To determine the validity of the number holder’s (NH’s) marriage to the Claimant, we apply the laws of the state where the NH was domiciled at the time the Claimant filed her application. The NH was domiciled in Illinois at the time the Claimant applied for benefits. The NH married the Claimant in Alabama in 1968. Illinois recognizes a marriage that was validly contracted in another state; therefore, Illinois courts would look to Alabama law to determine whether the marriage between the NH and the Claimant was valid when contracted. Here, the evidence shows that the NH married the Claimant in Alabama in 1968. The marriage certificate for the NH and the Claimant shows that the couple went through a marriage ceremony and cohabited after their marriage ceremony. Based on the current evidence, the Claimant should be considered the NH’s wife because her marriage to the NH is presumed to be valid under Alabama law, and thus would be recognized by Illinois.

QUESTION PRESENTED

You asked whether the claimant, A~, who married the number holder (NH), E~, in Alabama, is entitled to wife’s benefits on the NH’s account. At the time A~ applied for benefits, both she and the NH were domiciled in Illinois.

SHORT ANSWER

As relevant here, to establish her relationship as the NH’s wife, A~ must show that, under applicable state law, she has a valid marriage to the NH or qualifies as a putative spouse. For the reasons discussed below, we conclude that, based on the current evidence, A~’s marriage to the NH is presumed to be valid under Alabama law, and thus would be recognized by Illinois. This conclusion, however, is subject to change depending on the outcome of further development of the evidence. In the event that further development produces evidence that sufficiently rebuts the presumption, A~ alternatively may be able to establish her status as the NH’s putative spouse under Illinois law. You may also develop and establish a putative marriage if it is more convenient than undertaking the development to determine whether the presumption of validity of the last marriage applies.

BACKGROUND

The NH married L~ in M~ County, Alabama in August 1964. In June 1968, the NH and A~ were married in G~ County, Alabama. On their marriage certificate, the NH was listed as divorced. At some point thereafter, the NH and A~ moved from Alabama to Illinois.

In September 2007, the NH applied for retirement and disability benefits. On his applications, the NH stated that he divorced L~ in Alabama in 1966. He stated that he was married to A~. In August 2010, the NH applied for SSI. He stated that he was married to A~ and that he lived alone.

L~ applied for and was awarded wife’s benefits on the NH’s account beginning September 2011. On her application, L~ stated that she was not currently married. L~ also applied for retirement benefits in October 2011, at which time she reported that she was married to the NH.

In September 2015, A~ applied for wife’s benefits on the NH’s account. On her application, A~ stated that she married the NH in 1968 and that they had separated after 17 years of marriage but had never divorced.

According to a Report of Contact dated October 2015, the Chicago East Field Office (field office) contacted the G~ County courthouse to inquire about searching its divorce records for a decree for the NH and L~. The G~ County courthouse indicated that a manual search would be required. There is no further information regarding this issue.

In December 2015, the NH submitted a statement that he married L~ in 1967 and was only married to her for six months. He stated that he divorced L~ in M~, Alabama. He added, “L~ knows that we are divorced because 5 or 6 years ago I went down to visit and heard that she remarried. I spoke with her husband.” The NH stated that he married A~ in 1968 and that they were still married. However, they had been separated for 30 years. They had one child.

Also in December 2015, SSA sent to the Alabama Department of Public Health, Center for Health Statistics, a request for a search of divorce records between the NH and L~. The Center for Health Statistics issued a Certificate of Failure to Find, stating that no record of divorce was found to exist for the NH and L~ for the years 1959-1969.^[1] However, the Center for Health Statistics noted in an information sheet accompanying the Certificate of Failure to Find that “in Alabama, many older documents were never filed with the Center for Health Statistics because, until recently, there was no legal need for those records.”

In December 2016, SSA denied A~’s application for wife’s benefits.

