PR 05705.004 Arizona
A. PR 10-034 Reopening of Terminated Mother’s Benefits Due to a Defect in a Subsequent Marriage, Jodilyn B~, SSN ~
DATE: December 2, 2009
The fraudulent marriage ceremony was performed in Arizona. Since the parties are domiciled in Connecticut we look to that State to determine the validity of the marriage. Even if the marriage is valid under Arizona law, it would be void in Connecticut if a Connecticut statute expressly prohibits it.
The putative marriage provision functions to ensure that an otherwise eligible claimant is not deprived of benefits based on a marital defect of which the claimant was unaware. Applying the provision to validate a subsequent marriage between the claimant and a third-party in order to justify the termination of survivor's benefits would ignore the statutory context and intent. For the same reason the deemed marriage provision is inapplicable. Additionally, there is no Connecticut law that would allow either of them to inherit a spousal share of the other's intestate personal property.
This is in response to your request for an opinion concerning the validity of a marriage between two Connecticut residents solemnized in Arizona by an individual purporting to be a justice of the peace. You asked whether the marriage is void pursuant to POMS GN 00305.125, and if so, whether it constitutes a putative marriage under section 216(h)(1)(A) of the Social Security Act (“Act”) and associated regulations. You also asked whether the Commissioner’s decision to terminate Mother’s Insurance Benefits (“mother’s benefits”) on account of this marriage should be modified upon a finding that the marriage is void. For the following reasons, we believe that the marriage is void and that the Commissioner should reopen his decision and reinstate the previously terminated mother’s benefits, as per our policy described below.
Jodilyn B~, a resident of Connecticut, was entitled to mother’s benefits beginning in September 2007 on the record of her deceased husband, John B~. Her entitlement was scheduled to end in January 2009, based on John’s child attaining age sixteen on February 16, 2009. See 20 C.F.R. § 404.341(b). On September 13, 2008, Jodilyn married Michael L. R~, also a resident of Connecticut, in a ceremony performed in Arizona by Allen D. E~, who had represented himself as a justice of the peace. After spending eight days in Arizona, Jodilyn and Michael returned to Connecticut, where they continued to reside. In October 2008, the Commissioner terminated Jodilyn’s mother’s benefits based on her remarriage to Michael R~.
In March 2009, authorities in Arizona notified Jodilyn that she and Michael were the victims of a fraudulent scheme perpetrated by Mr. E~, who had misrepresented himself as a justice of the peace. Mr. E~ subsequently pleaded guilty to charges of criminal impersonation and attempted fraud. In September 2009, Jodilyn filed a request for reinstatement of mother’s benefits. She stated that she had no intention of remarrying or attempting to ratify her marriage to Michael R~.
Validity of Marriage between Jodilyn B~ and Michael R~
Generally, a surviving spouse’s entitlement to mother’s benefits ends when she remarries someone who is not entitled to benefits under Title II of the Act. 1_/ See § 202(g)(1) of the Act; 20 C.F.R. § 404.341(b). Benefits terminated for this reason should be reinstated, however, if it is determined that the subsequent marriage is void, meaning that it is “legally nonexistent from the beginning under State law, with or without a judicial decree.” POMS GN 00305.125. Although the Act specifies that the validity of a marriage between a surviving spouse and an insured decedent is determined by the law of the State in which the decedent was domiciled at the time of his death, neither the Act nor our regulations address which law governs the validity of the surviving spouse’s remarriage to a third party. See § 216(h)(1) of the Act. However, because all of the parties to this matter are (or, in the case of John B~, were) domiciled in Connecticut, we are confident that Connecticut would be the appropriate forum to adjudicate the validity of the marriage between Jodilyn and Michael. Cf. Manndorff v. Dax, 535 A.2d 1324, 1325 (Conn. App. Ct. 1988) (requiring the domicile of at least one party in Connecticut before a Connecticut court has jurisdiction over an annulment action).
