PR 05105.026 Minnesota
A. PR 88-003 Putative Marriage Under Minnesota Law - Dellhue J~, — Katherine J~ and Jewel T~, Claimants
DATE: February 19, 1988
UNMARRIED CONSORT ENTITLED TO INHERIT AS SPOUSE — PUTATIVE MARRIAGE — MINNESOTA
Minnesota — Putative Marriage and Presumption of Validity of Marriage
The Minnesota putative spouse statute would not be applied retroactively because generally survivors' rights of inheritance are determined at the time of death and retroactive application of the statute might be considered to partially divest those heirs whose rights had become fixed at the time of the individual's death. (J~, Dellhue, ~ — RAV (Baiter), to ARC, Progs., 02/19/88.)
MARRIAGE — PRESUMPTION OF VALIDITY OF SECOND OR LAST MARRIAGE (INCLUDES PRESUMPTIONS OF DEATH OR DIVORCE — MINNESOTA
In cases where someone has had more than one ceremonial marriage, Minnesota applies a presumption of validity on a case by case basis to whichever marriage will produce the most equitable results on the facts of the situation. (J~, Dellhue, — RAV (Baiter), to ARC, Progs., 02/19/88.)
This is in response to your request for our opinion.
Whether Katherine J~ is entitled to widow's benefits as a putative spouse of Dellhue J~ under Minnesota law.
Dellhue J~ married Jewel B~ (now Jewel T~ ) in Arkansas on January 8, 1944. Apparently Jewel recorded her date of birth differently at different times in her life. Her marriage certificate lists her age as 18 years. She has written on the record that she raised her age at that time in order to get married and that in fact she was only 17 years old. (In recent years, she has moved her birth date the other way in order to lower her age by one year.) No birth certificate or other document which definitively proves her age has been found.
It is somewhat difficult to tell from our record, but it appears as if the couple had two, and possibly three, children: a daughter and two sons. Jewel and Dellhue separated in Arkansas in 1954. She never filed for divorce. She stated that she assumed that when he remarried, Dellhue had obtained a divorce from her and that she herself therefore remarried in 1963. It is interesting to note that Jewel's second marriage occurred prior to Dellhue's. She separated from her second husband in 1970. She states that she saw Dellhue in 1977 and that he told her he had never gotten a divorce from her.
After his separation from Jewel, Dellhue moved to Minnesota. There, on August 23, 1966, he married Katherine W~. There appear to be no children from this marriage but it is possible that one of the sons is Katherine's. The couple separated in 1975. Katherine states that Dellhue told her he was divorced from Jewell at the time of their marriage. She never saw the divorce decree and has no knowledge of when or where it took place. At the time of his initial application for disability benefits in February, 1975, Dellhue listed "Katharyn B~' as his spouse.
Dellhue died in Minnesota on December 8, 1978. Both women have applied for the widow's benefits.
The Social Security Act 42 USC § 416(h)(1) provides that:
(A) An applicant is the wife, ..... of a fully or currently insured individual for purposes of this subchapter .... if such insured individual is dead, the courts of the State in which he was domiciled at the time of death, ..... would find that such applicant and such insured individual were validly married ..... at the time he died.
(B) In any case where under subparagraph (A) an applicant is not (and is not deemed to be) the wife, ...... of a fully insured individual, or ....... is not the wife, ...... of such individual, but it is established to the satisfaction of the Secretary that such applicant in good faith went through a marriage ceremony with such individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage, and such applicant and the insured individual were living in the same household at the time of death of such insured individual ... then ..... such purported marriage shall be deemed to be a valid marriage.
Paragraph B is inapplicable on its face because neither of the claimants resided with the insured at the time of his death.
The regulations further specify that the determination of the relationship as "the insured's widow ..... under Paragraph A is made under the laws of the State where the insured had a permanent home when he or she died." 20 CFR §404.345. We must therefore look to the laws of Minnesota where Katherine and Dellhue were married and where Dellhue died to determine whether Katherine was validly married to Dellhue.
Since April 26, 1941, Minnesota has not recognized common law marriages, M.S.A. §517.01 (West). The marriage must be performed under a valid license and in a manner specified by Minnesota law. However, effective March 1, 1979, Minnesota recognizes a 'putative spouse":
Any person who had cohabited with another to whom the person is not legally married in the good faith belief that the person was married to the other is a putative spouse until knowledge of the fact that the person is not legally married terminates the status and prevents acquisition of further rights ....... Minn. Stat. Ann. § 518.055 (1987 Cum. Annual Pocket Part)
Dellhue, however, died on December 8, 1978, several months prior to the effective date of this Minnesota statute.
