TN 10 (02-16)

PR 05105.005 Arkansas

A. PR 16-039 Arkansas State Law-Status of NH’s Third Wife (NH: O~; SSN ~) -- REPLY

Date: December 3, 2015

1. Syllabus:

The NH passed away while domiciled in Arkansas, therefore, we look to the Arkansas state Law to determine the validity of the marriage. Although an Arkansas marriage certificate shows Claimant 1978 marriage to the NH, we also have evidence showing that such a marriage was void because the NH was still married to his first wife, when he married the Claimant. Accordingly, because the Claimant’s marriage to the NH was void, the Claimant has not proven that she was validly married to the NH under Arkansas law at the time of his death in 2001.

Also, the Claimant’s marriage to the NH cannot be considered a valid deemed marriage.  The Claimant stated that she knew that the NH was married to his first wife when he married her and that she did not believe her marriage to the NH was a legal marriage, but she also indicated that she learned about this after her marriage ceremony. Thus, there is some evidence to support a finding that she met the good faith requirement, but regardless, because the evidence indicates that the Claimant and the NH were not living in the same household when he died in 2001, the agency will not deem their marriage valid. We conclude that the marriage between the Claimant and the NH was void due to the NH’s prior undissolved marriage to his first wife. The Claimant is not the NH’s surviving spouse, or widow, under the Act for purposes of widow’s benefits.

2. Opinion

QUESTION PRESENTED

For purposes of the claimant G~s (G~’s or second wife’s) application for surviving spouse benefits on the record of O~, the number holder (NH), you asked us to determine whether the NH was validly married to G~, his purported second wife, at the time of his death in 2001.

ANSWER

Based on the evidence submitted, we believe that the marriage between G~ and the NH was void under Arkansas law because at the time of their marriage, the NH was not yet divorced from his first wife. As such, G~ was not validly married to the NH at the time of his death in 2001 and is not entitled to benefits on the NH’s account as a surviving spouse, or widow.1

BACKGROUND

The NH passed away on October XX, 2001 while domiciled in Arkansas. There is evidence indicating that the NH potentially had three marriages to three different women, and it is our understanding that the Social Security Administration (SSA or agency) has been paying widow’s benefits to the NH’s third wife, C~, on his record since 2002. Because your legal opinion request concerns only the NH’s purported second wife, G~, and her entitlement to widow’s benefits as the NH’s widow, we focus on G~’s status as the NH’s widow. To the extent helpful in examining G~’s status as the NH’s widow, we summarize the evidence submitted as to the NH’s three marriages.

The NH’s First Purported Marriage To R~

An Arkansas marriage certificate shows that the NH and R~(R~ or first wife) were married in a solemnized marriage ceremony in Arkansas on September XX, 1972. The evidence indicates that R~ and the NH filed for a divorce in Minneapolis, Minnesota on June XX, 1992, and that on December XX, 1992 “judicial review” was “approved.” See R~ v. O~, No. 27-FA-00018XXXXX (Hennepin Family Court, Minnesota). We do not have a copy of the final divorce decree showing the exact date the divorce was final.2 R~ died on August XX, 1998.

The NH’s Second Purported Marriage to G~

On March XX, 2015, G~ filed a claim for benefits on the NH’s record as a surviving spouse, and it is this claim that is the subject of this present legal opinion request.3 The evidence includes a copy of an Arkansas marriage certificate showing that G~ and the NH married in a solemnized marriage ceremony in Arkansas on May XX, 1978, while he was still married to R~. In a May 2015 statement to the agency, G~ stated that she did not list her marriage to the NH in her February 2015 disability application because she did not think it was legal. She stated that after she married the NH, she found out that he was still married to his previous wife, R~, and that the NH and R~ never divorced. The evidence includes an undated statement by the NH in which the NH similarly stated that he did not divorce R~ before he married G~, as he did not know he needed to divorce R~ in order to marry G~. In March 2015, the field office contacted the St. Francis County, Arkansas circuit clerk’s office to inquire whether there was record of a divorce between G~ and the NH, and the clerk’s office search of records for the years 1979 through 2001 found no record of a divorce.

