TN 17 (10-23)

PR 05110.021 Louisiana

A. PR 23-015 Marital Status for Widow’s Insurance Benefits: Louisiana Law – Multiple Marriages and Absolutely Null (Void) Marriage

Date: September 28, 2023

1. Syllabus

Under Louisiana Law, a marriage contracted in violation of a legal impediment, such as an undissolved existing marriage of either spouse, is an absolutely null union and "devoid of legal effect from the moment of its inception."

In this case, the marriage certificate and final judgment of divorce establish that the Claimant and the NH were validly married for 30 years under Louisiana law from December XX, 1990, until their divorce on February XX, 2021. Given that the Claimant and the NH were still married at the time the Claimant and Mr. W~ married in 2016, a legal impediment existed and her marriage to Mr. W~ is absolutely null under Louisiana law, such that Louisiana courts would find that they are not married.

2. Question Presented

For purposes of her application for widow’s insurance benefits under Title II of the Social Security Act (Act) on the record of the deceased number holder (NH) J~, you asked whether B~ (Claimant) is the NH’s surviving divorced spouse where she and the NH were married in Louisiana on December XX, 1990, separated, and later divorced on February XX, 2021 in Louisiana, and where the Claimant married another man, Mr. W~, in 2016. You also asked about the marital status of the Claimant and Mr. W~.

3. Answer

We believe Louisiana courts would find that the NH and the Claimant were validly married for 30 years from December XX, 1990, until their marriage was terminated by a divorce decree on February XX, 2021. Thus, we believe there is legal support for the agency to find that the Claimant is the NH’s surviving divorced spouse for Title II benefits. Further, we believe Louisiana courts would find that the Claimant’s 2016 marriage to Mr. W~ during her marriage to the NH is absolutely null under Louisiana law, such that the Claimant and Mr. W~ are not validly married. Thus, there is legal support for the agency to find the Claimant is unmarried for Title II benefit purposes.

4. Background

The NH died on August XX, 2022, domiciled in Louisiana. You advised that on December XX, 2022, the Claimant (born September XX, 1968) filed an application for widow’s insurance benefits on the NH’s record. She stated she and the NH were married December XX, 1990, in St. Martinville, Louisiana and the marriage ended by divorce on February XX, 2021, in Lafayette, Louisiana. However, she also stated she was currently married to Mr. W~ and that their marriage began on June XX, 2016, in Lafayette, Louisiana.

Claimant’s 1990 Marriage to the NH and 2021 Divorce from the NH

A Louisiana marriage certificate shows that the Claimant and the NH were licensed to marry, participated in a marriage ceremony on December XX, 1990 before a justice of the peace, and that the marriage was recorded. A petition for divorce shows that the Claimant filed a petition seeking a divorce from the NH on May XX, 2010; however, there is no record of any final decree of divorce. A second petition for divorce shows that the NH filed a petition seeking a divorce from the Claimant on June XX, 2020. In this petition, he stated that they were married on December XX, 1990 and had been separated and living apart continuously since June XX, 1999. A final judgment of divorce, signed by the judge, was recorded and entered on February XX, 2021, granting the NH’s petition and dissolving the marriage between the NH and the Claimant. The court in the final judgment of divorce stated that the Claimant was served with the petition for divorce on August XX, 2020 and failed to answer or otherwise make an appearance. In the final judgment of divorce, the court ordered, adjudged, and decreed that the NH was granted an absolute divorce from the Claimant forever dissolving the bonds of matrimony.

Claimant’s 2016 Marriage to Mr. W~

A Louisiana marriage certificate shows that the Claimant and Mr. W~ were licensed to marry, participated in a marriage ceremony on June XX, 2016 before a justice of the peace, and that the marriage was recorded. The marriage license application and affidavit completed on May XX, 2016, shows that the Claimant reported that she had never been married and that her marriage to Mr. W~ was her first marriage. The Claimant also provided unclear and inconsistent statements about her marriage to Mr. W~. On the Form SSA-795 Statement of Claimant, she wrote that she was currently married to Mr. W~ and that their marriage began on June XX, 2016, in Lafayette, Louisiana. In the Form SSA-754 Statement of Marital Relationship, she appears to claim that they began living together in Lafayette, Louisiana in 2017, but they were not living together as spouses and that they did not enter into a ceremonial marriage.

5. Analysis

a. Federal Law: Entitlement to Widow(er)'s Insurance Benefits as a Surviving Divorced Spouse[1]

Under Title II of the Act, a claimant may be entitled to widow(er)’s insurance benefits on a deceased insured individual’s record as a surviving divorced spouse if, among other things, the claimant was validly married to the insured for at least ten years immediately before their divorce became final and the claimant is unmarried. See 42 U.S.C. §§ 402(e), (f), 416(d)(2), (5);20 C.F.R. § 404.336; Program Operations Manual System (POMS) RS 00207.001A.2.

