TN 13 (01-13)

PR 05605.005 Arkansas

A. PR 13-021 Arkansas State Law- Marital Status of the First Wife of a Deceased Number Holder (NH James ; SSN ~)

DATE: November 28, 2012

1. SYLLABUS

Arkansas law recognizes the claimant's common-law marriage created under Oklahoma law. Because of the claimant's valid common-law marriage subsequent to her marriage to the number holder (NH), she is not unmarried and, therefore, not entitled to widow's insurance benefits on the deceased NH's record. Further, because the claimant believed she was divorced from the NH at the time of her subsequent marriage and because she thought the subsequent marriage to be valid, she is estopped from challenging the validity of her divorce from the NH or from denying the existence of her marriage subsequent to her marriage to the NH to obtain benefits on the NH's record.

2. OPINION

QUESTION

You requested our opinion on whether Mary is entitled to widow’s insurance benefits Section 202(e)(1) of the Social Security Act (the Act) makes widow’s insurance benefits available to the widow and every surviving divorced wife of the insured individual who meets certain eligibility requirements, including that the applicant is unmarried. See 42 U.S.C. § 402(e)(1); 20 C.F.R. § 404.336. The Act defines the terms “widow” and “surviving divorced wife” in sections 216(c) and 216(d), respectively. 42 U.S.C. §§ 416(c)(1), (d)(1).  The issue before us is not whether Mary qualifies as a widow or a surviving divorced wife, but rather if she met the unmarried eligibility requirement. Thus, the definitions of “widow” and “surviving divorced wife” are not at issue in this opinion. on deceased number holder (NH) James account, and if so, the date she was entitled. You also requested our opinion on whether Mary would be estopped from protesting the validity of the divorce she obtained from the NH in September 1999. 

ANSWER

After reviewing the relevant facts and law, we conclude that Mary has a valid common law marriage with Marvin under Oklahoma and Arkansas law, and thus is not unmarried. As such, she is not entitled to widow’s insurance benefits on the deceased NH’s account. Moreover, although Mary is not protesting the validity of her divorce from the NH to establish her claim, we conclude that if she were contesting the validity of her divorce, she would be estopped from doing so. 

BACKGROUND

As we understand the facts, Mary married the NH in April 1969. A Faulkner County, Arkansas, divorce decree showed that the two were divorced on September 9, 1999. Mary alleges various dates of divorce from the NH.  First, in 2006, Mary applied for disability insurance benefits on her own account and indicated she divorced the NH on May 1, 1999. Thereafter, on her October 2009 application for widow’s insurance benefits on the NH’s account, she reported that her date of divorce from the NH was August 12, 1998. When she re-applied for widow’s insurance benefits on the NH’s account in December 2011, she indicated that her date of divorce from the NH was July 1, 1999. During the reconsideration process, she provided the agency with a divorce decree from the Chancery Court of Faulkner County, Arkansas, indicating that her marriage to the NH ended in divorce September 9, 1999.  Thus, the agency will use the date of the divorce decree, September 9, 1999, as the actual date of her divorce. The NH married Shareen on September 22, 2007, in Arkansas. They remained married until the NH’s death on April 11, 2009, while domiciled in Arkansas. Shareen is currently receiving widow’s benefits on the NH’s account.

On May 13, 1999, Mary and Marvin underwent a ceremonial marriage in Oklahoma and obtained an Oklahoma marriage license, after which they lived together as husband and wife for five years in Oklahoma. In 2004, they relocated to Arkansas, where they continue to reside as husband and wife.

The Social Security Administration (the agency) denied Mary’s October 2009 application for widow’s insurance benefits on the NH’s account because she was married to Marvin at the time she applied for benefits. Based on Mary’s statement that she believed her marriage to the NH had ended in divorce prior to her ceremonial marriage to Marvin on May 13, 1999. In her 2009 application, she alleged that after the NH’s death she found out that her divorce from the NH had not been filed until after her ceremonial marriage to Marvin. She stated that she and Marvin “never remarried but continued to live together as husband and wife to this date.”  In December 2011, Mary re-filed for widow’s insurance benefits on the NH’s account. In the 2011 application, she again stated that she and Marvin “continued to live together as husband and wife to this date.”  In January 2012, the agency determined that the evidence showed that Mary and Marvin continued to reside together in Oklahoma as husband and wife and continued to hold themselves out to the community as a married couple after Mary’s divorce from the NH became final. Thus, the agency concluded that because Mary and Marvin had a common law marriage and Mary was not unmarried, Mary was not entitled to widow’s insurance benefits on the NH’s account.

