TN 8 (11-15)

PR 05105.011 Florida

A. PR 88-004 Presumption Of The Validity Of The Last Marriage Eula T~

DATE: March 1, 1988

1. Syllabus

MARRIAGE — PRESUMPTION OF VALIDITY OF SECOND.OR LAST MARRIAGE (INCLUDES PRESUMPTIONS OF DEATH OR DIVORCE — FLORIDA

Where a mentally disabled individual has provided inconsistent mental history but has been married at least 3 times and divorced twice, the presumption of validity of the last marriage is not rebutted under Florida law and should be applied. (T~, Eula, — RAIV (A~), to ARC, Progs., Atl., 03/01/88.)

2. Opinion

Your office has requested our opinion as to whether the presumption favoring the validity of a person's last marriage would be applicable given the following facts.

Eula T~ died on June 22, 1985, and was domiciled in the State of Florida. She had married Norman T~ on November 28, 1980, in Florida. There is no indication that this marriage was terminated prior to Eula T~ death.

When Norman T~ filed a claim for disabled widower's benefits it was disallowed since he was unable to establish the validity of his relationship to Eula T~. At the time he filed his claim he stated that he had been married four times but could not remember the details of his marriages. When he was requested to obtain this information he did not do so.

Subsequent to the disallowance he submitted two certificates of divorce. One was obtained in 1964 in Massachusetts wherein he was the libellee. The other was obtained by Norman in 1976 in Florida. The Florida decree reflected that this marriage had occurred in 1971 in New York State. When he was asked about his fourth marriage. he changed his statement indicating that he had been married only three times. However, the application for his 1980 marriage license reflects it as only his second marriage.

Mr. T~ has been determined to be disabled due to a mental condition. The record contains many references to the fact that he cannot remember facts or dates. He is also an alcoholic. Therefore, your office is unable to obtain any more specific information from him regarding his marital history.

Our office reviewed the law of the State of Florida with respect to the presumption of the validity of the last marriage in a 1983 opinion. See, L~ John T. - ~ RAIV :[A~] - to ARC, Programs, 8/8/83. We noted in the L~ opinion that one of the strongest presumptions of law exists in favor of the validity of the last marriage. We further noted that; ...

"In order to rebut the presumption that the last marriage is valid, all public records available should be exhausted in an effort to establish the fact of the absence of a divorce. See In re L~'s Estate, 360 So.2d 1111 (Fla. 1964). See, also, Sikes v. Guest, 170 So.2d 322 (Fla. 1964). (Showing of marriage and uncompleted divorce proceedings alone was not sufficient to overcome strong presumption of validity of subsequent marriage.) Cf. Smith v. Heckler, 707 F.2d 1284 (11th Cir. 1983)." supra.

The factual situation presented by your office is very unusual. There are multiple marriages, as many as four, and evidence of two divorces. There has been conflicting information provided by the claimant and he is now unable to provide any further reliable information. The claimant has not provided consistent statements on the number of marriages he had prior to 1980.

Nonetheless, you presently have sufficient documentation to show that the claimant was married at least three times and had obtained two divorces prior to his 1980 marriage to the deceased wage earner. Assuming there had been a prior marriage, it is our opinion that the Social Security Administration lacks any evidence to rebut the presumption of the validity of the last marriage in this case. Furthermore, there was no evidence that the claimant and the wage earner were divorced prior to her death. Therefore, we feel that the presumption cannot be rebutted and should be applied in this case in determining what benefits are payable.

B. PR 83-022 Validity of Marriage - John T. L~, SSN ~

DATE: August 8, 1983

1. Syllabus

MARRIAGE — PRESUMPTION OF VALIDITY OF SECOND OR LAST MARRIAGE (INCLUDES RESUMPTIONS OF DEATH OR DIVORCE — FLORIDA

Evidence establishing that a husband and wife separated in Mississippi and also showing that the whereabouts of the husband were unknown for several years thereafter and that the wife entered into two subsequent marriages is insufficient to rebut the presumption of the validity of the later marriages of the wife under Florida law. (L~, John T., ~ — RAIV (A~), to ARC, 08/08/83.)

2. Opinion

This case has been referred for an opinion as to whether Inez B. L~~ meets the definition of legal widow of John T. L~ who died on July 21, 1978, domiciled in Florida.

