The number holder (NH) died while domiciled in Arkansas; therefore, we look to the Arkansas state law to determine if the Claimant/Third Wife is the NH’s widow for purposes of widow’s benefits. The Claimant/Third Wife has not provided “clear and decisive” evidence to rebut the strong presumption of the validity of the NH’s last marriage to the Fifth Wife (and presumption of divorce as to his marriage to the Claimant) as required under Arkansas law. We believe there is legal support for the agency to find that the Claimant is not the NH’s widow under the Act for purposes of entitlement to widow’s insurance benefits on the NH’s record.

QUESTION PRESENTED

Information shows that the deceased number holder J~^[1] (NH) was married to: R~ (or R~) B~ in 1968 (First Wife), E~ in 1979 (Second Wife), M~ (the Claimant/Third Wife) in 1988, I~ (I~) in 1997 (Fourth Wife), and C~ (Fifth Wife) in 1998. You indicated that there was no evidence of divorce as to any of these marriages. For purposes of the Claimant/Third Wife’s application for widow’s insurance benefits on the NH’s record, you asked us to determine whether the NH was validly married to the Claimant at the time of his death in 2011.

ANSWER

We believe Arkansas courts would find that the Claimant/Third Wife has not provided “clear and decisive” evidence to rebut the strong presumption of the validity of the NH’s last marriage to the Fifth Wife (and presumption of divorce as to his marriage to the Claimant) as required under Arkansas law. As such, there is legal support for the agency to find that the Claimant is not the NH’s widow under the Social Security Act (Act) for purposes of entitlement to widow’s insurance benefits on the NH’s record.

BACKGROUND

Summary

You advised that the NH died May XX, 2011, in Arkansas. In May 2011, the agency awarded the lump sum death payment (LSDP) to the Fifth Wife as the NH’s widow. In 2012, the Second Wife filed an application for widow’s benefits alleging she was the NH’s widow, but the agency denied the claim based on information received from Phillips County, Arkansas that they had divorced. In 2018, the Claimant/Third Wife, filed an application for widow’s benefits alleging she was the NH’s widow. In light of the information and evidence of the NH’s multiple marriage, you submitted the request for a legal opinion to determine whether the Claimant/Third Wife is the NH’s widow for purposes of her application for widow’s benefits on the NH’s record.

First Marriage: First Wife’s 1968 Marriage to the NH (R~/R~)

Marriage: An agency report of contact from January X, 2019, reflects that the county clerk for Phillips County, Arkansas stated that marriage records showed a marriage between the First Wife and the NH on February X, 1968.

Divorce: Agency emails from October 2019 reflect that in developing the Claimant’s claim, the agency contacted the First Wife. She advised the agency that it had been over 25 years since she had heard the NH’s name. She stated that she attempted to file for divorce in the 1990s, but when she heard he had remarried, she assumed he had filed for divorce from her. She reported that she never received divorce documents from the NH.

Second Marriage: Second Wife’s 1979 Marriage to the NH (E~)

Marriage: You advised in your legal opinion request that in March 2012, the Second Wife filed an application for widow’s benefits with the agency. You provided a marriage record showing that the NH and First Wife married on March XX, 1979, in Phillips County, Arkansas. An agency report of contact from January X, 2019, also reflects that the county clerk for Phillips County, Arkansas stated that marriage records showed a marriage between the Second Wife and the NH on March XX, 1979.

Divorce: You advised that the agency denied the Second Wife’s claim based on information received from Phillips County, Arkansas that there was a divorce decree between the NH (J~ or J~) and the Second Wife. You provided a letter from the Phillips County Clerk’s Office dated in May 2012 indicating that a divorce record was found; the date of divorce was January X, 1984; and the case number was E-XX-XX. Agency emails from October 2019 reflect attempts to search for these same divorce records in developing the Claimant’s claim, and that there was no response from the county clerk for Phillips County, Arkansas. You indicated in your legal opinion request, however, that subsequent contact for the current claim found no divorce decree exists. Agency emails from October 2019 also indicate that when the agency contacted the Second Wife, she advised the agency that they had separated, and she knew the NH had remarried, but she also stated that she had not filed for divorce and had not received divorce papers.

