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
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
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
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
(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
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
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.