TN 16 (05-17)

PR 05105.016 Illinois

A. PR 17-059 Validity of Second Marriage Solemnized in Alabama

Date: March 13, 2017

1. Syllabus

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.

2. Opinion

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.

B. PR 12-079 Illinois – Presumption of Validity of Last Marriage--REPLY Number Holder: James Claimant: Lula

DATE: March 19, 2012

1. SYLLABUS

There is sufficient evidence to overcome the presumption that the NH’s previous marriage ended prior to his marriage to the claimant, and the claimant does not qualify as the legal spouse of the NH because her marriage to the NH was void at its inception under Missouri law and Illinois would not recognize it. The claimant cannot qualify as the deemed spouse of the NH because she was not living with the NH at the time of his death. The claimant may be able to establish her status as the putative wife of the NH if developing and weighing evidence shows that she went through a marriage ceremony and cohabited with the NH in the good faith belief that she and the NH were legally married.

2. OPINION

QUESTION PRESENTED

You requested an opinion as to the validity of the marriage between James, the number holder (NH), and the claimant, Lula, in light of the NH’s undissolved prior marriage to his first wife, for purposes of determining Lula’s entitlement to benefits on the NH’s record as his widow. 

SHORT ANSWER

A claimant for widow’s benefits must meet the relationship requirement showing that she was the NH’s legal spouse, putative spouse, or deemed spouse at the time of the NH’s death.  For the reasons discussed below, we conclude that Lula does not qualify as the NH’s legal spouse or deemed spouse. However, Lula might be able to establish her status as the NH’s putative spouse under Illinois law, depending on the outcome of your weighing and/or development of the evidence.   

BACKGROUND

The NH married Ella in December 1969 in Missouri. In May 1973, the NH and Lula were married in Missouri.  At some point thereafter, the NH moved from St. Louis, Missouri, to Champaign, Illinois. 

In March 1993, the NH filed an application for disability benefits.  On his application, the NH listed Ella as his wife and stated that their marriage had not ended, but that they were separated. The NH did not list any other marriages on his application. 

The NH died in February 2003 while domiciled in the State of Illinois. 

Ella applied for and was awarded disabled widow’s benefits on the NH’s record effective February 2003.  On her application, Ella stated that she married the NH in 1966 in Missouri and that their marriage ended in February 2003 due to his death.  She stated that she and the NH last lived together in December 2002, and they were separated at the time of his death. 

DISCUSSION

Section 202(e) of the Social Security Act provides for the payment of Widow’s Insurance Benefits to a widow of a wage earner who died fully insured. See Section 202(e)(1) of the Act; see also 20 C.F.R. § 404.335. To qualify as a “widow,” a claimant must establish that:

1)       the courts of the State in which the deceased wage earner was domiciled at the time of death would find that the claimant and deceased wage earner were validly married at the time he died; or

(2)      under the laws applied by such courts in determining the devolution of intestate personal property, the claimant would have the status of widow with respect to the taking of such property of the deceased wage earner. 

See Section 216(h)(1)(A) of the Act; see also 20 C.F.R. § 404.345; POMS RS 00207.001, GN 00305.020 (legal spouse), GN 00305.085 (putative spouse). A claimant who does not qualify as a “widow” under State law may nevertheless be deemed to have had a valid marriage if she can establish that: (1) she in good faith went through a marriage ceremony with the deceased wage earner resulting in a purported marriage between them, with no knowledge at the time of the ceremony of any legal impediment that would invalidate the marriage, and (2) she and the deceased wage earner were living in the same household at the time of his death. See Section 216(h)(1)(B) of the Act; see also 20 C.F.R. § 404.346; POMS GN 00305.055 (deemed spouse). Thus, a claimant can meet the relationship requirement for widow’s benefits by showing that she was the legal spouse, putative spouse, or deemed spouse of the NH at the time of his death. 

First, we consider whether Lula was the NH’s legal spouse.  As required by section 216(h)(1)(A)(i) of the Act, we apply the laws of the State of Illinois, where the NH was domiciled when he died, to determine the validity of their marriage. Here, the evidence indicates that the NH and Lula were married in 1973 in Missouri. Illinois recognizes a marriage that is 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 Missouri law to determine whether the marriage between the NH and Lula was valid when contracted. 

