PR 05110.027 Mississippi
A. PR 01-020 Presumption of the Validity of the Last Marriage, Mississippi - Lena W~
DATE: July 12, 2000
Under Mississippi law, a presumption arises in favor of the validity of the last marriage. This is "one of the strongest known to the law". A subsequent marriage presumes that a former marriage has been terminated by divorce or death. The burden of rebutting the presumption is on the party challenging the subsequent marriage. The challenging party must show where each party to the prior marriage had resided up to the time of the second marriage and secure from the clerk of the proper court in each such county a certificate of search showing that no divorce or annulment had been granted.
You have requested our opinion as to whether, under Mississippi law, Lena W~ (Lena) is entitled to widow's benefits on the earnings record of deceased number holder (NH) Matthew W~, SS# ~. From the materials submitted, we are not able to determine whether Lena may be considered to be the NH's widow because we cannot determine whether she has met the requirements of Mississippi law.
A Mississippi Certificate of Death indicates that the NH died on October 7, 1994, and (erroneously) that he never married. A Mississippi Statistical Record of Marriage shows that on April 26, 1958, Lena B. B~ and Matthew W~ were ceremonially married. Lena states she does not know when they separated, but that the NH left to move to Chicago. The NH returned to Mississippi in 1990, but they did not live together. Lena and the NH had no children together and did not jointly own property. Lena indicates she never filed for divorce and never received any notice of divorce. She did not know he remarried. A Michigan marriage license shows that on May 10, 1970, Matthew W~ ceremonially married Mary C~ (Mary). On December 29, 1976, an Illinois Circuit Court issued a divorce decree to Mary and Matthew W~. Mary applied for SSA widow's benefits, but she did not qualify because she and the NH were not married 10 years. Mary declined additional contact with the SSA local office. Divorce records were checked for Wayne County, Michigan (1959-1970), Cook County, Illinois (1959-1970), and Meridian, Mississippi (1959-September 1994), and no divorce of Lena and the NH was found.
Under Mississippi law, it is well-established that when a person has entered into several successive marriages, a presumption arises in favor of the validity of the second or last marriage. Anderson-Tully Company v. Wilson, 74 So. 2d 735, 737 (Miss. 1954). A subsequent marriage in fact raises the presumption that a former marriage has been terminated by divorce or by the death of a prior spouse. See e.g. Erwin v. Hodge, 317 So. 2d 55, 57 (Miss. 1975) (presumption is "one of the strongest known to the law"). The burden of adducing evidence to the contrary rests on the party who attacks it. The presumption can be rebutted by evidence excluding the possibility of a divorce or death of a prior spouse, but that burden is a difficult one. To rebut this strong presumption, a party challenging the validity of a second marriage must "show where each party to the prior marriage had resided up to the time of the second marriage, and then ... procure from the clerk of the proper court in each such county a certificate of search showing that no divorce or annulment had been granted ... This rule places a difficult burden of proof upon those contesting a second marriage, but it is based upon a sound public policy and is well established." Pigford Bros. Construction Co. v. Evans, 83 So. 2d 622, 625 (Miss. 1955). Brown v. Apfel, 163 F.3d 324 (5th Cir. 1999); Smith v. Weir, 387 So. 2d 761 (Miss. 1980).
From the materials submitted, we are unable to determine the counties in which Lena and the NH resided prior to the NH's second marriage. Therefore, we are not able to determine whether Lena may be considered to be the NH's widow because we cannot determine whether she has complied with the requirements of Mississippi law. We note that although searches of divorce records were conducted in Wayne County, Michigan, and Cook County, Illinois, there is no indication that the Lauderdale County, Mississippi, divorce records were searched. Meridian, Mississippi, is located in Lauderdale County, and, as noted above, the clerk of the proper court in each county where each party resided prior to the second marriage must provide a certificate of showing that no divorce or annulment had been granted.
B. PR 93-031 S.T. W.~, DWE, ~ - Presumption of the Validity of the Last Marriage - Mississippi
DATE: October 14, 1983
MARRIAGE — PRESUMPTION OF VALIDITY OF SECOND OR LAST MARRIAGE (INCLUDES PRESUMPTIONS OF DEATH OR DIVORCE) — MISSISSIPPI
Under Mississippi law, the presumption of the validity of the last marriage may be rebutted by proof showing where each party to the prior marriage resided up to the time of the second marriage and the procurement from the clerk of the proper court in each such county a certificate of search showing that no divorce or annulment had been granted by the court of which he is clerk. Smith v. Weir, 387 So.2d 761 (1980). (w~, S.T., ~ — RAIV (W~), to ARC, 10/14/83.)
