TN 25 (04-16)

PR 05005.054 West Virginia

A. PR 16-076 Entitlement to Surviving Spouse Benefits – Overlapping Marriages

DATE: January 28, 2016

1. Syllabus

The Claimant married the NH in California in August of 1976. The Claimant knew she was not divorced from the NH, but she entered into a second marriage in California in 1982. The Claimant divorced her second spouse in California in 1990. The NH died in West Virginia in August 2004. Neither marriage was contracted in West Virginia, but in the state of West Virginia, the law of the jurisdiction in which a marriage was contracted or celebrated governs the validity of the marriage.

In California, a subsequent marriage contracted during the life of a former husband, is illegal and void from the inception unless the former marriage was dissolved or adjudged a nullity. There is no question that Claimant’s marriage to the NH was valid under California law at inception, so it was also valid under West Virginia law. Under California and West Virginia law, because Claimant never divorced the NH, she remained validly married to him until his death. Accordingly, Claimant is entitled to surviving spouse benefits on the NH’s account.

2. Opinion

QUESTION

You asked whether the Claimant, K~, is entitled to surviving spouse’s benefits on the record of her first husband, deceased wage earner (DWE) K2~, where Claimant never divorced the DWE but subsequently married and divorced R~ prior to the DWE’s death.

SHORT ANSWER

Yes. Under California and West Virginia law, because Claimant never divorced the DWE, she remained validly married to him until his death. Accordingly, Claimant is entitled to surviving spouse benefits on the DWE’s account.

SUMMARY OF EVIDENCE

On August XX, 1976, Claimant married the DWE in V~, California. Claimant alleges they lived together in V~ until the military transferred the DWE to Korea in 1977, and Claimant had no communication with him after 1978.

Claimant alleges that although she knew she was not divorced from the DWE, she entered into a second marriage with R~ on February XX, 1982 in Oakland, California. Claimant explained that she had no way to locate the DWE at that time, and she and R~ were planning to have a baby. Claimant reported telling R~ she divorced the DWE. Claimant lived with R~ in San Lorenzo, California from February XX, 1982 until May XX, 1990. On December XX, 1990, Claimant divorced R~ in H~, California.

On August XX, 2004, the DWE died in W~, West Virginia. The City of W~ straddles Brooke and Hancock Counties. The DWE’s death certificate lists him as divorced; and Claimant alleges that the DWE’s brother erroneously reported the DWE’s marital status as divorced.

On April XX, 2015, Claimant filed for surviving spouse’s benefits on the DWE’s record. She submitted letters from Brooke and Hancock Counties in West Virginia, and from Alameda, Riverside, and San Bernardino Counties in California, showing no divorce on file between Claimant and the DWE.

ANALYSIS

Under the Social Security Act (Act), the widow1 of an insured individual is entitled to widow’s insurance benefits if she applies for such benefits, meets the age and/or disability requirements set forth in the Act, and is not married. Social Security Act § 202(e); 42 U.S.C. § 402(e); see also 20 C.F.R. § 404.335 (requirements for widow’s benefits); Program Operations Manual System (POMS) RS 00207.001 (definitions and requirements for widow’s benefits).2 Claimant’s entitlement to widow’s benefits on the record of her first husband, the DWE, depends on whether Claimant remained validly married to the DWE until he died despite her intervening, and allegedly bigamous, marriage to R~. If so, Claimant qualifies as the DWE’s widow and is entitled to benefits on his earnings record.

To determine a claimant’s status as the widow of an insured person under the Act, the agency must consider whether the courts of the State where the insured was domiciled would find that the claimant and the insured were validly married at the time of the insured’s death. See Social Security Act § 216(h)(1)(A), 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. Since the DWE’s domicile at death was in West Virginia, we apply West Virginia law. See id.

