The number holder (NH) was domiciled in Louisiana at the time of his death; therefore, we look to Louisiana law to determine whether the Claimant is the NH’s widow. We believe a Louisiana court would find that the Claimant has proven that she had a valid ceremonial marriage to the NH by providing a completed and recorded marriage certificate showing their participation in a marriage ceremony officiated by a minister and before two witnesses. There is no information that a court declared their marriage null. We believe there is legal support for the agency to find that the Claimant is the NH’s widow for purposes of determining her entitlement to the Lump Sum Death Payment (LSDP) and the disability benefit underpayment on the NH’s record.

QUESTION PRESENTED

For purposes of determining C~ (Claimant’s) entitlement to the lump-sum death payment (LSDP) and a disability benefit underpayment under Title II of the Social Security Act (Act) as the widow of the deceased number holder T~ (NH), you asked whether the Claimant and the NH were validly married under Louisiana law on February xx, 2020, given concerns about whether the NH’s health impacted his ability to consent to the marriage entered one day before his death on March x, 2020.

ANSWER

We believe a Louisiana court would find that the Claimant has proven that she had a valid ceremonial marriage to the NH by providing a completed and recorded marriage certificate showing their participation in a marriage ceremony officiated by a minister and before two witnesses on February xx, 2020. Even assuming there is sufficient evidence of the NH’s lack of consent given his deteriorating health, a lack of consent renders a marriage a relative nullity under Louisiana law, which means that it is valid unless and until declared null by a court. There is no information that a court declared their marriage null. Therefore, as they were validly married under Louisiana law on February xx, 2020 and at the time of the NH’s death on March x, 2020, we believe there is legal support for the agency to find that the Claimant is the NH’s widow for purposes of determining her entitlement to the LSDP and the disability benefit underpayment on the NH’s record.

BACKGROUND

The NH applied for disability benefits and on February x, 2020, the agency notified the NH that he was awarded disability benefits effective November 2018. The NH died of cancer in his home on March x, 2020, while domiciled in Louisiana. His Louisiana death certificate shows his address in Vinton, Louisiana, and his marital status at the time of death as married. The informant for the death certificate is the Claimant, who identified herself as his wife.

On March xx, 2020, the Claimant filed an application for the LSDP on the NH’s record. On May xx, 2020, the Claimant filed a request for the NH’s disability underpayment as his widow. The Claimant stated that she and the NH had a ceremonial marriage on February xx, 2020, in Vinton, Louisiana. She submitted a Louisiana marriage certificate in support of their marriage.

The Louisiana marriage certificate identifies the NH and the Claimant as the groom and bride and lists the address for both the NH and the Claimant as Hilary Drive, Vinton, Louisiana. The marriage certificate provides information about the marriage license. The deputy clerk for Lake Charles, Calcasieu Parish, Louisiana issued the marriage license on February xx, 2020, at 12:20pm. The license expiration date was listed as March xx, 2020, 12:20pm. The marriage certificate provides information about the marriage ceremony. The certificate reflects that K~, a minister, married the NH and the Claimant on February xx, 2020, at 7:00pm. There are four signatures on the marriage certificate in addition to the minister’s signature – the NH (T~), the Claimant (C~), and two witnesses (C~ and C~). The marriage certificate provides information about the recording of the marriage certificate and reflects that the completed marriage certificate was returned and filed in the records of Lake Charles, Calcasieu Parish, Louisiana on March x, 2020.

You advised that the agency compared the NH’s signature on the marriage certificate with the NH’s signatures on documents in the claims file and believed there to be a difference. You also advised that the NH’s son stated that he was unaware of the marriage and that his father was so sick that he could not speak, move, or care for himself. Further, you advised that the NH’s son and daughter applied for the disability benefit underpayment on the NH’s record as well.^[1]

ANALYSIS

A. Federal Law: Widow(er) under the Act for the LSDP and Underpayment

To be entitled to the LSDP under Title II of the Act, a claimant must establish that he or she is the widow(er) of an individual who died fully or currently insured, and he or she was living in the same household as the insured individual at the time of the insured’s death.^[2] See 42 U.S.C. § 402(i); 20 C.F.R. §§ 404.390, 404.391.