There is no Minnesota case law on the issue of whether this statutory provision is to be applied retroactively. We have previously concluded that this statute is not to be applied retroactively because generally survivors' rights of inheritance are determined at the time of death and further because retroactive application of the statute might be considered to partially divest those heirs whose rights had become fixed at the time of the individual's death. A reading of the statute which results in divestment would potentially make the putative spouse statute unconstitutional, and courts do not usually read a statute in a manner which would render it unconstitutional. Thus, the courts are unlikely to apply the statute retroactively. H~ Robert A., ~ :V (Abrams) to ARC Programs V, 10/8/86. See also S~ William , RAV Dorn)to ARC-Programs V, 3/7/83; and G~ , Anbers Harlan, RA V (Abrams) to ARC-Programs V, 12/11/80.
Thus, Katherine is not entitled to benefits as a putative spouse. If Dellhue was validly married to Jewel at the time of her marriage to him, Katherine was not Dellhue's wife or widow. Questions remain, however, about the validity of Dellhue's marriage to Jewel inasmuch as Jewel was apparently underage when she married Dellhue.
The validity of a marriage is generally determined in the state where it occurred. Specifically, Minnesota recognizes as valid, a marriage which was valid in the state where it was contracted unless such a marriage is contrary to strong state public policy, Johnson v. Johnson, 214 Minn. 462, 8 N.W.2d 620 (1943); Bogen v. Bogen, 261N.W,2d 606 (1977). '
Jewel and Dellhue were married in Arkansas. We must look to Arkansas law to determine the validity of that marriage.' Currently, Arkansas law provides that:
No license shall be issued to persons to marry unless and until the female shall attain the age of sixteen (16) years and the male the age of seventeen (17) years and then only by written consent by a parent or guardian until the male shall have attained the age of eighteen years (18) and the female the age of eighteen (18) years. 9-11-208 Arkansas Code of 1987
In all cases where the consent of the parent or parents or guardian is not provided or there has been a misrepresentation of age by a contracting party, the marriage contract may be set aside and annulled upon the application of the parents or guardian to the chancery court having jurisdiction of the cause. 9-11-104 Arkansas Code of 1987
(b) All marriages contracted prior to March 26, 1964, where one (1) or both parties were under minimum age prescribed by law for contracting marriage, are declared to be voidable only and shall be valid for all intents and purposes unless voided by a court of competent jurisdiction. 9-11-105 Arkansas Code of 1987
Although no license should have been issued for the marriage of Jewel and Dellhue in the absence of parental consent because Jewel was underage, present statutes render the marriage voidable and valid until voided by a court. Thus, under current law, the parties would be validly married in the absence of a court approved annulment or divorce.
POMS GN 00305.055 indicates that in the state of Arkansas, "if one of the parties to an underage marriage contracted after February 5, 1941, and before March 27, 1964 relied on its invalidity without court action and entered into a subsequent marriage before March 27, 1964, the subsequent marriage is valid and the underage marriage remains void. No reference to such a provision could be found in the statutes or the case law or attorney general rulings. However, in a memo from OGC: RA: VII (Hebert) to Fort Smith DO 10/26/65 interpretation is made of Act 5 of the Extraordinary Session of the Arkansas General Assembly of 1964 which amended Arkansas law regarding underage marriages. The memo stated that the law of 1964 making underage marriages voidable did not apply 'if one of the parties had died prior to the effective date of the Act. It is possible that, similarly, if one of the parties had remarried prior to the date of the Act, the original, underage, marriage is void. In that case, since Jewel remarried in 1963, her marriage to Dellhue may have been voided.
The Office of the General Counsel Region VI told us that prior to 1941, underage marriages in Arkansas were voidable and that in 1941 such marriages became void. In 1964, the statute was changed again to render underage marriages voidable once more. The 1941 Arkansas Statute Section 55-102 reads as follows:
Every male who shall have arrived at the full age of 18 years, and every female who shall have arrived at the full age of 16 years, shall be capable in law of contracting marriage; if under those ages, their marriages shall be absolutely void.
Provided that males under the age of 21 years and females under the age of 18 years shall furnish the clerk, before the marriage license can be issued, satisfactory evidence of the consent of the parent or parents or guardian to such marriage, and, in all cases where the consent of the parent or parents or guardian is not provided or there shall have been a misrepresentation of age by a contracting party, such marriage contract may be set aside and annulled upon the application of the parent or parents or guardian to the Chancery Court having jurisdiction of the cause.