In West Virginia, a subsequent and allegedly bigamous marriage was void ab initio (from the beginning) under common law, but later became only voidable based on statutory law. Sledd v. State Compensation Com’r, 111 W.Va. 509, 510-11 (1932). Thus to annul an allegedly bigamous marriage in West Virginia, an order or decree must be entered in a court of competent jurisdiction. Harvey v. Harvey, 171 W.Va. 237, 243 (1982); see also W.Va. Code § 48-3-103.

Here, though, neither marriage was contracted in West Virginia—Claimant married both the DWE and R~ in California. In West Virginia, the law of the jurisdiction in which a marriage was contracted or celebrated governs the validity of the marriage. Matter of Estate of Foster, 376 S.E.2d 144, 147 (W.Va. 1988) (citing Meade v. State Compensation Com’r, 125 S.E.2d 771, 777 (W.Va. 1962)); see also POMS PR 05005.054.A; cf. W. Va. Code. § 48-2-602 (West Virginia law may govern an out of state marriage where the marriage is contracted with a West Virginia resident and (1) the marriage would be voidable under West Virginia law, (2) the parties contracted the marriage with the purpose of evading West Virginia law, and (3) the parties intended to return and reside in West Virginia). Accordingly, although Claimant’s second marriage would not be void ab initio under West Virginia law, California law is dispositive in determining whether Claimant remained validly married to the DWE at the time of his death.In California, a subsequent marriage contracted during the life of a former husband, is illegal and void from the inception unless the former marriage was dissolved or adjudged a nullity; the former spouse was absent and not known to the person to be living for the 5 years immediately preceding the subsequent marriage; or the former spouse was generally reputed or believed by the person to be dead at the time the subsequent marriage was contracted. Cal. Fam. Code § 2201.

This rule is in tension with another California rule that when a person has entered into two successive marriages, the second marriage is presumed valid and the burden is on the party attacking the validity of the second marriage to prove that the first marriage was never dissolved. See Vargas v. Superior Court, 88 Cal. Rptr. 281, 283 (Cal. Ct. App. 1970). The presumption can be overcome through evidence from the relevant jurisdictions showing that no divorce was granted for the first marriage—though such evidence is not necessary to overcome the presumption in every case. Id. at 283-84.

There is no question that Claimant’s marriage to the DWE was valid under California law at inception, so it was also valid under West Virginia law. The only question, then, is whether Claimant’s intervening marriage to R~ invalidated the first marriage, or if any other evidence proves that her first marriage otherwise ended before the DWE’s death.

When Claimant married R~, the DWE was absent for approximately four years, and Claimant does not allege that she believed the DWE died prior to her marriage to R~. Thus, under California law, Claimant’s subsequent marriage to R~ was void ab initio. Any presumption in favor of the validity of the second marriage is overcome by reports from the superior courts of the relevant counties certifying that no record exists of a divorce between Claimant and the DWE.3

Therefore, under California law, absent evidence that Claimant divorced the DWE,4 Claimant’s marriage to R~ was void, and Claimant remained validly married to the DWE until the date of his death.

CONCLUSION

The Claimant is entitled to surviving spouse’s benefits on the DWE’s record because her second marriage to R~ was void from its inception, and she remained validly married to the DWE under California and West Virginia law.

Deborah Lee Stachel

Acting Regional Chief Counsel, San Francisco

B. PR 06-128 Whether a Marriage in Jamaica is Recognized Under the Law of West Virginia and Whether that Marriage can be the basis for a legal name change. Number Holder: C~ SSN: ~ Married in Montego Bay, St. James Parish, Jamaica on March XX, 2006

DATE: May 8, 2006

1. SYLLABUS

Under West Virginia law, the validity of the marriage is dependent on whether the marriage would be considered valid under Jamaican law. The Certified Copy of Marriage Register submitted serves as evidence of a valid marriage in Jamaica because the parties had to first perform certain acts before the Marriage Officer entered the marriage in the Marriage Register. Therefore, West Virginia law would consider the marriage valid.

2. OPINION

QUESTION PRESENTED.

