PR 05405.035 New York
A. PR 79-019 Antonio P~ - D/W/E - ~ - Validity of Marriage — New York
DATE: June 22, 1979
A marriage entered into by a severely retarded individual, incapable of understanding, is voidable by a court of competent jurisdiction only and not void ab initio under New York Law. (P~, Antonio - ~— RAII (REIBER) to RSI- N.Y.)
Antonio P~ and Louica B~ were married in New York State on September 30, 1942. Shortly thereafter Louica gave birth to a son who was placed in a foster home and Louica herself was institutionalized, both actions being taken due to her severe mental retardation. Louica has remained institutionalized, save for one short period, to date. On May 24, 1944 Antonio P~ instituted divorce proceedings. However, it does not appear that such proceedings were even concluded or that a divorce was ever finalized. Antonio P~ died in January 1970 and on May 31, 1978 the Broome Developmental Center filed an application on Louica's behalf for widow's insurance benefits. You have requested our assistance in determining whether a marriage entered into by a severely retarded individual incapable of understanding the nature of her action, as herein, is void ab initio, or, on the state of the facts, was voided at any time prior to the death of Antonio P~.
A marriage entered into by a severely retarded individual, incapable of understanding, is voidable by a court of competent jurisdiction only and not void ab initio under New York State law. Domestic Relations Law §7. Remlein v. Remlein, ~ N.Y.S. 2d 323 (l445; Weinberg v. Weinberg, 255, App. Div. 366, 8 N.Y. S. 2d 341 (1938). Thus, Louica remains the lawful widow of Antonio P~ unless the marriage was dissolved by a court of competent jurisdiction.
It appears from the file herein that while proceedings to terminate the marriage were commenced by Antonio P~, such proceedings were never concluded and, therefore, no order of a court of competent jurisdiction dissolving this marriage is extant. Assuming this to be the fact, Louica must be considered Antonio P~ legal widow for benefit purposes.