If an individual who has been underpaid dies before receiving his or her Title II benefit payment, the agency will distribute the underpayment to the living person in the highest order of priority, which begins first with the deceased individual’s widow(er) if they were living in the same household at the time of death, or if the widow(er) was entitled to a monthly benefit on the record of the deceased individual. See 42 U.S.C. § 404(d)(1); 20 C.F.R. § 404.503(b)(1); Program Operations Manual System (POMS) GN 02301.030.

The agency will find that a claimant is an insured individual’s widow(er) if the courts of the State in which the insured individual resided at the time of death would find that the claimant and the insured individual were validly married at the time such insured individual died, or if, under application of that State’s intestate succession laws, the claimant would be able to inherit a spouse’s share of the insured’s personal property. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. Here, the evidence shows that NH resided in Louisiana at the time of his death. We therefore look to Louisiana law to determine whether the Claimant is the NH’s widow.

B. State Law: Valid Marriage under Louisiana Law at the Time of NH’s Death

1. Marriage Certificate as Primary Evidence of the Marriage

In support of her marriage to the NH, the Claimant provided a completed and recorded Louisiana marriage certificate.  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) (the parties had been unable “to produce the primary evidence [of their marriage ceremony] consisting of the marriage certificate” and thus secondary evidence was admissible); Succession of Gibson, 173 So. 185, 188-189 (La. 1937) (certified copy of the marriage certificate showed that the couple was married); Chaisson v. State, Department of Health and Hospitals through Registrar of Vital Records, 239 So.3d 1074, 1079 (La. Ct. App. 2018) (the Registrar properly amended the child’s birth certificate to name the mother’s same-sex spouse as the child’s other parent based upon the marriage license showing that the mother and spouse were married at the time of the child’s birth).^[3]

Thus, the Claimant has provided a marriage certificate as primary evidence to prove her marriage to the NH under Louisiana law. Having provided evidence of a valid marriage, the burden then shifts to those who object to its validity. See Succession of Giordano, 194 So. 577, 578 (La. 1940). The agency has concerns about the underlying validity of the marriage given the NH’s son’s statements about the NH’s health issues and death the day after their marriage. We further consider the requirements for a valid marriage under Louisiana law.

2. Requirements for a Valid 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”). Louisiana “courts are reluctant to invalidate a marriage, and they will not do so unless the law and the facts clearly indicate that it should be annulled. Jurisprudence has been established to the effect that the articles of the Civil Code providing the manner and form in which marriages are to be contracted and celebrated are merely directory to the celebrant, and that the failure to technically observe these formalities does not strike the marriage with nullity.” 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); see also Duvigneaud v. Loquet, 59 So. 992, 993-994 (La. 1912) (finding that the duly celebrated marriage was not null because the wife failed to sign the marriage certificate, which was signed by the husband and the priest who performed the marriage ceremony); Landry v. Bellanger, 45 So. 956, 957 (La. 1908) (if unmarried parties “go through the ceremony of a marriage freely before a priest and three witnesses, intending to marry….it is a marriage, even though no license was ever issued and no act of marriage ever drawn up”); Parker v. Saileau, 213 So.2d 190, 191-193 (La. Ct. App. 1968) (the lack of the required number of witnesses at the ceremony, the lack of signatures on the marriage certificate by the requisite number of witnesses, and the failure to abide by the waiting period did not nullify the marriage as these requirements were merely directory).