DISCUSSION

Under Title II of the Social Security Act (the Act), a claimant may be entitled to benefits as the wife of an insured individual who is entitled to old-age or disability benefits. See 42 U.S.C. § 402(b)(1); see also 20 C.F.R. § 404.330; POMS RS 00202.001. To establish her relationship as the insured’s wife, the claimant must show that the courts of the state in which the insured is domiciled at the time the application was filed would find that the claimant and the insured were validly married at the time the application was filed. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Alternatively, the relationship requirement may be met if, under state law, the claimant would be able to inherit a wife’s share of the insured’s intestate personal property. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345; POMS GN 00305.085 (putative marriage).^[2]

I. Based on the current evidence, A~ meets the requirements for a valid marriage under 42 U.S.C. § 416(h)(1)(i), but this conclusion could be affected by further development of the evidence

To determine the validity of the NH’s marriage to A~, we apply the laws of the state of Illinois, where the NH was domiciled at the time A~ filed her application. Here, the NH married A~ in Alabama in 1968. Illinois recognizes a marriage that was validly contracted in another state, unless it is contrary to the public policy of Illinois. See 750 Ill. Comp. Stat. 5/213. Therefore, Illinois courts would look to Alabama law to determine whether the marriage between the NH and A~ was valid when contracted.

Alabama law presumes that a second marriage is valid, and that the first marriage was dissolved by divorce. See Lockett v. Coleman, 308 So. 2d 689, 691 (Ala. 1974); Hammond v. Shipp, 289 So. 2d 802, 806 (Ala. 1974); POMS GN ATL00305.030A. This presumption, however, is not conclusive, and may be overcome when circumstances require a reasonable inference to the contrary. See Lockett, 308 So. 2d at 691; Hammond, 289 So. 2d at 806; POMS GN ATL00305.030A. The party attacking the validity of the second marriage bears the burden of showing that the first marriage was not dissolved. See Jordan v. Copeland, 131 So. 2d 696, 697 (Ala. 1961).

Here, the evidence shows that the NH married L~ in 1964 and then married A~ in 1968. Both marriages took place in Alabama. The presumption under Alabama law, then, is that the NH’s second marriage to A~ was valid and that his first marriage to L~ was dissolved by divorce. As discussed below, we believe that the evidence currently before us is insufficient to rebut this presumption.

As noted above, the NH consistently reported that he had divorced L~ prior to marrying A~. On the marriage certificate for the NH and A~, he was listed as divorced. On his applications for benefits in 2007, the NH stated that he had divorced L~. And in 2015, he again stated that he had divorced L~ and that she was remarried.

As for L~, she gave inconsistent statements regarding her relationship to the NH. On her application for wife’s benefits in 2011, L~ stated that she was not currently married. But on her application for retirement benefits one month later, she reported that she was married to the NH. There is no indication that the field office developed the issue of the presumption of the validity of the last marriage by requesting a statement from L~ as to whether she had divorced the NH. See POMS GN 00305.040(1) (if both parties to prior marriage are available, obtain statements from each as to whether divorce terminated the prior marriage).

Although the Alabama Department of Public Health, Center for Health Statistics, certified that it could not find a divorce record for the NH and L~, it also advised that many older documents were never filed with the agency. Since the NH and L~ were allegedly divorced in the 1960’s, the Certificate of Failure to Find is not reliable evidence that their marriage was not dissolved by divorce, but only serves as proof that a divorce decree was never filed with the Center for Health Statistics.

Under Alabama case law, the presumption in favor of the second marriage is sufficiently rebutted upon evidence that the records of the divorce courts of all the counties in the state where the parties lived do not show a divorce. See Jordan, 131 So. 2d at 699-700 (collecting cases); see also POMS GN ATL00305.030E (presumption of validity of last marriage may be rebutted when the whereabouts of the parties to a prior marriage have been determined, but a search of divorce records of those jurisdictions fails to reveal evidence of termination). Here, however, we do not have any evidence as to the status of the divorce records in the counties where a decree could have been rendered.^[3] See Jordan, 131 So. 2d at 700 (“The testimony of the parties, not properly supported by evidence as to the divorce records in the various jurisdictions in which a decree could be rendered, is usually treated as not sufficient to overcome the presumption.”).