Third Marriage: Claimant/Third Wife’s 1988 Marriage to the NH (M~)

Marriage:You advised in the legal opinion request that on September XX, 2018, the Claimant/Third Wife filed an application for widow’s benefits on the NH’s account. You stated that she provided a Phillips, County, Arkansas marriage certificate showing that they married January X, 1988. We do not have any information as to how long they lived together after their marriage. We do not know if they had children. We do not know the Claimant’s living situation since 1988 or if she ever married/divorced anyone else, and we do not have information on where the NH was living after their marriage and prior to his subsequent two marriages ten years later in St. Phillips County and St. Francis County, Arkansas (discussed next).

Divorce: The Claimant alleged that she was not aware if the NH ever filed for a divorce and that she had not filed for divorce. She was aware that he was living with another woman (Fifth Wife) as of his death. A report of contact dated April X, 2019, reflects that the agency contacted county clerks offices in various counties and that there was no record of a divorce between the NH and the Claimant in St. Francis, Phillips, Jefferson, Lee, or Monroe Counties.

Fourth Marriage: Fourth Wife’s 1997 Marriage to the NH (I~)

Marriage: An agency report of contact from January X, 2019, reflects that the county clerk for Phillips County, Arkansas stated that marriage records showed a marriage between the Fourth Wife and the NH on August X, 1997.

Divorce: Agency worksheet remarks state that the NH reported on his 2006 application for benefits that he had been married to the Fourth Wife in January 1997 and divorced her in October 1998. Agency emails indicate that the Fourth Wife died on July XX, 2019.

Fifth and Recent Marriage: Fifth Wife’s 1998 Marriage to the NH (C~)

Marriage: You advised that following the NH’s death, in May 2011, the Fifth Wife applied for the LSDP on the NH’s record as his widow based on this 1998 marriage and the agency awarded her the LSDP. Based on the award of the LSDP, it is our understanding that the agency is satisfied with the proof of marriage as to the NH and the Fifth Wife. See 20 C.F.R. §§ 404.345 (relationship to the insured as a widow(er) under State law), 404.391(a) (widow(er) living in the same household is entitled to the LSDP), 404.725 (evidence of a valid ceremonial marriage). An agency report of contact from October XX, 2018, reflects that the county clerk for St. Francis County, Arkansas stated that marriage records showed that the NH and the Fifth Wife were married on November xx 1998, in St. Francis County, Arkansas. You also advised that on the NH’s June 2006 disability benefits application, the NH reported marrying the Fifth Wife on November xx, 1998 in Forrest City, Arkansas.

We located what appears to be the NH’s online obituary showing the NH’s name as J~ and listing C~ (Fifth Wife) as his surviving wife. See https://www./obituaries/ (last visited July 20, 2021).

Thus, the evidence indicates that the NH reported to the agency that his most recent and last marriage was to his Fifth Wife. The evidence also indicates that the NH and the Fifth Wife had been living together as a married couple for approximately 13 years from their marriage in 1998 until his death in 2011.

ANALYSIS

A. Federal Law: Widow(er) under the Act for Widow(er)’s Insurance Benefits

Under Title II of the Act, a claimant may be entitled to widow(er)’s insurance benefits on a deceased insured individual’s account if, among other things,^[2] the claimant is the widow(er) of the insured individual and their marriage lasted nine months before the insured individual died. See 42 U.S.C. §§ 402(e)(1), (f)(1), 416(a)(2), (c), (g); 20 C.F.R. § 404.335.

The agency will find that a claimant is an insured individual’s widow(er) if the courts of the State in which the insured individual resided at the time of death would find that the claimant and the insured individual were validly married at the time the insured individual died, or if, under application of that State’s intestate succession laws, the claimant would be able to inherit a spouse’s share of the insured’s personal property. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. Here, the evidence shows that the NH resided in Arkansas at the time of his death. We therefore look to Arkansas law to determine whether the Claimant is the NH’s widow.

