PR 05105.020 Kentucky

A. PR 82-047 (Kentucky) Ronald W~, Deceased - Principle of Estoppel SSN~ — REGION IV

DATE: October 13, 1982

1. SYLLABUS

MARRIAGE — PRESUMPTION OF VALIDITY OF SECOND MARRIAGE — EVIDENCE - Kentucky

Kentucky recognizes the presumption of the validity of the second (or last) marriage; however, this presumption may be rebutted if the prior wife proves by a preponderance of the evidence that the previous marriage was valid and that its continuity was not interrupted by death or divorce at the time of the subsequent ceremony. The burden of proof then shifts to the second (or last) wife to show at least some probability that decedent did in fact obtain a divorce from his first wife. Gaddy v. Louisville & Nashville Railroad Co., 249 F. Supp. 305 (Ky., 1965).

DIVORCE — IN GENERAL - Kentucky

A divorce cannot be created by the application of estoppel.

DIVORCE — IN GENERAL - Kentucky

Mere lapse of time will not create laches, it must appear that delay in asserting a claim has injured the party adversely interested.

2. OPINION

You have requested our opinion as to whether the deceased number holder's first wife is estopped from denying the validity of her divorce from the number holder. Additional questions raised in this claim are whether, if the principle of estoppel applies, the second wife should be considered the legal widow of the number holder, and whether the first wife should be considered to be the surviving divorced spouse even though there is no final divorce decree.

The facts as contained in the file are that Bonnie M~ and Ronald W~ were married in Winterhaven, California, on August 8, 1964. In May 1968, Bonnie filed for a divorce, and the Superior Court of California for the County of Los Angeles, entered an Interlocutory Judgment of Divorce. The interlocutory Judgment of Divorce contained a cautionary notice, "This is not a judgment of divorce .... The final judgment of divorce will not be entered unless requested by one of the parties." A July 25, 1980, report of contact with the Los Angeles County Court House, indicated that a search of the divorce records had revealed that no final decree of divorce was filed.

Bonnie M~ married Ronald A~ on February 1, 1970. On petition of Ronald A~, the Superior Court of California granted an annulment of this marriage pursuant to California' Code Section 4401, finding the marriage bigamous and void. The final judgment of nullity was entered on July 7, 1971.

Mary V~ ceremonially married Ronald W~ on May 10, 1969 in the State of Indiana. The number holder died on March 12, 1980, while he was domiciled in the State of Kentucky. Mary W~ stated that she believed the number holder was free to marry at the time of their wedding ceremony.

In a May 14, 1980, Report of Contact, Mary W~ stated that she and Ronald had talked to Bonnie on the phone and that Bonnie was aware of their marriage. Bonnie reported that in the course of the same telephone conversation she told the number holder that his marriage was invalid because there was no divorce. At one point in the file, in the May 14, 1980, Report of Contact, the district office representative stated, "My private speculation is that he (the number holder) and Mary both knew they weren't legally married." However, in the memorandum from the Acting Director of the Western Program Service Center, it is reported that, "It has been established that she (Mary) had good faith belief in the validity of her marriage to the number holder."

For Social Security purposes, an applicant is considered the widow of a fully insured individual if the courts of the State in which such insured individual was domiciled at the time of his death would find that such applicant and such insured individual were validly married at the time such insured individual died. 42 U.S.C. 416(h)(1)(A). Inasmuch as the insured, Ronald W~, was domiciled in Kentucky at the time of his death, the laws of Kentucky are controlling in the determination of whether Bonnie is the legal widow of the insured.

With regard to which of the two marriages is valid, under Kentucky law, we conclude that Bonnie W~ has not presented sufficient evidence to rebut the presumption of the validity of the second marriage. A similar situation involving two widows was considered in the Kentucky case of Trimble v. Wells, 234 S.W. 2d 683 (1950). The court wrote,

"The presumption is that the (previous) marriage to Gibson continued. But here there is evidence of a second marriage by a legal ceremony with the presumption of its legality and continuity. The validity of (the subsequent) marriage to Trimble may be presumed as having been made without legal impediment. Rose v. Rose, 274 Ky. 208, 118 S.W. 2d 529. These conflicting presumptions of a legal status present a 'knotty question' .... However, the presumption of legality of the ceremony of (the subsequent) marriage to Trimble is rebutted not only by evidence of Gibson, the former husband, but by proof of the effectual dismissal of a divorce suit without judgment having been rendered and without any attempt to show any other similar proceeding."

The Trimble court found the later marriage to be bigamous and void.

In a later case, Gaddy v. Louisville & Nashville Railroad Co., 249 F. Supp. 305 (Ky., 1965), the court held that where the decedent's second wife established her marriage to the decedent, the presumption of the second wife's widowhood could be rebutted by proving by a preponderance of the evidence that the decedent's prior marriage was valid and that its continuity had not been interrupted by death or divorce at the time of the subsequent ceremony. The court further held that where the decedent's first wife proved the validity of her prior marriage to the decedent and its uninterrupted continuity at the time of his subsequent marriage, the decedent's second wife, who had established her marriage to the decedent, could no longer rely on the presumption that she was the decedent's widow but had to come forward and show at least the probability that the decedent, at some time and in some place, did in fact obtain a divorce from his first wife before his marriage to her." Payne v. Payne's Administrator, 290 Ky. 461, 161 S.W. 2d 925 (1942); Scott's Administrator v. Scott, 25 Ky. L. Rcp. 1356, 77 S.W. 1122 (1904). In Gaddy, the court found the presumption of the validity of the last marriage was rebutted where the decedent's first wife produced evidence that no divorce had been obtained in any of the States where the decedent lived or could have lived. The court held it was not necessary to produce such evidence from every State were the decedent may have lived in order to rebut the presumption.

