You have requested an opinion regarding whether P~ can be considered the wife of wage
earner R~, Jr. (wage earner). First, there is an issue as to whether the facts establish
that P~ is the wage earner's spouse. Secondly, there is an issue as to whether P~'s
subsequent marriages to D~ and A~ preclude her from establishing that she is the wage
earner's spouse. This is a case involving numerous successive marital relationships.
P~ contends that there was never a final divorce between her and the wage earner,
and therefore they are still married. P~ states that although she successively married
D~ and A~ in good faith, she later learned in 1997 that her marriage to the wage earner
might not have lawfully ended. Thus, she now contends that she is entitled to wife's
insurance benefits under 42 U.S.C. § 402(b), based on the wage earner's Social Security
After reviewing the facts and relevant law, it is our opinion that P~ is not entitled
to spouse's benefits based on her two past marriages to the wage earner. This conclusion
is based on several factors, including state law presumptions of the validity of the
most recent marriage, estoppel, and laches.
Given the complex marital histories of the parties, a chronology is provided, although
there is conflicting information in some of the documents:
1. P~ reported to the Social Security Administration (Agency) that a September XX,
1959, marriage to D~ ended in a November XX, 1966, divorce.
2. R~, Jr., was divorced from D2~ on March XX, 1967.
3. P~ and wage earner R~, Jr., were married on April XX, 1967, in South Carolina.
4. On September XX, 1974, R~, Jr., was divorced from E~ (North Carolina).
5. A North Carolina application, license and certificate of marriage indicates that
P~ and R~ were married again on December XX, 1974. Both specified that this was a
second marriage. P~ indicated that this was her second marriage and her first marriage
had ended in divorce in November 1966. R~ indicated that this was his second marriage
and his last marriage had ended in divorce in July 1974.
6. A 2002 affidavit from an attorney, on behalf of P~, states that there was a dissolution
of marriage case (No. 78-17892) between P~ and R~, in Clayton County, Georgia, and
the case never went to final judgment and was dismissed for lack of prosecution. An
October 1978 order was dismissed for want of prosecution in May 1980. Although the
document is not entirely legible, it appears to relate to a restraining order.
7. A North Carolina application, license and certificate of marriage indicates that
P~ married D~ on September XX, 1979. According to the signed license, this was only
P~'s second marriage, and her first marriage had ended in divorce in November 1966.
A July XX, 1980, North Carolina judgment dissolved this marriage. The judgment indicated
that the defendant (P~) had another living husband (R~) whom she married on April
XX, 1967, and no divorce had been granted.
8. R~, Jr., married E~, in Texas, on April XX, 1980.
9. There was a July 1980 Rutherford County, North Carolina, Judgment of Dismissal
due to the failure of the parties to appear. P~ was the plaintiff, and R~ was the
defendant. The document is not legible.
10. P~ states that she married A~ in Charlotte, North Carolina, on July XX, 1985,
and she is still married to him. M~ reported to the Agency in May 2002, that she had
been separated from A~ for two to three years, that she had moved to Florida in December
2001, and that A~ came to Florida later for medical treatment because he was still
covered under her health insurance.
As indicated, this is an application for spouse's benefits under 42 U.S.C. § 402(b).
The Social Security Act directs that the Social Security Administration (Agency) look
to the law of the insured party's domicile at the time that the applicant applies
for benefits. See Social Security Act § 216(h)(1)(A)(i) (42 U.S.C. § 416(h)(1)(A)(i)); 20 C.F.R. § 404.345
(2003). Section 416(h)(1)(A)(i) provides:
An applicant is the wife, husband, widow, or widower of a fully or currently insured
individual for purposes of this subchapter if the courts of the State in which such
insured individual is domiciled at the time such applicant files an application, or,
if such insured individual is dead, the courts of the State in which he was domiciled
at the time of death, or, if such insured individual is or was not so domiciled in
any State, the courts of the District of Columbia, would find that such applicant
and such insured individual were validly married at the time such applicant files
such application or, if such insured individual is dead, at the time he died.
Thus, a party's status as the insured party's spouse is decided according to the laws
of the state where the insured had a permanent home when the applicant applied for
spouse's benefits. See also 20 C.F.R. § 404.345. If the applicant and the insured were validly married under the
state's law at the time the applicant applied for spouse's benefits, then the relationship
requirement will be met. See id. On November XX, 2001, P~ applied for spouse's benefits, based on the earnings of the
wage earner. The claim was denied based on estoppel because P~ had remarried. The
wage earner was contacted on November XX, 2001. He was still living in Texas at that
time. Accordingly, Texas law controls with respect to the November 2001 application.
See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. P~ applied again on May 10, 2002.