Under Connecticut law, a marriage “entered into in another state or jurisdiction and recognized as valid by such other state or jurisdiction shall be recognized as valid in [Connecticut], provided such marriage or relationship is not expressly prohibited by statute” in Connecticut. Act of Apr. 23, 2009, Pub. Act. No. 09-13, § 1, 2009 Conn. Legis. Serv. (West) (Emphasis added); see also Catalano v. Catalano, 170 A.2d 726, 728 (Conn. 1961) (holding that a marriage performed out- of-state is void in Connecticut if it violates strong Connecticut public policy as expressed by statute); Town of South Windsor v. South Windsor Police Union, 677 A.2d 464, 468 (Conn. App. Ct. 1996) (explaining that Connecticut expresses its public policy through its statutes). Accordingly, even if Jodilyn and Michael’s marriage is valid in Arizona, where it was performed, it nevertheless would be void in Connecticut if a Connecticut statute expressly prohibits it. 2_/
Section 46b-24(d) of the Connecticut General Statutes states that: “Except as otherwise provided in this chapter, in order to be valid in this state, a marriage ceremony shall be conducted by and in the physical presence of a person who is authorized to solemnize marriages.” See also Conn. Gen. Stat. Ann. § 46b-22(a) 3_/ (describing the persons authorized to solemnize marriages in Connecticut and declaring void “marriages attempted to be celebrated by any other person”). Connecticut does recognize a limited exception to this general rule, and validates certain marriages celebrated prior to June 7, 2006, where the justice of the peace performing the ceremony was not duly authorized to do so. See Conn Gen. Stat. Ann. § 46b-22a. 4_/
Section 46b-24(d) expressly voids Jodilyn and Michael’s marriage because their officiant, Allen D. E~, was not authorized to solemnize it. Additionally, because the marriage was celebrated after June 7, 2006, it is not validated by Section 46b-22a 5_/
The Putative Marriage Provision Next you asked us whether Jodilyn and Michael have a putative marriage pursuant to section 216(h)(1)(A)(ii) of the Act. Under section 216(h)(1)(A)(ii), a claimant and an insured individual who are parties to an otherwise invalid marriage under state law, nevertheless are deemed married for purposes of the Act if the claimant could inherit a spousal share of the insured’s intestate personal property under the same state law. See § 216(h)(1)(A)(ii) of the Act; 20 C.F.R. § 404.345; POMS GN 00305.085.
First of all, we do not believe that the putative marriage provision even applies to Jodilyn and Michael’s marriage. By its plain language, the putative marriage provision applies to marriages between a claimant and the insured individual on whose record the claimant seeks benefits. See §§ 216(h)(1)(A) of the Act; 20 C.F.R. § 404.345. The provision functions to ensure that an otherwise eligible claimant is not deprived of benefits based on a marital defect of which the claimant was unaware. See POMS GN 00305.085. Applying the provision to validate a subsequent marriage between the claimant and a third-party in order to justify the termination of survivor’s benefits would ignore the statutory context and intent. 6_/ See Califano v. Boles, 443 U.S. 282, 296 (1979) (purpose of mother’s insurance benefits is to provide the surviving mother with a meaningful choice between full-time employment and staying home with her children); Tsosie v. Califano, 630 F.2d 1328, 1335 (9th Cir. 1980) (“the principal purpose of Social Security survivor’s benefits is to replace support lost to the claimant by the death of the wage earner . . .”).
Notwithstanding the inapplicability of the putative marriage provision, Jodilyn and Michael do not have a putative marriage because there is no Connecticut law that would allow either of them to inherit a spousal share of the other’s intestate personal property. See Conn. Gen. Stat. Ann. § 45a-437 (intestate succession statute setting forth spousal distribution); Boland v. Catalano, 521 A.2d 142, 145 (Conn. 1987); (holding that Connecticut does not recognize common law marriages and that “cohabitation alone does not . . . unlike marriage, impose other legal duties upon the parties”); Chong v. Deloma, No. 29 84 68, 1990 WL 274569, *2-3 (Conn. Super. Ct. 1990) (rejecting wife’s claim for intestate spousal share because she had not established the existence of a valid marriage under the Connecticut marriage statutes).
Reinstatement of Mother’s Benefits
Because Jodilyn and Michael’s marriage is void under Connecticut law, the Commissioner should reopen and revise his decision under POMS GN 00305.125(B)(2). Specifically, he should reinstate Jodilyn’s mother’s benefits as of October 2008, the month of the earlier termination. See POMS GN 00305.125(C). However, Jodilyn’s entitlement extends only through January 2009, the month before the month in which John B~’s child attained age sixteen. See 20 C.F.R. § 404.341(b). Accordingly, the Commissioner should pay Jodilyn approximately four months worth of mother’s benefits to cover the period from October 2008 through January 2009.
For the foregoing reasons, we believe that the marriage between Jodilyn B~ and Michael R~ is void under Connecticut law because it was solemnized by an unlawful officiant. Therefore, the Commissioner should reinstate Jodilyn’s mother’s benefits that were terminated on account of that marriage.