On March 16, 2012, Mary filed for reconsideration and submitted a declaratory judgment dated June 11, 2012, from the Circuit Court of Jackson Country, Arkansas, voiding the marriage between Mary and Marvin.  The declaratory judgment stated that the marriage between Mary and Marvin was void and a nullity from its inception because at the time they entered the marriage on May 13, 1999, Mary was legally married and not divorced from the NH.  On June 15, 2012, Mary’s attorney submitted a letter to the agency, asserting that the agency should grant her widow’s insurance benefits because the declaratory judgment showed that she was never married to Marvin after her September 1999 divorce from the NH.  

You have asked us to determine whether Mary had a valid common law marriage to Marvin under Oklahoma law or whether she stayed unmarried after her September 1999 divorce from the NH. Alternatively, you asked whether Mary was prohibited by estoppel from protesting the validity of the divorce. 

ANALYSIS

Entitlement to Social Security Benefits:

Section 202 (e)(1) of the Social Security Act (the Act) provides that widow’s insurance benefits are payable to the widow and every surviving divorced wife of a wage earner who died fully insured if the widow or the surviving divorced wife filed an application for benefits, attained the age of sixty, and was not married at the time of application. 42 U.S.C. § 402(e); 20 C.F.R. § 404.336 (2012). Thus, Mary’s eligibility for widow’s insurance rests upon whether she is unmarried. We assume that you are satisfied that the other grounds for entitlement are met. See 42 U.S.C. § 402(e). See 20 C.F.R. § 404.336(e). In determining marital status, the Act provides that the agency will look to the laws of the state where the NH had a permanent home at the time of his death. See 42 U.S.C. § 416(h)(1); 20 C.F.R. § 404.345.  Because the NH died while domiciled in Arkansas, we look to Arkansas law.

State Law Applied to this Claim

Arkansas law provides that marriages that “would be valid by the laws of the state or country in which the marriages were consummated and in which the parties then actually resided shall be valid in all courts in this state.” Ark. Code. Ann § 9-11-107(a).  Accordingly, Arkansas law will recognize a common law marriage as a valid marriage if the marriage was valid in the state where it was created. See Darling v. Dent, 100 S.W. 747, 748 (Ark. 1905); Crane v. Taliafero, 308 S.W.3d 648, 650 (Ark. Ct. App. 2009).  Because Mary and Marvin married in Oklahoma and resided for five years after their ceremonial marriage in Oklahoma, Arkansas would look to Oklahoma law to see if Mary and Marvin have a valid marriage.

The Validity of Mary and Marvin’s Ceremonial Marriage 

Oklahoma law recognizes both ceremonial and common law marriages. See Standerfer v. Standefer, 26 P.3d 104, 107 (Okla. 2001) (citing Reeves v. Reeves 82 P. 490, 494-96 (Okla. 1905)); Meuggenborg v. Walling, 836 P.2d 112, 113 (Okla 1992). We have addressed Oklahoma’s continuing recognition of common law marriages in Oklahoma in legal opinions dated June 18, 1999, and July 15, 2005.  See Office of the Regional Chief Counsel, Region VI, Recognition of Common Law Marriage in the State of Oklahoma—Interim Reply (June 18, 1999); Office of the Regional Chief Counsel, Region VI, Recognition of Common Law Marriage in the State of Oklahoma—Reply (July 15, 2005).

