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
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.
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