Under Missouri law, bigamous marriages are void. Missouri’s marriage statute provides that “[a]ll marriages, where either of the parties has a former wife or husband living, shall be void, unless the former marriage shall have been dissolved.” Mo. Ann. Stat. § 451.030; see also POMS GN 00305.125. Missouri law also presumes that a second marriage is valid, and that the first marriage was dissolved by death or divorce. See Jackson v. Phalen, 140 S.W. 879, 881 (Mo. 1911); In re Marriage of S~, 645 S.W.2d 205, 208 (Mo. App. 1983).   This presumption, however, is not conclusive, and may be overcome by satisfactory proof that the first marriage was not dissolved at the time of the second marriage. See Osmak v. Am. Car & Foundry Co., 40 S.W.2d 714, 717 (Mo. 1931). The party attacking the validity of the second marriage bears the burden of proving invalidity. See id. 

Here, the NH married Ella in 1969 and then married Lula in 1973. Both marriages took place in Missouri. The presumption under Missouri law is that the NH’s second marriage to Lula was valid and that his first marriage to Ella was dissolved by divorce. However, we believe the evidence clearly shows that the NH’s marriage to Ella did not end in divorce, so as to render his subsequent marriage to Lula bigamous and void under Missouri law. For instance, the NH reported to SSA in 1993 that he was married to Ella.  As well, Ella reported to SSA that she never divorced the NH and that their marriage ended due to his death in February 2003. Further, SSA performed a search of divorce and court records, and found only a petition by the NH for divorce from Ella in 1979 in the Champaign County, Illinois Circuit Court, which was dismissed in 1982. We believe this evidence is sufficient to overcome the presumption that the NH’s marriage to Ella was dissolved prior to his marriage to Lula. 

Thus, because the NH was still married to Ella at the time of his marriage to Lula in 1973, the second marriage was void at its inception under Missouri law.  And since the marriage between the NH and Lula was void in Missouri, Illinois would not recognize it. Accordingly, Illinois courts would not find that the NH and Lula were validly married at the time of the NH’s death.  As such, Lula should not be considered the NH’s legal spouse for purposes of entitlement to widow’s benefits under section 216(h)(1)(A)(i). 

Second, we consider whether Lula was the NH’s putative spouse at the time of his death under state law, pursuant to section 216(h)(1)(A)(ii) of the Act. 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 evidence includes a valid marriage certificate for the NH’s marriage to Lula. Thus, it appears that the couple went through a marriage ceremony.  Lula must also show that she cohabited with the NH after their marriage ceremony and that she believed in good faith until at least the time of his death that they were legally married to each other.  According to the information you provided to us, Lula stated that she and the NH lived together for 3 to 4 years and then separated, and that she was not aware of any other marriages. There does not appear to be any evidence to the contrary.  If you find that Lula’s statements are sufficient and credible, then you may conclude that Lula acquired putative spouse status under Illinois law.  However, if you think it is appropriate, you also have the discretion to further develop the issue of putative spouse before making your finding. See, e.g., In re Marriage of F~, 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). 

Finally, Lula cannot establish the requirements of a deemed marriage under section 216(h)(1)(B) of the Act because she was not living with the NH at the time of his death. 

CONCLUSION

Lula does not qualify as the NH’s legal spouse under section 216(h)(1)(A)(i) of the Act because they would not be considered validly married under Illinois law at the time of the NH’s death. In addition, Lula does not qualify as the NH’s deemed spouse under section 216(h)(1)(B) because she was not living with the NH at the time of his death. However, Lula might be able to establish her status as the NH’s putative spouse under section 216(h)(1)(A)(ii), if you find that she meets Illinois’s statutory requirements that she went through a marriage ceremony and cohabited with the NH in the good faith belief that she was legally married to him. 

Donna L. Calvert

Regional Chief Counsel, Region V

By: Cristine Bautista

Assistant Regional Counsel

C. PR 86-039 Presumption of Validity of Last Marriage Under Illinois Law Lester, Claimant, Ida

DATE: October 27, 1986

1. SYLLABUS

MARRIAGE — PRESUMPTION OF VALIDITY OF SECOND OR LAST MARRIAGE (INCLUDES PRESUMPTION OF DEATH OR DIVORCE) — IL

Where statements and evidence are inconsistent and contradictory and where the statements of the wage earner may have been motivated by the belief that entitlement of the claimant to wife's benefits would have had an effect on his own benefits and there was documentary evidence of a ceremonial marriage between the parties, the presumption of the validity of that marriage is not rebutted. The presumption of validity of last marriage must be reviewed on a case-by-case basis. (Lester, — RAY , to ARC, Progs., 10/27/86 .)