1_/ Michael R~ was not entitled to Title II benefits at the time of his marriage to Jodilyn.
2_/ Indeed, Jodilyn and Michael’s marriage appears to be valid under Arizona law. Marriages “solemnized by a person authorized by law to solemnize marriages or by a person purporting to act in such capacity and believed in good faith by at least one of the parties to be so authorized” are valid in Arizona. Ariz. Rev. Stat. § 25-111 (Emphasis added); see also Donlann v. Macgurn, 55 P.3d 74, 79 (Ariz. Ct. App. 2002) (applying § 25-111 to validate a marriage performed by an unauthorized officiant). Based on the facts provided, it is evident that Mr. E~ purported to have legal authorization to perform the marriage ceremony and that Jodilyn and Michael believed in good faith that he was so authorized. Therefore, absent any other ceremonial deficiencies, which are not apparent from the facts provided, Jodilyn and Michael’s marriage is valid under Arizona law.
3_/Section 46b-22(a) should not be confused with Section 46b-22a, a different statutory provision under the Connecticut General Laws, which also is addressed in this opinion.
4_/ Section 46b-22a states: All marriages celebrated before June 7, 2006, otherwise valid except that the justice of the peace joining such persons in marriage did not have a valid certificate or qualification, are validated, provided the justice of the peace who joined such persons in marriage represented himself or herself to be a duly qualified justice of the peace and such persons reasonably relied upon such representation.
5_/ Section 46b-22a is also inapplicable to the matter at hand because it presumes that the officiant was a justice of the peace, but that he was unqualified for some reason to perform marriages. See Conn. Gen. Stat. Ann. § 46b-22a. Allen D. E~ was not even a justice of the peace.
6_/ Although you did not ask us whether Jodilyn and Michael have a “deemed valid marriage” under section 216(h)(1)(B)(i) of the Act, we believe that the deemed marriage provision is inapplicable for the same reason. See also 20 C.F.R. § 404.346 (“If your relationship as the insured’s wife, husband, widow, or widower cannot be established under State law . . . you may be eligible for benefits based upon a deemed valid marriage.”) (Emphasis added).
B. PR 88-007 Donald N. K~, (Claim of Willa K~) -- Putative Marriage - Arizona
DATE: April 8, 1988
"DE FACTO MARRIAGE" -- GOOD FAITH BELIEF IN VALIDITY OF MARRIAGE -- ARIZONA
ARIZONA -- PUTATIVE MARRIAGE
Putative spouse status does not necessarily continue indefinitely. Loss of the good faith belief in the validity of the marriage is a "terminating event". Notification by SSA of the likely invalidity of an attempted marriage obligates the involved individual to inquire into the alleged defect within a reasonable time.
(K~, Donald N., ~ RAIX [Ming] to ARC, Progs. 04/08/88.)
Donald N. K~ and Willa R. B~ went through a marriage ceremony in Payson, Arizona on April 13, 1982. The claims file contains copies of the marriage license, certificate, and certificate of record. On April 28, 1983 Willa applied for social security wife's insurance benefits. The application was granted. Donald and Willa separated in November 1983.
SSA subsequently discovered that Donald was still married to another woman at the time of his attempted marriage to Willa. Willa's spousal benefits were therefore suspended on this basis. 1_/ You asked whether Willa can be reinstated as Donald's putative wife under the law of Arizona, the state where Donald was domiciled at the time of Willa's benefit application.
We previously advised that Arizona would accord inheritance rights to an individual as a putative spouse if s/he had a "good faith" belief in the validity of a legally defective marriage. GC opinion re John S~, December 1985. The requisite good faith belief generally must be evidenced by a colorable attempt to comply with the statutory requirements for a valid marriage, i.e., procurement of license and solemnization. Ibid. 2_/ Because in this case you apparently have determined that Willa was unaware of Donald's undissolved prior marriage, and because the state marriage requirements were met, Willa initially qualified as a putative spouse under Arizona law. 3_/
Once established, however, putative spouse status does not necessarily continue indefinitely. Loss of the good faith belief in the validity of the marriage is a "terminating event." POMS GN 00305.275(B). Once notified by SSA (or given any other reason to believe) that her attempted marriage was invalid due to Donald's preexisting marriage, Willa would no longer be able to maintain a "good faith belief" by remaining passively ignorant.4_/ She is obligated to investigate and either refute the evidence of the prior marriage or take steps to legalize her marriage to Donald. Assuming that she undertakes to clarify her marital status and, as needed, correct any defect, she may maintain her putative status for a "reasonable period" of time (i.e., that necessary to gather evidence or cure the defect). See, e.g., OC opinion re Martin M~, September 21, 1982, and cases/opinions cited therein. If she does neither, her benefits should be terminated as of the date she is fully informed of the apparent defect.
