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 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
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.