Thus, we believe an Alabama court would find that the currently available evidence is insufficient to overcome the presumption that the NH’s second marriage to A~ was valid, as the circumstances do not require a reasonable inference to the contrary. And, since their marriage was valid in Alabama, Illinois would also recognize it as a valid marriage. Consequently, in the absence of any additional evidence, A~ should be considered the NH’s wife for purposes of entitlement to wife’s benefits under 42 U.S.C. § 416(h)(1)(A)(i).

That being said, you may wish to consider further development by requesting a search of the records of the divorce courts of the counties where the NH and L~ lived. See POMS GN 00305.035B.1.c (“[e]xhaust all leads” and determine applicability of presumption after “complete development”), GN ATL00305.030C (determine applicability of presumption after “complete development”). SSA records show that the NH and L~ were married in M~, Alabama (located in M~ County) in 1964, and the NH stated that he divorced L~ in M~. At the time he married A~ in 1968, the NH was living in G~ County. Thus, we recommend a search of the divorce records for M~ and G~ Counties. We also recommend a search of the divorce records for any other county in which L~ or the NH may have lived. Based on the outcome of that development, we advise the following:

• •

  If a search reveals a divorce decree for the NH and L~, then L~’s award of benefits should be reopened and she should be found not entitled to wife’s benefits retroactive to the initial date of entitlement. Moreover, her claim should be referred to the Office of the Inspector General for potential fraud. A~, on the other hand, would be validly married to the NH under both Alabama and Illinois law. As such, she would be considered the NH’s wife for purposes of entitlement to wife’s benefits. See POMS GN ATL00305.030D (if divorce decree establishes termination of prior marriage, last marriage is valid based on conclusive evidence that prior marriage did indeed terminate).

• •

  If a search reveals no divorce decree, we believe this evidence would sufficiently rebut the presumption of the validity of the last marriage under Alabama law. See Jordan, 131 So. 2d at 699-700; POMS GN ATL00305.030E. Accordingly, the NH would still be married to L~, and his subsequent marriage to A~ would be void. See Howard v. Pike, 275 So. 2d 645, 647 (Ala. 1973); Cooney v. Cooney, 840 So. 2d 903, 904 (Ala. Civ. App. 2002) (bigamous marriages are void in Alabama). However, A~ might qualify for wife’s benefits as a putative spouse under Illinois law, as discussed below.

• •

  If the field office is unable to develop the evidence as to the status of a divorce record, then, as discussed above, Alabama’s presumption of the validity of the last marriage applies. Thus, A~ would be considered the NH’s wife for purposes of entitlement to wife’s benefits. See POMS GN 00305.035B.1.c (if, after complete development, sufficient evidence cannot be obtained to determine whether prior marriage was or was not terminated, apply presumption of the applicable state), GN ATL00305.030C (if, after complete development, SSA is unable to determine whether prior marriage terminated or continued, presumption should be applied).

Alternatively, you may develop and establish a putative marriage, as discussed below, if it is more convenient than further developing the evidence as described above.

II. Alternatively, A~ might qualify as a putative spouse under 42 U.S.C. § 416(h)(1)(ii)

We also consider whether A~ is the NH’s putative spouse under state law, pursuant to 42 U.S.C. § 416(h)(1)(A)(ii). In 1977, Illinois enacted a statutory putative marriage provision which states, in relevant part:

Any person, having gone through a marriage ceremony, who has cohabited with another to whom he is not legally married in the good faith belief that he was married to that person is a putative spouse until knowledge of the fact that he is not legally married terminates his status and prevents acquisition of further rights. A putative spouse acquires the rights conferred upon a legal spouse, including the right to maintenance following termination of his status, whether or not the marriage is prohibited . . . or declared invalid. . . .

750 Ill. Comp. Stat. 5/305; see also POMS GN 00305.085.

Here, the marriage certificate for the NH and A~ shows that the couple went through a marriage ceremony. A~ also cohabited with the NH after their marriage ceremony. She stated that they lived together for 17 years and then separated; her statement is corroborated by the NH.

