TN 12 (05-16)
PR 05105.010 District of Columbia
A. PR 16-090 Whether the second wife of the deceased NH qualifies as the NH’s widow for purposes of her claim for surviving spouse benefits.
Date: March 7, 2016
Because the NH was domiciled in the United Kingdom at the time of his death, the Agency applies the laws of the District of Columbia to determine if the NH and claimant were validly married. In light of the claimant’s valid polygamous marriage to the claimant in Iran, the Iranian polygamous foreign marriage likely does not offend the public policy of the District of Columbia. Based upon our review of District of Columbia law, the history of Iranian law, and the facts you provided to us, we believe that the claimant can be considered the NH’s widow for purposes of widow’s benefits. District Columbia courts would recognize the validity of the marriage for purposes of recognizing claimant as the NH’s widow.
On December XX, 2015, you requested a legal opinion regarding whether G~, the claimant, qualified as a widow of deceased wage earner M~ (NH), where the NH was already married on the date he married the claimant in Iran.
Our opinion is that the District of Columbia would recognize the claimant’s marriage to the NH as valid for the purposes of her entitlement to widow’s benefits on the NH’s record.
The NH ceremonially married his first wife, N~, on December XX, 19XX in Pakistan. Subsequently, the NH married the claimant on August XX, 19XX in Qzvin, Iran. At the time of their marriage in 1977, the claimant believed that the NH was divorced from his first wife. The NH and claimant lived together until 1979 when the NH moved to England. The NH subsequently moved to the United States in the early 1980s. The claimant joined the NH in the United States in 1986, and the claimant and the NH lived together until 1987-1988 when they separated. They had one child together. At a later date, the NH returned to the United Kingdom where he lived until his death. The NH died in Pakistan in September 2012.
The NH’s first wife –N~ – applied for benefits in April 2013 and requested benefits beginning in September 2012, when the NH died. She is currently receiving widow’s benefits on the NH’s application. In or around June 2015, the claimant applied for benefits in the Frederick, Maryland field office, based on the NH’s record.
A surviving spouse of an insured who has died is entitled to widow’s benefits if, among other things, such surviving spouse (1) files an application; (2) is at least 60 years old; (3) was validly married to the insured under State law; (4) was married to the insured for at least 9 months immediately before the insured died; and (5) is not currently married. 42 U.S.C. § 402(e);
20 C.F.R. § 404.335.
Alternatively, if the applicant cannot qualify as a legal spouse under State law, the applicant may still be entitled to widow’s benefits if she would, under the laws applied by such courts in determining the devolution of intestate personal property, have the same status with respect to the taking of such property as a wife, husband, widow, or widower of such insured individual. 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.
In determining the validity of the surviving widow’s marriage to the deceased insured, the Agency applies the law of the State where the insured was domiciled, i.e., had a permanent home, at the time of the insured’s death. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. If the insured’s home is not in one of the 50 states, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, or American Samoa, the Agency will rely upon and apply the laws of the District of Columbia. Id. Here, because the NH was domiciled in the United Kingdom at the time of his death, the Agency applies the laws of the District of Columbia to determine if the NH and claimant were validly married.
Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction in which the marriage was entered into by the parties. Bansda v. Wheeler,
995 A.2d 189, 198-99 (D.C. 2010); McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951) (citing 2 Beale, Conflict of Laws, pp. 703, 704; 35 Am. Jur., Sec. 167); Carr v. Carr,
82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946); Hitchens v. Hitchens, 47 F. Supp. 73 (D.D.C. 1942). The only exception is when the marriage is in violation of strong public policy of the District of Columbia. Hitchens, 47 F. Supp. at 74.
The District of Columbia defines marriage as the legally recognized union of two people.
D.C. Stat. Ann. § 46-101(a). With regard to marriages entered into within the District of Columbia, the statute provides that “[a]ny person may enter into a marriage in the District of Columbia with another person, regardless of gender, unless the marriage is expressly prohibited by § 46-401.01 or 46-403.” Id. The statute invalidates marriages entered into within the District of Columbia where a person has been previously married and that marriage has not been terminated. Additionally, with regard to marriages entered into in the District of Columbia, section 46-401.01 provides, in relevant part, that certain “marriages are prohibited in the District of Columbia and shall be absolutely void ab initio,” including “[t]he marriage of any persons either of whom has been previously married and whose previous marriage has not been terminated by death or a decree of divorce.” D.C. Stat. Ann. § 46-401.01.