G~ also provided a copy of an Arkansas marriage certificate showing that she married J~ in Forrest City, St. Francis County, Arkansas on October XX, 1988, and that they divorced on February XX, 1996 in Forrest City, Arkansas. J~ passed away on October XX, 2005.

The NH’s Third Purported Marriage to C~

There is evidence that the NH married C~(C~ or third wife) on October XX, 1992, while domiciled in Arkansas. C~ filed an application for widow’s benefits on the NH’s account on October XX, 2001, in which she stated that she and the NH had lived together in 1988, that the NH left her in 1993, that she later moved to Missouri, but that she did not file for a divorce from the NH and had not been notified that the NH filed for divorce. Instead, she reported that their marriage ended with the NH’s death on October XX, 2001. A 2002 letter from the agency shows that the agency had a marriage license showing a marriage between the NH and C~, and that the agency had searched for a divorce decree between C~ and the NH in St. Francis County, Arkansas and in St. Louis County, Missouri and did not find such a decree.4 In 2002, the agency granted C~’s application for widow’s benefits on the NH’s record, and she currently receives widow’s benefits on the NH’s record.

ANALYSIS

A. Entitlement to Widow’s Benefits Under the Social Security Act

Your legal opinion request concerns whether the NH was validly married to G~, his purported second wife, at the time of his death in 2001. The Social Security Act (Act) provides that a claimant may be eligible for benefits as an insured NH’s widow if she was validly married to the NH at the time of his death, or if not validly married, she would be able to inherit a spouse’s share under state intestate succession laws. See 42 U.S.C. §§ 402(e)(1), 416(c)(1), (h)(1)(A); 20 C.F.R. §§ 404.335(a), 404.345.5 There are additional requirements for entitlement to widow’s benefits that we do not address, as they are not relevant to this legal opinion. See 42 U.S.C. § 402(e)(1)(A)-(D); 20 C.F.R. § 404.335(b)-(e). Because the Act directs the agency to apply the law of the state where the NH had a permanent home at the time of his death to determine the validity of a marriage and inheritance as a spouse under intestate succession laws, Arkansas law controls. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.345;20 C.F.R. § 404.303 (permanent home means the true and fixed home or legal domicile of the insured individual).

B. Under Arkansas Law, G~ has not Proven that She had a Valid Marriage to the NH at the Time of the NH’s Death in 2001, Per 42 U.S.C. § 416(h)(1)(A)(i)

Given that the NH has had multiple marriages, we begin our analysis by recognizing that Arkansas law presumes that C~ is the NH’s legal widow because C~’s 1992 marriage to the NH was his last marriage and because the agency is currently paying benefits to C~ as his surviving spouse based upon evidence of her marriage to the NH. See Stokes v. Heckler, 773 F.2d 990, 991-92 (8th Cir. 1985) (under Arkansas law, the last ceremonial marriage is presumed valid and is one of the strongest presumptions under Arkansas law); Blythe v. Blythe, 410 S.W.2d 379 (Ark. 1967) (“the presumption in favor of the validity of a marriage is so strong that the one who attacks a subsequent marriage . . . has the difficult burden”); Sims v. Powell’s Estate, 432 S.W.2d 838, 840 (Ark. 1968) (“positive proof” is necessary to rebut the presumption); Bruno v. Bruno, 256 S.W.2d 341, 344 (Ark. 1953) (“where a man and woman are married and it is later discovered that one of them has a living former spouse it will be presumed, in the absence of proof to the contrary, that the former spouse had been divorce[d] at the time of said marriage.”). For G~ to prove that she is the NH’s legal widow based on her valid marriage to the NH, G~ has the heavy burden of providing “clear and decisive” evidence to rebut the presumption of validity as to the NH’s marriage to C~. See Stokes, 773 F2d at 991-992 (it is a “heavy burden of proof imposed under Arkansas law on one who would invalidate an apparently legal marriage”) (citing Missouri Pacific R.R. Co. v. Harris, 120 S.W.2d 695, 696 (Ark. 1938)).