A~ must also show that she believed in good faith that she was legally married to the NH. As noted above, on their marriage certificate, the NH was listed as divorced. And, the NH has consistently made representations to SSA, from the time of his first application for benefits in 2007 to the present, that he divorced L~ prior to marrying A~. Thus, there is no indication from the available evidence that A~ had any reason to believe she was not legally married to the NH. But, you should certainly confirm with A~ that she had such a good faith belief. If you find that this evidence is sufficient and credible, then you may conclude that A~ acquired putative spouse status under Illinois law. See, e.g., In re Marriage of Flores, 421 N.E.2d 393, 395 (Ill. App. 1981) (court should look at the facts of the particular case and consider whether the parties went through a marriage ceremony, as well as the education, intelligence, and experience of the one claiming putative spouse status).

CONCLUSION

Based on the current evidence, A~ should be considered the NH’s wife under 42 U.S.C. § 416(h)(1)(A)(i), because her marriage to the NH is presumed to be valid under Alabama law, and thus would be recognized by Illinois. This conclusion is subject to change based on further development. If, upon further development, additional evidence sufficiently rebuts this presumption, A~ alternatively may be able to establish her relationship as the NH’s wife under 42 U.S.C. § 416(h)(1)(A)(ii) by qualifying as a putative spouse under Illinois law. You may also develop and establish a putative marriage if it is more convenient than undertaking the development to determine whether the presumption of validity of the last marriage applies.

A presumption arises in favor of the validity of the last marriage. The claimant does not have the burden of showing that she was “legally competent” to contract marriage with NH. The burden of rebutting the presumption is on the party attacking the validity of the most recent marriage to “not only establish the fact of the previous marriage, but that such previous marriage has not been dissolved by divorce or death.” Given the fact that Alabama does not maintain divorce records prior to 1950, it would be impossible to either prove that either NH's or claimant's prior marriages had not ended in divorce or death.

QUESTION PRESENTED

In a case governed by Alabama law, has a claimant presented sufficient evidence to show that she is the surviving widow of number holder?

Short Answer

As discussed in greater detail below, we believe that Claimant has presented sufficient evidence to show that she is the number holder's surviving spouse either through a valid ceremonial or common-law marriage.

BACKGROUND

The facts as presented are that Mary~ (Claimant) filed an application for survivor benefits as the widow of Francis~, the number holder (NH), who died in 1959 in the State of Alabama. Claimant is an eighty-six year old Supplemental Security Income (SSI) recipient with a representative payee; and the Agency employee that interviewed her observed that she had a poor memory and seemed confused.

Claimant alleges that she and NH had a ceremonial marriage in March 1945 in Mobile, Alabama. Claimant does not remember the name of the official who performed the ceremony, and the witnesses are dead. Claimant did not have a copy of the marriage license, and the Agency could not locate a copy after a reasonable search through state records. There were neither pictures taken at the ceremony nor a wedding announcement published in the newspaper. As proof of the marriage, Claimant provided several documents that listed her as NH's spouse: NH's death certificate, a mortgage deed, and two union documents.

Prior to their alleged marriage, Claimant had been married once; and NH had been married twice. The Agency obtained copies of the marriage certificates for Claimant's prior marriage and one of NH's prior marriages. The Agency was unable to locate divorce decrees showing that either Claimant's or NH's prior marriages ended; however, the Alabama Office of Vital Records does not maintain divorce records prior to 1950. Claimant believed that she divorced her first husband, T~, in 1943. When Mr. T~ applied for retirement insurance benefits, he indicated that he divorced Claimant on October XX, 1948. The Agency also obtained birth certificates for the children of Claimant and/or NH: (1) Dorothy T~, born 8/XX/44 to Stephen T~ and Mary J. B~; (2) Matthew B~, born 3/XX/45 to Francis B~ and Earnestine G~; (3) Edward B~, born 3/XX/46 to Francis B~ and Mary B~; (4) Johnny L. B~, born 9/XX/47 to Francis B~ and Mary J. B~.

Authority

Under the Social Security Act (Act), the widow of a fully-insured individual is entitled to benefits upon attaining age sixty. See section 202(e)(1)(B)(i) of the Act, 42 U.S.C.