The agency will determine whether a claimant is the insured’s surviving divorced spouse by looking to the laws of the State where the insured was domiciled at the time of death. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.336(a), 404.344, 404.345. The NH was domiciled in Louisiana when he died on August XX, 2022. Thus, for purposes of determining the Claimant’s entitlement to widow’s insurance benefits on the NH’s record as his surviving divorced spouse, the agency looks to Louisiana law regarding marriage.

b. State Law: Valid Marriage under Louisiana Law

1. Louisiana Law: Requirements for a Valid Marriage and the Rebuttable Presumption of the Validity of the Last Marriage

Under Louisiana law, a marriage is a legal relationship between spouses that is created by a civil contract, and the relationship and contract are subject to certain rules set forth in the law. See La. Civ. Code Ann. art. 86. The law regarding marriage in Louisiana can be found in articles 86 through 101 of the Louisiana Civil Code and sections 201 through 298 of the Louisiana Revised Statutes. See La. Civ. Code Ann. arts. 86 – 101; La. Rev. Stat. Ann. §§ 9:201 – 9:298. The requirements for a valid marriage contract under Louisiana law are:

 

  • the absence of a legal impediment,

  • a marriage ceremony, and

  • the free consent of both parties to be married as expressed at the ceremony.

La. Civ. Code Ann. art. 87.

Although the law sets forth other criteria for a marriage, including those pertaining to the filing an application for a marriage license, a waiting period, issuance of a marriage license, the presence of two witnesses at the marriage ceremony, the return of the certificate for filing, and other formalities, the law provides that the only mandatory requirements for a valid marriage are those identified in article 87. See La. Civ. Code Ann. art. 87, Revision Comments – 1987 (c) (“the only essential ‘formal’ prerequisite to a valid marriage is a ceremony”); see also Tennison v. Nevels, 965 So.2d 425, 427 (La. Ct. App. 2007) (where all of the legal requirements for a valid marriage were present per La. Civ. Code Ann. art. 87, a defect in the marriage ceremony involving the two witnesses present per La. Rev. Stat. Ann. § 9:244 did not invalidate the marriage).

Louisiana law provides that the fact of marriage can be proven through direct (primary) and circumstantial (secondary) evidence. See Boykin v. Jenkins, 140 So. 495, 497 (La. 1932);Mazzei v. Gruis, 55 So. 555, 556 (La. 1911); see also Johnson v. Hogan & Winchester Transfer Co., 171 So. 467, 468 (La. Ct. App. 1936) (“[O]nce the party alleging the marriage contract has shown his or her inability to produce the marriage license or certificate, some other written document, secondary proof in the way of oral testimony will be received, and if found strong and reliable enough, will be accepted as proof of the contract.”). A marriage certificate is considered primary evidence of a marriage. See Succession of Gaudinse, 175 So. 595, 598 (La. 1937); Succession of Gibson, 173 So. 185, 188-189 (La. 1937); Chaisson v. State, Department of Health and Hospitals through Registrar of Vital Records, 239 So.3d 1074, 1079 (La. Ct. App. 2018).

Here, the agency has a completed and recorded Louisiana marriage certificate showing the Claimant’s marriage with Mr. W~ on June XX, 2016. The agency also has a completed and recorded Louisiana marriage certificate showing the Claimant’s marriage to the NH on December XX, 1990, with evidence that their marriage ended in divorce in 2021.

In a situation such as the present matter involving successive or conflicting marriages where the validity of the subsequent marriage is at issue on the basis that a previous marriage still existed at the time the subsequent marriage occurred, the presumption of validity attaches to the last marriage. See Lands v. Equitable Life Assur. Soc. of U. S., 120 So.2d 74, 76-77 (La. 1960). However, the presumption that the last marriage is valid may be rebutted. See Ellis v. Hayes, 168 So.2d 885, 886 (La. Ct. App. 1964). Here, Louisiana law presumes that the Claimant is validly married to Mr. W~ because her 2016 ceremonial marriage to Mr. W~ in Louisiana was her last marriage. See Lands, 120 So.2d at 76-77; see also U.S. v. Marlow, 235 F.2d 366, 368 (5th Cir. 1956) (a ceremonial marriage shown by a proper marriage certificate is presumed to have been legal and valid, and anyone asserting the invalidity of such marriage has the burden of proof). The issue then is whether this presumption has been rebutted with evidence that the Claimant was still married to the NH when she married Mr. W~. We believe Louisiana courts would find that this presumption has been rebutted, as explained next.

2. The Claimant was Validly Married to the NH from December XX, 1990, until their Divorce on February XX, 2021

Here, the NH and the Claimant participated in a ceremony before a justice of the peace on December XX, 1990; there is no claim that a legal impediment existed at the time of their marriage; and there is no claim that they lacked consent to marry. See La. Civ. Code Ann. art. 87. Thus, the completed and recorded Louisiana marriage certificate establishes a valid marriage between the Claimant and the NH on December XX, 1990.