B. State Law: Validly Married under Arkansas Law at the Time of the NH’s Death

1. The NH’s Multiple Marriages and the Strong Presumption of the Validity of the NH’s Last and Most Recent Marriage to the Fifth Wife

Given that the NH has had multiple marriages, we begin our analysis by recognizing that under Arkansas law, a marriage to a person who has previously been married and never divorced is void, but also that Arkansas law presumes the validity of the last (most recent) marriage and provides that this is one of the strongest presumptions under the law. See Stokes v. Heckler, 773 F.2d 990, 991-992 (8th Cir. 1985) (under Arkansas law, the last ceremonial marriage is presumed valid and this is one of the strongest presumptions under Arkansas law); Blythe v. Blythe, 410 S.W.2d 379 (Ark. 1967) (“the presumption in favor of the validity of a marriage is so strong that the one who attacks a subsequent marriage . . . has the difficult burden”). With this presumption of the validity of the most recent marriage, it is presumed that all prior marriages ended in divorce. See Sims v. Powell’s Estate, 432 S.W.2d 838, 840 (Ark. 1968) (“positive proof” is necessary to rebut the presumption); Bruno v. Bruno, 256 S.W.2d 341, 343-344 (Ark. 1953) (“where a man and woman are married and it is later discovered that one of them has a living former spouse it will be presumed, in the absence of proof to the contrary, that the former spouse had been divorce[d] at the time of said marriage.”). A strong presumption that a valid marriage exists also arises when a man and woman have lived together for considerable time and held themselves out to the public as spouses. Stokes, 773 F.2d at 991. “[E]ven if a spouse from an earlier marriage is still living, Arkansas law presumes that the earlier marriage ended in divorce, absent evidence to the contrary.” Id.

As noted in the background, based on the award of the LSDP to the Fifth Wife, it is our understanding that the agency is satisfied with the proof of a ceremonial marriage as to the NH and the Fifth Wife. See 20 C.F.R. §§ 404.345, 404.391(a), 404.725. An agency report of contact from October XX, 2018, reflects that the county clerk for St. Francis County, Arkansas stated that marriage records showed that the NH and the Fifth Wife were married on November 14, 1998, in St. Francis County, Arkansas. You also advised that on the NH’s June 2006 disability benefits application, the NH reported marrying the Fifth Wife in November 1998 in Forrest City, Arkansas. It is our understanding that they remained married and were living together at the time of the NH’s death in 2011. We located what appears to be the NH’s online obituary showing the NH’s name as J~ and listing C~ (Fifth Wife) as his surviving wife. See https://www./obituaries(last visited July 20, 2021).

Arkansas law presumes that the NH’s last and most recent marriage to the Fifth Wife in 1998 was valid and presumes that the NH’s prior four marriages all ended in divorce, including the Claimant/Third Wife’s 1988 marriage to the NH.

2. Heavy Burden of Rebutting the Presumption of the Last Marriage with “Clear and Decisive” Evidence that a Divorce Was Not Obtained Prior to the Last Marriage

Arkansas law provides that this presumption of the validity of the last marriage is a strong one, and the party attaching the validity of the last marriage has the “heavy burden” of proving with “clear and decisive” evidence that a divorce was not obtained prior to the last marriage. See Stokes, 773 F.2d at 991-992 (it is a “heavy burden of proof imposed under Arkansas law on one who would invalidate an apparently legal marriage”) (citing Missouri Pacific R.R. Co. v. Harris, 120 S.W.2d 695, 696 (Ark. 1938)); Sims v. Powell’s Estate, 432 S.W.2d 838, 840 (Ark. 1968) (“positive proof” is necessary to rebut the presumption); Blythe v. Blythe, 410 S.W.2d 379 (Ark. 1967) (burden of proof on the party attacking the subsequent marriage is difficult to satisfy). Thus, for the Claimant/Third Wife to prove that she is the NH’s legal widow based on her valid marriage to the NH, the Claimant has the heavy burden of providing “clear and decisive” evidence that she and the NH had not divorced in order to rebut the presumption of validity as to the NH’s last marriage to the Fifth Wife.