The 1964 Statute makes the marriage of females under the age of 16 years and males under the age of 18 years voidable. In addition, the 1964 Statute validated prior underage marriages which were void. The 1964 Act reads as follows:
55-102 Every male who shall have arrived at the full age of eighteen (18) years and every female who shall have arrived at the full age of sixteen (16) years shall be capable in law of contracting marriage; if under those ages, their marriages shall be voidable.
55-102.1 All marriages heretofore contracted where one or both of the parties to the contract were under the minimum age prescribed by law for contracting marriage are hereby declared to be voidable only, and shall be valid for all intents and purposes unless voided by a court of competent jurisdiction.
Because of their ages, Jewel and Dellhue entered into a voidable marriage under the 1941 statute. Paragraph 55-102.1 of the 1964 Act applies mainly to those women of less than sixteen years of age and those men of less than eighteen years of age who had married after the 1941 statute was enacted. Although it has little effect on the marriage of Jewel and Dellhue because their marriage was voidable at its inception, it probably explains POMS paragraph GN 00305.055. If parties whose marriages were void under the 1941 Act remarried in reliance on that fact, it is logical to assume that, until the 1964 Act was passed, their second marriages are valid and their first marriages are void; there is, however, no case law to substantiate this.
There is no Arkansas case law precisely on the issue of a marriage by a seventeen year old who was married under the 1941 Act and who later remarries without the benefit of a divorce.
Although we are not certain of Jewel's age at the time of her marriage, the facts tend to indicate that she was seventeen. Under the applicable statute at the time, her marriage could have been avoided by her parents. In the absence of evidence that they did so, the plain reading of the statute makes her marriage to Dellhue valid.
When a party has undergone more than one ceremonial marriage, however, states frequently have presumptions as to which marriage is valid. In the case of, In Re O'Rourke, 310 Minn. 373, 246 N.W.2d 461 (1976), the Supreme Court of Minnesota was asked to recognize a presumption that the later of successive marriages is valid. The court, while recognizing that the majority of U.S. jurisdictions have such a presumption, refused to make such a rule. Instead, the court held that the courts of Minnesota could recognize a presumption toward either the earlier or the later marriage. The presumption was to be determined on a case by case basis in an effort to reach an equitable result. Two factors which were to be considered in determining whether the later marriage was to be recognized were the birth of children and the length of the later marriage. The court did not rule out consideration of other factors which might affect equity in a given situation.
Applying the court's decision to our case, Jewel lived with Dellhue for ten years before their separation. She rarely saw him after the separation and remarried nine years later. Katherine lived with Dellhue for nine years before they separated. She did not remarry and appears to have seen her husband during the years that they lived apart. It is not entirely clear from the record, but it appears that Jewel and Dellhue had two or three children. Katherine and Dellhue do not appear to have had children. (It is possible that one of the children discussed in the record is Katherine's.) All the children appear to be grown. (The record does not reflect any request for benefits for them. )
Based on these facts, the equities might appear somewhat equal. However, Jewel remarried on reliance on the termination of her marriage to Dellhue. Until his death, she took little interest in him after their initial separation. In fact, there is some indication that their children lived with their father during some, or all, of the time between the separation of the parents and his death. Katherine relied on her marriage to Dellhue. Although they had separated, she continued to see him. She did not remarry.
Katherine is not a putative spouse because the effective date of the Minnesota putative spouse statute occurs after Dellhue's death. Because Jewel may have been age seventeen and underage under Arkansas law at the time of her marriage to Dellhue, her marriage was voidable by her parents. In the absence of evidence that her parents petitioned the court to have her marriage annulled, she was validly married to Dellhue. In cases where someone has had more than one ceremonial marriage, Minnesota applies a presumption of validity on a case by case basis to whichever marriage will produce the most equitable result on the facts of the situation. Here, each spouse lived with Dellhue for approximately the same number of years. Although it is unclear whether Katherine and Dellhue had children, the children of the first marriage are now grown and may have lived with their father during the years after his separation from his first wife. Perhaps the greatest factor in determining the equities is that Jewel considered the marriage at an end and remarried; Katherine, while physically separated from her husband, considered herself married to him and continued to see him until his death. Given these facts, we believe that the courts of Minnesota would hold a presumption of validity in favor of the second marriage. That would make Katherine Dellhue's widow and entitled to widow's benefits under Social Security.