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.
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
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
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
Frank V. S~ III
Assistant Regional Counsel