Despite the prohibition on polygamous marriages occurring within the District of Columbia itself, we have found no statutory provisions or case law in the District of Columbia which would indicate that valid polygamous marriages performed in a foreign country would violate the public policy of the District of Columbia. Indeed, there is an inherent distinction between a valid polygamous marriage performed in a foreign country and a polygamous marriage that is invalid at its inception. The first is valid at the time and in the place of the celebration of the marriage; the second is not.
Moreover, other courts have recognized that polygamous marriages, which would otherwise be considered invalid, could be treated as valid for purpose of intestate succession if the marriages were valid where they were entered into because doing so would not offend the public policy intent of prohibiting such marriages. See, e.g., In re Lenherr’s Estate, 455 Pa. 225, 231
(Pa. 1974) (citing In re Dalip Singh Bir’s Estate, 83 Cal. App. 2d 256, 188 P.2d 499 (Ca. Dist. Ct. App. 1948) (finding that no public policy would be affected by dividing the intestate’s estate between two surviving wives where marriage took place in a foreign province allowing polygamous marriages and where the marriages would be held valid in California to the extent of allowing the wives to share intestate’s estate equally). Accordingly, given that a polygamous foreign marriage would likely not offend the public policy of the District of Columbia, if polygamous marriage was lawful in Iran at the time that the NH and claimant married, the claimant could qualify for widow’s benefits.
We consulted with a foreign law specialist in the Global Legal Research Center of the Library of Congress in determining whether polygamous marriage was lawful in Iran in 1977. The specialist advised that the Civil Code of Iran, which is based on Islamic law, does not contain a prohibition against polygamy; indeed, in Iran, having one wife is not considered an impediment to marrying a second wife. Moreover, the 1967 Family Protection Law provided that a husband could marry more than one wife with court permission.
Here, the NH and claimant were married in Qzvin, Iran in August 1977. The claimant submitted her Iranian marriage certificate to establish proof of her marriage. The claimant also submitted a certificate of permission to marry that was issued by the Secretary of State of Iran giving permission for the NH and claimant to get married. The certificate was dated March XX, 19XX. Regardless of the claimant’s purported good faith in entering the marriage (i.e., her statement that she believed the NH was divorced from his first spouse), because a husband was lawfully permitted to marry more than one wife in Iran in 1977 with permission of the court, the NH’s marriage to the claimant (a second wife) appears to be valid under Iranian law.
In light of the claimant’s valid polygamous marriage to the claimant in Iran, and because the Iranian polygamous foreign marriage likely does not offend the public policy of the District of Columbia, we are of the opinion that District Columbia courts would recognize the validity of the marriage for purposes of recognizing claimant as the NH’s widow.
Based upon our review of District of Columbia law, the history of Iranian law, and the facts you provided to us, we believe that the claimant can be considered the NH’s widow for purposes of widow’s benefits.
Acting Regional Chief Counsel
Assistant Regional Counsel
Notably, an applicant may also qualify for widow’s benefits as a “deemed” spouse, that is if she went through a marriage ceremony with the NH in good faith, resulting in a marriage that would be valid except for a legal impediment. 42 U.S.C. § 416(h)(1)(B)(i); 20 C.F.R. § 404.346. To qualify as a “deemed” spouse, the applicant and the NH must have been living in the same household at the time of the NH’s death. 20 C.F.R. § 404.346(b). Here, the NH and claimant were not living in the same household at the time of the NH’s death. Thus, the claimant does not qualify for widow’s benefits as a “deemed” spouse under the Agency’s regulations.
Two OGC opinions are analogous. First, in an October 1989 opinion concerning the recognition of valid polygamous marriage in China, OGC determined that although polygamous marriages were against North Carolina public policy, there were no North Carolina statutes or case law indicating whether foreign polygamous marriages that were valid where they occurred would violate North Carolina public policy. As a result, OGC determined that North Carolina courts would recognize the validity of the polygamous marriage in determining the status of the parties, and ultimately concluded that two individuals were married to the NH for purposes of receiving Social Security benefits. Second, a May 2014 OGC opinion determined that although Pennsylvania’s statutes prohibited bigamy, Pennsylvania courts would likely recognize a bigamous Indian marriage that was valid in India for purposes of intestate succession.