As explained below, we find that G~ has not met her burden to overcome Arkansas’s strong presumption in favor of the validity of the NH’s marriage to C~ because G~’s 1978 marriage to the NH was void.

Although an Arkansas marriage certificate shows G~’s 1978 marriage to the NH, we also have evidence showing that such a marriage was void because the NH was still married to R~, his first wife, when he married G~. See Smiley v. Smiley, 448 S.W. 2d 642, 646 (Ark. 1970) (a ceremonial marriage to a person who has previously been married and has never obtained a divorce is void from its inception and no court decree is required to declare it void). Under Arkansas law, a void6 marriage includes a subsequent marriage to an individual who was not yet divorced from a living “former” spouse. See Acuna v. Sullivan, 765 F.Supp. 510, 513 (E.D. Ark. 1991) (finding a subsequent marriage before dissolution of the prior marriage is void); Bruno, 256 S.W.2d at 343 (a ceremonial marriage to a person who has previously been married and has never obtained a divorce is void); Ark. Code Ann. § 9-12-101. Such a marriage is void even if one of the parties to the second marriage entered it in good faith. See Standridge v. Standridge, 769 S.W.2d 12, 14 (Ark. 1989). As discussed below, the NH’s first wife, R~, was still living and married to the NH at the time G~ and he purportedly married in 1978.

An Arkansas marriage certificate shows that the NH and R~ were married in a solemnized marriage ceremony in Arkansas on September XX, 1972. The field office contacted the Hennepin County and the 4th District Family Court in Minneapolis, Minnesota, and the county records showed that R~ and the NH’s divorce was filed and finalized around 20 years later in 1992.7 An Arkansas marriage certificate showing that G~ and the NH married in a solemnized marriage ceremony in Arkansas on May XX, 1978. But because the NH was not divorced from his first wife R~ (who was still living at the time) until 1992, the 1978 marriage between G~ and the NH was not valid and was void under Arkansas law. See Ark. Code Ann. § 9-12-101; Acuna, 765 F.Supp. at 513 (finding a subsequent marriage before dissolution of the prior marriage is void).

Given that G~’s marriage to the NH was void, the lack of a divorce decree showing that G~ and the NH were divorced is not determinative. See Smiley, 448 S.W. 2d at 642 (a ceremonial marriage to a person who has previously been married and has never obtained a divorce is void from its inception and no court decree is required to declare it void); Bruno, 256 S.W.3d at 341; Goset v. Goset, 164 S.W. 759, 762 (Ark. 1914). Indeed, G~ advised the agency that she did not list her marriage to the NH in a February 2015 disability application she had filed because she did not think it was legal. She stated that after she married the NH, she found out that he was still married to his previous wife, R~. The evidence includes an undated statement by the NH in which the NH similarly stated that he did not divorce R~ before he married G~. Furthermore, in 1988, G~ married another man in Arkansas and was married to him until they divorced in 1996. Thus, if G~ did not believe her marriage to the NH was legal, it follows that she never sought a divorce from the NH. Further, her subsequent marriage to another man contradicts her present claim that she thought she had a valid marriage to the NH.

Accordingly, because G~’s marriage to the NH was void, G~ has not proven that she was validly married to the NH under Arkansas law at the time of his death in 2001. Therefore, she has not established her status as the NH’s widow under the Act. See 42 U.S.C. § 416(h)(1)(A)(i).8

