You asked us whether Perley W~ and Richard W~ were legally divorced per GN 00305.170B3.
The claimant, Perley W~, seeks widow's benefits on Richard W~’s account. We believe,
for the reasons discussed below, that an Illinois court would find that Perley W~
and Richard W~ were not divorced. Thus, Perley would be entitled to benefits as Richard’s
Perley and Richard were married sometime before 1953. Perley alleged that they separated
sometime around 1953. She claims that she never divorced him, and never received notification
that he divorced her. On February 15, 1989, Perley applied for benefits on Richard’s
account. Perley’s claim was denied at that time because Richard alleged that he divorced
her. However, no divorce decree was apparently submitted. Richard alleged that he
remarried a woman named Carol. He subsequently received benefits as a young husband
with child in care on Carol’s account.
Richard is now deceased, and Perley has applied for surviving spouse benefits on his
record. According to your records, Richard lived in Chicago, Illinois the entire time
up to his death. SSA confirmed that there was no divorce on file from 1947 thru the
present in the State of Illinois.
In order to be entitled to widower’s benefits on Richard’s account, Perley must be
Richard’s "widow" or "surviving spouse." The Act provides that "[a]n applicant is
the wife, husband, widow, or widower" of an insured individual if "the courts of the
State in which [such insured individual] was domiciled at the time of death . . .
would find that such applicant and such insured individual were validly married .
. . at the time he died." 42 U.S.C. § 416(h)(1)(A)(i). The issue here is whether
Perley was Richard’s spouse at the time of his death. We conclude that an Illinois
court could find that Perley was validly married to Richard at the time of his death,
and therefore is his surviving spouse.
According to your records, Richard lived in Chicago, Illinois the entire time. Sometime
after he separated from Perley, he allegedly married Carol. Illinois presumes that
the last of two conflicting marriages is valid. See POMS PR 05105.016 (PR 86-039); Davis v. Califano, 603 F.2d 618 (7th Cir. 1979); Sparling v. Industrial Commission, 270 N.E. 2d 411 (Ill. 1971); Baer v. DeBarry, 175 N.E. 2d 673 (Ill. App. 1971). Thus, in the absence of evidence to the contrary,
the divorce between Richard and Perley will be presumed in order to sustain his subsequent
marriage to Carol. However, this presumption may be rebutted “by evidence which, standing
alone, affords reasonable grounds for concluding that no divorce has been secured.”
Sparling, 270 N.E. 2d at 413. This standard is not a strict one. In Sparling, the Illinois Supreme Court found the presumption rebutted on the basis of the prior
wife's testimony, along with the lack of evidence that a divorce had been obtained
prior to the deceased's second marriage (although divorce records were not checked).
Similarly, in Davis v. Califano, 603 F.2d 615 (7th Cir. 1979), the Seventh Circuit, after examining Illinois law,
found that the presumption of the validity of the second marriage was rebutted by
the testimony of the first wife and by searches of the divorce records of the wage
earner's places of residence, which revealed nothing. The issue in this case, is whether
there is sufficient evidence to rebut the presumption.
Perley maintains that that she never received notification that Richard divorced her.
Although Richard claimed in 1989 that he divorced her, he never submitted a divorce
decree. SSA confirmed that there was no divorce on file from 1947 thru the present
in Illinois. Perley’s statements, combined with the lack of evidence showing a divorce,
provide reasonable grounds for concluding that no divorce occurred. Generally, we
would recommend that you gather additional information from Richard regarding the
specifics of the divorce (e.g., the year the divorced occurred and the state where
the divorced was entered). However, because Richard is deceased and no additional
information can be obtained, we believe that it is reasonable to conclude that an
Illinois court would find that Perley and Richard were never divorced, and therefore
Perley is Richard’s surviving spouse.
In sum, we believe that an Illinois court would find that Richard and Perley were
not legally divorced, and that Perley is Richard’s surviving spouse.
Donna L. C~
Regional Chief Counsel, Region V
Assistant Regional Counsel