MARRIAGE — PRESUMPTION OF VALIDITY OF SECOND OR LAST MARRIAGE (INCLUDES PRESUMPTION OF DEATH OR DIVORCE) — IL

The issue of whether or not the presumption of the validity of the last marriage is rebutted must be reviewed on a case-by-case basis. In this particular instance where the statements and evidence are inconsistent and contradictory and where the statements of the wage earner may have been motivated by the belief that entitlement of the claimant to wife's benefits would have had an effect on his own benefits and there was documentary evidence of a ceremonial marriage between the parties, the presumption of the validity of that marriage is not rebutted even though there is still to be resolved the question of whether or not the claimant's marriage to her first husband many years ago was ever terminated by death or divorce prior to the death of the wage earner. (Lester, — RAY , to ARC, Progs., 11/14/86.)

2. OPINION

This is in response to your request for our assistance in determining the validity of Lester and Ida's marriage in light of each spouse's possibly undissolved prior marriages. Specifically, you inquired whether the marriage between Lester and Ida., their last marriage, is presumed valid under Illinois law. Although this issue is not free from doubt, we conclude, for the reasons set forth below, that Ida is the legal widow of Lester.

FACTS

Our ability to outline the facts is hampered because the information contained in the claims folder is often contradictory. Statements made by both Lester and Ida have been undermined either by objective documents or their own prior statements. Nonetheless, we will summarize the more salient “facts.” Both Ida and Lester have filed claims for Social Security benefits.

Lester filed for disability benefits in 1973 at age 58, and was granted benefits. On his Statement of Marital Relationship, he listed Ida as his wife with whom he had been living since 1945. However, he stated that a marriage ceremony was never performed and therefore he believed that he was not legally married although he had seven children with Ida and had lived with her for almost thirty years. He noted that Ida maiden name was W~. Regarding prior marriages, Lester claimed that he had a 1935 common law marriage in Mississippi with a woman named Luella whose last name he listed as "unknown. He stated that the relationship ended in 1935. He stated that in 1936 he ceremonially married an Ethel whose last name he listed as “unknown.” He claimed that the marriage ended by their separating in 1943.

In a second statement, Lester reiterated that he and Ida were never ceremonially married. However, Lester's statement about his failure to ceremonially marry Ida is rebutted by a December 1959 marriage license which was issued to Lester and Ida in Illinois stating that Lester and Ida were ceremonially married on December XX, 1959.

Information regarding Ida's marital history is similarly difficult to determine due to Ida’s contradictory and misleading statements on her several applications for benefits. Ida first filed for and received wife's benefits on Lester's account in 1973. Ida was 63 years of age. In that application, she stated that she married Lester in Mississippi on December XX, 1946. She further acknowledged a prior marriage to Tommy which she claimed ended in divorce. Ida's benefits were terminated in 1974 when no proof of her marriage to Lester was submitted. Ida resubmitted an application in 1977. In that application, she stated that she married Lester in Chicago in April 1945. However, in a 1977 statement, Lester claimed that he never married Ida but rather they lived together as husband and wife since 1945. In a 1978 statement, Lester reaffirmed that he did not go through a marriage ceremony with Ida. He also noted that his “first” wife, Ethel and he were never divorced although they separated in 1943. He further claimed that Ethel was still living as of 1970. [4] For her part, Ida, in a 1978 statement which contradicted both her 1977 and 1973 applications, indicated that she never went through a marriage ceremony with Lester. She also admitted that she did not know whether her “first” husband, Tommie, had obtained a divorce. She claimed however that Tommie died in 1976. Based upon these statements, and the other available evidence, you rejected Ida's claim for wife's benefits.

Ida again filed for benefits in November 1983, this time as Lester's widow. Lester had died in Illinois on October XX, 1983. In this application, under the category of marriages other than to Lester, Ida stated “none.” She stated that Lester was divorced from his only other wife, Ethel. For this application, Ida produced a valid marriage certificate showing that she married Lester on December XX, 1959. Hence, widow's benefits were awarded. However, after the claim was processed, the original file was discovered with the other applications. Your office sought clarification of the numerous inconsistencies.

Your office secured verification that the marriage license was valid. In response to your question why Ida previously stated that she and Lester were never ceremonially married, Ida claimed in an April 5, 1984 statement that: “I do not recall signing any forms stating that I never married Lester , I have never had any reason to say I was not.” Ida did not, however, explain why her 1983 application failed to acknowledge her previous marriages. In a report of contact made two days earlier, Ida explained that “her memory has been jarred from several seizure attacks.” Your search of records for a divorce between Ida and Tommy revealed that she had secured a divorce from him on March XX, 1949. However, the divorce papers listed an additional surname, J~, for Ida Although Ida had never listed that name in any of her previous applications, she conceded that she had married a Fred in Mississippi in the 1930's. Ida claimed that she was only 16 or 17 at the time of the marriage, and that after I or 2 years they separated. Ida further claimed in her October 9, 1984 statement that Fred was deceased, but before he died he advised her that he had divorced her in Mississippi. A search of records produced a March XX, 1932 marriage certificate. However, a search of divorce records produced no divorce record. Search for a death certificate was not possible because the date of death was unknown.

Regarding Lester's prior marriages, no confirmation was found concerning his marriage to Ethel. Apparently, no development was undertaken regarding Lester's first “marriage” to Luella. Significantly, however, no other woman has claimed wife's or widow's benefits on Lester's account.

Based upon these facts, you have submitted this case to our office for a determination of Ida's marital status under Illinois law, the state in which Lester was domiciled at the time of his death.

DISCUSSION

Pursuant to the Social Security Act and its implementing regulations, a claimant is entitled to benefits as the wife or widow of a wage earner on the basis of (1) a valid ceremonial marriage, (2) a “deemed” or "de facto" marriage, [5] (3) a common-law marriage recognized under applicable state law, or (4) a "putative" marriage recognized under applicable state law. [6] 42 U.S.C. 416(h)(1); 20 C.F.R. 404.344-404.346, 404.723-404.727, POMS GN 00305.040. Illinois does not recognize common-law marriages entered into after June 30, 1905. Ill. Ann. Stat. ch. 40 214 (S~-H~ 1980). Therefore, initially, we must consider whether Ida and Lester's 1959 marriage in Illinois was valid. An affirmative determination as to the validity of their marriage would preclude the necessity to consider the other alternatives.

Because of the contradictions in the available information, there are very few concrete facts upon which we can base an opinion. First, Ida and Lester did go through a marriage ceremony in 1959. The "marriage" was ended by Lester's death in Illinois. The question becomes whether any of Lester's or Ida's previous marriages were undissolved at the time of their marriage or remained undissolved at the time of Lester's death.

Illinois follows the presumption of the validity of the last of two or more conflicting marriages. Davis v. Califano, 603 F.2d 618 (7th Cir. 1979); Sparling v. Industrial Commission, 270 N.E.2d 411 (Ill. 1971); Baer v. DeBarry, 175 N.E.2d 673 (Ill. App. 1971). Thus, in the absence of evidence to the contrary, a previous divorce will be presumed in order to sustain a subsequent marriage.

However, the presumption may be rebutted "by evidence which, standing alone, affords reasonable grounds for concluding that no divorce has been secured." Sparling v. Industrial Commission, 270 N.E.2d at 413. This standard is not a strict one. In S~, the Illinois Supreme Court found the presumption rebutted on the basis of the prior wife's testimony, along with the lack of evidence that a divorce had been obtained prior to the deceased's second marriage (although divorce records were not checked). In Davis v. Califano, 603 F.2d 615 (7th Cir. 1979), which involved the claims of the deceased wage earner's two wives to widow's disability benefits, the Seventh Circuit, after examining Illinois law, found that the presumption of the validity of the second marriage was rebutted by the testimony of the first wife and by searches of the divorce records of the wage earner's places of residence, which revealed nothing. The issue here is whether the conflicting evidence is sufficient to rebut the presumption.

This case is unusual in that both spouses have prior marriages which could conceivably rebut the validity of their marriage. Focusing first on Ida's prior marriages, her marriage to Thomas does not interfere with her present claim because you have definitive evidence of her divorce from Thomas . Moreover, her marriage to Thomas may not have been valid if she had not been divorced from Fred at the time of that marriage. There is no conclusive evidence that Ida's marriage to Fred was dissolved at any time prior to Lester's death. [7] We only have Ida's unsubstantiated word that Fred divorced her and that he is dead. She does not explain how she acquired this information because she claims that from 1934 she did not know Fred's location. Your office may wish to contact Ida for a further explanation of this apparent inconsistency.

The fact situation concerning a prior spouse whose whereabouts have been unknown for several years has been addressed in the POMS. GN R00305.110 provides an example in which a woman remarries before she divorced or received any indication that her first husband divorced her. She believed her first husband died, but did not know his whereabouts for five years prior to the marriage to her second husband. Your office has stated that no further information could be obtained regarding the first husband. POMS instructs that because of the time period prior to her second marriage during which the location of her first spouse was unknown, there is a presumption that her first husband died or divorced her. Consequently, the presumption of the validity of the second marriage is not rebutted.