However, even if a ceremonial marriage occurs, a person cannot enter into a valid marriage with another person who has been previously married and never obtained a divorce.  See Burdine v. Burdine, 242 P.2d 148, 149-50 (Okla. 1952) (an individual with a living spouse from whom he or she is not divorced is under a legal disability and cannot validly enter into another marriage); Whitney v. Whitney, 134 P.2d 357 (Okla. 1943) (plural marriages are void ab inito, and such a marriage, whether ceremonial or common law, does not confer on either of the parties any rights or privileges of a valid marriage).  In this case, while Mary and Marvin participated in a ceremonial marriage, it was not valid because Mary was still married to the NH at the time of her ceremonial marriage to Marvin. Id. 

The Validity of Mary and Marvin’s Common Law Marriage under Oklahoma Law 

Next, we consider whether Mary and Marvin entered into a common law marriage and, if so, on what date. Individuals who are in a valid common law marriage are considered married under Oklahoma law and have the same rights as individuals in ceremonial marriages.  See S~, 26 P.3d at 107; see also Fisher v. Fisher, 243 P. 730, 731 (Okla. 1925) (common law marriage is valid in Oklahoma and creates the same rights and duties as a ceremonial marriage).  For a valid common law marriage to exist under Oklahoma law, three elements must be present: (1) the parties must have an actual and mutual agreement to enter into a permanent, exclusive marriage; (2) the parties must be legally capable of marriage; and (3) the marriage must be consummated by either (a) cohabitation or (b) the open, mutual assumption of marital duties.  See Brooks v. Sanders, 190 P.3d 357, 358 (Okla. Civ. App. Div. 4 2008) (citing D.P. Greenwood Trucking Co. v. State Indus. Comm’n, 271 P.2d 339 (Okla. 1954)). 

Here, the evidence shows that because Mary had a ceremonial marriage to Marvin on May 13, 1999, in Oklahoma and obtained an Oklahoma marriage license, they had a mutual agreement to enter into a permanent, exclusive marriage.  See Webster v. Webster, 242 P. 555, 557 (Okla. 1926) (when parties have a ceremonial marriage and obtain a marriage license, the parties have entered into an agreement for a permanent and exclusive marriage). However, the facts of this case also show that Mary’s divorce from the NH did not become final until September 9, 1999.  Thus, at the time of her ceremonial marriage to Marvin, Mary and the NH were still legally married and Mary was legally incapable of forming a valid marriage with Marvin. See B~, 242 P.2d at 149-50; W~, 134 P.2d at 359.  Accordingly, under Oklahoma law, Mary and Marvin did not have a valid common law marriage prior to Mary’s September 1999 divorce from the NH.

However, it is a “well-recognized rule of public policy” in Oklahoma that “if at the time of commencement of [the parties’] relation, their intentions were matrimonial [but] either party was incapacitated to enter into a valid contract, the law will not permit the public policy it subserves to be defeated except during the time the incapacity exists.”  Webster v. Webster, 242 P. 555, 557 (Okla. 1926). Thus, under Oklahoma law, when parties have a mutual agreement to marry but one the parties to the marriage is not legally capable of marriage at the time he or she enters into the agreement, the elements of common law marriage are met if (1) the legal impediment to marriage is removed and (2) the parties cohabitate together as husband and wife when the impediment to marriage is removed. See Earley v. State Indus. Comm’n, 269 P.2d 977, 979 (Okla. 1954) (removal of legal impediment to marriage where parties continue to live together as husband and wife creates a common law marriage at the time of the removal of the impediment); W~, 242 P. at 557 (noting that the parties do not have to prove the existence of an agreement to marry after a legal impediment to marriage has been removed because the continued cohabitation at the time the disability was removed “warrants no other conclusion that the parties had … entered into the agreement to be husband and wife.”). 

Moreover, Oklahoma law recognizes that there is no limit on how quickly a common law marriage can form. Rather, a common law marriage forms at “the earliest moment the law finds each of the parties capable of interchanging such consent.”  See In re C~’s Estate, 117 P.2d 126, 128 (Okla. 1941). Thus, if two individuals enter into a marriage when one of individuals is under a legal disability that prevents the formation of a valid marriage, once that disability is removed, a common law marriage forms the moment the disability ceases if the parties cohabitate together at the time of removal of the impediment.  See id. (noting that when parties cohabitate together at the time of the removal the impediment, “the law stamps such relation as marriage from the first moment the disability on the parties ceases. . . [and] raises the conclusive presumption, under such condition, that they had interchanged, each with the other, that personal consent which is the basis of legal marriage.”).

