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