On April 26, 2006, you asked for an opinion as to whether a marriage that was conducted in Jamaica would be recognized under the law of West Virginia and whether that marriage could be the basis for a legal name change.

CONCLUSION

Based on our review of the facts of this case and our research of the relevant West Virginia and Jamaica statutes and case law, we have determined that the number holder's Jamaican marriage would be recognized under the law of West Virginia and could be the basis for a legal name change.

BACKGROUND

In your request, you indicated that the number holder, C~, was married to O~ in Montego Bay, St. James Parish, Jamaica on March XX, 2006. The number holder and O~ are both legal residents of M~, West Virginia. The number holder filed an application for a name change to C~ on her social security number (NUMI) on April XX, 2006. With this application she submitted a West Virginia driver's license with the surname of Y~. As evidence of her new name, the number holder submitted her Jamaican marriage registration.

DISCUSSION

A. Name Change Request Based on Marriage in a Foreign Country

As you noted in your request for a legal opinion, a marriage document issued by a foreign jurisdiction is not presumed evidence of a legal name change for Social Security purposes. POMS RM 00203.200H.2.d. This is because a United States state may not recognize a marriage performed in a foreign country and not all cultures and countries treat marriage as an event to legally change a name. Id.

When a United States resident files an application for a name change based on a marriage that occurred in a foreign country, whether SSA will change the applicant's legal name on his/her Social Security card depends on the laws of the state where he or she resides. POMS RM 203.210B.1.d. If the state of residence recognizes the marriage, we assume it applies its own state law for a legal name change because of foreign marriages also. Id. As stated earlier, the number holder resides in West Virginia. Thus, it is necessary to determine whether West Virginia law would recognize as valid the Jamaican marriage between the number holder and O~~.

B. West Virginia State Law Would Consider the Jamaican Marriage Valid.

West Virginia's statutes and case law do not directly address whether a marriage performed in another country would be recognized as legal in West Virginia. However, as a general principle, West Virginia case law recognizes that the validity of a marriage must be tested by the laws of the jurisdiction in which it was contracted or celebrated. Meade v. State Compensation Com'r, 125 S.E.2d 771, 777 (W.Va. 1962); State v. Austin, 234 S.E.2d 657, 663 (W.Va. 1977). Accordingly, the validity of the marriage between the number holder and O~ is dependent on whether their marriage would be considered valid under Jamaican law.

Jamaican law authorizes the issuance of special licenses for the marriages of non-residents. See Paragraph 22 of the Jamaican Marriage Act. www.moj.gov.jm. After the issuance of such a license, marriage may be solemnized between the parties provided that (a) the marriage is solemnized in the presence of a Marriage Officer and two witnesses between the hours of six a.m. and eight p.m.; (b) the license is first delivered to the Marriage Officer by or before whom the marriage is solemnized; (c) in some part of the ceremony each of the parties declare that there is no legal impediment to the marriage of one another; and (d) there is no lawful impediment to the marriage of the parties. Paragraph 27 of the Jamaican Marriage Act. Immediately after the ceremony, the Marriage Officer before whom it is solemnized shall enter the marriage in a Marriage Register Book to be kept by him and in duplicate for filing with the General Register Office. Paragraphs 31-32, 39 of the Jamaican Marriage Act.

In this case, the Certified Copy of Marriage Register submitted by the number holder serves as evidence of a valid marriage in Jamaica because the parties had to first perform certain acts before the Marriage Officer entered the marriage in the Marriage Register. Accordingly, the number holder's marriage to O~ in Jamaica would be considered to be valid under West Virginia law as it was valid under Jamaican law.

C. The Jamaican Marriage Register is an Acceptable Document of Sufficient Probative Value to Change the Number Holder's Name on Her Social Security Card.

West Virginia recognizes ceremonial marriages as a basis for a legal name change and a marriage certificate would be recognized as proof that a legal name change has occurred. The County Clerk's Office of Monongalia County advised our office by telephone that a foreign marriage would be considered a basis for a legal name change in West Virginia. The West Virginia Department of Transportation, Division of Motor Vehicles, requires that an applicant for a driver's license or an identification card correct his or her name with the Social Security Administration before a driver's license or identification card will be issued in the desired name. See www.wvdot.com.