Although we recognize that Ida concealed information regarding her marriage to Fred, you have been unable to obtain any evidence which contradicts her allegations regarding him. Moreover, considering the advanced age of Fred, it is not unreasonable to presume that he is deceased. We have previously held that the presumption of the validity of the last marriage is not overcome by mere proof of a prior marriage and that one of the parties had not obtained a divorce. S~, Horace, RA V (C~) to Reg. Rep. OASI, 1/26/60. Based upon these precedents, we find that the presumption that Ida and Lester's marriage was valid has not been rebutted because of Ida's prior marriages.

An issue still remains as to the validity of the marriage because of Lester's prior marriages. The key in our determination as to the accuracy of Lester's statements depends solely on his credibility; all information concerning the alleged two previous marriages derives solely from Lester's unsupported statements. [8] For the reasons discussed below, we do not believe that Lester's statements are credible and there is no concrete evidence sufficient to rebut the validity of his last marriage to Ida

Lester claimed that he was married to two women before he "married" Ida. He claimed that he cannot remember the last name of either former "spouse." He also stated that he did not divorce either spouse before he began living with Ida. No other evidence has been presented to support Lester's claims that these marriages actually occurred. In general, we would find it difficult to believe that a husband cannot recall the last name of a spouse. We recognize that the marriages allegedly occurred in the 1930's, but we also note Lester's "confusion" or misstatements as to other critical facts. Most significantly, Lester claimed that he never ceremonially married Ida although such a ceremony was definitively proved by a marriage certificate. Your office also suggests that Lester's representations that he was previously married or that he never divorced those spouses may have been motivated by his belief that Ida's entitlement to benefits would reduce the amount of benefits to which he was entitled.

As part of your development, your office contacted Lester's two sisters. There was no discussion concerning Lester's alleged first wife Luella, but both sisters recalled an Ethel although they knew very little about her. They did not know when or where Lester and Ethel were married. Indeed, they could not state definitively that Lester and Ethel were married. We note that the reliability of the sister's information is questionable because as your office observed the sisters were in their 90's and appeared confused. Even assuming that Lester was not deliberately obfuscating his marital history in order to obtain more benefits for himself, his memory may have been faulty. The cause of Lester's death, cirrhosis of the liver, suggests that Lester may have been suffering from alcoholism.

After reviewing all of this information and the cases, we believe that it is a very close question whether the presumption of the validity of the marriage between Ida and Lester has been overcome. Neither of the parties has been completely honest in their statements to your office. However, based upon all the information, we conclude that Lester's statements at the time of Ida's 1973 application are the least reliable for several reasons. First, he may have been motivated to deny a valid marriage to Ida in the belief that a marriage to Ida would reduce his benefits. Second, because of his physical condition, he may have been confused about his previous marriages and divorces. His failure to produce the last names of his prior "spouses" may have been intentional to preclude your office from checking his story or the result of his confusion. Under either interpretation, Lester's unsubstantiated assertions would not be sufficient to overcome the presumption.

We believe that the most significant evidence as to the validity of Ida's and Lester's marriage is the absence of any wife's claims by a Luella or an Ethel on Lester's account. Several explanations could account for this fact, all of where would substantiate Ida's claim of a valid marriage. First, there never was a valid marriage with either Luella or Ethel. Second, Lester divorced both of them and they remarried. Third, Lester did not divorce them, but both remarried. Under the rule of estoppel, both might be precluded from denying that the marriage to Lester was not terminated. Finally, both women could have died prior to Lester's death and thus his marriage to Ida was validated under §212 of the Illinois Marriage and Dissolution of Marriage Act of 1977. In summary, while the issue is not clear cut, we believe that the evidence could reasonably indicate that the presumption of the validity of Ida and Lester's marriage has not been overcome.

CONCLUSION

Based upon all of the evidence, we conclude that Ida is the legal widow of Lester. Therefore, we need not determine whether Ida would be considered either a deemed or putative spouse.

D. PR 81-010 Frank, D/W/E (a/k/a Lewis ), — Sarah, Claimant for Mother's Benefits, Audrey, Claimant for Mother's Benefits — Marriage Presumption

DATE: August 24, 1981

1. SYLLABUS

1. Marriage—Presumption of the validity of the last of two or more conflicting marriages - Illinois

Where there are two or more conflicting marriages, the most recent one is presumed to be valid. This presumption may be rebutted by evidence which, standing alone, affords a reasonable grounds for concluding that no divorce has been secured.