Here, you advised that the Claimant/Third Wife provided a Phillips County, Arkansas marriage certificate showing that she and the NH married January X, 1988. Agency remarks indicate that the Claimant stated that she had not filed for divorce from the NH and that she was not aware if the NH had ever filed for divorce from her. We do not have any information as to how long the Claimant and the NH lived together after their 1988 marriage or when they separated. We do not know if they had children. We do not know the Claimant’s living situation since 1988 or if she ever married/divorced anyone else, but we know the NH went on to marry two additional women. The Claimant acknowledged that she was aware that the NH was living with another woman at the time of his death. The NH reported to the agency in 2006 when he applied for benefits that he married the Fourth Wife in 1997 and divorced her in 1998 and that he then married the Fifth Wife in 1998. It is our understanding that the NH lived with the Fifth Wife for the next approximately 13 years until his death. As noted earlier, we located what appears to be the NH’s online obituary listing the Fifth Wife as his surviving wife. A report of contacted dated October XX, 2018, reflects that the Fifth Wife stated that the NH had told her that he had divorced the Claimant. A report of contact dated April 3X, 2019, states that the agency contacted various county clerks in Arkansas and that there is no record of a divorce between the NH and the Claimant in St. Francis, Phillips, Jefferson, Lee, or Monroe Counties. The question then is whether given all of this information, the agency’s finding of an absence of a divorce record in these five Arkansas counties is clear and decisive evidence to rebut the presumption of a divorce as to the Claimant’s marriage with the NH and to rebut the presumption of the validity of the NH’s marriage to his Fifth Wife.

In determining what would constitute such “clear and decisive” evidence to rebut the presumption of the validity of the last marriage under Arkansas law, we consider the types of evidence that courts found sufficient or insufficient to rebut the presumption. The following cases show that evidence of no divorce in counties where the husband lived may not be enough to rebut the presumption and that the conduct of the first wife (inaction while the husband was alive) is relevant to rebutting this presumption.

The Arkansas Supreme Court found that a widow was entitled to receive damages for the negligent death of her second spouse, despite evidence that she divorced her previous spouse after she married her second spouse. Missouri Pacific R.R. Co., 120 S.W.2d at 696. Although the widow had not obtained a divorce decree until after entering into the second marriage, the court stated that no “clear and decisive evidence” existed that her previous husband had not divorced her before her subsequent remarriage. See id.

In a case involving a claim with SSA for widow’s benefits, a number holder had married his first wife in 1937 and a second wife in 1942. He obtained a divorce from his first wife in 1963. The question was whether the second (most recent) marriage had been void due to the prior first marriage. SSA denied the claim for benefits after determining that the 1963 divorce was sufficient evidence to rebut the presumption of the validity of the second marriage under Arkansas law. The Eighth Circuit Court of Appeals disagreed, citing, as support, to the Missouri Pacific case and found that SSA “ha[d] failed to conclusively prove the negative of the proposition that the marriage” to the first wife did not end before the number holder’s marriage to the second wife. Stokes, 773 F.2d at 991-92. The Court noted that the evidence - which showed that the first wife lived with the number holder for only 5 years and did not live with the number holder after 1942 and showed that the second wife lived with the number holder for over 30 years from 1942 until 1972, raised children with him, and paid expenses for him - was non-conflicting and tended to support, rather than rebut, the strong presumptions under Arkansas law. Stokes, 773 F.2d at 992.

In another case in which a federal district court vacated SSA’s denial of a claimant’s application for widow’s benefits on the record of her second husband, the court found that although the claimant testified that she did not obtain a divorce from her first husband, there was no clear and decisive evidence that he did not divorce her prior to her remarriage and stated that it was possible that the claimant’s first husband had lived somewhere else and obtained a divorce from the claimant. Noble v. Bowen, No. 87-224, 1989 WL 280358, at *2 (E.D. Ark. 1989). Thus, the court found that the presumption of the validity of the claimant’s marriage to her second husband was not rebutted and that the claimant qualified as a widow on the second husband’s record. Id.