C. G~ Has Not Established a Deemed Valid Marriage to the NH under the Act, 42U.S.C. § 416(h)(1)(B)

Finally, we consider whether the agency will deem G~’s marriage to the NH valid under section 216(h)(1)(B). See 42 U.S.C. § 416(h)(1)(B). If, under state law, an applicant is determined not to be a NH’s spouse, the agency will nevertheless consider the claimant to be the NH’s surviving spouse if she went through a marriage ceremony with the NH in good faith that would have resulted in a valid marriage except for a legal impediment. See 42 U.S.C. § 416(h)(1)(B); 20 C.F.R. §§ 404.346(a), 404.727; POMS GN 00305.055. A legal impediment includes only an impediment that results because a previous marriage had not ended at the time of the ceremony or because there was a defect in the procedure followed in connection with the intended marriage. See 42 U.S.C. § 416(h)(1)(B)(iv); 20 C.F.R. § 404.346(a). “Good faith” means that at the time of the ceremony, the applicant did not know that a legal impediment existed, or if she did know, the applicant thought that it would not prevent a valid marriage. See 20 C.F.R. § 404.346. To be entitled to benefits as a widow based on a deemed marriage, the claimant and the insured must have been living in the same household at the time the insured died. See 42 U.S.C § 416(h)(1)(B)(i); 20 C.F.R. §§ 404.346, 404.347.

Here, G~ stated that she knew that the NH was married to R~ when he married G~ and that she did not believe her marriage to the NH was a legal marriage, but she also indicated that she learned about this after her marriage ceremony. Thus, there is some evidence to support a finding that she met the good faith requirement. See 20 C.F.R. § 404.346. Regardless, because the evidence indicates that G~ and the NH were not living in the same household when he died in 2001, the agency will not deem their marriage valid. See id.

CONCLUSION

We conclude that the marriage between the G~ and the NH was void due to the NH’s prior undissolved marriage to R~. As such, because G~ was not validly married to the NH at the time of his death in 2001 under Arkansas law, she is not the NH’s surviving spouse, or widow, under the Act for purposes of widow’s benefits.

Michael McGaughran

Regional Chief Counsel

By: ________________________

Una McGeehan

Assistant Regional Counsel

B. PR 08-122 Presumption of the Validity of the Last Marriage under Arkansas Law (NH W~; SSN ~) - REPLY

DATE: June 9, 2008

1. SYLLABUS

A subsequent marriage between a number holder and a claimant occurred before the NH divorced his prior wife is presumed valid under Arkansas law. Positive proof is necessary to rebut the presumption. Burden of proof on the party attacking the subsequent marriage is difficult to satisfy.

2. OPINION

This memorandum is in response to your request for an opinion regarding whether a second marriage between a number holder and a claimant that occurred before the number holder divorced his first spouse is presumed valid under Arkansas law. In our opinion, the second marriage between the number holder and the claimant is valid because Arkansas law presumes the validity of the last marriage.

As we understand the facts, W~ (number holder) married J~ in July 1960. The marriage produced two children. A Westchester County, New York, divorce decree showed that the two were divorced on July XX, 1985. J~ died in May 1988.

On December XX, 1984, the number holder married S~~ (claimant) in Pennsylvania. The marriage certificate noted that the number holder's previous marriage to J~ dissolved by the death of J~ on March 11, 1981. The claimant stated that, after her marriage to the number holder, they lived in Yonkers, New York. Subsequently, she moved to Pennsylvania to care for her parents, and the number holder remained in New York and then relocated to Arkansas. The claimant stated that they had a "commuter marriage" where the number holder visited her in Pennsylvania on weekends and during the summers. The marriage produced one son, J2~, who was born on January, 1988. On December XX, 2004, the number holder died in Mississippi while domiciled in Arkansas.

In 1992, the number holder received Title II Social Security disability benefits. The Agency awarded auxiliary Social Security benefits to the son, J2~, and then to the claimant after an initial denial. In April 2005, after the number holder's death, the Agency awarded a lump sum death payment to J2~ instead of the claimant because she was not living in the same household with the number holder at the time of his death. In January 2006, the claimant filed for widow's benefits, which the Agency denied because the Agency did not have enough evidence to establish a valid marriage between the claimant and the number holder. In September 2007, the claimant re-filed for widow's benefits, which the Agency denied, and she filed for reconsideration. During the reconsideration process, the Agency received the July , 1985, divorce decree between the number holder and J~.