The testimony of a prior wife, together with a search of the divorce records of the husband's places of residence, is found to be sufficient evidence that no divorce had taken place and so rebuts the presumption of the validity of a subsequent marriage.

In the situation where testimony of the wife is unavailable and the places of residence of the husband were unknown for relevant periods of time so that divorce records could not be examined, the presumption of the validity of a subsequent marriage is not rebutted as there is insufficient evidence to indicate that no divorce had taken place.

2. Marriage—Putative

A person is considered a putative wife, i.e., has the same rights as a widow to inherit personal property under State law if (1) there was a marriage ceremony, (2) there was cohabitation, and (3) the spouse entered into the marriage in good faith. The putative relationship exists up until the time the spouse is informed of the prior undissolved marriage. However, should an individual die before his or her spouse is informed of the prior undissolved marriage inheritance rights vest at the time of death.

2. OPINION

This is in reference to your request for our assistance in determining whether either Sarah or Audrey is entitled to mother's benefits on the account of Frank. We conclude, for the reasons outlined below, that both claimants are so entitled - Sarah as the wage earner's legal widow and Audrey as his putative spouse under Illinois law. We also conclude that Audrey's entitlement may continue even if she later learns of the wage earner's prior marriage to Sarah.

The relevant facts may be briefly summarized: The wage earner was married at least four times prior to his death on November XX, 1979 in Chicago, Illinois. The first marriage was to Thelma on December XX, 1945 in Columbus, Mississippi. This marriage was a ceremonial marriage. According to the wage earner's father, who lived in Columbus, the wage earner and Thelma separated shortly after their marriage but did not divorce. The wage earner married Eloise on May XX, 1946 in Columbus. This marriage was also a ceremonial marriage. According to the wage earner's father, the wage earner and Eloise separated before the wage earner came to Chicago but never obtained a divorce. It is not clear from either the father's statement or the rest of the record when the wage earner came to Chicago, and there is no evidence of the wage earner's activities between 1946 and 1967.

The wage earner married Sarah on March XX, 1967 in Chicago. In her statement, Sarah alleged that the wage earner never told her about any prior marriage either before they were married or after they were separated in 1968. She also stated that she never divorced the wage earner and was never notified that the wage earner had divorced her. The wage earner married Audrey on July XX, 1974. In her statement, Audrey, also alleged that the wage earner had never told her about any prior marriages. The wage earner listed Audrey as his spouse in an application for disability benefits in 1975. The wage earner and Audrey separated in 1976, and did not divorce prior to the wage earner's death.

The claims folder also indicates that the wage earner had a relationship with an Amanda in Mississippi prior to 1950, but the nature and length of that relationship is unclear. A daughter, Barbara , was born in 1949. Both Sarah and Audrey knew Barbara. Sarah alleged that Barbara informed her that the wage earner had been married once before he married Sarah. Barbara did not tell Sarah the name of the first wife, but only that the first wife had divorced the wage earner before he married Sarah. Audrey alleged that Barbara told her that Audrey was the wage earner's only wife. As for Barbara, she orally stated to the District Office that she did not know anything about the wage earner's marital status. She also stated that he had been married to her mother, Amanda, in Mississippi, although she did not know where or when. She refused to make a written statement or furnish Amanda's address. There is no evidence of a ceremonial marriage between the wage earner and Amanda, nor is there evidence which would establish a valid common-law marriage in Mississippi (which was recognized until 1956).

The evidence therefore indicates that the wage earner was married four times: first, to Thelma in Mississippi in 1945; second, to Eloise in Mississippi in 1946; third, to Sarah in Illinois in 1967; and fourth, to Audrey in Illinois in 1974. Mississippi divorce records checked from 1945 through 1962 indicate no divorce between the wage earner and Thelma or between the wage earner and Eloise. Illinois divorce records checked from 1945 through November 1979 (the date of the wage earner's death) indicate no divorce between the wage earner and Thelma, the wage earner and Eloise, or the wage earner and Sarah. According to the wage earner's father, the wage earner was never divorced from either Thelma or Eloise. Thelma and Eloise apparently cannot be located. Sarah alleges that she and the wage earner were never divorced.