In Tillman v. Williams, 403 So.2d 880 at 881 (1981) the Mississippi Supreme Court clarified the holding in earlier Mississippi cases that 'desertion or abandonment is held to estop a spouse from inheriting from the other,' by noting that in the absence of legislation on the abandonment question, the inheritance statute has to be strictly construed unless there is a clear desertion and abandonment that sets up estoppel. (w~, S.T., — RAIV (W~), to ARC, 10/14/83.)
Your memorandum of September 1, 1982, requested our opinion as to whether Louella W~ meets the definition of legal widow of S.T. W~, the deceased number holder who died on July 6, 1972, while domiciled in Mississippi.
The facts as contained in the file indicate that in July 1972 Orean W~ was awarded mother's benefits based on her February 20, 1953, ceremonial marriage to S.T. W~ in Lawrence County, Mississippi. Mr. W~ and Orean were living together when he died; they had thirteen children. On her application for mother's benefits, Orean stated that the deceased wage earner (DWE) had a prior marriage to Louella which ended in divorce several years before his marriage to Orean.
On May 17, 1982, Louella W~ filed an application for widow's benefits and submitted proof of her ceremonial marriage to S.T. W~ on January 12, 1941, in Lawrence County, Mississippi. She stated that she and Mr. W~ separated in 1942 and she thought Mr. W~ had secured a divorce; however, when she searched the Jefferson Davis County, Mississippi, records, a divorce decree could not be located.
Louella W~ stated that she lived in Jefferson Davis County and in Lawrence County in Mississippi. Orean W~ and S.T. W~~ sister, Pauline P~, stated that Mr. W~ lived in New Hebron, Lawrence County, from his birth until 1958 when he moved to Hattiesburg, Forrest County, Mississippi. No other places of residence are alleged. The number holder's mailing address was shown as a rural route in Hattiesburg, Forrest County, Mississippi; however, his place of residence at death was shown as Lamar County, Mississippi.
A search of the court records for Lawrence County, Lamar County, Jefferson Davis County, and Forrest County for the years 1941 through 1972 revealed no divorce for S.T. and Louella W~. A record was located in Jefferson Davis County showing that S.T. W~ filed a divorce action against Louella W~ in May 1949. The cause (Case No. 3323) was dismissed without prejudice on May 22, 1950. No other record could be found.
Your memo queries whether, under Mississippi law, the presumption of the validity of the last marriage is rebutted by the finding that no divorce occurred at any place of residence on either Louella W~ or the number holder during their life times; or, whether the ruling in Alma L. Blackwell v. Flemming, (U.S. District Court, Southern District of Mississippi, CCH ~14,118 (5/01/61)), prevents a rebuttal of said presumption because of the possibilities of error on the part of officials in recording all proceedings or in searching the records, or of a refutation of the certificate of the preacher who performed the number holder's first marriage.
It is our opinion that the ruling in Blackwell does not preclude a rebuttal of the presumption of the validity of the last marriage. This presumption is very strong and can be rebutted only by proof so cogent and conclusive as to fairly preclude any other result; however, the holding in Blackwell appears to have been based on a finding that the first wife was estopped by her conduct from rebutting the presumption of the validity of the last marriage. Blackwell is not, however, characteristic of the holdings in cases in which the validity of the last marriage is at issue absent reasons for estoppel.
In the 1980 case of Smith v. Weir, 387 So.2d 761, the Mississippi Supreme Court addressed the presumption of the validity of the last marriage and considered the degree of proof necessary to rebut the presumption, at 763-764:
Where there is proof of a marriage ceremony, the law will presume the capacity of the parties, consent of the parties, and all essentials to the validity of the marriage. The presumption was early recognized by this court in Hull v. Rawls, 27 Miss. 471 (1854), and has been consistently applied ever since.
The rule of law was perhaps best stated in Anderson-Tully Co. v. Wilson, 221 Miss. 656, 74 So.2d 735 (1954) as follows:
It is well-established that when a person has entered into several successive marriages, a presumption arises in favor of the validity of the second or last marriage. And this presumption of validity is applicable to a subsequent common-law marriage, as well as to a subsequent ceremonial marriage. Anno., 14 A.L.R.2d 7, 19; 55 C.J.S. Marriage ~43, pp. 887-892, 896. A subsequent marriage in fact raises the presumption that a former marriage has been terminated by divorce or by the death of a prior spouse. These presumptions are based upon public policy. The burden of adducing evidence to the contrary rests on the party who attacks it. 55 C.J.S. [Marriage, ~43], pp. 890-891. Of course this presumption can be rebutted by evidence excluding the possibility of a divorce or death of a prior spouse, 14 A.L.R.2d 45, but that burden of proof is a difficult one: "It has been declared that, an existing marriage being shown, the presumption of its validity is so strong that proof of a former subsisting marriage, in order to be sufficient to overcome this presumption, must be so cogent and conclusive as to fairly preclude any other result." (221 Miss. at 662, 74 So.2d at 737).