We consider next whether the marriage between the NH and the Claimant met these requirements for a valid marriage under Louisiana law. See La. Civ. Code Ann. art. 87.

a. Absence of a Legal Impediment

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.  See La. Civ. Code Ann. arts. 88, 90, 90.1.  A marriage contracted in violation of a legal impediment 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).  None of these legal impediments appear to be an issue here with regard to the Claimant’s marriage to the NH as there is no indication that they were legally married to someone else when they married, they are not underage, and they are not blood relatives.

b. Marriage Ceremony Required

A valid marriage requires a marriage ceremony. See La. Civ. Code Ann. arts. 87, 91. “The parties must participate in a marriage ceremony performed by a third person who is qualified, or reasonably believed by the parties to be qualified, to perform the ceremony. The parties must be physically present when it is performed.” La. Civ. Code Ann. art. 91. A marriage contracted without a marriage ceremony is absolutely null and “devoid of legal effect from the moment of its inception.” See La. Civ. Code Ann. art. 94, Revision Comments – 1987, comment (b).

The Louisiana marriage certificate reflects that K~, a minister, married the NH and the Claimant in a ceremony in Vinton, Calcasieu Parish, Louisiana on February xx, 2020, at 7:00pm (the license was issued February xx, 2020, at 12:20pm). See La. Rev. Stat. Ann. § 9:202 (identifying ministers as among the list of officiants with authority to perform a marriage ceremony), § 9:205 (officiant may not perform a marriage ceremony until he receives a marriage license), § 9:241 (an officiant may not perform a marriage ceremony until 24 hours after issuance of the marriage license), § 9:245(A) (marriage certificate must be on a form prescribed by the state registrar of vital records and must show on its face the fact of the marriage and information prescribed, including the place, time, and date of the ceremony). The marriage certificate was signed by the minister, the NH, the Claimant, and two witnesses to the ceremony (C and C. See La. Rev. Stat. Ann. § 9:244 (the marriage ceremony must be performed before two witnesses). Finally, the marriage certificate was returned and filed in the records for Lake Charles, Calcasieu Parish, Louisiana by the deputy clerk of court on March 2, 2020. See La. Rev. Stat. Ann. § 9:253 (within ten days after the marriage ceremony, the marriage certificate is to be filed with the clerk of court who issued the marriage license); see also La. Rev. Stat. Ann. § 9:254 (penalties for failing to complete or file a marriage certificate), § 9:256 (penalties for making a false entry in a marriage license or marriage certificate). There does not appear to be any dispute that a minister officiated a marriage ceremony between NH and the Claimant, who were both physically present, on February xx, 2020, before two witnesses, which is reflected in the completed and recorded marriage certificate.

c. Free Consent of Both Parties

A valid marriage requires the parties’ free consent to be married, which is expressed at the marriage ceremony.  See La. Civ. Code Ann. art. 87.  “The parties must personally express their consent to take each other as husband and wife at a ceremony, and the officiant must be able to examine them to satisfy himself that their consent is freely given.”  La. Civ. Code Ann. art. 92, Revision Comments – 1987 (b).  “Consent is not free when given under duress or when given by a person incapable of discernment.”  La. Civ. Code Ann. art. 93.  The comments to article 93 explain that “a person incapable of discernment” may include, but is not limited to, a person under the influence of alcohol or drugs, a mentally disabled or mentally insane person, or a person who is too young to understand the consequences of the marriage celebration.  La. Civ. Code Ann. art. 93, Revision Comments – 1987 (c), (d).

A marriage contracted without free consent of both parties is a relatively null marriage. La. Civ. Code Ann. art. 95. A marriage that is a relative nullity remains valid and produces civil effects until it is declared void. La. Civ. Code Ann. art. 97, Revision Comment 1987 (“This Article is new, but it does not change the law. In Louisiana, the relatively null marriage has long been regarded as valid until annulled by a judicial decree rendered in a direct action of nullity brought by a proper party….”); see also La. Civ. Code Ann. art. 94, Revision Comments – 1987 (b) (Articles 94 and 95 “codify the prior jurisprudential rules regarding the effects of absolutely and relatively null marriages. While a relatively null marriage ceases to have legal effect only from the time that its nullity is judicially declared, an absolute null union is devoid of legal effect from the moment of its inception.”). Additionally, a relatively null marriage may be declared null only upon application of the party who did not freely consent. La. Civ. Code Ann. art. 95. “The right to demand the nullity of such a marriage [that lacks consent] is personal to the spouse whose consent was not free and does not pass on to his heirs;” however a succession representative is a proper party to bring an action to have the marriage declared a nullity after death. In re Succession of Ricks, 893 So.2d 98, 100 (La. Ct. App. 2004) (citing Ducasse’s Hairs v. Ducasse, 45 So. 565, 568 (La. 1908)).