Sarah has filed for mother's benefits and child's benefits for Frank, born September. Audrey has filed for mother's benefits and child's benefits for Frank born March. The entitlement of both children to benefits is not at issue here. You have asked us whether either Sarah or Audrey may be entitled as putative spouses under Section 305 of the Illinois Marriage and Dissolution of Marriage Act of 1977, ILL. REV. STAT., Ch. 40, par. 305 (S~-H~). We must first determine, however, whether either woman may be entitled as the legal widow of the wage earner.

Illinois follows the presumption of the validity of the last of two or more conflicting marriages. Sparling v. Industrial Commission, 270 N.E. 2d 411 (Ill. 1971); Davis v. Califano, 603 F.2d 618 (7th Cir. 1979); Baer v. DeBarry, 175 N.E. 2d 673 (Ill. App. 1971). Thus, in the absence of evidence to the contrary, a previous divorce will be presumed in order to sustain a subsequent marriage. Under this rule, the marriages of the wage earner to Thelma, Eloise, and Audrey are therefore presumed to have terminated in divorce (or death), and his marriage to Audrey is presumed to be valid.

However, the presumption may be rebutted “by evidence which, standing alone, affords reasonable grounds for concluding that no divorce has been secured.” Sparling v. Industrial Commission, 270 N.E. 2d at 413. This standard is not a strict one. In S~, the Illinois Supreme Court found the presumption rebutted on the basis of the prior wife's testimony, along with the lack of evidence that a divorce had been obtained prior to the deceased's second marriage (although divorce records were not checked). In Davis v. Califano, 603 F.2d 615 (7th Cir. 1979), which involved the claims of the deceased wage earner's two wives to widow's disability benefits, the Seventh Circuit, after examining Illinois law, found that the presumption of the validity of the second marriage was rebutted by the testimony of the first wife and by searches of the divorce records of the wage earner's places of residence, which revealed nothing.

Based on these precedents, we find that the presumption of the validity of the wage earner's fourth marriage to Audrey is rebutted with regard to his third marriage to Sarah. Sarah stated that she never divorced the wage earner nor was she ever notified that the wage earner had divorced her. A search of Cook County divorce records revealed no divorce between the wage earner and Sarah. There is no evidence that either the wage earner or Sarah resided elsewhere from the time of their marriage in 1967 until the wage earner's death. The available evidence thus affords "reasonable grounds" for concluding that no divorce was ever secured between the wage earner and Sarah. Thus, as between Sarah and Audrey, Sarah is the legal widow of the wage earner.

As between the wage earner's marriage to Sarah and his prior two marriages to Thelma and Eloise in Mississippi, however, the presumption of the validity of the marriage to Sarah is not rebutted. While divorce records in Columbus, Mississippi from 1945 through 1962 and in Chicago, Illinois from 1945 through 1979 reveal no divorce between the wage earner and either Thelma or Eloise, the claims file does not indicate the exact whereabouts of the wage earner between 1946 (the date of his marriage to Eloise in Mississippi) and 1967 (the date of his marriage to Sarah). There is also no evidence concerning the residences of either Thelma or Eloise subsequent to the time each separated from the wage earner. While the wage earner's father stated that the wage earner was never divorced from either Thelma or Eloise, this statement is probative only as to the time the wage earner resided in Mississippi. The available evidence therefore fails to afford "reasonable grounds" for concluding that no divorce was secured between the wage earner and either Thelma or Eloise. Accordingly, we conclude that Sarah is the legal widow of the wage earner and is entitled to mother's benefits based on his account.

We must also determine, however, whether Audrey may also be entitled to benefits as the wage earner's putative spouse. Under Section 202(g)(1) of the Social Security Act, 42 U.S.C. §402(g)(1), an individual is entitled to mother's insurance benefits if she is the “widow” of a fully or currently insured individual and has in her care a child of such individual entitled to a child's benefit. Under Section 216(h)(1)(A), 42 U.S.C. §416(h)(1)(A), an applicant is the widow of a deceased wage earner if she was validly married to the wage earner under state law or if she has the same rights as a widow to inherit personal property under state law. See also 20 C.F.R. §§404.339(a), 404.345; Claims Manual §502(a). [9]

