PR 05110.045 South Carolina
A. PR 03-092 Request for Legal Opinion Number Holder - Jerome G~, AN ~
DATE: January 28, 2003
Under South Carolina law, where the evidence shows a person entered into a second marriage when he or she potentially had a living spouse, a presumption arises that the former marriage was dissolved by death or divorce. Here, there is evidence that the NH and his prior spouse were legally married, and that no divorce was granted. Accordingly, whatever presumption favored the validity of the NH's second marriage has been overcome.
You have requested our opinion on which of two women who claim to be the spouse of Jerome G~ (NH), who died in South Carolina in October 1997, is entitled to a class action underpayment. One woman, Eugenia J~, was the legal spouse of NH. The other woman, Louise G~, was the deemed spouse of NH. We believe that under South Carolina law, the underpayment would be payable to Ms. J~, NH's legal spouse.
NH was divorced from his first wife in 1969. Later in 1969, he married Ms. J~ in New York. Ms. J~ denies that she was divorced from NH and SSA could find no record of a divorce between Ms. J~ and NH. NH married Ms. G~ in June 1976 in New York and stated in the marriage license application that Ms. J~ had divorced him in September 1973. Ms. G~ believed that NH was divorced and that their marriage was valid. NH and Ms. G~ lived together until 1993 or 1994 when they had a “big discussion” and NH went to live with his mother in South Carolina. It appears that NH returned to New York every summer and stayed with Ms. G~. NH did not contribute to Ms. G~' support. He died in South Carolina while living with his mother and his mother made the funeral arrangements. Ms. G~' name was not included in the funeral program or the obituary, but her children were mentioned as step-children. NH's mother believed that he was still married to Ms. J~, although she was not mentioned in the funeral program either. On the death certificate, NH's marital status is listed as “divorced.”
A wife's potential entitlement to an underpayment due to a deceased NH's account under the Social Security Act depends on whether she is the “widow” or “surviving spouse.” 20 C.F.R. §404.503 (2002). The same definition of spouse is used in underpayment cases as is used in spouse's benefits. Id. 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 Act also allows a finding that the applicant is the wife, husband, widow, or widower if the courts of the state would determine that the applicant could inherit a wife's, husband's, widow's, or widower's share of the insured's personal property if he or she were to die without leaving a will. 42 U.S.C. § 416(h)(1)(A)(ii); see also 20 C.F.R. § 404.345 (2002). Finally, the Act permits the Commissioner to find that a marriage is valid if she is satisfied that an applicant in good faith went through a marriage ceremony with the insured individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage. 42 U.S.C. § 416(h)(1)(B)(i). However, such marriage will not be deemed a valid marriage unless the applicant and the insured individual were living in the same household at the time of the death of the insured individual. Id. Ms. J~ would be considered NH's legal wife and possibly eligible to inherit under South Carolina law. Ms. G~ cannot establish entitlement under any of these three methods.
Ms. G~ and NH Were Not Validly Married at the Time of his Death, but Ms. J~ and NH Were Validly Married.
The initial test for determining whether a wife could be entitled to NH's underpayment is whether the wife would be found to have been validly married to NH under South Carolina law because NH was domiciled in South Carolina at the time of his death.
Ms. G~ and NH's marriage was void because NH had a living spouse at the time of his marriage to Ms. G~. S.C. Code 1976 §20-1-80. A bigamous second marriage is void from its inception and cannot be ratified and made valid. See Joye v. Yon, 345 S.C. 264, 547 S.E.2d 888 (2001). Such a marriage has no legal effect and is viewed as having never existed. Id. However, once a marriage is shown to exist, a person attacking its validity has the burden of proving that the marriage is invalid. See Yarbrough v. Yarbrough, 280 S.C. 546, 314 S.E.2d 16 (1984). Where the evidence shows a person entered into a second marriage when he or she potentially had a living spouse, a presumption arises that the former marriage was dissolved by death or divorce. Id. Here, Ms. J~ presented evidence that she and NH were legally married. Evidence has been obtained indicating the no divorce between Ms. J~ and NH was granted in South Carolina or in New York. Accordingly, whatever presumption favored the validity of NH's second marriage to Ms. G~ has been overcome.
Further, South Carolina does not recognize the putative spouse doctrine, which would allow a second spouse to receive benefits from his or her spouse where they entered into a good faith ceremonial marriage even though the marriage was not valid. See Boyd v. Waterfront Employers ILA Pension Plan, 182 F.3d 907 (4th Cir. 1999) (interpreting South Carolina law). Accordingly, under South Carolina law, Ms. G~ could not show that she was legally married to NH or that she was his putative spouse.
Ms. G~ Could Not Inherit a Widow's Share of MH's Personal Property.
Ms. G~ also could become entitled to NH's underpayment upon a finding that South Carolina courts would determine that she could inherit a widow's share of NH's personal property if he were to die without leaving a will. See 42 U.S.C. § 16(H)(1)(A)(ii).
A surviving spouse is entitled to a share of a spouse's personal property if the deceased spouse dies without leaving a will. S.C. Code 1976 §62-2-201. South Carolina defines a “surviving spouse” as only the decedent's wife or husband living with or dependant for support upon the decedent at the time of decedent's death or living apart from decedent for justifiable cause or by reason of desertion by the decedent. S.C. Code 1976 § 42-1-175. However, a “wife” or “husband” does not include a person who was not validly married to the decedent at the time of his death. See Lovett v. Lovett, 329 S.C. 426, 494 S.E.2d 823 (1997). Because we believe that South Carolina would not recognize Ms. G~ as validly married to NH, we believe that South Carolina courts would therefore decline to find that Ms. G~ was NH's surviving spouse within the meaning of the statute. Also, as noted above, South Carolina does not recognize the putative spouse doctrine.
It is our opinion that Ms. G~ could not inherit a share of NH's personal property if he died intestate because she was not his lawful wife. Therefore, she is not entitled to a share of the underpayment on his account under subparagraph (ii) of 42 U.S.C. § 416(h)(1)(A).
The Commissioner Would Not Find Ms. G~ Entitled to the Underpayment.
As stated above, the Act also permits the Commissioner to find that a marriage is valid if she is satisfied that an applicant in good faith went through a marriage ceremony with the insured individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage. 42 U.S.C. § 416(h)(1)(B)(i). However, such marriage will not be deemed a valid marriage unless the applicant and the insured individual were living in the same household at the time of the death of the insured individual. Id. Although Ms. G~ went through a marriage ceremony with NH in good faith and was unaware that he was previously married, NH went to live with his mother in another state in 1993 or 1994 after the couple had a fight. NH visited Ms. G~ on occasion but did not support her and appears to have resided with his mother since 1993 or 1994. Therefore, the Commissioner would not deem their marriage valid at the time of NH's death in October 1997. Consequently, Ms. G~ is not entitled to receive an underpayment on NH's account under 42 U.S.C. § 416(h)(1)(B)(i). Ms. J~ would be entitled to the underpayment as NH's legal wife. Should you have questions about reinstating Ms. G~ to mother's benefits on Mr. Hines AN, please contact us again.
Very truly yours,
Mary Ann S~
Regional Chief Counsel
Laurie G. R~
Assistant Regional Counsel