The NH’s son, who filed his own claim with the agency for the underpayment on the NH’s record (which would only be successful if the Claimant is not found to be the NH’s widow), stated that he was unaware of the NH’s marriage to the Claimant. He also stated that his father had been so sick that he could not speak, move, or care for himself. The agency compared the NH’s signature on the marriage certificate with the NH’s signatures on other forms filed with the agency and believed there to be a difference. Thus, with this information, the agency is concerned about the NH’s consent to his marriage to the Claimant. Louisiana courts “are reluctant to invalidate a marriage” and “will not do so unless the law and the facts clearly indicate that it should be annulled.” Parker, 213 So.2d at 194. We believe a Louisiana court would find that such information does not clearly indicate that the marriage should be annulled and instead would likely need additional evidence to determine if the NH was a person incapable of discernment and unable to freely consent. Statements from the minister who performed the ceremony, as well as from the two witnesses would be relevant evidence to consider given their presence at the marriage ceremony. See id. at 193 (finding that the evidence did not show a failure to consent to the marriage where the minister testified that despite the parties use of alcohol, they both were able to give their consent to the marriage).

However, such additional evidence is not needed here because even assuming the NH’s deteriorating health rendered him a person incapable of discernment and thus unable to freely consent to the marriage, this would make their marriage only a relative nullity. See La. Civ. Code Ann. art. 95. A marriage that is a relative nullity remains valid and produces civil effects until it is declared void and only the NH (or his succession representative) could seek to have it declared void, which did not happen here. See La. Civ. Code Ann. art. 97, Revision Comment 1987; La. Civ. Code Ann. art. 94, Revision Comments – 1987 (b). Unchallenged in court, the Claimant’s marriage to the NH remained a valid marriage with civil effects until terminated by the NH’s death. See Succession of Barth, 152 So. 543, 544 (La. 1934) (“a marriage celebrated according to the forms of law, even though the consent of one of the parties was compelled by violence and by putting him or her in fear, must be regarded as a valid marriage until it is annulled by a judicial decree rendered in a direction action of nullity.”); La. Civ. Code Ann. art. 101 (when marriage terminates).

CONCLUSION

We believe a Louisiana court would find that the Claimant has proven that she had a valid ceremonial marriage to the NH by providing a completed and recorded marriage certificate showing their participation in a marriage ceremony.  Even assuming there is evidence of the NH’s lack of consent given his deteriorating health, a lack of consent renders a marriage a relative nullity under Louisiana law, which means that it is valid unless and until declared null by a court.  There is no information that a court declared their marriage null.  Therefore, we believe there is legal support for the agency to find that the Claimant is the NH’s widow for purposes of determining her entitlement to the LSDP and the disability benefit underpayment on the NH’s record.

Louisiana law prohibits marriage between "collateral relations" including first cousins. However, the Louisiana legislature has enacted periodically laws to retroactively validate marriages between collateral relations. This occurred in 1972, 19/81, and again in 1987.

Under Louisiana law, marriages between collateral relations contracted prior to 7/26/72 were retroactively validated as of the effective date of the law (7/26/72). In 1981, the legislature retroactively validated marriages between collateral relations contracted prior to 9/11/81. This recognition was continued in 1987.

We are responding to your request for our opinion as to the validity of a marriage between first cousins in Louisiana. Specifically, Margaret B. D~ and Oris C. D~ were married in the State of Louisiana on September 20, 1948. Oris D~ died on October 1, 1967. Margaret D~ applied for widow's benefits on July 18, 1991. You have requested our opinion on this issue to assist you in determining whether Margaret B. D~ is the widow of the wage earner for purposes of entitlement to widow's benefits. For the reasons set forth below, we believe that Margaret B. D~ meets the requirements for entitlement to widow's benefits because laws enacted by the Louisiana state legislature retroactively validate her marriage to Oris C. D~.

