PR 05705.016 Illinois

A. PR 86-035 Effect of Putative Marriage on Claimant's Entitlement to Surviving Divorced Wife's Benefits on Account of Chester C~

DATE: October 3, 1086

1. SYLLABUS

UNMARRIED CONSORT ENTITLED TO INHERIT AS SPOUSE -- PUTATIVE MARRIAGE -- ILLINOIS

An Illinois putative marriage constitutes "being married" for purposes of determining entitlement to surviving divorced spouse's benefits. A putative spouse relationship confers rights of support maintenance and inheritance to the same extent as to a legally married individual.

(C~, Chester, ~ -- RAV (A~) to ARC, Programs, 10/03/86.)

2. OPINION

This is in response to your request for our assistance in determining whether a claimant may simultaneously be a putative spouse and be entitled to surviving divorced wife's benefits on the account of her first husband. We conclude, for the reasons discussed below, that a claimant who has a putative spouse is married for purposes of the Social Security Act, and therefore, is not entitled to surviving divorced spouse's benefits on another spouse's account.

FACTS

The claimant, Lora W~, married Chester C~ on October 27, 1933 and divorced him on May 7, 1947. Chester C~ died in Illinois on December 14, 1980. Prior to Mr. C~'s death, Lora married Jake F~ on December 6, 1947 and divorced him in Illinois on February 2, 1967.

Subsequent to her divorce, Lora married Gene W~ for the first time in Illinois on July 4, 1968 and divorced him on April 7, 1977. She remarried Gene on October 1, 1982 in Illinois. However, Lora's marriage to Gene was not valid because Gene's prior marriage was not dissolved. Gene died on October 27, 1983 in Illinois. You have determined that Lora was Gene's putative spouse. Apparently, you have concluded that Lora was unaware of Gene's undissolved marriage prior to his death.

Lora filed for surviving divorced spouse's benefits on Chester's account and would be eligible for such benefits for five months preceding Chester's death if she was not married during that time. Although you have also determined that Lora is entitled to benefits on Gene's account, no amount is payable because Lora's benefits on her own account is higher. You have inquired whether Lora can be entitled to such benefits while she was still Gene's putative spouse.

DISCUSSION

The statutory definition of a surviving divorced spouse eligible for benefits under Section 202(e)(1) of the Social Security Act, 42 U.S.C. §402(e)(1) is: "The term 'surviving divorced wife' means a woman divorced from an individual who has died, but only if she had been married to the individual for a period of 10 years immediately before the date the divorce became effective." 42 U.S.C. §416(d)(2). 1_/ However, in order to be eligible for surviving divorced spouse's benefits, a spouse cannot be married. 20 C.F.R. 9404.331. 2/

The question here is whether an Illinois putative marriage would constitute a marriage under the statute and implementing regulations. We conclude that Lora's putative marriage to Gene would constitute a marriage for purposes of determining eligibility for surviving divorced spouse's benefits.

In Illinois, a putative spouse acquires the rights conferred upon a legal spouse "including the right to maintenance following termination of his status." Ill. Ann. Stat. Ch. 40 ~305 (S~-H~). The statute notes that rights acquired by a putative spouse may not exceed those of a legal spouse, but "the court shall apportion property, maintenance and support rights among the claimants as appropriate in the circumstances and in the interests of justice." The historical and practice notes accompanying the statute notes specify that the "rights of the putative spouse include the right to division of marital property under Section 503, the right to maintenance under 504 and inheritance rights." The notes further provide that the purpose of the putative spouse statute is to protect those "who in good faith consider themselves married, who have established and maintained a family relationship and who, in the absence of such a statute, would be denied both the economic and status incidents of marriage. This rationale applies equally to divorced and widowed spouses. Id.