In this case, Mary was legally incapable of entering into a marriage at the time of her ceremonial marriage to Marvin on May 13, 1999. However, Mary’s September 1999 divorce from the NH removed the legal impediment to marriage.  Accordingly, Mary’s incapacity to marry ended on September 9, 1999, the date of her divorce. See B~, 242 P.2d at 149-50. In both her October 2009 and December 2011 applications for widow’s insurance benefits on the NH’s account, Mary stated that she was living with Marvin “as husband and wife” at the time of her divorce from the NH and continued to do so at the time of both applications.  Because Mary obtained a divorce from the NH and continued to cohabitate with Marvin as husband and wife at the time of her divorce, Oklahoma law would recognize that a common law marriage between Mary and Marvin immediately formed at the time of her September 1999 divorce. See B~, 242 P.2d at 149-50; In re C~’s Estate, 117 P.2d at 128.

The Validity of Mary and Marvin’s Common Law Marriage under Arkansas law The Act provides that the agency looks to the laws of the State where the NH was domiciled at the time of his death in order to determine marital status. See 42 U.S.C. § 416(h)(1); 20 C.F.R.§ 404.345. Because the NH died while domiciled in Arkansas, Arkansas law governs the determination of Mary’s marital status. Arkansas recognizes marriages that were validly formed in other states as valid under Arkansas law. Ark. Code. Ann. § 9-11-107(a). Accordingly, because Mary and Marvin’s common law marriage formed in Oklahoma, we analyze the validity of Mary and Marvin’s common law marriage under both Oklahoma and Arkansas law.

We next consider whether Arkansas would consider Mary and Marvin to have a valid common law marriage.  Although Arkansas law does not allow for the creation of common law marriages, Arkansas may recognize common law marriages that validly formed in other states. See Brissett v. Sykes, 855 S.W. 2d 330, 332 (Ark. 1993) (Arkansas law recognizes common law marriages that were validly formed in other states); Stilley v. Stilley, 244 S.W.2d 958, 960 (Ark. 1952) (same).  If a valid common law marriage arose under the laws of the state where it was created, Arkansas would recognize that marriage as valid. See B~, 855 S.W.2d at 332.  Here, we found that under Oklahoma law a common law marriage arose between Mary and Marvin at the time of her divorce from the NH. See B~, 242 P.2d at 149-50; In re C~’s Estate, 117 P.2d at 128.  Accordingly, Arkansas would recognize her common law marriage to Marvin as valid as of September 1999. See B~, 850 S.W.3d at 332. 

Effect of the Declaratory Judgment

Mary argues that because she was still married to the NH when she had the ceremonial marriage to Marvin in May 1999, the impediment of her existing marriage to the NH defeated the marital relationship between Mary and Marvin.  In support of her argument, Mary presented a June 2012 declaratory judgment from the Circuit Court of Jackson County, Arkansas, with her request for reconsideration, as evidence that she was unmarried to Marvin at the time she applied for benefits on the NH’s account.  This declaratory judgment states that Mary’s marriage to Marvin was void because at the time the parties entered into the marriage, Mary was legally married to the NH. 

We examine whether the June 2012 declaratory judgment stating that Mary and Marvin’s marriage was void establishes that a valid marital relationship did not exist between Mary and Marvin at the time she applied for benefits on the NH’s account. The declaratory judgment only stated that Mary and Marvin’s ceremonial marriage was invalid because it occurred while Mary was still married to the NH. It did not address the validity of Mary and Marvin’s common law marriage that formed at the time of Mary’s divorce from the NH and that continues in effect. See B~, 855 S.W.2d at 332; B~, 297 S.W.2d at 105; S~, 244 S.W.2d at 960. Accordingly, because the declaratory judgment only pertained to Mary’s May 13, 1999, ceremonial marriage to Marvin and did not affect the existence of her valid common law marriage that arose on the date she divorced the NH in September 1999, it is not determinative of the issues in this case. We also note that because Arkansas does not recognize the formation of common law marriages within its borders, a declaratory judgment from an Arkansas court voiding a marriage could not void a common law marriage due to the court’s lack of subject matter jurisdiction over the issue. See C~, 308 S.W.3d at 651. In this case, a valid common law marriage formed while Mary and Marvin lived in Oklahoma. See B~, 242 P.2d at 150.  Thus, because the common law marriage was valid under Oklahoma law, the Arkansas court did not have subject matter jurisdiction to issue a declaratory judgment invalidating it. See B~, 855 S.W.2d at 332. 