Both the wage earner and his current wife E~ reported a change of address to Beggs,
Oklahoma on July XX, 2002. The wage earner currently resides in Oklahoma. Assuming
that the wage earner was domiciled in Texas at the time of P~'s applications, Texas
law would control. If the wage earner's permanent home was in Oklahoma when an application
was filed, Oklahoma law would control. We need not resolve this issue because, as
will be shown, the outcome will be the same in either event. We will analyze the law
of both states.
Presumption of Validity of the Last Marriage
As outlined above, this case involves a significant number of marriages. There are
five key marriages: the two marriages between the wage earner and P~, the wage earner's
1980 marriage in Texas to E~, P~'s 1979 marriage to D~, and P~'s 1985 marriage to
It is the policy of the State of Texas to uphold each marriage against claims of invalidity
unless strong reasons exist for holding it void or voidable by annulment. Tex. Fam.
Code Ann. § 1.101 (Vernon 2001). The generally accepted view is that a second marriage will be presumed to be valid,
and such presumption is stronger than and overcomes the presumption of continuance
of the prior marriage. Simpson v. Simpson, 380 S.W.2d 855, 858 (Tex. App.-Dallas 1964, writ ref. n.r.e). Under Texas law, there
is a statutory presumption of the validity of the last marriage. Section 1.102 of
the Texas Family Code provides:
When two or more marriages of a person to different spouses are alleged, the most
recent marriage is presumed to be valid as against each marriage that precedes it
until one who asserts the validity of a prior marriage proves its validity.
See also In re Estate of Loveless, 64 S.W.3d 564, 573 (Tex. App.-Texarkana 2001). The presumption of the validity of
the most recent marriage is one of the strongest, if not the strongest, known to law
and the strength of the presumption increases with the lapse of time. Id. at 574 (citing Texas Employers' Ins. Ass'n v. Elder, 282 S.W.2d 371, 373 (Tex. 1955)).
The party attacking the validity of the most recent marriage must introduce sufficient
evidence, standing alone to negate the dissolution of the previous marriage. Loveless, 64 S.W.3d at 574 (citing Wood v. Paulus, 524 S.W.2d 749, 758 (Tex. App.-Corpus Christi 1975, writ ref'd n.r.e.)). Thus, P~
has the burden of proving the continued validity of her marriage to the wage earner.
Moreover, in this case there are two current marriages that are presumed to be valid:
P~'s 1985 marriage to A~ and the wage earner's 1980 marriage in Texas to E~. Also,
the length of both of these marriages, each lasting over seventeen years, increases
the strength of the presumption of their validity. See Loveless, 64 S.W.3d at 574.
P~ has not carried her burden of proof. A 1978 civil action between the wage earner
and P~, in Clayton County, Georgia, was dismissed for want of prosecution in May 1980.
An affidavit by an attorney, on behalf of P~, indicates that this was a dissolution
of marriage case that never went to final judgment. There was a July 1980 Rutherford
County, North Carolina, Judgment of Dismissal for failure to appear in a case in which
it appears that P~ was the plaintiff and the wage earner was the defendant. These
two dismissals, of course, do not establish that there was a final divorce between
P~ and the wage earner. However, the evidence also does not establish that P~ or the
wage earner never obtained a divorce. See Wood, 524 S.W.2d at 758 (although a marriage was not terminated in 1926, the presumption
of the validity of a later marriage was not rebutted because there was no showing
that a divorce had not been obtained in other proceedings in the same county or elsewhere).
Although some evidence of the absence of a divorce has been presented, the search
of records is incomplete in several jurisdictions. It appears that the two individuals
have lived in a number of states, including North Carolina, Georgia, Texas, Florida,
and Oklahoma. The wage earner currently lives in Oklahoma, but there has not been
a check of Oklahoma divorce records. North Carolina vital records were checked for
the period from 1977 through 1981. Records from Hill County, Texas were searched from
1980 to November 25, 1997. Harris County, Texas records were checked from 1979 to
November 7, 1997. A final divorce decree has not been located. Although a number of
jurisdictions and time periods have been checked, there are gaps. In order to rebut
the presumption of the validity of the most recent marriages, P~ is not required to
"prove the non-existence of a divorce or annulment in every jurisdiction where such
proceedings could have been possible, but only where the parties might reasonably
have been expected to have pursued them." Medrano v. State of Texas, 701 S.W.2d 337, 341 (Tex. App.-El Paso 1985, petition for discretionary review refused)
(citing Davis v. Davis, 521 S.W.2d 603 (Tex. 1975)). At present, the search of records is incomplete in
several likely jurisdictions. Therefore, P~ has not carried her burden of rebutting
the presumption of the validity of the two current marriages.