We have previously determined that a claimant's status as an Illinois spouse precludes entitlement to both widow's and mother's benefits as long as the putative marriage exists. Joanne B~, ~, RA V (Abrams) to ARC, Reg. V, 8/26/86. Because the determination of whether a claimant is a widow or a surviving divorced wife is governed by the same statutory provision, 202(e)(1), a determination that a claimant is precluded from widow's benefits by a putative marriage likewise precludes a claimant from eligibility as a surviving divorced wife during her putative marriage.

CONCLUSION

An Illinois putative marriage constitutes "being married" for purposes of determining entitlement to surviving divorced spouse's benefits. In this case, Lora was precluded from entitlement to surviving divorced spouse's benefits on Chester's account during her putative marriage to Gene.

1/ Lora was married to Gene for 14 years before they were divorced.

2/ Under §131 of the 1983 Social Security Amendments, P.L. 98-21, if the claimant were at least 60 years when she remarried, the remarriage would be ignored. Although Lora W~ was 67 when she married Gene W~, this amendment did not 9o into effect until December 1983. Here, we are addressing the issue whether Lora was entitled to benefits between May and November, 1983.

B. PR 86-021 Can Presumption Of A Ceremonial Marriage Be Used To Establish A Putative Marriage -- Illinois -- Evelyn M~

DATE: April 16, 1986

1. SYLLABUS

UNMARRIED CONSORT ENTITLED TO INHERIT AS SPOUSE -- PUTATIVE MARRIAGE -- ILLINOIS

The uncorroborated but uncontradicted testimony of the alleged putative spouse and her uncontradicted allegation of a good faith belief in the existence of her marriage together with outward conduct of the parties consistent with the existence of a valid ceremonial marriage are sufficient to establish a presumption of the existence of a ceremonial marriage necessary to establish a putative relationship.

(M~, Evelyn, ~-- RAV (A~), to ARC, Progs., 04/16/86.)

2. OPINION

You have asked whether a putative marriage may be established in Illinois without direct evidence of a ceremonial marriage. For the reasons stated below, we conclude that Illinois would recognize a putative marriage with only the circumstantial evidence of a ceremonial marriage that you have obtained regarding the above claimant.

Facts

Evelynn M~ claims to have entered into a ceremonial marriage with deceased wage earner Earl M~ on November 24, 1960 in Randolph County, Arkansas. SSA was unable to obtain primary or secondary evidence of that marriage. Therefore, SSA presumed a ceremonial marriage based on Earl's having listed Evelynn as his wife on various Social Security and employer submissions. 1_/

Thereafter, Bernice M~ claimed divorced wife's benefits on Earl's account. Bernice documented both her marriage to Earl in 1956, and her divorce from him in 1963. Although because of the duration of her marriage to Earl B~ proved to be ineligible for divorced wife's benefits, her application called into question the validity of Evelynn's claim.

Discussion

You have noted that although Evelynn might otherwise be Earl's deemed widow, POMS GN 00305.105 expressly precludes reliance on the presumption of ceremonial marriage when a deemed marriage is involved. Therefore, Evelynn is entitled to benefits on Earl's account only if' she and Earl had a putative marriage. You have asked whether a putative marriage may be found without direct evidence that a ceremony actually took place.

Illinois by statute defines a putative spouse as one who has "gone through a marriage ceremony, [and] who has cohabited with another to whom he is not legally married in the good faith belief that he was married to that person .... " Ill. Rev. Stat. Ch. 40, §305; see also POMS GN 00305.275E. This definition of putative spouse is part of the Illinois Marriage and Dissolution of Marriage Act ("the Marriage Act") which is to be "liberally construed...to promote its underlying purposes .... " Ill. Rev. Stat. Ch. 40, §I102. Among the stated purposes of the Marriage Act is to "strengthen and preserve the integrity of marriage .... " Ill. Rev. Stat. Ch. 40, §102(2). In the same section of the Marriage Act that recognizes a putative spouse, the legislature stated that common law marriages would not be recognized in Illinois.