Furthermore, under Social Security Ruling (SSR) 83-37c, the agency is not bound by a state court order unless: 1) an issue in a claim for Social Security benefits previously has been determined by a state court of competent jurisdiction; 2) the issue was genuinely contested before the state court by parties with opposing interests; 3) the issue falls within the general category of domestic relations law; and 4) the resolution by the state court is consistent with the law enunciated by the highest in the State.  See Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973); SSR 83-37c, 1983 WL 31272 (adopting G~ as agency policy). 

Here, it appears that the June 2012 Arkansas declaratory judgment declaring Mary and Marvin’s marriage void is not binding on the agency as it does not meet the first, second, or fourth G~ prongs.  With regard to the first prong, the case involved domestic relations and never concerned a claim for Social Security benefits. With regard to the second prong, there is no evidence showing that parties with opposing interests were joined in the case.

With regard to the fourth prong, a judgment declaring Mary’s common law marriage to Marvin would be inconsistent with the laws enunciated by the Arkansas’ highest court. See G~, 474 F.2d at 1373. While an Arkansas court can enter a declaratory judgment invalidating a marriage if the marriage was void or voidable, it cannot invalidate a validly formed marriage. Under Arkansas law, void marriages include subsequent marriages to individuals with living spouses while voidable marriages include marriages where the marriage based on fraud and marriages where a person is incapacitated by age or physical causes. See Ark. Code Ann. § 9-12-101, 9-12-201, Stuhr v. Oliver, 363 S.W.3d 316, 320 (Ark. 2010).  Neither scenario is present in this case.

 See Ark. Code Ann. §§ 9-12-101, 9-12-201, 9-12-202; Bramble v. Kemper, 297 S.W. 2d 104, 105 (Ark. 1957). In this case, as explained above, Mary and Marvin had a valid common law marriage as of the date of Mary’s divorce from the NH in September 1999. In order to dissolve their validly formed common law marriage, they would have to obtain a divorce.  See S~, 363 S.W.3d at 320 (when a marriage is validly formed, the parties to the marriage must seek a divorce in order to dissolve that marriage). The evidence in this case does not indicate that Mary sought to end her common law marriage to Marvin through divorce. Therefore, under Arkansas law, her common law marriage to Marvin continues to exist.

Moreover, a strong presumption exists under Arkansas law that the last marriage in a series of marriages is valid. We have addressed similar issues regarding the presumption of the validity of the last marriage under Arkansas law in legal opinions dated December 20, 2001, September 28, 2007, and June 9, 2008, and reached similar conclusions. See Office of the Regional Chief Counsel, Region VI, Presumption of Validity of Last Marriage Under Arkansas Law—Wage Earner Joseph Henderson, SSN 430-38-2089--Reply (Dec. 20, 2001); Office of the Regional Chief Counsel, Region VI, Arkansas State Law—Presumption of Validity of Last Marriage (Including Presumption of Death) (NH Willie; SSN ~) (September 28, 2007); Office of the Regional Chief Counsel, Region VI, Presumption of Validity of Last Marriage under Arkansas Law (NH Willie; SSN ~) (June 9, 2008). See Stokes v. Heckler, 773 F.2d 990, 991-92 (8th Cir. 1985); Sims v. Powell's Estate, 432 S.W.2d 838, 840 (Ark. 1968) (“positive proof” is necessary to rebut the presumption); Blythe v. Blythe, 410 S.W.2d 379 (Ark. 1967) (burden of proof on the party attacking the subsequent marriage is difficult to satisfy).  The presumption of the validity of the last marriage can only be rebutted with “clear and decisive” evidence that a divorce was not obtained prior to the marriage. Id; Missouri Pacific R.R. Co. v. Harris, 120 S.W.2d 695, 696 (Ark. 1938).  Here, Mary’s common law marriage to Marvin was her last marriage and arose at the time of her divorce to the NH in September 1999. See In re C~ Estate, 117 P.2d at 128, E~, 269 P.2d at 979; S~, 218 P.2d at 375.  Therefore, Arkansas law would recognize Mary’s Oklahoma common law marriage to Marvin as a presently valid marriage. In sum, the June 2012 Arkansas declaratory judgment declaring Mary and Marvin’s marriage void does not meet all the G~ prongs and is not binding on the agency. See G~, 474 F.2d at 1373; SSR 83-37c. 

Estoppel

An Arkansas Court may also find that Mary is estopped from denying the validity of her common law marriage to Marvin in order to obtain benefits on the NH’s account.  Arkansas courts have used the theory of estoppel to prevent previously married individuals from later asserting that divorces or subsequent marriages were invalid as a defense in order to receive some kind of benefit.  See Fox v. Fox, 444 S.W.2d 865, 870 (Ark. 1969); Jessie v. Jessie, 920 S.W.2d 874, 877 (Ark. App. 1996). Under the theory of estoppel, the court is not determining whether a marriage was valid, but instead is holding that a person, by reason of his or her conduct, cannot contest the validity of a divorce or subsequent marriage. F~, 44 S.W.2d at 870 (“It is not the marriage which is found valid [under estoppel].  Rather, it is that [the] defendant by reason of his conduct will not be permitted to question its validity….”); J~ 920 S.W.2d at 877 (“While a legal marriage cannot be created by estoppel, equity can require that parties be estopped from denying the validity of marriage.”). For example, if a party to a subsequent marriage failed to get a divorce prior to entering into the subsequent marriage, that party may be estopped from denying the validity of the subsequent marriage.  See J~ 920 S.W.2d at 877 (finding that a party who did not divorce her former spouse prior to her second marriage was estopped from denying the validity of the second marriage when she thought she was legally married to her second spouse for many years, raised children, and established a home); Brown v. Imboden, 771 S.W.2d 312, 313 (Ark. App. 1989) (finding that a party who thought he was divorced from his former spouse prior to entering into a second a marriage was estopped from denying the validity of the second marriage when the parties to the second marriage believed in the validity of the marriage for almost seven years). 

Here, Mary stated that she thought she had divorced the NH prior to marrying Marvin and believed that she was validly married to Marvin when she filed her applications in October 2009 and December 2011. When Mary applied for widow’s insurance benefits on the NH’s account in October 2009 and December 2011, Mary admitted on both applications that she was still living with Marvin as husband and wife. It was only after the agency denied Mary’s application for benefits on the NH’s account in May 2012, more than ten years after her September 1999 divorce from the NH, that she challenged the validity of her marriage to Marvin.  Because Mary believed that she was divorced from the NH at the time of her ceremonial marriage to Marvin and because she thought that she was validly married to Marvin for more than ten years, Mary is estopped from challenging the validity of her divorce from the NH or denying the existence of her marriage to Marvin in order to receive benefits on the NH’s account. See B~, 771 S.W.2d at 313 (parties to a marriage are estopped from challenging the validity of a divorce if the record shows that the parties obtained a divorce and relied upon that divorce to re-marry).

CONCLUSION

In conclusion, we find that Mary is not “unmarried” and, as such, is not entitled to benefits on the NH’s account.  Mary was married to Marvin under common law as of the date she divorced the NH in September 1999 and remains married until she obtains valid dissolution of her common law marriage to Marvin.  We also conclude that Mary is estopped from questioning the validity of her marriage to Marvin or protesting the validity

Very Truly Yours
Michael McGaughran
Regional Chief Counsel

By: ______________
Pamela D. Koehler

Assistant Regional Counsel


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PR 05605.005 - Arkansas - 01/28/2013
Batch run: 01/28/2013
Rev:01/28/2013