The file you have provided indicates that Margaret B. D~ and Oris C. D~, the wage earner, were married in Lafourche Parish, Louisiana, on September 20, 1948. Oris D~ died on October 1, 1967. Margaret D~ then filed an application for mother's benefits on the record of Oris D~. The Social Security Administration (SSA) denied Margaret's claim for mother's benefits on January 22, 1970, after learning that she and Oris C. D~ were first cousins.

Evidence developed in the processing of Margaret's claim for mother's benefits indicates that Margaret knew at the time she married Oris that she and Oris were first cousins, and should have known or suspected that Louisiana law prohibited marriage between first cousins. Margaret stated that her father told her that she and Oris were first cousins as they were on their way to obtain their marriage license. She stated that her father then told her not to mention that she and Oris were first cousins unless someone asked whether they were related by blood. Margaret stated that no one asked whether they were first cousins, and she claims that she did not know until after her husband died that Louisiana law prohibited marriage between first cousins.

However, the priest of the church where Margaret and Oris were married stated that at the time they were married, they were required to state whether there was any prohibited relationship between them after the priest explained the importance of this question. Margaret and Oris had stated that there was no prohibited relationship between them. Margaret also signed the application for a marriage license, in which she and Oris had stated that there was no relationship between them. Based on this information, the SSA determined that Margaret had failed to establish that her marriage to Oris was entered into in good faith. Margaret filed an application for widow's benefits on July 18, 1991. This application also was denied, and Margaret requested reconsideration. Margaret's request for reconsideration is currently pending.

In order to be entitled to widow's benefits, Margaret must meet the requirements of Social Security Act §216(c), 42 U.S.C. §416(c) (see 20 C.F.R. §§404.345 and 404.346), and have been married to the wage earner for at least the nine months immediately preceding his death. See Social Security Act §202(e), 42 U.S.C. §402(e). See also 20 C.F.R. §404.335. The Social Security Act states that an applicant is the widow of the insured individual if the courts of the state in which the insured individual was domiciled at the time of his death would find that the applicant and the insured individual were validly married at the time the insured individual died. Social Security Act, §216(h)(1)(A)(i), 42 U.S.C. §416(h)(1)(A)(i); 20 C.F.R. §404.345. Although not free from doubt because the law validating the D~'s marriage was enacted after Oris D~'s death, we believe that a Louisiana court, applying its laws retroactively, today would find that Margaret's marriage to Oris D~ was valid at the time Oris died.

Margaret may also be considered the wage earner's widow if she was able to inherit a wife's share of the wage earner's personal property if the wage earner died intestate. Social Security Act, §216(h)(1)(A)(ii), 42 U.S.C. §416(h)(1)(A)(ii); 20 C.F.R. §404.345. Furthermore, Margaret may be entitled to widow's benefits if she entered the marriage in good faith, and did not know that a legal impediment to the marriage existed. Social Security Act, §216(h)(1)(B), 42 U.S.C. §416(h)(1)(B); 20 C.F.R. §404.346.

Under Louisiana law at the time Margaret and Oris D~ were married, marriage between "collateral relations," including first cousins, was prohibited. La. Civ. Code Compiled Ed. art. 95 (1902), Vol. 16, La. Stat. Ann. Civ. Code p. 56 (West 1972). This prohibition against marriages between first cousins is continued in La. Civ. Code Ann. art. 90 (West Supp. 1992). However, the Louisiana legislature has periodically enacted laws to retroactively validate marriages between first cousins. A retroactive law is one which gives a previous transaction a legal effect different from that which it had under the law in effect when the transaction occurred. Apicella v. Valley Forge Military Academy, 630 F.Supp, 20, 23 (E.D.Pa. 1985). Under Louisiana law, marriages between collateral relations contracted prior to July 26, 1972 are retroactively validated. 1972 La. Acts 230 , §1. 1_/