Louisiana law states that a marriage terminates only upon the death of either spouse; divorce; a judicial declaration of its nullity, when the marriage is relatively null; or the issuance of a court order authorizing the spouse of a person presumed death to remarry, as provided by law. La. Civ. Code Ann. art. 101. Here, although the Claimant and the NH separated in 1999, their marriage did not terminate until entry of the final judgment of divorce on February XX, 2021. See La. Civ. Code Ann. art. 101; see also Savoy v. National General Insurance, 2021 WL 1600250, at *2 (E.D. La. April 23, 2021) (for the survival or wrongful death action under Louisiana law, noting that “[n]umerous [Louisiana] courts have held that an estranged spouse is considered a surviving spouse for purposes of article 2315, if the spouse is alive and not legally divorced”).

Thus, the marriage certificate and final judgment of divorce establish that the Claimant and the NH were validly married for 30 years under Louisiana law from December XX, 1990, until their divorce on February XX, 2021.[2]

3. The Claimant’s Marriage to Mr. W~ during her Marriage to the NH is Absolutely Null under Louisiana Law

A Louisiana marriage certificate shows that the Claimant and Mr. W~ were married on June XX, 2016. The marriage license application and affidavit completed on May XX, 2016, also show that the Claimant reported that she had never been married and that her marriage to Mr. W~ was her first marriage, which is untrue given her 1990 marriage to the NH.

As stated, a valid marriage requires the absence of a legal impediment. La. Civ. Code Ann. art. 87. Louisiana law sets out three legal impediments to a marriage: no bigamous marriages, marriages to certain relatives are not allowed, and marriages to minors are not allowed. La. Civ. Code Ann. arts. 88, 90, 90.1. A marriage contracted in violation of a legal impediment, such as an undissolved existing marriage of either spouse, is an absolutely null union and “devoid of legal effect from the moment of its inception.” See La. Civ. Code Ann. art. 94, Revision Comments – 1987, comment (b);La. Civ. Code Ann. art. 88, Revision Comments – 1987, comments (b), (c); see also Farrell v. Farrell, 275 So.2d 489, 492 (La. Ct. App. 1973) (“A person who is married to one person not only is incapable of contracting another marriage, but the attempted second marriage is not susceptible of ratification or confirmation, whether express or implied.”); Burrell v. Burrell, 154 So.2d 103, 106 (La. Ct. App. 1963) (an “absolutely null” marriage is devoid of legal effect from the moment of its inception).

Given that the Claimant and the NH were still married at the time the Claimant and Mr. W~ married in 2016, a legal impediment existed and her marriage to Mr. W~ is absolutely null under Louisiana law, such that Louisiana courts would find that they are not married.[3] See La. Civ. Code Ann. arts. 88, 94.

Finally, we note that Louisiana law does not authorize common-law marriage within Louisiana. See Ghassemi v. Ghassemi, 998 So.2d 731, 743 (La. Ct. App. 2008); POMS GN 00305.075B. Thus, a common-law marriage could not have developed between the Claimant and Mr. W~ following the termination of the Claimant’s marriage to the NH in 2021 per the divorce. As such, we believe Louisiana courts would find that the Claimant and Mr. W~ are not validly married.

6. Conclusion

We believe Louisiana courts would find that the NH and the Claimant were validly married for 30 years from December XX, 1990, until their marriage was terminated by a divorce decree on February XX, 2021. Thus, we believe there is legal support for the agency to find that the Claimant is the NH’s surviving divorced spouse for Title II benefits. Further, we believe Louisiana courts would find that the Claimant’s marriage to Mr. W~ in 2016 during her marriage to the NH is absolutely null under Louisiana law, such that the Claimant and Mr. W~ are not validly married.

B. PR 16-105 Louisiana State Law- Status of NH’s Second Wife

Date: March 22, 2016

1. Syllabus

The number holder (NH) passed away on August XX, 2004, while domiciled in Louisiana. Therefore, the Louisiana law is controlling in the present matter as we consider whether the second spouse or the third spouse is the NH’s legal widow. Although Louisiana law presumes the validity of the last marriage, based on the evidence submitted, we believe that the second wife has successfully rebutted this presumption in challenging the NH’s last marriage and proving her marriage to the NH. The third spouse was also validly married to the NH at the time of his death and is entitled to benefits on the NH’s account as his surviving spouse, or widow. The third wife is the NH’s putative spouse under the Louisiana law and is also entitled to continue to receive widow’s benefits on the NH’s account as his widow.

2. Opinion

QUESTION PRESENTED

For purposes of the claimant J1~’s (J1~’s or second wife’s) application for surviving spouse benefits on the record of J2~, the number holder (NH), you asked us to determine whether the NH was validly married to J1~, his purported second wife, at the time of his death in 2004. If J1~ is the NH’s legal widow, you also asked whether L~ (L~ or third wife), the NH’s purported third wife who is currently entitled to widow’s benefits on the NH’s record, is a party to a putative marriage or a deemed spouse for purposes of entitlement to surviving spouse benefits on the NH’s record.

