PR 05105.027 Mississippi
A. PR 82-017 Hilton T~, Deceased, Social Security # ~, Presumption of Validity of Marriage
DATE: June 17, 1982
MARRIAGE — Presumption of Validity of Second Marriage — MISSISSIPPI
Where a wage earner was married to a claimant and they separated but no divorce was obtained, we held that although the wage earner had subsequent marriages, the presumption of the validity of the last marriage was rebutted where there was no evidence of a divorce and the wage earner and claimant had reconciled for a period of time prior to his death.
Your office has referred the above-captioned matter to us for an opinion as to whether Clara P. T~ meets the definition of legal widow of Hilton T~, the wage earner, who died on March 19, 1978, domiciled in Mississippi. The wage earner had the following marriages:
On November 9, 1940, the wage earner reported that he was married. In a statement dated October 3, 1977, the wage earner said that a prior wife had died about 35 years previously and you are assuming he was referring to the wife mentioned in 1940.
The wage earner ceremonially married Clara B~ M~ on March 25, 1942, in Mississippi. According to Clara, they separated in 1952 and again in 1975. Clara has had no subsequent marriages and no record of a divorce between Clara and the wage earner could be located. Clara is attempting to receive widow's benefits on the account of the wage earner.
Lorena Lee D~ ceremonially married the wage earner on November 6, 1964 in Louisiana. In statements dated August 12, 1974 and October 3, 1977, the wage earner said that he and Lorena separated but were never divorced. Lorena also had a prior undissolved marriage which took place on April 19, 1943 to a Curtis D~, who died domiciled in California. No date was given for the death of Mr. D~. Lorena previously filed for benefits on the record of Curtis Davis and the wage earner but it was determined that the presumption that her subsequent marriage to the wage earner was valid was rebutted under California law and she was therefore awarded benefits as the widow of her first husband, Curtis D~.
Irene P~ began living with the wage earner about 1968 in Louisiana. In a statement dated August 12, 1974, the wage earner stated that Irene was his common-law wife and he also stated that he and Irene had lived only in Louisiana and Mississippi. In the marital history the wage earner supplied on October 3, 1977, he stated that Irene was not his wife although he lived with her most of the time.
In adjudicating Clara's claim, you are uncertain as to whether a decision in the case of Alma L. Blackwell v. Flemming, dated May 1, 1961 is applicable to this situation. You feel that if this decision applies then you would have to deny Clara's claim because the wage earner had subsequent ceremonial marriages which would be presumed valid in Mississippi. You are requesting our advice as to whether the State of Mississippi would apply their strong presumption of the validity of a second marriage, despite the fact that under California law the validity of this same marriage has been rebutted, and find that Clara B. T~ is not the legal widow of Hilton T~.
We have reviewed the decision in the case of Alma L. Blackwell v. Flemming, U.S. District Court, Southern District, Mississippi, CCH § 14,118 (5/1/61), and would initially note that there are several very distinct differences between the factual situation in that case and the factual situation contained here- in. In the Blackwell case, although there was evidence that the wage earner had been previously married and no evidence of a divorce could be found, it appeared he had reasons for believing that his first marriage was never legally valid. Furthermore, the claimant and first wife in that case had herself remarried, had considered herself divorced from the wage earner, and was also aware of the subsequent marriage of the wage earner. In this instance, the claimant, Clara T~, has never married another individual and there is no evidence that she ever considered herself divorced from the wage earner. Moreover, it appears as though she and the wage earner had a reconciliation sometime in 1975 even though they were separated at the time of his death in 1978.
As a result, you should refer to our earlier opinions with respect to the presumption of validity of subsequent marriages in Mississippi for a discussion of the law to be applied in situations such as this. See particularly, T~, Willie, ~ RA IV (Adams) to IPB 3/17/82; D~ Eddie, ~, RA IV (Benedict) to ARC, 6/16/80; and B~, Jessie,~~, RA IV (Benedict) to ARC, 6/13/80. As noted in these opinions, the presumption of the validity of the last marriage is a factual presumption which may be rebutted. This presumption can be overcome by evidence of a continuous recognition of the first marriage through words or actions. See, Thurmond, supra.
The pivotal question in this particular case is whether or not there had been a divorce between Clara and the wage earner. A divorce is presumed because the wage earner entered into a marriage with Lorena. However, the record shows that Clara has never remarried, that no evidence of a divorce could be found in the places where the wage earner was known to live, and that there is some evidence that Clara and the wage earner resumed living together at some point. We are of the opinion that these factors are sufficient to rebut the presumption that the marriage between Lorena and the wage earner was a valid marriage. We note also in reviewing the records in the file that the wage earner had never declared that he had divorced Clara in any statements that he had previously made. We also note that the wage earner could not have entered into a valid common law marriage with Irene P~ because of his failure to terminate a previous valid marriage. It would therefore be our opinion that in this particular situation the presumption of validity of the subsequent marriage has been rebutted and that Clara would be entitled to benefits as the widow of the wage earner.