In Pigford Bros. Construction Co. v. Evans, 225 Miss. 411, 83 So.2d 622 (1955) ... the court in considering the kind of proof necessary to overcome the presumption stated:
The practical course of proof in such a case would be to show where each party to the prior marriage had resided up to the time of the second marriage, and then to procure from the clerk of the proper court in each such county a certificate of search showing that no divorce or annulment had been granted by the court of which he is clerk. (225 Miss. at 421, 83 So.2d at 625).
See also, In re Estate of Erwin, 317 So.2d 55 (1975); Ramphrey v. Ramphrey, 243 Miss. 184, 137 So.2d 902 (1962). We consider the Smith v. Weir, supra, holding to be controlling as to the degree of proof necessary to rebut the presumption of the validity of the last marriage in Mississippi.
The facts in the record indicate that subsequent to their 1941 marriage and prior to the wage earner's later marriage in 1953, Louella W~ lived in Lawrence and Jefferson Davis Counties. During the same time period, the wage earner lived in Lawrence, Forrest, and Lamar Counties. Apparently, at no point in time during the period in question, was the whereabouts of either Louella or S.T. W~ unknown. A search of the records in Lawrence, Lamar, Jefferson Davis and Forrest Counties has revealed no final divorce. It is noted that the strong suggestion of the court was that it was best to procure certificates of search showing that no divorce or annulment was granted; however, in this claim, report of record searches would appear to be in compliance with the court's guidelines.
Nonetheless, we do not find that Louella W~ is entitled to benefits on the account of S.T. W~. Although we concluded that Louella W~ has produced evidence sufficient to rebut the presumption of the validity of the last marriage, we further conclude that Louella W~ is estopped from asserting her claim under the Mississippi Supreme Court's holding in Tillman v. Williams, 403 So.2d 880 (1981). In Tillman, the court did not apply the doctrine of estoppel to prevent a husband from inheriting from his wife even though they had separated 15 to 20 years before the wife's death and the husband had moved his abode to an adjoining county. The court declined to apply estoppel against the husband's petition inasmuch as there was no evidence of any attempt of remarriage or disclaimer of marriage by either party during the years of separation or that either attempted to obtain a divorce.
The Tillman court clarified earlier holdings made in Walker v. Mathews, 191 Miss. 489, 3 So.2d 820 (1941) and In Re Marshall's Will, 243 Miss. 472, 138 So.2d 482 (1962), where there appeared a sentence indicating that "desertion or abandonment is held to estop a spouse from inheriting from the other." The Tillman court noted that the Mississippi legislature had not seen fit to enact any legislation on the abandonment question, therefore, inheritance statutes were to be strictly construed absent a clear desertion and abandonment of the marriage relation.
In Walker, supra, the surviving wife had engaged in a marriage ceremony with another man, and her deceased husband also had married another. There was a clear abandonment of the marriage relation.
In Rowell v. Rowell, 251 Miss. 472, 170 So.2d 267 (1964), the court held that even an adulterous affair did not amount to desertion "in the absence of a statute or showing of a bigamous marriage."
In Baugh v. Brimage, 242 Miss. 459, 135 So.2d 701 (1961), a surviving husband was held estopped to inherit from his deceased wife's estate when he had entered into a bigamous marriage and was living with still another woman with whom he had several children.
In Re Marshall's Will, supra, the surviving wife lived with various men after leaving her husband. Furthermore, the husband, prior to his death, had married another woman. The abandonment of the marriage relationship was clear.
It is our opinion that the assertions contained in the decedent's 1949 Bill for Divorce to the effect that Louella had deserted him in 1943 and Louella's statement that she thought they were divorced would tend to indicate that Louella W~ presumed that she was single and had abandoned the marriage relation. On the basis of her abandonment of the marriage relation you would be warranted in finding that Louella W~ is estopped from asserting her claim as the widow of S.T. W~. If, however, Louella W~ were able to produce evidence tending to indicate that she had not abandoned the marriage relation (for example, records showing her status as married, records indicating S.T. W~ as her husband, representation to third parties that Louella was currently married to S.T. W~) she then would not be estopped from asserting her claim as the widow of S.T. W~.