In this claim, although a search of the Los Angeles County Court House records revealed that no final decree of divorce was filed, we do not feel that this single record search is sufficient to rebut the legal presumption of the validity of the last marriage. It is apparent from the file that Ronald W~ resided in Indiana at the time of his marriage to Mary and that he was a resident of Kentucky at the time of his death. It is not necessary that the first wife show that the decedent did not obtain a divorce in any State in which he could have lived; if Bonnie were to obtain evidence that no divorce had been filed in the appropriate courts of the Indiana and Kentucky Counties wherein the decedent is known to have resided, such evidence could be considered as sufficient to rebut the presumption of the validity of the last marriage. Thereupon, Mary W~~ would be required to come forward and show at least some probability that the decedent, at some time and in some place, did, in fact, obtain a divorce from his first wife before his marriage to her. See also OGC opinion, G~, Tom— ~, RA IV (Benedict), July 13, 1981, However, based on the evidence currently in the file, we feel that the presumption of the validity of the last marriage has not been rebutted by a preponderance of the evidence and, thus, that Mary is the legal widow.

You have also asked whether, if Bonnie W~ successfully rebuts the presumption of the validity of the last marriage, she would then be estopped from denying the validity of her divorce from the decedent. As noted earlier, no divorce has been established in this claim. It was determined in a precedent OGC opinion (H~, Robert ~ RA IV [Harper] December 23, 1948) that estoppel is a matter of procedure and not of substantive law; therefore, estoppel does not give rise to a valid divorce. Thus, it is our opinion that inasmuch as a divorce cannot be created by the application of estoppel, Bonnie is not now estopped from asserting the legal rights arising out of her marriage to the decedent.

The doctrine of laches is also considered inapplicable here. Laches arise to bar an individual from asserting his rights when an individual has made an unreasonable delay or neglected to do that which he was obliged to do or in duty bound to do. See OGC opinion G~, Tom, supra. In the case of Fightmaster v. Leffler, 556 S.W. 2d 180 (Ky. 1977), laches was discussed in the context of a vendor/vendee dispute. The court wrote, at 183, that mere lapse of time,

"is not the only element to be considered in applying the rule. A more important consideration is whether delay in asserting the claim has worked to such prejudice or disadvantage to parties adversely interested or such changed conditions have occurred in the meantime that enforcement of the claim is rendered inequitable. There is no fixed rule by which to measure the degree of laches which is sufficient to bar enforcement of a right. Each case must be determined according to its own particular facts and circumstances."

Generally, there is no basis for a contention that the complainant has been guilty of laches where the rights of third persons are not involved and the situation of the defendant has not been materially changed by reason of the complainant's delay in asserting his rights. Noble v. Gallardo y Seary, 223 U.S. 65, 32 S.Ct. 194; Loagg v. Herbert, 215 U.S. 546, 30 S.Ct. 218; Southern Pine Lumber Co. v. Ward, 208 U.S. 126, 28 S.Ct. 239; 27 Am. Jur. 2d, Equity §162 et seq. In this claim, the second marriage occurred within a year from the time the decedent and his first wife separated. Since that time, the second wife's position has not materially changed by reason of the first wife's delay in asserting her rights. Apparently, both widows promptly asserted their rights following the death of the insured.

We are aware of only one Kentucky case in which laches was applied to bar the first wife from asserting the invalidity of her divorce from the deceased husband. In the 1901 case of Asbury v. Powers, 23 Ky. 1622, 65 S.W. 605, the court found that after a lapse of 25 years and after the remarriage and death of the husband, the first wife was barred by laches from attacking the divorce on the ground of no jurisdiction.

A later Kentucky case considered but did not apply the doctrine of laches in a dispute between two individuals each claiming to be a decedent's widow. In Payne v. Payhe's Administrator, supra, the first wife married the decedent in 1908, they separated sometime between 1927 and 1934, the decedent married his second wife in 1938 and lived with her until his death in 1940. Neither widow knew of the existence of the other marriage. The first wife asserted her rights on learning of the husband's death four months after the fact and was not barred by laches (discussed only in the context of the four months delay) from suing the administrator who had distributed the estate to the second wife.

In the more recent Gaddes case (1965), discussed supra, the husband married his first wife in 1954; the date of their separation is not reported. In 1962, the husband married his second wife and they lived together until his death in 1964. Each wife's knowledge or lack of knowledge of the other's marriage is not reported. Neither estoppel nor laches was considered and the first wife, was found to be the decedent's lawful widow and entitled to any damages recovered as the result of his death.

In view of the strong Kentucky public policy against marrying where one party has a living, undivorced spouse (prohibited at Ky. Rev. Stat §402.020 and bigamy declared a Class D felony at Ky. Rev. Stat. 3 530.010) we conclude that neither estoppel nor laches would be readily invoked to bar a first wife from asserting the continuance of the marital relation once she has rebutted the presumption of the validity of the second marriage.

Thus, we conclude that Bonnie W~ has not presented sufficient evidence to rebut the presumption of the validity of the last marriage, and, consequently, Mary W~ is the decedent's legal widow. If, however, Bonnie W~ provides additional evidence, as discussed above, to rebut said presumption, then Mary W~ would be required to show at least some probability that the decedent, at some time and in some place, did, in fact, obtain a divorce from his first wife. If, based on the additional evidence, Bonnie W~ is found to be the decedent's legal widow, she would not be barred by the application of either estoppel or laches from asserting her legal rights.


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PR 05105.020 - Kentucky - 04/24/2008
Batch run: 01/27/2009
Rev:04/24/2008