Beginning in December 2005, an applicant must meet specific evidentiary requirements to change the name on his/her Social Security card. POMS RM 00203.001A. In name change situations, the applicant must submit the name change document (the document that shows the name change event). Id. For a marriage document or marriage record to suffice as an acceptable identity document it must show, in addition to the new name, biographical information that can be compared with the data on the application for a name change and/or physical information that can be compared with the applicant. POMS RM 0203.200G.2; POMS RM 00203.210B.

In this case, we believe that the Jamaican Marriage Register alone is an acceptable identity document supporting the legal name change on the number holder's social security card. The Marriage Register contains biographical information (age) in addition to the number holder's legal name which can be compared with the data on her application for a name change. While the Marriage Register does not include the "new name", we note that SSA issued guidance on January 13, 2006, stating that SSA "can accept a marriage document as a legal name change document if the new name can be derived from the marriage document" so long as the document contains the required biographical information. See National Question & Answer Tracking number 06-007 (electronically accessible via link from POMS RM 00203.210). Inasmuch as the requested name change to "C~" can be easily derived from the names of C~ and O~, and the document contains biographical information in the form of the number holder's age, we believe that the marriage certificate is sufficient evidence for the number holder's name change.

CONCLUSION

For the reasons stated above, it is our opinion that C~ marriage in Jamaica would be considered valid in West Virginia and should be considered a basis for a legal name change. It is our further opinion that the Jamaican Marriage Register is an acceptable document of sufficient probative value allowing SSA to change C’s~ name on her Social Security Card to C~.

Donna L. C~
Regional Chief Counsel

By:__________________________
Heather B~
Assistant Regional Counsel

C. PR 02-065 Validity of Marital Relationship Between B~ and M~, SSN: ~

DATE: April 3, 2002

1. SYLLABUS

Maryland law would apply in assessing the validity of the subsequent marriage of the claimant for father's benefits. However, Maryland law provides that a marriage is valid if it is valid under the law of the jurisdiction iin which it was celebrated unless it is contrary to the public policy of Maryland. Unless it is proven that the claimant's spouse's prior marriage was not valid because he was married to someone else, the claimant's marriage would most likely be valid under West Virginia law, but is against public policy of the State of Maryland. If it is proven that the claimant's spouse's prior marriage was invalid, her marriage to the claimant would be valid, and his father's benefits were correctly terminated.

NOTE: Additional development must be done in this case to determine whether the claimant's spouse's prior marriage was valid.

2. OPINION

QUESTION PRESENTED.

On February XX, 2002, you asked us for a legal opinion on which state's law would apply regarding the marital relationship of B~ and M~. You also asked for an opinion as to whether the marriage would be valid under applicable law.

SUMMATION

Based on our review of the facts in this case and our research of the relevant statutes and case law, we believe that Maryland law would apply in assessing the validity of the marriage of B~ and M~. However, Maryland law provides that a marriage is valid if it is valid under the law of the jurisdiction in which it was celebrated unless it is contrary to the public policy of Maryland. The marriage of M~ and B~ would most likely be valid under West Virginia law, but is against public policy of the state of Maryland. Accordingly, the marriage of M~ and B~ would not be valid under Maryland law.

BACKGROUND

In your request, you stated that M~ was married to M2~ in June 1997 in Kentucky. They ceased cohabitation as man and wife in July 1999, but did not obtain a divorce until June 2001. M~ alleges that her marriage to M2~ was not valid because he was married to another individual who was alive at the time of his marriage to M~.

B~ filed an application for father's benefits on the account of his first wife, B2~, in July 1998. He was awarded benefits beginning in June 1998. On August XX, 1999, B~ married M~ in West Virginia. B~ continued to cohabit with M~ after her divorce from M2~. B~ continued to receive father's benefits on the account of his first wife, B2~, through November 2001.