Louisiana Civil Code Article 6 states that substantive laws may only be applied prospectively, in the absence of contrary legislative expression. La. Civ. Code Ann. art. 6 (West Supp. 1992). There are, however, three exceptions to the principle of non-retroactivity: (1) laws that suppress or lessen penalties, (2) laws that are merely interpretive of existing legislation, and (3) laws that the legislature expressly or impliedly declared to be retroactive. St. Paul Fire & Marine Insurance Co. v.. Smith, 596 So.2d 272, 276 (La. App. 1992); Pullen v. Ziegler, 595 So.2d 1267, 1269 (La. App. 1992).

A law which creates, confers, defines, destroys or otherwise regulates rights, liabilities, causes of action or legal duties is a substantive law. American Waste & Pollution Control Co. v. State, 597 So.2d 1125, 1128 (La. App. 1992) (citing Thomassie v. Savoie, 581 So.2d 1031, 1034 (La. App. 1991), writ denied, 589 So.2d 493 (La. 1991)). Thus, because former Louisiana Civil Code article 95 regulated the right to marry by defining certain parties (i.e., first cousins) who may not marry each other, it was a substantive law. However, the Louisiana legislature, through 1972 Louisiana Acts 230, §1, has expressly validated marriages between first cousins contracted prior to July 26, 1972, the effective date of the Act. Thus, express legislative intent supports the retroactive validation of these marriages.

In granting recognition to marriages between collateral relations, 1972 Louisiana Acts 230, §1, states:

All such marriages [those among collateral relations] heretofore made in contravention of [Louisiana law] shall be considered as legal.

Under this language, any marriage made prior to the 1972 law would have been considered as legal in Louisiana as of the effective date of the 1972 law. Since the 1972 law was passed during a regular session of the legislature, the effective date of the Act is July 26, 1972. See OGC Legal Opinion of May 24, 1973 (Ref: Act No. 230, 1972 Louisiana Legislature). Because the marriage between Margaret and Oris D~ was made on September 20, 1948, prior to the effective date of the 1972 law, the marriage is valid under Louisiana law. Thus, the death of the wage earner, Oris D~, on October 1, 1967 does not prohibit State recognition of his marriage to Margaret. Under a literal reading of the 1972 law, the marriage between Margaret and Oris was "heretofore made" and therefore could be "considered as legal."

Because 1972 Louisiana Acts 230, §1 retroactively validated all marriages between first cousins contracted prior to July 26, 1972, the marriage between Margaret D~ and Oris D~, which was contracted on September 20, 1948, was made valid. Thus, we believe that §216(h)(1)(A) of the Social Security Act, 42 U.S.C. §416, can be read to support a conclusion that Margaret D~ is entitled to widow's benefits because, in our view, a Louisiana court, applying its law retroactively, would find that she was validly married to the wage earner, Oris D~, at the time of his death.

The Social Security Act also states that a claimant for widow's benefits may be considered the wage earner's widow if she was able to inherit a wife's share of the wage earner's personal property under Louisiana law if the wage earner died intestate. Social Security Act, §216(h)(1)(A)(ii), 42 U.S.C. §416(h)(1)(A)(ii). See also 20 C.F.R. §404.345. We believe that the facts of Margaret D~'s claim fully satisfy the requirements of this section of the Social Security Act. Margaret D~ has submitted a Judgment of Possession issued by the 17th Judicial District Court, Parish of Lafourche, Louisiana, which recognizes her as the widow of Oris D~. Although this document does not award Margaret D~ any of the wage earner's personal property, it does recognize her as the surviving spouse of Oris D~, and awards her an undivided one-half interest in the community property and the use of the other undivided one-half interest in the community property. Therefore, we believe that Margaret D~ qualifies as the widow of the wage earner under §216(h)(1)(A)(ii) of the Social Security Act, 42 U.S.C. §416 (h) (1) (A) (ii) because under laws applied by a Louisiana court she has been found to have the status of a wife for purposes of devolution of Oris D~'s intestate personal property.

