You requested our opinion on whether a marriage between Willie H~ (H~), the number
holder, and Phyllis T~ (T~), the claimant, is presumed valid under Arkansas law. Specifically,
you asked whether T~'s prior marriage was void because she did not record the marriage
license. You also asked whether T~'s prior marriage was terminated by the presumed
death of her spouse under Ark. Code Ann. § 9-11-108 (2007). Finally, you asked whether
the Agency requires any further development to resolve the issue of whether T~'s prior
marriage was terminated by death or divorce prior to her marriage to H~. We conclude
that under Arkansas law a marriage that is not recorded is not void. Further, the
present evidence does not support a conclusion that T~'s prior marriage was terminated
by a presumed death of her prior spouse. Nevertheless, we conclude the marriage between
H~ and T~ is valid because Arkansas law presumes the validity of the last marriage.
As we understand the facts, T~ married Relles A~ (A~) on March 15, 1986. T~ and A~
obtained a marriage license and T~'s brother, a minister, officiated the marriage
ceremony. The couple did not return the marriage license to the county court clerk
for recording. Instead, T~ stated that A~ became angry at her two days after the ceremony,
tore up the marriage license, and told her he was divorcing her in the custom of his
country. T~ reported that she never saw A~ again. She stated she believes he returned
On August 12, 2005, T~ and H~ were married. The couple never lived together as husband
and wife. T~ stated that she married H~ so she could help him handle his affairs.
On April 26, 2007, H~ died in Arkansas. T~ later filed an application for disabled
widow's benefits on H~'s record.
The Social Security Act provides that a disabled widow is entitled to benefits if
she was validly married to the number holder and meets the other requirements for
eligibility. 20 C.F.R. § 404.336. When determining who is a widow for purposes of
entitlement to Social Security benefits, the Agency looks to the laws of the state
where the deceased number holder had a permanent home at the time of his death. See 42 U.S.C. § 416(h)(1); 20 C.F.R. § 404.345. Because H~ died while domiciled in Arkansas,
we look to Arkansas law.
Although Arkansas law provides that any person who obtains a marriage license must
return the license to the county court clerk for recording within 60 days, Ark. Code
Ann. § 9-11-218 (2007), the Arkansas Supreme Court held that the marriage licensing
statutes are “merely directory,” rather than mandatory. DePotty v. DePotty, 295 S.W.2d 330, 330-31 (Ark. 1956). Thus, a couple's failure to properly record
their marriage under section 9-11-218 does not make the marriage void. Fryar
v. Roberts, 57 S.W.3d 727 (Ark. 2001). In Fryar, a couple obtained a marriage license and took part in a wedding ceremony officiated
by the husband's cousin, who was a minister. After the ceremony, the wife took possession
of the marriage license and, with the husband’s consent, burned it. She stated that
the couple did not intend the marriage to be legal. Later, the husband filed for divorce
and requested a division of property acquired during the marriage. The Arkansas Supreme
Court found that evidence that the couple obtained a marriage license and were married
by a minister could establish a legal marriage. The Court stated returning the license
was only evidence that a marriage had been performed and did not constitute the marriage
itself. Id., at 441.
The fact that A~ destroyed the marriage license and did not return it to the county
court clerk does not make the marriage between T~ and A~ void. As in Fryar, the couple obtained a marriage license and solemnized their marriage before a minister.
Thus, the marriage between T~ and A~ was valid under Arkansas law.
Arkansas law also recognizes a presumption of a spouse's death under certain circumstances.
Ark. Code Ann. § 9-11-108 (2007). Specifically, the law provides that:
In all cases where any husband abandons his wife, or a wife her husband, and resides
beyond the limits of this state for the term of five (5) successive years, without
being known to the other spouse to be living during that time, the abandoning party's
death shall be presumed. Any subsequent marriage entered into after the end of the
five (5) years shall be valid as if the husband or wife were dead.
Id. The party relying on the presumed death of a spouse has the burden to produce
evidence to establish the presumption. There must be an abandonment where one spouse
deserts the other without consent or justification and with no intention of returning.
v. Palmer, 240 S.W.2d 875, 876 (Ark. 1951). In addition, the evidence must establish that the
abandoning spouse left the state. The court does not infer the abandoning spouse's
death nor his absence from the state simply from his disappearance. Baxter
v. Baxter, 334 S.W.2d 714, 715 (Ark. 1960). In Baxter, a woman sought a declaratory judgment that her first husband was dead and that her
marriage to her second husband was valid. The woman stated that she did not know where
her first husband grew up, and she did not know anything about his relatives or friends.
After he left her, the woman simply never heard from her first husband again. The
court denied the woman's request, stating that she had the burden of producing evidence
that her first husband had lived continuously outside Arkansas for at least five years
before her remarriage. The court stated that the woman was required to provide sufficient
evidence of the first husband's intent to leave the state or of a diligent, but unsuccessful,
search for him. But the court held that the woman's ex parte request for a declaratory
judgment was unsupported by comparable testimony that might take her first husband's
whereabouts out of the realm of pure speculation. Id., at 715.
T~ has also not supplied sufficient information from which we can presume that A~
is dead. Like the woman in Baxter, T~ reported that she does not know any of A~'s relatives. Although she stated she
believes that A~ returned to Mexico, there is no supporting evidence to establish
either that A~ actually left Arkansas or that T~ performed a diligent, but unsuccessful,
search for him prior to her marriage to H~. Rather, T~ stated she married H~ believing
that her marriage to A~ was not valid because the couple did not return the license.
Thus, we conclude that T~ is unable to meet her burden of providing sufficient evidence
to establish the presumption of A~'s death.
Even though T~ cannot rely upon the presumption of death of her spouse, her marriage
to H~ is valid because Arkansas law presumes the validity of the last marriage. The
burden of proving that the last marriage is not valid is on the party attacking the
marriage, and the presumption is a strong one. The party contesting the validity of
the last marriage must prove by “clear and decisive evidence” that a prior marriage
did not terminate before the last marriage occurred. Thus, the Agency is required
to “prove the negative,” that the earlier spouse did not divorce the number holder.
Stokes v. Heckler, 773 F.2d 990, 991-92 (8th Cir. 1985).
The Arkansas Supreme Court has found that a widow was entitled to receive damages
for the negligent death of her spouse, despite evidence that a divorce from her prior
husband did not become final until after she married her second husband. The court
stated that there was no “clear and decisive evidence” that her previous husband had
not divorced her prior to her later marriage. Missouri Pacific R.R. v. Harris, 120 S.W.2d 695, 696 (Ark. 1938).
The Eighth Circuit cited Missouri Pacific as support for its holding in Stokes. In Stokes, the number holder married the claimant in 1942, even though he did not divorce his
first wife until 1963. The Agency denied the claimant's application for benefits on
the number holder's record, arguing that the 1963 divorce decree rebutted the presumption
of the validity of the later marriage. The Eighth Circuit disagreed, stating that
the 1963 divorce was evidence that the number holder had not previously divorced his
first wife. The court held that the Agency had not “proved the negative” by showing
that the first wife had not divorced the number holder prior to his marriage to the
claimant. Stokes, 773 F.2d at 992-93.
Thus, we conclude that the marriage between T~ and H~ was valid because Arkansas law
presumes the validity of the last marriage. Although T~ admittedly never divorced
A~, the possibility remains that A~ previously divorced T~. As in Stokes, the Agency is unable to establish the negative that A~ did not divorce T~ prior
to her marriage to H~. In summary, we believe that Arkansas law would uphold the validity
of the marriage between T~ and H~.
Tina M. W~
Regional Chief Counsel
James D. S~
Assistant Regional Counsel