ANSWER

Based on the evidence submitted, although Louisiana law presumes the validity of the last marriage, we believe that J1~ has successfully rebutted this presumption in challenging the NH’s last marriage to L~ and proving her marriage to the NH. As such, J1~ was validly married to the NH at the time of his death in 2004 and is entitled to benefits on the NH’s account as his surviving spouse, or widow.[4] We find that L~ is the NH’s putative spouse under Louisiana law and, as such, is also entitled to benefits (to continue to receive widow’s benefits) on the NH’s account as his widow.

BACKGROUND

The NH passed away on August XX, 2004, while domiciled in Louisiana. There is evidence indicating that the NH potentially had three marriages to three different women, and it is our understanding that the Social Security Administration (SSA or agency) has been paying widow’s benefits to the NH’s third wife, L~, on his record since 2004. Your legal opinion request focuses only upon whether J1~ or L~ is the NH’s legal widow. Further, because evidence shows a divorce from the NH’s first wife, M~ (M~ or first wife), M~ would not qualify as his legal widow.[5] Thus, this legal opinion focuses only upon J1~’s and L~’s claims for widow’s benefits.

The NH’s Second Purported Marriage to J1~

On March XX, 2015, J1~ filed a claim for benefits on the NH’s record as a surviving spouse, and it is this claim that is the subject of this present legal opinion request. The evidence includes a certified copy of a Pennsylvania marriage certificate showing that J1~ and the NH married in a solemnized marriage ceremony in Paoli, Chester County, Pennsylvania on August XX, 1986.[6] According to your request, J1~ alleged that she never filed for divorce and was not aware of the NH filing for divorce.

J1~ listed her marriage to the NH in her 1994 disability application. The NH did not list his marriage to J1~ in his 2003 retirement and disability applications. In an August 2015 statement to the agency, J1~ stated that the NH was previously married to and legally divorced from M~. She said the NH had two daughters with M~. J1~ further stated that she and the NH lived together on and off from 1981 to 1990 and did not conceive any children during their marriage. J1~ stated that the NH left Pennsylvania in 1990 to work in Louisiana, and it was her understanding that he met L~ there. The NH called J1~ once in 1991, but she had very little contact with him after that. J1~ also said she no longer had contact information for any of the NH’s family. Additionally, she did not know the exact dates and places the NH lived after leaving Pennsylvania in 1990, but she thought that he lived in or around New Orleans, Louisiana and possibly Thibodaux, Louisiana; Labadieville, Louisiana; or Baton Rouge, Louisiana. J1~ stated that she was never served with a notice of divorce proceedings and never received notice that the NH was trying to obtain a divorce. In June 2015, the field office contacted Assumption Parish, Louisiana; Lafourche Parish, Louisiana; New Orleans, Louisiana; and East Baton Rouge, Louisiana and did not locate a divorce decree between the NH and J1~. The field office also contacted Chester County, Pennsylvania and did not find a divorce decree.

The NH’s Third Purported Marriage to L~

You advised that the agency received proof of a ceremonial marriage by clergy or public official between the NH and L~ that took place on September XX, 1992, in Thibodaux, Louisiana. The NH also listed his September 1992 marriage to L~ in his 2003 disability and retirement applications.[7] Following the NH’s death in August 2004, on September XX, 2004, L~ filed an application for a lump sum death payment on the NH’s account, in which she stated that she and the NH were living together at the time of his death in August 2004.[8] We understand that L~ also submitted a signed statement to the agency that she did not have any knowledge of a marriage between the NH and J1~ and was only aware of his marriage to M~.[9] L~ indicated that the NH lived in Assumption Parish, Louisiana, and that he possibly lived in New Orleans, Louisiana; Lafourche, Louisiana; and Baton, Rouge, Louisiana. L~ is currently receiving widow’s benefits on the NH’s record.

 

ANALYSIS

Entitlement to Widow’s Benefits Under the Social Security Act

The Social Security Act (Act) provides that a claimant may be eligible for benefits as an insured NH’s widow if she was validly married to the NH at the time of his death, or if not validly married, she would be able to inherit a spouse’s share under state intestate succession laws. See 42 U.S.C. §§ 402(e)(1), 416(c)(1), (h)(1)(A); 20 C.F.R. §§ 404.335(a), 404.345. There are additional requirements for entitlement to widow’s benefits that we do not address, as they are not relevant to this legal opinion. See 42 U.S.C. § 402(e)(1)(A)-(D); 20 C.F.R. § 404.335(b)-(e). Because the Act directs the agency to apply the law of the state where the NH had a permanent home at the time of his death to determine the validity of a marriage and inheritance as a spouse under intestate succession laws, Louisiana law controls. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.345; 20 C.F.R. § 404.303 (permanent home means the true and fixed home or legal domicile of the insured individual).