In conclusion, Margaret D~ is entitled to widow's benefits under §216(h)(1)(A) of the Social Security Act, 42 U.S.C. §416, because she was validly married under Louisiana law to the wage earner, Oris D~, at the time of his death. An act of the Louisiana legislature retroactively validated all marriages between collateral relations contracted prior to July 26, 1972, including Margaret D~'s marriage to Oris D~. Thus, this marriage was made valid, and satisfies the marriage requirement

For Margaret D~'s entitlement to widow's benefits. In addition, Margaret D~ is entitled to widow's benefits under §216(h)(1)(A) of the Social Security Act because a Louisiana court has recognized her as the surviving spouse of Oris D~, and awarded her a share of this property.

1_ / In 1981, using the same language as the 1972 statute, the Louisiana legislature retroactively validated marriages between collateral relations contracted prior to September 11, 1981. 1981 La. Acts 647, §1. This recognition of marriages between collateral relations was continued in 1987 La. Acts 886, §5.

Louisiana

* An invalid marriage license does not invalidate a marriage if the parties took part in a marriage ceremony performed by someone that both parties reasonably believed was capable of performing the marriage;

* Louisiana statutory time limits invalidate a marriage license more than thirty days after the issuance of the license, but this has no effect on the validity of the marriage; and

* A marriage ceremony can occur in a parish other than the parish of issuance of a marriage license.

Texas

Official court records, e.g. judicial minutes, are sufficient evidence of the existence of a Texas judgement of divorce.

This memorandum is in response to your request for our legal opinion as to whether a marriage valid in Louisiana if it occurs more than a year after the issuance of a marriage license, and whether, in Texas, a minute entry indicating that a divorce was granted is adequate to prove an actual divorce. There are actually four distinct questions presented by the facts of this case. First, is a valid marriage license required for a marriage to exist under Louisiana state law? Second, is there a time limit from the issuance of a marriage license to the actual marriage ceremony? Third, can a valid marriage ceremony occur in a parish other than the one in which the license is issued.? And fourth, what is required to establish that a divorce occurred under Texas state law?

In summary, the answers to the questions are: 1) the validity of a marriage license is of no consequence if the parties took part in a marriage ceremony performed by someone that both parties reasonably believed was capable of performing the marriage; 2) Louisiana statutory time limits invalidate a marriage license more than thirty days after the issuance of the license, but this has no effect on the validity of the marriage; 3) a marriage ceremony can occur in a parish other than the parish of issuance of a marriage license; and 4) official court records of a divorce arc evidence of the existence of a proper Texas divorce.

James M~ and Patsy J. E~ were issued a license to be married on September 30. 1961, in DeSoto Parish, Louisiana. According to the marriage certificate, they were married by ceremony on April 30, 1963, in Haughton, Bossier Parish, Louisiana. There exists a court minute entry stating that a divorce was granted to Mr. M~ and Ms. E~ on December 11, 1972, in Corpus Christi, Nueces County, Texas. There are also Pat H~'s (a/k/a Patsy J. E~ a/k/a Patsy M~) own statements in the Social Security claims file that corroborate that she was divorced from James M~.

Pat H~ applied for widow's benefits as the surviving divorced spouse of James M~. As you know, she would be entitled to such benefits if she otherwise met the criteria for widow's benefits and she was validly married to the wage earner for ten years immediately before her divorce became final. 42 U.S.C. § 416(d)(2); 20 CFR. § 404.336.

The Louisiana Civil Code outlines the contract of marriage as requiring (1) that the man and woman have no legal impediments to marriage, (2) that a marriage ceremony be performed, in which each party takes the other as husband and wife, and (3) that the ceremony be performed before someone that the parties reasonably believe is qualified to perform the ceremony. La. Civ. Code Ann. arts. 86 and 87. The Louisiana Revised Statutes provide that a marriage must be performed by an officiate, who can be a judge, justice of the peace, or minister. La. Rev. Star. Ann §§ 9:201-9:203. The statutes further provide that an officiant may not perform a marriage until he has received a license authorizing the marriage ceremony, issued in any parish regardless of the place that the marriage ceremony is to take place or the residence of the parties. La. Rev. Star. Ann. §§ 9:205 and 9:222. The marriage license is valid for thirty days after issuance. Rev. Star. Ann. § 9:235. No officiant may perform a marriage before seventy-two hours from the time of issuance nor after the expiration of a marriage license. La. Rev. Stat. Ann. §§ 9:235, 9:241.

