted with the Program Support Team (PST) on November XX, 2017, to clarify whether NH and Claimant had a natural child. The PST informed us that NH and Claimant did not have a natural child together. Other than having a natural child J.D.B. from his first marriage, a fact that is not in dispute, the only other children’s claims on NH’s account were for the two stepchildren, G.B. and A.B., Claimant’s children from a previous marriage.
All references to the Code of Federal Regulations are to the 2017 edition.
All conclusions in this opinion related to Virginia law are based on guidance from the Office of the Regional Chief Counsel for Region III.