BASIC (10-04)

PR 05110.019 Kansas

A. PR 04-184 Presumption of Validity of Marriage in Kansas in regard to a Claim of Disabled Widows Benefits by Lenora K~

DATE: November 8, 1999

1. SYLLABUS

Under Kansas law, the presumption of validity of the second marriage is "considerable." There is a presumption that prior marriages were dissolved by death or divorce before the last marriage was contracted. While this presumption is not conclusive, it is one of the strongest known to the law. There is no evidence that the claimant for widow's benefits in this case and the NH were ever divorced. However, the absence of divorce records does not constitute sufficient evidence that no divorce occurred, and cannot be used to rebut the presumption of validity of the claimant's subsequent marriage.

2. OPINION

BACKGROUND

You requested a legal opinion as to whether an applicant for disabled widow's benefits was eligible for such benefits on the earnings record of her first husband. Specifically, you asked whether the presumption of the validity of the widow's second marriage is rebutted under Kansas law.

According to the documents you provided, Lenora K~ (née S~) applied for disabled widow's benefits and was found disabled. Ms. K~ married Mr. J~, the wage earner, in 1961 in Fort Scott, Kansas. She stated that she and the wage earner moved to Oklahoma City, Oklahoma, in 1977 and separated in 1988. Both of them then returned to Kansas. She believed that the wage earner divorced her. Ms. K~ married James K~ in 1990 in South Carolina. The wage earner remained in Kansas until his death in May 1999. Prior to his death, the wage earner applied for disability benefits. On his application, he stated that he had divorced an "unk S~" in 1988. A search of Kansas divorce records yielded no evidence of divorce proceedings between Ms. K~ and the wage earner during the years of 1986 and 1990.

Applicable Law

Because the wage earner was domiciled in Kansas when he died, the Social Security Act states that Kansas law governs the determination of whether Ms. K~ is the legal widow of the wage earner. 42 U.S.C § 416(h)(1)(A). Generally, the presumption of the validity of the second marriage in Kansas is "considerable." Elms v. Bowen, 702 F.Supp. 273, 274 (D. Kan. 1989). Further, under Kansas law, there is a presumption that prior marriages were dissolved by death or divorce before the last marriage was contracted. Harper v. Dupree, 345 P.2d 644 (Kan. 1959). The presumption is not conclusive, but it is one of the strongest known to the law, and the party attacking the marriage has the burden of proving the continuance of the previous marriage and the invalidity of the second marriage. Id. In Elms, the court found the absence of divorce records was not sufficient to prove the invalidity of a subsequent marriage. In upholding the validity of the subsequent marriage, the court in Elms also considered the fact that the wage earner maintained that he had been divorced.

There is no evidence in the record that Ms. K~ and the wage earner were ever divorced. However, the absence of divorce records does not constitute sufficient evidence that no divorce occurred and cannot be used to rebut the presumption of validity of Ms. K~'s subsequent marriage to James K~. Further, as in Elms, there is evidence in this case that both Ms. K~ and the wage earner believed they had been divorced. In her application for disabled widow's benefits, Ms. K~ indicated that she remarried and that she considered herself to be the divorced wife of the wage earner at the time of his death. She also continues to live with Mr. K~. The wage earner also stated in his application for disability that he had been divorced in 1988.

Based upon the facts of this case, we believe you would be justified in concluding that, under Kansas law, Ms. K~ has not met her burden of rebutting the presumption of the validity of her marriage to Mr. K~. She would, therefore, not be entitled to widow's benefits.

Frank V. S~ III
Chief Counsel

By
Michael L~
Assistant Regional Counsel


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http://policy.ssa.gov/poms.nsf/lnx/1505110019
PR 05110.019 - Kansas - 10/22/2004
Batch run: 01/27/2009
Rev: