On March 5, 2003, you asked our advice as to whether there was a valid marriage relationship
between Betty L. H~ (claimant), a claimant for widow's insurance benefits, and the
deceased, insured, John T. H~ (insured), SSN ~.
We have reviewed the information that you provided and have researched the relevant
provisions of applicable law. It is our opinion that the claimant's marriage to the
insured was valid.
According to your memorandum and the records that you provided, a certificate of marriage
was issued to the claimant and Jack M~ on September 14, 1954. However, Mr. M~ had
previously been married to Shirley (W~) M~, and, in accordance with then current Virginia
law, their divorce decree, issued on September 10, 1954, prohibited both parties from
remarriage (except to each other) for an additional four months after the date of
their divorce. The claimant has stated that she married Mr. M~ because she was pregnant
with his child. She said that she separated from him after learning that he had failed
to comply with the requirements of his divorce decree. She said that she was advised
that she did not need to obtain a divorce from Mr. M~ because their marriage was never
valid. She subsequently married and divorced two times before marrying the insured.
She married the insured on July 11, 1968, six days after she was divorced from Charles
M~. The claimant remained married to the insured until the date of his death, November
18, 2001. All of the marriages and divorces in issue occurred in the State of Virginia.
The insured was a resident of Virginia at the time of his death, and the claimant
continues to reside in Virginia.
To determine a claimant's relationship as an insured's widow, the Commissioner looks
to the law of the insured's permanent home at the time of his death. 20 C.F.R. 404.345.
The insured's death certificate identifies the insured's usual residence and place
of death as the State of Virginia. POMS GN 00305.165 properly sets forth the provisions of Virginia law. In 1919, the law of Virginia
pertaining to the dissolution of the bond of matrimony was revised to incorporate
the following provision:
On the dissolution of the bond of matrimony for any cause arising subsequent to the
date of the marriage, neither party shall be permitted to marry again for six months
from the date of such decree, and such bond of matrimony shall not be deemed to be
dissolved as to any marriage subsequent to such decree, or in any prosecution on account
thereof, until the expiration of such six months.
Heflinger v. Heflinger, 118 S.E. 316, 317 (Va. 1923), citing Virginia Code Section 5113.
In 1944, Section 5113 of the Virginia Code was amended to reduce the waiting period
for remarriage from six months to four months. See Henderson v. Henderson, 46 S.E.2d 10, 11 (Va. 1948). This was the state of the law on September 10, 1954,
when Jack M~ and Shirley (W~) M~ were divorced, and their divorce decree properly
incorporated the four month waiting period requirement of the law. Accordingly, four
days later, on September 14, 1954 (the date of the purported marriage between Mr.
M~ and the claimant), Mr. M~ was not legally able to enter into a valid marriage contract.
In 1960, the waiting period provision was removed from the law except as required
to perfect an appeal, and marriages previously celebrated in violation of the prior
provisions were deemed thereafter not to be invalid because of the prior provisions
that” the parties lived together until July 1, 1960, or were living together at the time
of the death of one of the parties prior to that date. Va. Stat. § 20-118. This was
the state of the law in 1968, when the claimant divorced Charles M~ and married the
In Henderson, when addressing a marriage entered into in prohibition of the four month waiting
period requirement, the Court noted that although a void marriage could be declared
invalid by Court order under Section 5100 of the Virginia Code, such order was not
required because, under Section 5087, a marriage “prohibited
by law on account of either of the parties having a former wife
or husband then living,” was “absolutely void, without
any decree of divorce.” Henderson, 10 at 12. Accordingly, the understanding expressed by the claimant as to the invalidity
of her first marriage appears to be accurate under the relevant historical statutes
and the contemporaneous case law.
Since the claimant's marriage to Mr. M~ was not valid at the time that it was entered
into, and the parties were not living together (in fact the claimant had twice remarried)
by the time that the law was changed in 1960, the marriage was at all times void under
Virginia law, whether or not either party ever obtained a Court order of nullification.
Further, since the law had changed by the time that the claimant divorced Charles
M~, no waiting period was required before she married the insured, and her marriage
to the insured was, therefore, valid.
We believe that the claimant is clearly the widow of the insured under the provisions
of 20 C.F.R. § 404.345 based on the relevant law of the State of Virginia. However,
we also note that even if there were a legal impediment to the marriage of the claimant
and the insured, the marriage would still be “deemed valid” under the provisions of 20 C.F.R. § 404.346, due to the fact that the claimant and
the insured, in good faith (based on the claimant's reasonable understanding of the
relevant Virginia law), went through a marriage ceremony in 1968 and continued to
live together until the date of the insured's death, more than thirty years later.
For the reasons stated above, it is our opinion that, under the controlling law of
the State of Virginia, the claimant's prior marriage to Jack M~ was invalid; the claimant
was properly divorced from her other previous husbands; and the claimant entered into
a valid marriage with the insured on July 11, 1968, and remained validly married to
the insured until the date of his death, November 18, 2001.
James A. W~
Regional Chief Counsel, Region III
Teri C. S~
Assistant Regional Counsel