John T. L~ married Lillie I~ B~ on February 11, 1938, in Hinds County, Mississippi. They separated in 1948. Mrs. L~ filed for a divorce in 1948, but court records for Hinds County, Mississippi, show that the divorce was not finalized. In 1960, Inez L~ married Pete W~ in Jackson, Mississippi. They separated three weeks later. Then, in 1964, Inez married W.B. M~ in Long Beach, California. Their marriage ended in divorce in 1967 in Biloxi, Mississippi. No evidence of Mr. L~ marital history after his separation could be determined; however, his application for retirement benefits filed on July 8, 1975, shows his marital status as divorced. All known places of residence for both John and Inez L~ were searched but no evidence of divorce could be found.

One of the strongest presumptions of law exists in favor of validity of the last marriage. In order to rebut the presumption that the last marriage is valid, all public records available should be exhausted in an effort to establish the fact of the absence of a divorce. See In re L~'s Estate, 360 So.2d 1111 (Fla. 1964). See also Dale P01k Construction Company v. White, 287 So.2d 278 (Miss. 1973); Sikes v. Guest, 170 So.2d 322 (Flaú 1964). (Showing of marriage and uncompleted divorce proceedings alone was not sufficient to overcome strong presumption of validity of subsequent marriage.) Cf. Smith v. Heckler, 707 F.2d 1284 (11th Cir. 1983).

Apparently, this is a situation where two individuals thought they had complied with the legal requirements for a divorce but, in fact, were never actually divorced. While Mrs. L~ entered into subsequent marriages, there is no evidence to show that Mr. L~ ever remarried although his notation of a divorce on an application indicates that he felt he was divorced at some time. The search for evidence of a divorce produced no evidence of a legal divorce, however, there was a substantial period of time during which the residency of Mr. L~ could not be ascertained.

We stated the following in G~ , Marvin C. — ~ RAIV (C~) to HE, Birmingham, 7/8/60:

The Florida courts do not require that every remote possibility that the first spouse obtained a divorce be negated in order to rebut the presumption. The courts have held that evidence which, when weighed collectively, establishes that there could be no reasonable probability that the first spouse obtained a divorce is sufficient to rebut the presumption. Teel v. Nolen Brown Motors, Inc., 93 so.2d 874 (Fla. 1957); Perkins v. Richards Constructors, Inc., 111 So.2d 494 (Fla. 1959); Hillyer & Lovan v. Fla. Industrial Commission, 155 Fla. 144, 19 So.2d 838. It is clear from the foregoing cases that the Florida courts require the person attacking the second marriage to establish with reasonable certainty the states of residence of the first spouse after the separation, and to show that the State Bureau of Vital Statistics of such states have been searched, and no record of a divorce found.

We have found no case in which a Florida court has held the presumption of validity of the second or subsequent marriage rebutted in the absence of evidence which established with reasonable, although not absolute, certainty the places of residence of the parties between the date of their separation and the date of the subsequent marriage. In the absence of such evidence and proof that no divorce was obtained in such places, it would appear unlikely that a Florida court would find that there would be no reasonable probability that a divorce was obtained.

There has been no change in Florida law in this area and later cases follow the law set down in the earlier case cited above. The extended period of time during which the residency of Mr. L~ was unknown is probably fatal to an attempt to rebut the presumption of the validity of Mr. L~ last marriage under Florida law. Ms. L~ would need to ascertain the places of residence of Mr. L~ during their separation and search the court records for those jurisdictions to affirmatively show that there is little probability that he obtained a divorce from her.

We also note that under the law of Mississippi, even though there is a valid marriage, Mrs. L~ might be estopped from asserting the validity of the marriage and her inheritance rights under the State's law of descent and distribution as the widow of Mr. L~ because of her subsequent ceremonial marriages. (See prior opinions on Mississippi estoppel.) Nonetheless, we could find no Florida cases which followed Mississippi in similar cases. Apparently, under Florida law, it would only be necessary to rebut the presumption of the validity of the subsequent marriages in order for Mrs. L~ to be declared the widow of Mr. L~ for inheritance purposes and there was insufficient evidence to rebut the presumption. We feel that Florida probably would not recognize the validity of the marriage at the time of Mr. L~ death and thereby find that Mrs. L~ was not his "widow." Furthermore, since Mr. L~ died domiciled in Florida, it is our opinion that Florida would use its own laws to determine the validity of the marriage between Mr. L~ and Mrs. L~ and whether Mrs. L~ would be entitled to inherit the intestate personal property of Mr. L~ as his widow. See Tsilidis v. Pedakis, 132 So.2d 9 (1961). Therefore, we feel that Mrs. L~ can not be found to be a widow as defined in Section 216(c) and 216(h)(1)(A) of the Social Security Act.


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PR 05105.011 - Florida - 11/18/2015
Batch run: 11/18/2015
Rev:11/18/2015