Despite proof that no divorce had been granted in the counties in which the husband had lived in Florida, Louisiana, and Arkansas, the Arkansas Supreme Court found that the first wife had failed to rebut the presumption of the validity of the husband’s last marriage. Spears v. Spears, 12 S.W.2d 875, 876-877 (Ark. 1928). The Court stated that the first wife failed to show that the husband did not obtain a divorce in some other county or State in which he lived or in which he established a temporary residence for the purpose of obtaining a divorce from the first wife. Id. at 877. Further, the Court found that the presumption of the validity of the later marriage was strengthened by the conduct of the first wife who knew where the husband was living and that he was living with another woman as his wife and yet she never called on him for any assistance or made any claim as his wife over the years. Id. at 877-878.

In finding that the first wife did not rebut the presumption of the validity of the husband’s last marriage, the Arkansas Supreme Court explained that the first wife did not meet her burden of showing “the entire absence of any legal divorce.” Miller v. Miller, 371 S.W.2d 511, 514-515 (Ark. 1963). Although court records in certain counties showed no divorce proceedings, this did not disprove the possibility of divorce in some other county. Id. The Arkansas Supreme Court also found it significant that the first wife knew of where the husband was living and knew of his later marriage, and yet, the first wife never made any claim on the husband until after his death and that throughout his years married to his second wife, no one questioned the validity of such marriage. Id. at 514.

In another case, the Arkansas Supreme Court found that the first wife’s proof that no divorce decree had been entered in two counties in Arkansas and one county in Tennessee was not enough to rebut the presumption of the validity of the husband’s last marriage. Sims v. Powell’s Estate, 432 S.W.2d 838, 842 (Ark. 1968). The Court stated: “We conclude that appellant’s proof of her marriage to the decedent, together with her proof that no divorce decree appeared of record in Pulaski or Chicot Counties, Arkansas, or in Shelby County, Tennessee, falls far short of evidence sufficient to overcome the presumption of the validity of the decedent’s subsequent marriage.” Id. at 842. The court also emphasized the conduct of the first wife in that she knew that the husband had married the second wife and where he was living; she denied making any claim on the husband for any kind of support during his lifetime; and she herself married another man. Id. at 841-842.

We believe that an Arkansas court would find the present facts similar to the facts in these cases – in particular to the Miller, Spears, and Sims cases. As in those three cases, although court records in certain Arkansas counties showed no divorce proceedings between the Claimant and the NH, this did not disprove the possibility of divorce in some other county or State. As noted, we do not have information on where the NH was living after his 1988 marriage to the Claimant and prior to his subsequent two marriages ten years later in St. Phillips County to the Fourth Wife and in St. Francis County to the Fifth Wife. Additionally, the Claimant’s conduct prior to the NH’s death does not support a marriage. As in the Miller, Spears, and Sims cases, the Claimant stated that she knew the NH was living with the Fifth Wife in Arkansas at the time of his death, and yet, we have no information that the Claimant made any claim as a spouse with regard to the NH until years after his death. Throughout his 13 years of marriage to the Fifth Wife, there is no information indicating that anyone questioned the validity of such marriage. The NH identified the Fifth Wife as his wife in 2006 with the agency when he applied for benefits, and his obituary identifies the Fifth Wife as his surviving wife at the time of his death in 2011. We do not have information as to the Claimant’s whereabouts following her 1988 marriage to the NH, and we do not know if she married/divorced anyone else. Thus, following Arkansas case law applying the law to similar facts, given the information provided with this claim, we believe an Arkansas court would find that the Claimant has not provided “clear and decisive” evidence to rebut the strong presumption of the validity of the NH’s last marriage to the Fifth Wife.^[3] As such, there is legal support for the agency to find that the Claimant is not the NH’s widow under the Act. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345.^[4]

CONCLUSION

We believe Arkansas courts would find that the Claimant/Third Wife has not provided “clear and decisive” evidence to rebut the strong presumption of the validity of the NH’s last marriage to the Fifth Wife (and presumption of divorce as to his marriage to the Claimant) as required under Arkansas law.^[5] As such, there is legal support for the agency to find that the Claimant is not the NH’s widow under the Act for purposes of entitlement to widow’s insurance benefits on the NH’s record.