Both B~ and M~ currently live in Maryland.

DISCUSSION

Marriage of M~ and M2~

In order to determine whether the marriage of M~ and B~ was valid, we must first determine whether M~ was legally married to another individual, M2~, at the time of her marriage to B~.

A claimant's marital status is determined under the law of the jurisdiction in which he resides on the date of his application for benefits. 42 U.S.C. § 416(h)(1)(A)(i). B~ was a resident of Maryland when he applied for father's benefits. Accordingly, Maryland law applies in assessing B~'s marital status.

Maryland law and social security policy provides that a marriage is valid everywhere if it is valid in the state in which it was celebrated. United States v. Seay, 718 F.2d 1279, 1285 n.10 (4th Cir. 1983); Blaw-Knox Construction Equipment Co. v. Morris, 596 A.2d 679, 685-86 (Md. Ct. Spec. App. 1991); POMS GN 00305.005. Accordingly, the marriage of M~ and M2~ is valid in Maryland if it was valid in Kentucky, where the marriage was celebrated.

If M2~ was in fact married to another individual at the time he married M~, then his marriage to M~ was void. Ky. Rev. Stat. Ann. § 402.020 (Banks-Baldwin 1998); Ferguson v. Ferguson, S.W.2d 925, 926-27 (Ky. Ct. App. 1981). In other words, Kentucky law does not require a judicial decree of nullity for bigamous marriages. If M~ can provide proof that M2~ was already married at the time of their June 1997 wedding, then her first marriage was void and she was never legally married to M2~. Proof of M2~'s alleged conviction for bigamy would establish that M2~ was already married at the time he attempted to marry M~.

If M~ cannot provide proof that M2~ was legally married to another individual at the time of their June 1997 wedding, then her marriage to M2~ would be presumed to be legal under Kentucky law. Griffin v. Beddow, 268 S.W.2d 403, 404-05 (Ky. 1954); see Scott's Adm'r v. Scott, 77 S.W. 1122, 1124-25 (Ky. 1904) (holding that there is a favor in presumption of the legitimacy of a second marriage absent evidence of bigamy).

Marriage of B~ and M~

If M~'s marriage to M2~ was void, then there is no doubt that her marriage to B~ was valid. Maryland law would again apply, directing that a marriage is valid everywhere if it is valid in the state where it was celebrated. Blaw-Knox, 596 A.2d at 685-86; POMS GN 00305.005. B~ and M~ were married in August 1999 in West Virginia. West Virginia law would provide no impediment to the marriage of M~ and B~ if M~'s earlier marriage to M2~ was void under Kentucky law.

If M~'s earlier marriage to M2~ was not void, then her second marriage to B~ would be voidable, not void, under West Virginia law. W. Va. Code § 48-3-103 (2001); Spradlin v. State Compensation Comm'r, 113 S.E. 2d 832, 834-35 (W. Va. 1960). Accordingly, her marriage to B~ would remain valid until a judicial decree of nullity was rendered. W. Va. Code § 48-3-103 (2001); Harvey v. Harvey, 298 S.E. 2d 467, 470-71 (W. Va. 1982). There has been no such decree in this case. In fact, B~ and M~ have continued to live together as husband and wife at all times after their August 1999 marriage. In addition, West Virginia law presumes that a marriage is valid absent clear evidence to the contrary. Meade v. State Compensation Comm'r, 125 S.E. 2d 771, 775-76 (W. Va. 1962). Accordingly, even absent proof that the marriage of M~ and M2~ was void, the marriage of B~ and M~ would be valid under West Virginia law.