Under Louisiana Law, J1~ has Proven that She had a Valid Marriage to the NH at the Time of the NH’s Death in 2004, under 42 U.S.C. § 416(h)(1)(A)(i)

As noted above, Louisiana law is controlling in the present matter as we consider whether J1~ or L~ is the NH’s legal widow. Under Louisiana law, a marriage is presumed valid. See La. Civ. Code Ann. art. 3520. A marriage contracted in violation of an impediment, however, is an absolutely null union and “devoid of legal effect from the moment of its inception.” See La. Civ. Code Ann. art. 94, comment (b). An existing marriage qualifies as such an impediment. See La. Civ. Code Ann. art. 88. In a situation involving successive or conflicting marriages where the validity of the subsequent marriage is attacked on the basis that a previous marriage still existed at the time the subsequent marriage occurred, the presumption of validity attaches to the last marriage. See Lands v. Equitable Life Assur. Soc. of U. S., 120 So.2d 74, 76-77 (La. 1960). However, the presumption that the last marriage is valid may be rebutted. See Ellis v. Hayes, 168 So.2d 885, 886 (La. Ct. App. 1964). The burden of rebutting the presumption rests with the party asserting the invalidity of the last marriage. See Zanders v. Zanders, 434 So.2d 1213, 1215 (La. Ct. App. 1983); Lands, 120 So.2d at 76-77.

It is our understanding that the agency determined that L~ presented sufficient evidence establishing that she was validly married to the NH in a ceremonial marriage in Louisiana in 1992, granted her 2004 application for benefits as the NH’s widow, and that she is currently entitled to widow’s benefits on the NH’s record.[10] Louisiana law presumes that L~ is the NH’s legal widow because her 1992 ceremonial marriage to the NH in Louisiana was his last marriage. See Lands, 120 So.2d at 76-77; see also U.S. v. Marlow, 235 F.2d 366, 368 (5th Cir. 1956) (a ceremonial marriage shown by a proper marriage certificate is presumed to have been legal and valid, and anyone asserting the invalidity of such marriage has the burden of proof). Therefore, J1~, who is claiming that she is the NH’s legal widow, has the burden of proving that she was married to the NH at the time he married L~ and that her marriage to the NH had not ended before he married L~. See Patterson v. Gaines, 47 U.S. 550, 597 (1848) (“The burden of proof in such cases is not upon the party asserting the validity of the second marriage, but on the other, who asserts its invalidity on account of the validity of the first.”); Succession of Primus, 131 So.2d 319, 322 (La. Ct. App. 1961) (burden of proof rests on party attacking the second marriage to prove that first marriage still in existence).

Although the NH did not list his marriage to J1~ in his 2003 applications for benefits, J1~ presented evidence establishing that she was validly married to the NH in the form of a certification of a marriage record from Chester County, Pennsylvania showing that she and the NH married in a solemnized marriage ceremony in Paoli, Chester County, Pennsylvania on August XX, 1986. Louisiana will recognize a valid out-of-state marriage.[11] See La. Civ. Code Ann. art. 3520(A) (“A marriage that is valid in the state where contracted, or in the state where the parties were first domiciled as husband and wife, shall be treated as a valid marriage unless to do so would violate a strong public policy of the state”); see also Ghassemi v. Ghassemi, 998 So.2d 731, 738 (La. Ct. App. 2008) (“it is the public policy of Louisiana that every effort be made to uphold the validity of marriages.”). Given this certification of a marriage record, the more critical issue under these facts is whether J1~ has successfully rebutted the presumption of validity of L~’s marriage to the NH by showing that her 1986 marriage was still in existence when the NH married L~ in 1992 in Louisiana. J1~ has presented her own statements as to their marriage.

In analyzing the evidence, we look to Louisiana cases involving the presumption of the validity of the last marriage and the types of evidence that courts found sufficient or insufficient to rebut the presumption. J1~ listed her marriage to the NH on her 1994 disability application and asserted that the marriage had not ended. J1~ also stated that she never obtained a divorce from the NH, she was never served with notice of a divorce proceeding, and she never received notice that the NH was trying to obtain a divorce. Louisiana courts have held that while not conclusive, such factors are probative in rebutting the presumption that the last marriage is valid. See In re Succession of Jones, 6 So.3d 331, 336 (La. Ct. App. 2009) (presumption rebutted where first wife never received notice of divorce and still considered herself married); King v. Cancienne, 303 So.2d 891, 894 (La. Ct. App. 1974), judgment rev’d on other grounds, 316 So.2d 366 (La. 1975) (marriage certificate and deposition of the woman’s first husband that they had never been divorced sufficient to rebut validity of the woman’s second marriage); Henderson v. Finch, 300 F.Supp. 753, 756 (W.D. La. 1969)[12] (while not conclusive, plaintiff’s assertions that she never obtained a divorce, that no divorce papers or summons were ever served upon her, and that the wage-earner never indicated to her that he desired a divorce, were highly probative); Ellis, 168 So.2d at 886 (presumption rebutted where wife testified that she had never filed for divorce or separation action and had never been served with any papers for such an action).[13]

 