Illinois law provides that a person who goes through a marriage ceremony and cohabits with another person in the good faith belief that he or she is validly married to that person is a putative spouse and acquires all the rights of a legal spouse (including the right to inherit) until knowledge of the fact that he or she is not legally married terminates such status and prevents the acquisition of further rights. ILL. REV. STAT. Ch. 40 par.' 305 (S~-H~). We believe that under this provision Audrey is the putative spouse of the wage earner and would therefore be entitled to inherit personal property from his estate. Section 305 sets forth three requirements for the status of putative spouse: (1) a marriage ceremony, (2) cohabitation, and (3) good faith. The wage earner and Audrey went through a marriage ceremony, as indicated by the marriage certificate submitted by Audrey. The statute does not require any specific period of cohabitation. In Estate of S~, 401 N.E. 2d 301 (Ill. 1980), however, the Illinois Supreme Court held that since §212(b) of the Marriage Act, which validates prohibited marriages where the parties cohabit after removal of the impediment, mentions no length of time, “even one night of cohabitation” was sufficient to invoke its provisions. Similarly, we believe that one night of cohabitation is sufficient under §305. Finally, while §305 does not specify what is required to establish good faith, the Court in Schisler found a putative marriage under §305 on the basis of the putative spouse's uncontradicted testimony. In the present case, we find Audrey's allegations of good faith to be uncontradicted by the other evidence in the record.

Audrey is therefore the putative spouse of the wage earner under Illinois law [10] and is entitled to mother's benefits on that basis. You have also asked us whether the entitlement of Sarah or Audrey would terminate if either subsequently learned of the wage earner's prior marriages. We answer this question in the negative. Since under Illinois law, the first two marriages of the wage earner are presumed to have ended in divorce and Sarah is the legal widow of the wage earner, it is irrelevant whether Sarah learns of the prior marriages. With regard to Audrey, her rights to inherit the wage earner's personal property became vested at the time of his death and cannot be divested even if she later learns of the prior marriages. Since there is no evidence that Audrey knew of the earlier marriages prior to the wage earner's death, her right to inherit, and her subsequent right to mother's benefits, are fixed and cannot be affected even if she subsequently learns of the prior marriages.

We conclude, therefore, that both Sarah and Audrey are entitled to mother's insurance benefits and will continue to be so entitled until one of the specified events in Section 202(g)(1) occurs.


Footnotes:

[1]

. . In the accompanying information sheet, the Center for Health Statistics explained their process for searching vital records. With respect to divorce records, they can search a computer index for a recent record. If the request is for an older record, they conduct a manual search using paper indexes or looking through the documents. If the requested record cannot be found, the Center for Health Statistics issues a Certificate of Failure to Find stating that the record is not in the Center for Health Statistics.

[2]

. As noted in the submitted materials, A~ cannot establish the requirements of a deemed marriage under 42 U.S.C. § 416(h)(1)(B) because she was not living with the NH at the time she filed her application.

[3]

. . According to SSA records, the field office contacted the G~ County courthouse to request a search of its divorce records for a decree for the NH and L~, but there is no information whether such a search was ever performed. Nor was there any evidence presented that such a search was ever performed in all relevant counties in Alabama where the NH and L~ lived.

[4]

. At that time, apparently your office did not pursue further information concerning Ethel including determining her last name. There is also no information in the file explaining how Lester knew that Ethel was still living if he could not even remember her last name.

[5]

. A "deemed" or "de facto" marriage is one in which the claimant went through a marriage ceremony with the wage earner in good faith, although the marriage is later determined to be invalid due to a defect in the procedure followed or due to a prior undissolved marriage of one of the parties; the claimant must have been living with the wage earner at the time the application for benefits is filed (if the wage earner is living) or at the time of the wage earner's death. 42 U.S.C. §416(h)(1)(B); 20 C.F.R. §404.345.

[6]

. A "putative" marriage is one which even though not valid permits a good faith spouse to inherit under a state's intestate succession law. 42 U.S.C. §416(h)(1)(A); 20 C.F.R. §404.345. A "putative" marriage is distinguished from a "deemed" marriage (note 2, supra) in that the latter may be established without reference to state law.

[7]

. If Fred died or divorced Ida prior to Lester's death, then Lester and Ida's marriage could have been validated even though invalid at its inception. Paragraph 212(b), of the Illinois Marriage and Dissolution of Marriage Act of 1977, Ill. Rev. Stat. ch. 40 §101 et seq.

[8]

. Ida's statements concerning Lester's former marriage and divorce from Ethel were based upon Lester's representations to her.

[9]

. Claims Manual §502(a) states in part: In some instances it may be possible for more than one person to meet the relationship test on the same [earnings record], i.e., one claimant can meet the valid marriage test, and another can qualify under the inheritance test.

[10]

. While §305 was not effective until October l, 1977 and Audrey's marriage to the wage earner occurred in 1974, we believe that §305 is still applicable. Because inheritance rights vest at the time of the decedent's death, Audrey's status as a putative spouse is to be determined as of that date.


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