The Social Security Act provides that a claimant is entitled to widow's benefits if she is the number holder's widow and meets the other requirements for eligibility. 42 U.S.C. § 402(e)(1); 20 C.F.R. § 404.335(a). A claimant can meet this relationship requirement if she and the number holder were validly married under state law at the time the number holder died. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. The controlling law is the law of the state where the number holder had a permanent home at the time of his death. Id. Permanent home means the true and fixed home or legal domicile of the insured individual. 20 C.F.R. § 404.303. In this case, the number holder died while domiciled in Arkansas; therefore, Arkansas law is controlling.

Arkansas law provides that a ceremonial marriage to a person who has previously been married and never obtained a divorce is void. Bruno v. Bruno, 256 S.W.2d 341, 344 (Ark. 1953). However, a presumption exists under Arkansas law that the last ceremonial marriage is valid. Stokes v. Heckler, 773 F.2d 990, 991-92 (8th Cir. 1985). This presumption can only be rebutted by the party attacking the validity of the last marriage and with "clear and decisive" evidence that a divorce was not obtained prior to the second marriage. Id; Missouri Pacific R.R. Co. v. Harris, 120 S.W.2d 695, 696 (Ark. 1938). The presumption is a strong one. See Sims v. Powell's Estate, 432 S.W.2d 838, 840 (Ark. 1968) ("positive proof" is necessary to rebut the presumption); Blythe v. Blythe, 410 S.W.2d 379 (Ark. 1967) (burden of proof on the party attacking the subsequent marriage is difficult to satisfy). Based on the record, the Agency would not be able to show that the first spouse, J~, did not divorce the number holder prior to the number holder's subsequent marriage to the claimant.

The Arkansas Supreme Court found that a widow was entitled to receive damages for the negligent death of her second spouse, despite evidence that she divorced her previous spouse after she married her second spouse. Missouri Pacific R.R. Co., 120 S.W.2d at 696. Although the widow had not obtained a divorce decree until after entering into the second marriage, the court stated that no "clear and decisive evidence" existed that her previous husband had not divorced her before her subsequent remarriage. Id.

In a similar case, a number holder married a claimant in 1942, although he did not obtain a divorce from his first spouse until 1963. The Agency denied the claimant widow's benefits and argued that the 1963 divorce was sufficient evidence to rebut the presumption of the validity of the second marriage. The Eighth Circuit Court of Appeals disagreed, citing, as support, to the Missouri Pacific case and found that the Agency had not "proved the negative" by showing that the first wife had not divorced the number holder prior to his marriage to the claimant. Stokes, 773 F.2d at 991-92; see also Noble v. Bowen, No. 87-224, 1989 WL 280358 *2 (E.D. Ark. 1989) (court vacated Agency's denial of widow's benefits because no clear and decisive evidence existed that claimant's first husband did not divorce her prior to her remarriage to the number holder).

In this case, the number holder's 1984 marriage to the claimant would represent evidence of the validity of his marriage to the claimant. Although the number holder's 1985 divorce from J~ is evidence that he had not previously divorced J~, and was, therefore, legally married to J~ until 1985, the possibility remains that J~ previously divorced him. Because this possibility remains, we do not believe the Agency can establish "clear and decisive evidence" to rebut the presumption of the validity of the number holder's second marriage to the claimant.

In an attempt to obtain information regarding whether J~ previously divorced the number holder prior to his marriage to the claimant, the Agency interviewed the number holder's children from his first marriage to J~. The information received was not determinative on whether J~ might have obtained a divorce from the number holder. Both children thought that the number holder and J~ never divorced, despite the 1985 divorce decree. The Agency reviewed J~'s 1988 funeral obituary and death certificate, which listed the number holder as the surviving spouse. However, J~'s children provided the information contained in the funeral obituary and death certificate, which, due to the 1985 divorce decree, is apparently incorrect information. The Agency also searched for divorce records in Philadelphia, Pennsylvania, Yonkers, New York, New York City, New York, and Lake Village, Arkansas, but did not find a divorce decree relating to the number holder's and J~'s marriage, other than the 1985 divorce. However, this does not prove that J~ did not obtain a divorce in some other county or state. See Spears v. Spears, 12 S.W.2d 875, 877 (Ark. 1928) (wife failed to show that husband did not obtain a divorce in some other county or state in which he lived or in which he established a temporary residence for the purpose of obtaining a divorce). As such, we believe that, under Arkansas law, the Agency has not obtained clear and decisive evidence that J~ or the number holder did not obtain a divorce prior to the number holder's marriage to the claimant.

