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
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.