A subsequent marriage between a number holder and a claimant occurred before the NH divorced his prior wife is presumed valid under Arkansas law. Positive proof is necessary to rebut the presumption. Burden of proof on the party attacking the subsequent marriage is difficult to satisfy.

This memorandum is in response to your request for an opinion regarding whether a second marriage between a number holder and a claimant that occurred before the number holder divorced his first spouse is presumed valid under Arkansas law. In our opinion, the second marriage between the number holder and the claimant is valid because Arkansas law presumes the validity of the last marriage.

As we understand the facts, Willie G~(number holder) married Josie G~ in July 1960. The marriage produced two children. A Westchester County, New York, divorce decree showed that the two were divorced on July 10, 1985. Ms. G~ died in May 1988.

On December 18, 1984, the number holder married Signe B~ (claimant) in Pennsylvania. The marriage certificate noted that the number holder's previous marriage to Ms. G~ dissolved by the death of Ms. G~ on March 11, 1981. The claimant stated that, after her marriage to the number holder, they lived in Yonkers, New York. Subsequently, she moved to Pennsylvania to care for her parents, and the number holder remained in New York and then relocated to Arkansas. The claimant stated that they had a "commuter marriage" where the number holder visited her in Pennsylvania on weekends and during the summers. The marriage produced one son, James G~, who was born on January 18, 1988. On December 10, 2004, the number holder died in Mississippi while domiciled in Arkansas.

In 1992, the number holder received Title II Social Security disability benefits. The Agency awarded auxiliary Social Security benefits to the son, James, and then to the claimant after an initial denial. In April 2005, after the number holder's death, the Agency awarded a lump sum death payment to James instead of the claimant because she was not living in the same household with the number holder at the time of his death. In January 2006, the claimant filed for widow's benefits, which the Agency denied because the Agency did not have enough evidence to establish a valid marriage between the claimant and the number holder. In September 2007, the claimant re-filed for widow's benefits, which the Agency denied, and she filed for reconsideration. During the reconsideration process, the Agency received the July 10, 1985, divorce decree between the number holder and Ms. G~.

The Social Security Act provides that a claimant is entitled to widow's benefits if she is the number holder's widow and meets the other requirements for eligibility. 42 U.S.C. § 402(e)(1); 20 C.F.R. § 404.335(a). A claimant can meet this relationship requirement if she and the number holder were validly married under state law at the time the number holder died. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. The controlling law is the law of the state where the number holder had a permanent home at the time of his death. Id. Permanent home means the true and fixed home or legal domicile of the insured individual. 20 C.F.R. § 404.303. In this case, the number holder died while domiciled in Arkansas; therefore, Arkansas law is controlling.

Arkansas law provides that a ceremonial marriage to a person who has previously been married and never obtained a divorce is void. Bruno v. Bruno, 256 S.W.2d 341, 344 (Ark. 1953). However, a presumption exists under Arkansas law that the last ceremonial marriage is valid. Stokes v. Heckler, 773 F.2d 990, 991-92 (8th Cir. 1985). This presumption can only be rebutted by the party attacking the validity of the last marriage and with "clear and decisive" evidence that a divorce was not obtained prior to the second marriage. Id; Missouri Pacific R.R. Co. v. Harris, 120 S.W.2d 695, 696 (Ark. 1938). The presumption is a strong one. See Sims v. Powell's Estate, 432 S.W.2d 838, 840 (Ark. 1968) ("positive proof" is necessary to rebut the presumption); Blythe v. Blythe, 410 S.W.2d 379 (Ark. 1967) (burden of proof on the party attacking the subsequent marriage is difficult to satisfy). Based on the record, the Agency would not be able to show that the first spouse, Ms. G~, did not divorce the number holder prior to the number holder's subsequent marriage to the claimant.