The length of time that has elapsed is a factor that would be considered by a court.
The wage earner has been married to his current wife since April 1980. P~ has been
married to A~ since 1985. As outlined above, the lapse of time increases the strength
of the presumption of the validity of the most recent marriage. See Loveless, 64 S.W.2d at 574. Moreover, an unreasonable delay in asserting a claim can also
result in a court applying laches  against the claimant. Texas courts have indicated that in order to justify the application
of the doctrine of laches there must generally be both an unreasonable delay and prejudice
or disadvantage to another. See Jernigan v. Scott, 518 S.W.2d 278, 282-283 (Tex. App.-San Antonio 1974, writ ref. n.r.e.);  Simpson, 380 S.W.2d at 861.
In the instant case, both parties have been remarried for over seventeen years. Thus,
it is our opinion that the length of time that has expired and the length of the current
marriages being challenged are factors that would be considered under Texas law. Therefore,
we believe the doctrine of laches would be an applicable factor, under Texas law,
in finding P~ estopped from asserting that she continues to be married to the wage
You indicated in your request that the wage earner currently lives in Oklahoma. It
is not clear that the wage earner had a permanent home in Oklahoma when P~ applied
for spouse's benefits in 2002. See 42 U.S.C. § 416(h)(1)(A)(i)); 20 C.F.R. § 404.345 ("To decide your relationship as
the insured's wife or husband we look to the laws of the State where the insured had
a permanent home when you applied for wife's or husband's benefits."). Texas law controls
with respect to P~'s November 6, 2001, application. The wage earner was living in
Texas when he was contacted on November 27, 2001. P~ apparently filed again on May
10, 2002. Both the wage earner and his current wife reported a change of address to
Oklahoma on July 2, 2002. It is not clear from the record that the wage earner was
living in Oklahoma when P~ again applied for benefits. However, even if the wage earner
were living in Oklahoma when P~ applied for benefits, or if she files for benefits
again, it is our opinion that the application of Oklahoma law would not result in
a different conclusion.
Under Oklahoma law, there is a presumption of the validity of the latest in a series
of marriages, such that earlier marriages are presumed to have ended in divorce absent
evidence to the contrary. See Marcum v. Zaring, 406 P.2d 970, 973 (Okla. 1965); Norton v. Coffield, 357 P.2d 434, 437-439 (Okla. 1960); Templeton v. Jones, 259 P. 543, 544-545 (Okla. 1927). The presumption of the validity of a second marriage
increases with the passage of time. Marcum, 406 P.2d at 973. The presumption, although strong, can be rebutted. The Supreme
Court of Oklahoma has explained:
Whether the person attacking a marriage has introduced sufficient evidence to overcome
the presumption of validity of the marriage depends upon the length of time that the
attacked marriage has continued, whether a successful attack will in effect being
about an adjudication that children of the marriage under attack are illegitimate,
and other facts.
Norton, 357 P.2d 434, 439. Again, given the length of the current marriages, it is our opinion
that P~ has not carried her burden of rebutting the presumption of the validity of
the current marriages.
Moreover, Oklahoma courts have also applied the doctrine of estoppel. In a 1987 case,
the Oklahoma Supreme Court held that the doctrine of estoppel precluded an individual
from asserting her status as decedent's surviving spouse. Allen v. Allen, 738 P.2d 142 (Okla. 1987). A petition for divorce had been filed, but it was later
dismissed, and no decree was entered. Id. at 143. The parties remained separated. Six years after they separated, W~ entered
into a common law marriage that she later acknowledged. She never asserted the existence
of her prior marriage. The court held that her conduct precluded the assertion of
her right to the estate. Id. Plaintiff had not asserted her relationship with the decedent for thirteen years.
Id. at 144. She was estopped from asserting a continual marital relationship with the
decedent. Id. In another Oklahoma case, a husband who married another person without obtaining
a divorce was estopped from denying the existence of the second marriage and could
not share in the estate of his first wife. Darrough v. Davis, 275 P. 309 (Okla. 1928). Thus, even if Oklahoma law were applicable, our analysis
would not change and the result would be the same.
We do not believe P~ is entitled to spouse's benefits based on her marriages to the
wage earner. Given the length of time that has elapsed and conflicts in the record
it is our opinion that P~ has not rebutted the presumption of the validity of the
current last marriages. Moreover, P~ would be estopped from asserting that she continues
to be married to the wage earner, given her subsequent marriages and the time that
has elapsed. This analysis is based on Texas law, because the wage earner lived in
Texas when P~ first applied for spouse's benefits. However, the same conclusion would
be reached under Oklahoma law. .
Tina M. W~
Regional Chief Counsel
Kendall M. R~
Assistant Regional Counsel