Additionally, the agency has been unable to locate any divorce records as to J1~’s marriage to the NH. Louisiana courts have found the inability to locate divorce records particularly relevant in rebutting the presumption that the last marriage is presumed valid against all earlier marriages. See Greer v. Hatter, 364 So.2d 1050, 1052-1053 (La. Ct. App. 1978) writ denied, 367 So.2d 392 (La. 1979); Henderson, 300 F.Supp. at 756; Ellis, 168 So.2d at 886. Here, J1~ and the NH were married in Chester County, Pennsylvania. J1~ stated that the NH left Pennsylvania in 1990 to work in Louisiana. She was unsure of the exact dates and places the NH lived after 1990, but she thought that he lived in or around New Orleans, Louisiana and possibly in Thibodaux, Louisiana (Lafourche Parish); Labadieville, Louisiana (Assumption Parish); or Baton Rouge, Louisiana. L~ confirmed that the NH lived in Assumption Parish, Louisiana, and possibly in New Orleans, Louisiana; Lafourche, Louisiana; and Baton Rouge, Louisiana. The agency found no record of divorce in Chester County, Pennsylvania. The agency also contacted, but did not find a divorce decree between the NH and J1~, in Assumption Parish, Louisiana; Lafourche Parish, Louisiana; New Orleans Parish, Louisiana; and East Baton Rouge Parish, Louisiana. Thus, based on the information available, there is no evidence of divorce in any of the jurisdictions where the NH might reasonably have pursued a divorce.

While it is possible that the NH obtained a divorce elsewhere, we do not think that a Louisiana court, faced with these facts, would find it necessary for J1~ to prove the nonexistence of divorce in every jurisdiction where proceedings could have been possible. See Jones, 6 So.3d at 337 (because venue for a divorce action is jurisdictional in Louisiana, first wife not required to search even those places where the wage earner traveled overnight); Greer, 364 So.2d at 1052-1053 (rejecting argument that defendant was required to show that first husband did not divorce wife in any of the various places he lived- sufficient that there was no record of divorce in the parish where they first lived as man and wife); Henderson, 300 F.Supp. at 756 (sufficient that secretary searched 11 last known localities where wage earner resided and found no evidence of a divorce); Succession of Thomas, 80 So. 186, 189 (La. 1918) (finding it impracticable, if not impossible, to produce evidence showing that a divorce had not been granted by any of the courts in any of the places where the husband may have been a resident). Thus, while not conclusive, the absence of divorce records strongly suggests that the NH and J1~ were never divorced.

In sum, Louisiana law presumes that L~ is the NH’s legal widow because her 1992 ceremonial marriage to the NH in Louisiana was his last marriage. As the party asserting the invalidity of the last marriage, J1~ must overcome this presumption. See Zanders, 434 So.2d at 1215; Primus, 131 So.2d at 322; Lands, 120 So.2d at 76-77; Patterson, 47 U.S. at 597. We believe a Louisiana court would find that she has done so in this case. J1~ listed her marriage to the NH on her disability application and asserted that the marriage had not ended. J1~ also stated that she never obtained a divorce from the NH, she was never served with notice of a divorce proceeding, and she never received notice that the NH was trying to obtain a divorce. Finally, the agency found no evidence of divorce in the jurisdictions where the NH might reasonably have obtained a divorce. Thus, we conclude that the evidence indicating that the NH and J1~ did not divorce rebuts the presumption of validity of the marriage between the NH and L~. Accordingly, as there is evidence of a valid marriage and no evidence that such marriage terminated, J1~ has proven that she was validly married to the NH at the time of his death in 2004. See La. Civ. Code Ann. art. 101 (marriage terminates upon the death of either spouse, divorce, a judicial declaration of its nullity when the marriage is relatively null, or by the issuance of a court order authorizing the spouse of a person presumed dead to remarry). As such, she has established that she is the NH’s legal widow for purposes of her application for widow’s benefits on the NH’s record. See 42 U.S.C. §§ 402(e)(1), 416(c)(1), (h)(1)(A)(i); 20 C.F.R. §§ 404.335(a), 404.345.

Under Louisiana law, L~ has Established that She is a Party to a Putative Marriage for Purposes of Entitlement to Surviving Spouse Benefits, under 42 U.S.C. § 416(h)(1)(A)(ii)[14]

As discussed above, because J1~ has rebutted the presumption that the NH’s marriage to L~ was valid, L~ is not the NH’s legal widow under Louisiana law. L~’s marriage to the NH was “absolutely null,” or void, because of the NH’s existing marriage to J1~. See La. Civ. Code Ann. arts. 88, 94 (a marriage contracted in violation of an impediment, such as an existing marriage, is null); Burrell v. Burrell, 154 So.2d 103, 106 (La. Ct. App. 1963) (an “absolutely null” marriage is devoid of legal effect from the moment of its inception). However, even though a marriage may be void because of the existence of a prior marriage, Louisiana recognizes putative marriages as giving certain rights to a spouse that enters the marriage in good faith. See La. Civ. Code Ann. art. 96 (“An absolutely null marriage nevertheless produces civil effects in favor of a party who contracted in good faith for as long as that party remains in good faith”); POMS GN 00305.085 (a putative marriage in Louisiana gives the status of widow or widower to a person who applies for benefits as a surviving spouse of an insured who died after 1/1/88). These rights include the right to inherit a spouse’s share under state intestate succession laws. See Kimball v. Folsom, 150 F.Supp. 482, 484 (W.D. La. 1957) (a putative spouse is entitled to the civil benefits flowing from marriage, and as such is entitled to inherit intestate personal property in Louisiana); Succession of Fields, 62 So.2d 495, 500 (La. 1952) (putative wife and surviving spouse at law both entitled to share in husband’s estate to the extent of an undivided half each); Succession of Chavis, 29 So.2d 860, 864 (La. 1947) (finding that a putative spouse was entitled to the same inheritance rights as to the property as though the marriage had been valid).