The Arkansas Supreme Court found that a widow was entitled to receive damages for the negligent death of her second spouse, despite evidence that she divorced her previous spouse after she married her second spouse. Missouri Pacific R.R. Co., 120 S.W.2d at 696. Although the widow had not obtained a divorce decree until after entering into the second marriage, the court stated that no "clear and decisive evidence" existed that her previous husband had not divorced her before her subsequent remarriage. Id.

In a similar case, a number holder married a claimant in 1942, although he did not obtain a divorce from his first spouse until 1963. The Agency denied the claimant widow's benefits and argued that the 1963 divorce was sufficient evidence to rebut the presumption of the validity of the second marriage. The Eighth Circuit Court of Appeals disagreed, citing, as support, to the Missouri Pacific case and found 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 991-92; see also Noble v. Bowen, No. 87-224, 1989 WL 280358 *2 (E.D. Ark. 1989) (court vacated Agency's denial of widow's benefits because no clear and decisive evidence existed that claimant's first husband did not divorce her prior to her remarriage to the number holder).

In this case, the number holder's 1984 marriage to the claimant would represent evidence of the validity of his marriage to the claimant. Although the number holder's 1985 divorce from Ms. G~ is evidence that he had not previously divorced Ms. G~, and was, therefore, legally married to Ms. G~ until 1985, the possibility remains that Ms. G~ previously divorced him. Because this possibility remains, we do not believe the Agency can establish "clear and decisive evidence" to rebut the presumption of the validity of the number holder's second marriage to the claimant.

In an attempt to obtain information regarding whether Ms. G~ previously divorced the number holder prior to his marriage to the claimant, the Agency interviewed the number holder's children from his first marriage to Ms. G~. The information received was not determinative on whether Ms. G~ might have obtained a divorce from the number holder. Both children thought that the number holder and Ms. G~ never divorced, despite the 1985 divorce decree. The Agency reviewed Ms. G~'s 1988 funeral obituary and death certificate, which listed the number holder as the surviving spouse. However, Ms. G~'s children provided the information contained in the funeral obituary and death certificate, which, due to the 1985 divorce decree, is apparently incorrect information. The Agency also searched for divorce records in Philadelphia, Pennsylvania, Yonkers, New York, New York City, New York, and Lake Village, Arkansas, but did not find a divorce decree relating to the number holder's and Ms. G~'s marriage, other than the 1985 divorce. However, this does not prove that Ms. G~ did not obtain a divorce in some other county or state. See Spears v. Spears, 12 S.W.2d 875, 877 (Ark. 1928) (wife failed to show that husband did not obtain a divorce in some other county or state in which he lived or in which he established a temporary residence for the purpose of obtaining a divorce). As such, we believe that, under Arkansas law, the Agency has not obtained clear and decisive evidence that Ms. G~ or the number holder did not obtain a divorce prior to the number holder's marriage to the claimant.

In this case, similar to the Missouri Pacific and Stokes cases, the Agency is unable to establish that Ms. G~ did not divorce the number holder prior to his marriage to the claimant and, thus, the Agency has not rebutted the presumption that the last ceremonial marriage is valid. Hence, we believe that the State of Arkansas would uphold the validity of the marriage between the number holder and the claimant, so the claimant should be considered the number holder's widow.

Traci B. D~

Regional Chief Counsel

By: ______________

Carolyn E. W~

Assistant Regional Counsel

Under Arkansas law a marriage that is not recorded is not void. The evidence presented does not support a conclusion that the claimant's prior marriage was terminated by a presumed death of her prior spouse. Nevertheless, Arkansas law presumes the validity of the last marriage. 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.

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 to Mexico.

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. Watson 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

By: ________________________

James D. S~

Assistant Regional Counsel