It appears that Willa was effectively put on notice of a possible defect in her marriage in May 1984. Volume III of the claims file contains a copy of a May 9, 1984 letter addressed to Willa which states:
Your benefits have been suspended pending a determination on the validity of your marriage to Donald K~ on April 13, 1982. The date of Donald K~ divorce to his prior wife has been verified with the Superior Court of California as June 30. 1982. Therefore. your marriage was performed prior to Donald K~ divorce.
Whether or not the State of Arizona will recognize your marriage of April 13, 1982 is under investigation. You will be notified when a determination is made.
(Emphasis added). In our opinion this letter was sufficient to notify Willa of the likely invalidity of her attempted marriage, thereby obligating her to inquire into the alleged defect within a reasonable time. Therefore, it is troubling to find that the next correspondence in the file concerning this matter is an April 14, 1986 notice stating, without explanation, that Willa's benefits were being resumed effective April 1984. The timing and extent of Willa's knowledge concerning Donald's divorce is further obscured by her November 11, 1987 statement (volume I of the file) professing ignorance of this matter, and the December 16, 1987 report of contact (volume I) in which the field representative states that he did not discuss Donald's marital history due to privacy concerns.
We recommend that you undertake an investigation of this case to determine (1) Willa's response, if any, to the May 9, 1984 letter, (2) the results of the inquiry referenced in that letter, and (3) the reason for the resumption of Willa's benefits in April 1986. Bear in mind that Willa lost her status as a putative spouse upon receipt of the May 9, 1984 notice unless she thereafter promptly inquired into and corrected the defect invalidating her marriage or there is evidence that SSA subsequently retracted or contradicted the notice, leading Willa to believe that the information contained therein was erroneous.
Regardless of the outcome of this investigation, you should immediately (re) inform Willa that her marriage appears to be invalid and, at her request, provide her with evidence in SSA's possession concerning Donald's marital history to enable her to investigate her marital status under state law, cure any defect (if she so chooses), and thereby resolve her social security eligibility. See 47 Fed. Reg. 45589, 45625 col. 1, item 18 (1982) (SSA notices of systems of records).
1_/ The suspension dates are unclear. In addition to the May 1984 suspension discussed on page 2 of this opinion, the left side of volume 1 of the claims file contains a benefit determination form showing a suspension in November 1987. The summary attached to your opinion request lists only a June 1986 suspension.
2_/ There have been no relevant developments in Arizona law since S~ was issued.
3_/ We recommend that the Arizona entry Arizona at POMS GN 00305.275(B) be revised to indicate that putative spouse status is to be determined using the same criteria as set forth under the entry for California. See GC opinion re John S ~ cited above. This change should obviate the need for routine referral of Arizona putative spouse cases to this office.
4_/ In GC opinion re Jimmy R. L~, June 23, 1980, we identified a number of factors pertinent to the factual determination as to whether or not a showing of good faith has been made. These factors include:
1. recorded statistical information; 2. prior statements of the alleged putative spouse; 3. prior statements of relatives and friends; 4. family records; 5. evidence of reputation as husband and wife in the community; 6. the alleged putative spouse's level of education and degree of sophistication; 7. the alleged putative spouse's experience with the laws procedures surrounding marriage and divorce; and 8. the degree of trust placed by the alleged putative spouse in the assurances of the (bad faith) partner, and the degree to which that trust was justified by difference in age, experience, etc.
C. PR 85-032 John S~, Putative Marriage -- Arizona, (Claim of Daisy S~)
DATE: December 20, 1985
"DE FACTO MARRIAGE" -- GOOD FAITH BELIEF IN VALIDITY OF MARRIAGE -- ARIZONA
Under Arizona law, the good faith belief essential to the recognition of a putative marriage must be evidenced by a colorable attempt to comply with the applicable statutory requirement for a legally valid marriage. (S~, John; RA IX; S~; December 20, 1985)
Daisy S~ has filed an application for widow's benefits on the account of John S~. Daisy alleges that she and John entered into a common law marriage when they began cohabiting in Los Angeles, California on February 13, 1946. Daisy, a member of the Arapaho tribe, claims that her prior common law marriage was terminated in accordance with "Indian law" when she separated from her first husband in 1943. John, a member of the Cherokee tribe, was allegedly legally divorced from his first wife in or about 1947.