Louisiana law has defined the good faith requirement for putative spouses as an honest and reasonable belief that the marriage was valid and that no legal impediment to it existed. See Funderburk v. Funderburk, 38 So.2d 502, 504 (La. 1949); Saacks v. Saacks, 688 So.2d 673, 676 (La. Ct. App. 1997); Mara v. Mara, 452 So.2d 329, 332 (La. Ct. App. 1984). Although the good faith test incorporates the objective elements of reasonableness, the inquiry is essentially a subjective one. See Saacks, 688 So.2d at 676. If suspicious circumstances come to the innocent spouse’s attention, he or she must take reasonable precautions to determine the validity of the marriage. See Chavis, 29 So.2d at 863. However, if there is any doubt as to the good faith of the parties, it is to be resolved in favor of good faith. See Funderburk, 38 So.2d at 504. Thus, based on Louisiana law, we must determine whether L~ was in good faith in contracting the marriage such that she acquired putative spouse status.

As noted, L~ and the NH entered into a ceremonial marriage in Louisiana in 1992 and it is our understanding that they lived together until his death 12 years later in Louisiana in 2004. She has been receiving benefits as the NH’s widow for 12 years. L~ stated that she had no knowledge of the earlier marriage that the NH and J1~ contracted in another state and was only aware of the NH’s marriage to his first wife, M~. There is no evidence indicating that suspicious circumstances were brought to L~’s attention such that she was required to investigate the validity of her marriage to the NH. J1~ acknowledged to having minimal contact with the NH after he left Pennsylvania to work in Louisiana in 1990. Given these facts, we believe a Louisiana court would find that L~ met the good faith requirement for status as a putative spouse. See United States v. Robinson, 40 F.2d 14, 16 (5th Cir. 1930) (second wife acquired putative status where she married husband with no knowledge that he was still married to first wife); Kimball, 150 F.Supp. at 484 (finding putative status where the claimant and wage earner lived together as husband and wife for 38 years and there was not a “scintilla of evidence in the record” to show that the claimant had any knowledge that her marriage was null); Dillon v. Traders & Gen. Ins. Co., 183 So. 553, 555 (La. Ct. App. 1938) (“if the woman does not know that the man has a living wife, she is not called upon to make an investigation to ascertain if there exists any legal impediment to her marriage to him”); Succession of Navarro, 24 La. Ann. 298, 299 (La. 1872) (good faith found where second wife was entirely ignorant of husband’s previous marriage).[15]

As discussed above, Louisiana law allows a putative spouse to inherit a spouse’s share under state intestate succession laws. Accordingly, although L~ and the NH did not have a valid marriage under Louisiana law, because she could inherit as a spouse under Louisiana intestate succession law, L~ has satisfied the relationship requirement for purposes of surviving spouse benefits on the NH’s record as a putative spouse. See 42 U.S.C. §§ 402(e)(1), 416(c)(1), (h)(1)(A)(ii); 20 C.F.R. §§ 404.335(a), 404.345.

CONCLUSION

We conclude that J1~ has successfully rebutted Louisiana’s presumption that the marriage between L~ and the NH was valid. As such, J1~ is the NH’s legal widow under Louisiana law and for purposes of entitlement to surviving spouse benefits on the NH’s record. We also find that because she met the good faith requirement, L~ is the NH’s putative spouse for purposes of entitlement to surviving spouse benefits on the NH’s record. As such, L~ is entitled to continue to receive widow’s benefits.

Michael McGaughran Regional Chief Counsel

 

By: ________________

Tracey Wirmani

Assistant Regional Counsel

 

 


Footnotes:

[1]

The Claimant must satisfy other criteria for entitlement to widow(er)’s insurance benefits as a surviving divorced spouse that are outside the scope of the legal opinion request, which asks only about their marital relationship and divorce and whether she is currently unmarried.

[2]

Agency policy provides that generally, the validity of a divorce need not be questioned, that a divorce presupposes that the marriage terminated by the divorce was a valid one, and that proof of a divorce also usually constitutes evidence of the validity of the spouse’s marriage to the number holder. See POMS RS 00202.075A.