§ 402(e)(1)(B)(i). Because Claimant is the mother of two of NH's children, she would be his “widow” if she establishes that she is his “surviving wife.” Section 216(c)(1) of the Act, 42 U.S.C. § 416(c)(1).

There are two ways that Claimant may qualify as NH's widow, and thus be eligible for survivor benefits under the Act. An applicant may qualify as the legal widow of an insured individual if “the courts of the State in which he was domiciled at the time of death, . . . would find that such applicant and such insured individual were validly married at the time . . . he died.” Section 216(h)(1)(A)(i) of the Act. An applicant who is not the “legal widow” of the insured individual still may 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.

Analysis

Claimant alleges that she and NH were married in a ceremonial marriage in March 1945 and remained married until his death in 1959. “The presumption of ceremonial marriage is strong, especially where supporting evidence shows that the parties lived together as husband and wife for many years, and it can be rebutted only by convincing evidence to the contrary." Program Operations Manual System (POMS) GN 00305.030(A). Although Claimant was unable to produce preferred proof such as a copy of a public or religious record of marriage or an original certificate of marriage, as outlined in POMS GN 00305.020, “the absence of a record in the place where the marriage is alleged to have occurred will not in itself defeat the presumption.” POMS GN 00305.030(A).

We first examined whether Claimant presented sufficient supporting evidence to support a presumption of ceremonial marriage to NH. It does not appear that Claimant offered sufficient secondary proof of marriage to meet the requirements of POMS GN 00305.025. Although Claimant provided a description of the marriage ceremony as outlined in POMS GN 00305.025(B)(1), she is also required to provide at least one piece of secondary evidence of the ceremony. See POMS GN 00305.025(B)(1). Secondary evidence may include: (1) a signed statement from the clergyman or official who performed the ceremony; (2) statements of witnesses to the marriage ceremony; (3) a newspaper account of the wedding; (4) statements from at least two persons who have knowledge that a ceremony took place; (5) other probative evidence that a ceremony took place, such as photos. See POMS GN 00305.025(B)(2). In this case, there is no acceptable secondary evidence of the marriage ceremony.

Even though the Agency was unable to obtain preferred or secondary proof of marriage, the Agency may apply the presumption of ceremonial marriage where supporting evidence shows that the parties lived together as husband and wife for many years. See POMS GN 00305.030(A). The following evidence may support a presumption of a marriage:

* Excerpts from naturalization certificates, deeds, immigration records, insurance policies, or passports which indicate the parties as husband and wife;

* Records which show a marital relationship such as business, employment, bank, fraternal, school, labor, church, or other records;

* Purchase agreements, contracts, or leases executed by both parties, letters to both parties, or letters from one party to the other indicating a marital relationship.

POMS GN 00305.030(B)(2)(a). Claimant presented several pieces of supporting documentation. There are birth certificates showing that Claimant and NH had two children in 1946 and 1947, respectively. Claimant and NH are listed as husband and wife on mortgage documents dated November 9, 1955. Additionally, Claimant is listed as NH's wife on two forms from the United Mine Workers of America. Finally, NH's death certificate lists Claimant as his surviving spouse. This evidence appears sufficient to support a presumption of ceremonial marriage under POMS GN 00305.030.

We also considered whether Claimant and NH may have created a common-law marriage. Alabama recognizes common-law marriage and treats it as “a co-equal, alternate method of validating the connubial union of two people.” Piel v. Brown, 361 So.2d 90, 93 (Ala. 1978). The elements of a valid common-law marriage in Alabama are: (1) the capacity to marry; (2) present agreement or mutual consent to enter into the marriage relationship; (3) public recognition of the existence of the marriage; and (4) cohabitation or mutual assumption openly of marital duties and obligations. See Adams v. Boan, 559 So.2d 1084, 1086 (Ala. 1990). The evidence suggests that Claimant and NH agreed to enter a marriage relationship. The fact that the couple had two children together and purchased a home as man and wife provides evidence of cohabitation.