The S~ lived together continuously in California, Oregon and, from 1952 on, Arizona. 1_/ While in Arizona, they first resided on the Salt River Indian Reservation, later moving to the Colorado River Reservation. John died an Arizona domiciliary on July 9, 1982.
Daisy contends that she and John were validly married under "Indian law." 2_/ She also states that they talked about contracting a marriage in compliance with the "White Man's way" but never got around to doing so. You have already concluded, based on contacts with tribal legal authorities, that the S~ were not validly married pursuant to the laws of the. Cherokee, Arapaho, or Colorado River Indian tribes. Thus, the single issue presented for our opinion is whether or not Daisy qualifies as John's putative spouse under Arizona state law.
In GC opinions re Jimmy R. L~, June 23, 1980 and Henry E. S~, December 28, 1978, we advised that the 'Arizona courts would accord inheritance rights to an individual as a putative spouse if he/she had a "good faith" belief in the validity of a legally defective marriage. We indicated in Jimmy R. L~, which dealt with members of the Navajo tribe, that the requisite good faith could be found in limited circumstances even if the parties failed to undergo a marriage ceremony; only compelling evidence could potentially overcome the lack of a license. Due to the lack of any apposite Arizona legal authority, our analysis was derived from California precedents applied to Arizona by analogy. As you note, after the latest Arizona opinion on this subject had been issued, we extensively discussed and, in part, revised our interpretation of California law in GC opinion re Coy H~, February 4, 1983. Therefore, we first must clarify whether the change in approach announced in Coy H~ is applicable to Arizona as well as California cases.
In Coy H~ we explained that California requires all marriages contracted in that state to be licensed and solemnized. We reasoned that the doctrine of putative marriage is not to be used as a device for circumventing this law. For this reason, and in accordance with the leading judicial authorities, we opined that putative spouse status cannot be founded upon a mere common law relationship as husband and wife. Rather, the good faith belief of the parties in the validity of their marriage must be evidenced by a colorable attempt to comply with the statutory requirements for a valid marriage. 3_/ Clearly, if this analysis applies to Arizona and California alike, Daisy would not qualify as John's putative spouse. The S~ evidently made no effort to satisfy the requirements for a legal marriage in any jurisdiction (state or tribal) in which they cohabited. Indeed, it is apparent from Daisy's May 24, 1984 statement that she and John realized they were not legally married under Arizona law but, nevertheless, took no steps toward validating their relationship. 4_/
Our reliance upon California authorities to analyze Arizona putative spouse cases has always been tempered by the understanding that "California courts are often more liberal than Arizona courts when considering cases involving marital status issues . . . and that [with regard to putative marriage] Arizona would apply a stricter standard in determining whether a sufficient showing of good faith had been made." GC opinion re J~ R. L~ , cited above, p. 4. There have been no developments in Arizona law since Jimmy R. L~ was issued to cause us to change our assessment that the Arizona courts are relatively conservative on family law matters. We are confident that the restrictive statement of the California putative marriage doctrine set out in Coy H~ accurately approximates the most generous position that might be adopted by Arizona's courts. We conclude, therefore, that Arizona putative spouse cases are to be decided in light of the rules and rationale articulated in Coy H~. 5_/ It follows that because the S~ did not attempt to meet the legal marriage requirements provided by Arizona law ( i.e., license and solemnization; see Arizona Revised Statutes §25-111) or the legal or tribal custom marriage requirements of any other sovereign jurisdiction in which they lived, Daisy would not be granted putative spouse status by the Arizona courts.
The claims file is herewith enclosed.
1_/ None of these states recognize common law marriage.
2_/ Daisy has never specified which tribal law she believes to be applicable.
3_/ Generally, this attempt will involve both procurement of a 1icense and solemnization. In rare circumstances, discussed in Coy H~ a license alone may be sufficient.
4_/ Daisy states that following John's divorce from his first wife, she and John "said to each other that we would get legally married according to White Man's law, but we just never got around to it." You investigation has revealed that the S~ never got around to contracting a marriage under applicable Indian tribal law either.
5_/ We expect to issue an opinion reaffirming the interpretation of the putative spouse doctrine set out in Coy H~ shortly, despite recent case law in California (at the intermediate appellate level) to the contrary.