We conclude that Illinois would recognize Evelynn as a putative spouse based on her uncontradicted representation that she participated in a ceremonial marriage with Earl, together with her uncontradicted representation as to her good faith belief that they were husband and wife. To presume that the ceremonial marriage Evelynn says occurred in fact occurred would "strengthen and preserve the integrity of marriage" with respect to this couple that cohabited in Illinois, as man and wife, for some twenty-five years. 2/ Evelynn's good faith belief that she was Earl's lawful wife, held, sloe claims, to the date of his death, is the key to this conclusion. See, e.g., Hewitt v. Hewitt, 394 N.E.2d 1204, 1210 (Ill. 1979) (construing §304.

Historical notes to §305 point out that Illinois's codification of the concept of the putative spouse derives from common law developments in other states. One case cited in these notes (and again cited with approval by the Illinois Court of Appeals in In re Marriage of Flores 421 N.E.2d 393, 395 (Ill. App. 1981)), Walker v. Walker, 47 N.W.2d 633 (Mich. l951), focuses on the putative spouse's good faith belief that she is a lawful wife as crucial to that status. Similarly, in an early Illinois case, In re DeMarchi's Estate, 15 N.E.2d 42 (Ill. App. 1938) (abstract), where the purported wife cohabited with the purported husband for forty years, the burden was on the person challenging the existence of a valid marriage to prove that there had been no ceremony (or valid common law marriage).

Another Illinois case that predates the Marriage Act is almost directly on point. In In re Estate of Nowak, 264 N.E.2d 307, 310 (Ill. App. 1970), the court addressed the precise issue

whether a marriage may be proven by evidence which does not include actual proof of the ceremony.

The court concluded that even though both parties to the alleged marriage before it were dead, no record of a ceremonial marriage could be found, and no witness to the ceremony could be found, a valid marriage nevertheless existed. Id. at 311. To so conclude, the court relied upon the couple's having claimed to have gone through a ceremonial marriage and other circumstantial evidence like insurance contracts and income tax returns in which they held themselves out as husband and wife. Id.; accord, Patek v. Peick, 393 N.E.2d 569, 571-73 (Ill. App. l979).

The Nowak court held:

[T]he parties acted in a manner fully consistent with a ceremonial marriage. Given this factual situation we hold that respondent did furnish sufficient proof to establish the marriage in question by the manifest weight of the evidence.

Id. You may conclude the same with respect to Evelynn

Section 409 of the Marriage Act, Ill. Rev. Stat. Ch. 40 § 409 provides an alternate basis for accepting Evelynn's uncorroborated testimony about a ceremonial marriage. Section 409 states:

A marriage which may have been celebrated...in any foreign state...may be proved by the acknowledgement of the parties, their cohabitation, and other circumstantial testimony.

Evelynn states that her ceremonial marriage to Earl occurred in Arkansas, a "foreign state." Accordingly, pursuant to §409 an Illinois court would accept circumstantial evidence of that ceremonial marriage. See, e.g., In re Estate of Bailey, 423 N.E.2d 488, 492 (Ill. App. 1981).

Conclusion

In the absence of any evidence to contradict Evelynn's good faith assertion that she and Earl celebrated a ceremonial marriage, Illinois would negate the impediment of Earl's bigamy at the time the ceremony allegedly was performed and recognize Evelynn as a putative spouse.

1/ Earl listed the year of marriage as 1958, not 1960; but both he and Evelyn stated the same date, November 24.

2_/ Of course, if Evelynn had asserted a "common law" marriage - no ceremony - the above purpose would be defeated by the couple's "living in sin."