However, a caveat to Maryland matrimonial law may render the West Virginia marriage of B~ and M~ invalid in Maryland despite the fact that it would be valid under West Virginia law. Maryland law provides that a marriage is valid if it is valid where celebrated unless it violates public policy of the state in which it is subjected to attack. Henderson v. Henderson, 87 A.2d 403, 409 (Md. 1952). Two examples of such violations of public policy are (1) "marriages which are deemed contrary to the law of nature as generally recognized in Christian countries; such as polygamous and incestuous marriages"; and (2) "marriages which the local lawmaking power has declared shall not be allowed any validity." Id. A bigamous marriage, which is a form of polygamous marriage, would therefore be in violation of the public policy of Maryland and would not be considered valid regardless of whether it was valid in the state of West Virginia. Accordingly, under controlling Maryland law, the marriage of B~ and M~ would not be valid because M~'s marriage to M2~ had not been dissolved when she married B~ in 1999.

Two possible issues remain. The first issue is whether M~ and B~ could establish a common law marriage after her divorce from M2~ in June 2001. Maryland does not permit common law marriages, but will recognize common law marriages that meet the requirements for a common law marriage in the state in which the common law marriage was contracted. Goldin v. Goldin, 426 A.2d 410, 412-13 (Md. Ct. Spec. App. 1981); Blaw-Knox, 596 A.2d at 686. West Virginia law does not permit common law marriages.

W. Va. Code § 48-2-101 (2001); Goode v. Goode, 396 S.E.2d 430, 432-35 (W. Va. 1990). Accordingly, B~ and M~ do not have a valid common law marriage under Maryland law.

The second question is whether the agency would deem B~ and M~ married. However, social security regulations appear to allow the agency to deem a valid marriage only in order to award social security benefits, not to terminate social security benefits. 42 U.S.C. § 216(h)(1)(A)(ii), (B); 20 C.F.R. § 404.346 (2001). Accordingly, there does not appear to be any basis for deeming B~ married to M~.

CONCLUSION

Based on the evidence currently available, M~'s marriage to M2~ would be presumed valid until proven void by M~. Accordingly, she was married to M2~ at the time she attempted to marry B~. Her marriage to B~ is voidable under West Virginia law, but has not been voided. Nonetheless, her marriage to B~ would be invalid under Maryland law because it is against public policy. Therefore, M~ and B~ are not married under Maryland law.

B~'s benefits should not have been terminated because he was not remarried under controlling law.

If evidence is submitted showing that M~ was married to another living individual at the time that he purported to marry M~, then the marriage of M2~ and M~ would be void and invalid. Accordingly, there would be no impediment to the marriage of M~ and B~. If such evidence is obtained, B~'s benefits would have been appropriately terminated as of the date of his remarriage in August 1999.

James A. W~
Regional Chief Counsel

By:__________________________
Kelly C. C~
Assistant Regional Counsel


Footnotes:

[1]

. The Act defines a widow as the surviving wife of an individual who either is the mother of the individual’s child or was married to the individual for a period of not less than nine months immediately prior to his death. Social Security Act § 216(c); 42 U.S.C. 416(c). Claimant and the DWE have no children. However, assuming their marriage was still intact at the time of the DWE’s death, the marriage was of the requisite duration.

[2]

. For purposes of this opinion, we will assume Claimant meets the other requirements for entitlement if her marriage to the DWE was still valid at the time of the DWE’s death.

[3]

. The relevant counties include the California counties where Claimant and the DWE married and resided together before the DWE left for Korea (Riverside and San Bernardino counties), the county where she married and resided with R~ (Alameda county), and the West Virginia counties where the DWE resided at the time of his death (Brooke and Hancock counties).

[4]

. The only evidence tending to show that Claimant and the DWE divorced comes from the DWE’s death certificate, which lists the DWE as divorced. In West Virginia, the personal data listed on a death certificate is obtained from the next of kin rather than from any official source. See W.Va. Code § 16-5-19(b). This is consistent with Claimant’s allegation that the DWE was listed as divorced based on the DWE’s brother’s unconfirmed report. Thus, the notation on the death certificate is of minimal probative value.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1505005054
PR 05005.054 - West Virginia - 05/09/2016
Batch run: 05/09/2016
Rev:05/09/2016