Notwithstanding the statutory law, the Louisiana courts have emphasized that the only formal prerequisite to marriage is a ceremony performed by an individual the parties believed to be an officiate; therefore, the absence of a valid license does not necessarily invalidate a marriage. Succession of Jene, 173 So.2d 857 (La. App.4th Cir. 1965).1_/ In Jene, a Louisiana appellate court stated that violation of the aforementioned statutes, prohibiting a minister or other person from celebrating marriage unless done under authority of a marriage license, would not have the effect of invalidating an otherwise legal marriage. The court further stated that the Louisiana statutes regarding the requirements for a valid marriage license are directed to the officiate, not the couple being married. Therefore, the court held that a marriage which had been otherwise duly contracted and solemnized is not null for want of a proper marriage license, confirming that a valid marriage exists even where there is not a valid marriage license. Id.

Addressing the question of what is required in Texas to prove that a divorce exists, Texas law provides that a judgment by a state court is always admissible as evidence for the purpose of proving that the judgement was rendered. Wilson v. Wilson's Estate, 581 S.W.2d 729 (Tex. App.-Dallas 1979, rehearing denied).

In the present case, we do not have the actual judgment. However, the Social Security claims folder contains a copy of the judicial record minute entry stating that a judgment of divorce was granted. A similar situation was faced by a Texas appellate court, which held that the judicial records, consisting mainly of the memorandum of judgment and the minutes, were properly before the court as evidence of the terms and effects of the judgment. McCarthy v. George, 623 S.W.2d 772 (Tex. App-Fort Worth 1981, rehearing denied). The court further held that judicial documentation was of the sufficiency and weight necessary to establish the existence of a divorce despite contradictory evidence, which existed in that case. Id. Another Texas appellate court stated that judicial records are always admissible as evidence of the fact that. a judgment had been rendered, the time of the rendition and the effects of the judgment, but not the underlying facts which the judgment was based. Scott v. Scott, 554 S.W.2d 274 (Tex. App.-Houston [1st Dist.] 1977, no writ) (citing Adams v. State Bd. of Ins., 319 S.W.2d 750 Tex. App.-Houston 1958, second motion for rehearing overruled January 8, 1959).

The principle that judicial records reflect the existence of a judgment is recited in several types of cases. For example, a notice of judgment of bankruptcy was admissible to prove that a judgment of bankruptcy existed. Nichols v. International Harvester Credit Corp., 533 S.W.2d 896 (Tex. App.-San Antonio 1976, n.w.h.) Further, the Department of Public Safety's abstracts of judgment and notices of conviction were found to be evidence of the actual judgments. Tomlinson v. Texas. Dept. of Public Safety, 429 S.W.2d 590 (Tex. App.-Corpus Christi 1968, n.w.h.); Gunn v. Texas. Dept. of Public Safety, 410 S.W.2d 207 (Tex. App.-Amarillo 1966, n.w.h.).

In summary, Louisiana law establishes that even without a valid marriage license there is a valid marriage as long as the parties had no other impediments to marriage, took part in a marriage ceremony, and believed that the person conducting the ceremony was qualified to do so. Texas law clearly establishes that the judicial minutes are sufficient evidence of the existence of a judgment of divorce. It therefore appears from the evidence in the case file that Pat H~ was married to James M~ from April 30, 1963, until their divorce was granted on December 11, 1972.

1_/ The language of Jene reiterates the law as it was presented in Holmes v. Holmes, 6 La. 463 (1834) and in the 1870 codification of the Louisiana Civil Code.