In this case, similar to the Missouri Pacific and Stokes cases, the Agency is unable to establish that J~ did not divorce the number holder prior to his marriage to the claimant and, thus, the Agency has not rebutted the presumption that the last ceremonial marriage is valid. Hence, we believe that the State of Arkansas would uphold the validity of the marriage between the number holder and the claimant, so the claimant should be considered the number holder's widow.

Traci B. D~
Regional Chief Counsel
By: ______________
Carolyn E. W~
Assistant Regional Counsel


Footnotes:

[1]

. The Social Security Act defines the term surviving spouse to mean a widow or widower. See 42 U.S.C. § 416(a)(2), (c), (g). Thus, we use the terms interchangeably in this opinion.

[2]

. Even though the agency further developed the record to obtain additional information about this divorce, they did not obtain a copy of a divorce decree showing the precise effective date of the divorce. Moreover, there is contradicting information from R~ in her own statements as to when her marriage to the NH began and when it ended. In the disability application R~ filed with the agency in 1992, she stated she was still married to the NH. However, in disability applications she filed with the agency in 1995 and 1997, she claimed, respectively, that she divorced the NH in 1990 and in 1994.

[3]

. You advised that the NH’s Master Beneficiary Record (MBR) shows that the agency had previously found G~ entitled to spouse with child in care benefits effective May 1979. She had five children entitled on the NH’s record born between 1978 and 1985. You advised that the file pertaining to this application had been destroyed, and that it appeared that the agency may have found G~ entitled to benefits as the NH’s deemed spouse. The agency terminated G~’s spousal benefits in October 1987, but you advised that the termination reason is unknown.

[4]

. The evidence submitted does not include a copy of the marriage license or certificate showing a marriage between C~ and the NH and, in this opinion, we do not analyze the agency’s 2002 determination that C~ was entitled to benefits as the legal opinion request concerns only whether G~ is the NH’s widow for purposes of widow’s benefits on the NH’s record.

[5]

. These provisions state that a claimant can meet the relationship requirement if the claimant and the NH were validly married under state law at the time the NH died, or if the claimant would be able to inherit a spouse’s share of the insured’s personal property if the insured were to die without leaving a will.

[6]

. A void marriage is one that has no legal force or effect, and its invalidity may be maintained in any proceedings between any parties. Black’s Law Dictionary 987 (Rev. 7th ed. 1999).

[7]

. As described above, the evidence consists of a court docket sheet (a “Register of Actions”) showing that R~ and the NH filed for a divorce in Minneapolis, Minnesota on June XX, 1992, and that on December XX, 1992 “judicial review” was “approved.” See R~ v. O~, No. 27-FA-000185170 (Hennepin Family Court, Minnesota). We do not have a copy of the final divorce decree showing the exact date the divorce was final.

[8]

. The relationship requirement will also be met if under state law, a claimant would be able to inherit a widow’s share of the insured’s personal property if he were to die without leaving a will. See 42 U.S.C. § 416(h)(1)(A)(ii); 404.345; see also POMS GN 00305.005(A) (in determining whether a claimant qualifies as a spouse under the Act, consider all of the following types of marriages: valid ceremonial or common-law marriage; invalid marriage that permits a spouse to inherit under state intestate personal property, e.g. putative; custom marriage; or deemed marriage). We believe G~ could not inherit a spouse’s share of the NH’s property under Arkansas intestate succession laws because she did not have a valid marriage to the NH. See Ark. Code Ann. § 28-9-214(2) (if the intestate is survived by no descendant, the heritable estate of an intestate shall pass to the intestate’s surviving spouse). The intestate succession law does not define “surviving spouse,” but Arkansas case law indicates that in order to qualify as a “surviving spouse” for