[3]

You asked if the Claimant’s marriage to Mr. W~ is “void.” Louisiana law does not use the terms void and voidable marriage. An “absolutely null” marriage under Louisiana law corresponds to a “void marriage,” as defined in the POMS as a marriage that is legally nonexistent from the beginning under state law. See POMS GN 00305.125A.

[4]

The Social Security Act defines the term surviving spouse to mean a widow or widower. See 42 U.S.C. § 416(a)(2), (c), (g). Thus, we use the terms interchangeably in this opinion.

[5]

According to your request, the NH’s 2003 retirement and disability applications state that he was married to M~ from June 1974 to December 1989. However, you advised that the New Orleans field office obtained information indicating that the NH and M~ were married on November XX, 1974 in Lafourche Parish, Louisiana and divorced on July XX, 1986 in New Orleans Parish, Louisiana.

[6]

As noted in footnote 2, we rely upon the information from the New Orleans field office that the NH was divorced from M~ in July 1986 before he married J1~ one month later in August 1986. Therefore, in reliance upon this information, the NH’s first marriage to M~ was not a legal impediment to his second marriage to J1~. See La. Civ. Code Ann. art. 88 (an impediment of an existing marriage; a married person may not contract another marriage), art. 94 (a marriage is absolutely null when contracted in violation of an impediment).

[7]

You advised that the NH’s retirement and disability applications are only available in the Modernized Claims System (MCS) application as the paper folder was destroyed in 2013.

[8]

An applicant for a lump sum death payment as the insured person’s widow or widower is required to submit evidence showing that the applicant and the insured were living together in the same household when the insured died. A signed statement from the applicant constitutes sufficient evidence. See 20 C.F.R. § 404.760(b).

[9]

The evidence submitted does not contain a copy of L~’s signed statement. You advised that according to a Report of Contact file, the agency spoke to L~ by phone and she said she was not aware of a marriage between the NH and J1~.

[10]

A spouse or surviving spouse applying for benefits is required to submit proof of marriage. See 20 C.F.R. § 404.723. When applying for a lump sum death payment based on an alleged ceremonial marriage, the preferred evidence is a signed statement from the claimant about when and where the marriage took place. 20 C.F.R. § 404.725(b). If the claimant is applying for any other benefits or there is evidence causing some doubt about whether there was a ceremonial marriage, the preferred evidence is: a copy of the public record of marriage or a certified statement as to the marriage; a copy of the religious record of marriage or a certified statement as to what the record shows; or the original marriage certificate. Id. Here, L~’s Modernized Claims System (MCS) lump sum death payment application does not indicate the type of evidence the agency received as proof of her marriage to the NH. However, you advised that according to the MCS application coding, the adjudicating technician received proof of a ceremonial marriage by clergy or public official that took place in Thibodaux, Louisiana on September XX, 1992.

[11]

As noted in footnotes 2 and 3, we rely upon the information from the New Orleans field office that the NH was divorced from M~ in July 1986 before he married J1~ one month later in August 1986. We have no information or evidence raising any questions as to the validity of the Pennsylvania marriage as evidenced by this certification of a marriage record.

[12]

In Henderson, an issue existed with regard to whether California or Louisiana law applied. The court held that the claimant rebutted the presumption of validity of the last marriage under either the more stringent California standard or the less rigid Louisiana standard. See Henderson, 300 F.Supp. at 756.

[13]

Cf. Succession of City v. Succession of Manuel, 469 So.2d 467, 472 (La. Ct. App. 1985) (marriage license from individual’s prior marriage and testimony of a child of that marriage that he did not know of any divorce was not sufficient to overcome the presumption of validity that had attached to the second marriage).

[14]

You also asked whether L~ is a deemed spouse for purposes of entitlement to surviving spouse benefits under section 216(h)(1)(B)(i). However, because we find that L~ may inherit as a putative spouse under Louisiana law for purposes of section 216(h)(1)(A)(ii), we do not address whether she is a deemed spouse under the Act’s federal deemed marriage provision. See POMS GN 00305.085(A)(1) (“State law putative marriages should be distinguished from the Federal deemed marriage provision described in GN 00305.055.”).

[15]

Cf. Schaefer v. Schaefer, 379 So.2d 864, 866 (La. Ct. App. 1980), writ denied, 383 So.2d 13 (La. 1980) (finding no good faith for entitlement to putative spouse status where the second wife had knowledge that the validity of the husband’s foreign divorce decree was questionable); Succession of Hopkins, 114 So.2d 742, 745 (La. Ct. App. 1959) (evidence, including evidence that man was living with a woman as his wife when he courted his neighbor, that neighbor had been informed that man had a legal wife, that neighbor had read letters from the man's legal daughter by such wife, and that after the man married the neighbor they visited the legal wife and daughter, failed to show that neighbor acted in good faith in marrying the man); Succession of Taylor, 2 So. 581, 584 (La. 1887) (finding no good faith where the woman simply acted on the man’s statement that he was divorced when the woman was warned by the man’s wife and others that there was no divorce).


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1505110021
PR 05110.021 - Louisiana - 10/26/2023
Batch run: 10/26/2023
Rev:10/26/2023