In describing the manner in which a couple must live to gain public recognition, the Adams court noted that “it may be made in any way which can be seen and known by men, such as living together as man and wife, treating each other in the presence of third parties as being in that relation, and declaring the relation in documents executed by them whilst living together, such as deeds, wills, and other formal instruments.” Id. at 1088 (quoting Maryland v. Baldwin, 112 U.S. 490, 495 (1884)). In Hall v. Duster, 727 So.2d 834, 837 (Ala. Civ. App. 1999), the court found a funeral program listing the putative husband as the son-in-law of his putative wife's father to be “clearly relevant” to the issue of whether the parties were recognized as husband and wife. As previously noted, Claimant presented various documents listing her as NH's wife, including mortgage documents, birth certificates, union documents, and his death certificate.

There is certain evidence to suggest that Claimant may not have had the capacity to marry NH in March 1945. In this regard, Claimant's first husband, Mr. T~, indicated in his application for retirement benefits that he divorced her on October 1, 1948. Assuming that he provided the correct date of the divorce, Claimant would not have been legally competent to marry NH in 1945. Alabama, however, recognizes a presumption of actual marriage after the impediment to marriage is removed:

where parties who are competent to marry enter an illicit relation, with the manifest desire and intention to live in a marital union, rather than in a state of concubinage, and the obstacle to their marriage is subsequently removed, their continued cohabitation raises a presumption of an actual marriage immediately after the removal of the obstacle and warrants a finding to that effect.

Matthews v. Matthews, 67 So.2d 22, 24 (Ala. 1953). Because the evidence suggests that Claimant and NH continued to live together as husband and wife after October 1, 1948, their common-law marriage would have been legally valid after that date.

The existence of NH's prior marriages appears insufficient to rebut the presumption of the validity of his most recent marriage to Claimant. The presumption “that a marriage is legal and valid in all respects is one of the strongest known to the law” and “attaches with full force to the latest marriage, the reason being that the presumption of innocence, morality and legitimacy will counterbalance and preponderate against the presumption of the former relations.” Faggard v. Filowich, 27 So.2d 10, 12 (Ala. 1946) (quoting Sloss-Sheffield Steel & Iron Co. v. Alexander, 3 So.2d 46, 48 (Ala. 1941)).

Claimant maintains both she and NH were divorced from their prior spouses at the time of their marriage. Claimant does not have the burden of showing that she was “legally competent” to contract marriage with NH. See Matthews, 67 So.2d at 23. Instead, the burden is on the party attacking the validity of the most recent marriage to “not only establish the fact of the previous marriage, but that such previous marriage has not been dissolved by divorce or death.” Faggard, 27 So.2d at 12. Thus, Claimant is not required to affirmatively establish that either her or NH's prior marriages dissolved by divorce or death. To attack the latest marriage, the Agency would be required prove that the prior marriages had not ended. In describing this burden, the Alabama Supreme Court stated that party attacking the marriage must produce “legal evidence that the divorce courts of all the counties in the state which would have jurisdiction of such a suit did not have a record of a decree of divorce.” Vinson v. Vinson, 69 S0.2d 431, 434 (Ala. 1953). Given that the Alabama Office of Vital Records indicated that it does not maintain divorce records prior to 1950, it would appear that the Agency cannot carry its burden.

CONCLUSIONS

As submitted, the facts suggest that Claimant is entitled to survivor's benefits as NH's surviving spouse. Claimant presented evidence such as mortgage documents, birth certificates, and union documents sufficient to establish the presumption of ceremonial marriage where supporting evidence shows that the parties lived together as husband and wife for many years under POMS GN 00305.030 and Alabama caselaw. Alternatively, this evidence appears sufficient to suggest the existence of a valid common-law marriage under state law. Moreover, given that Alabama does not maintain divorce records prior to 1950, it would be impossible to either prove that either NH's or Claimant's prior marriages had not ended in divorce or death. As a result, there is support under Alabama caselaw to apply the presumption of the validity of the last marriage.

Mary Ann ~

Regional Chief Counsel

By: Joseph P. ~

Assistant Regional Counsel