C. PR 84-033 Robert H. K~, DWE, Edith K~ Faye K~ Rhonda, Ronald K~, Lori K~, Claimants -- Putative Marriage - Illinois

DATE: August 13, 1984

1. SYLLABUS

DIVORCE -- EFFECTIVE DATE -- ILLINOIS

Where a ceremonial marriage took place at a time between the 0ral granting 6f the divorce of one of the parties and the date of the signing Of the decree, that marriage is invalid at its inception and could not be validated under the provisions Of Illinois law prior to October l, 1977. A subsequent marriage 6f one of the parties therefore would be valid without the need for divorce. A party to the purported marriage however could claim the status of a putative spouse on the basis that she had a "good faith belief" that her prior divorce was valid effective when pronounced Orally and that she was therefore validly married to the second person, where she continued to maintain this belief subsequent to the effective date of the applicable statute, October l, 1977. (K~, Robert H., ~--RAV (Dom), to ARC, Programs, 08/13/84.)

LEGITIMACY AND LEGITIMATION -- PRESUMPTIONS AND EVIDENCE -- ILLINOIS

The legitimacy of children is not dependent upon "good faith belief" Of the parties to the marriage nor is there a cohabitation requirement considered in determining legitimacy. The presumption of legitimacy provision applies and in a case where the factual evidence of paternity or lack thereof is in total conflict and inconclusive the presumption is not rebutted. (K~, Robert H., ~-- RAV (Dorn), to ARC, Programs, 08/13/84).

2. OPINION

This responds to your request for assistance in determining the status of Edith Lisenby K~ and Faye Harris K~ as the widows of Robert H. K~ . You have also asked whether Lori, Ronald, and Rhonda K~ are entitled to benefits as the children of Robert H. K~. We conclude, for the reasons discussed below, that: (1) Edith K~ is the "putative spouse" of the wage earner under Illinois law; (2) Faye K~ is the legal widow of the wage earner; and (3) Lori, Ronald, and Rhonda K~ are each entitled to benefits as the children of Robert H. K~.

Facts

The relevant facts may be briefly summarized: Robert H. K~, the wage earner, married Edith L~ (one of the claimants in this case) on December 6, 1959 in Mt. Vernon, Illinois. The wage earner's previous two marriages had ended in death and divorce, respectively. Edith had previously been married to Joseph S~. A Jefferson County circuit court orally granted Edith and S~ a divorce at a September 24, 1959 hearing. The parties' attorneys subsequently submitted a prepared decree for the court's approval. According to a December 23, 1959 letter from S~ 's attorney to his client, "some time elapsed [after the September 24, 1959 hearing] before it [the decree] was presented to the court." The decree was signed but not dated by the judge, and was filed on December 8, 1959, two days after Edith's marriage to the wage earner.

The wage earner and Edith lived in Mt. Vernon until 1964, when they moved to St. Charles. Sometime after 1964, the parties separated. The record contains several statements of Edith K~ in addition to statements of Robert E. K~ (the wage earner's son by his first marriage) and Mike S~ (Edith's son by her previous marriage). These statements substantially conflict with one another concerning the date of the parties' separation and their subsequent contacts. According to these statements' the parties separated at some point between 1965 and 1968 but continued to see each other on anywhere from a "sporadic" to "frequent" basis until 1974. During this period Edith had three children: Lori (born December 1, 1965) and Ronald and Rhonda (both born July 5, 1969).

The wage earner filed separate applications for retirement and disability benefits in 1972. On each application he indicated that he was married but separated from Edith L~ K~ . He listed no children. The wage earner was awarded retirement benefits. At no time prior to the wage earner's death in 1982 did Edith apply for benefits on behalf of Lori, Ronald, and Rhonda based on the wage earner's record.

The wage earner married Faye H~ (one of the claimants in this case) on July 7, 1977. A search of divorce records between 1966 and 1977 in all counties where the wage earner resided produced no evidence of a divorce between the wage earner and Edith. 1/ Edith states that she never divorced the wage earner, was never told by the wage earner that he had divorced her, and was never. served with a divorce judgment. As noted above, the wage earner stated on applications for retirement' and disability benefits in 1972 that he was then married to Edith. However, when Faye applied for wife's benefits in 1978, the wage earner did not list his marriage to Edith on the husband's certification form. Edith states that she was aware of the wage earner's marriage to Faye.

The wage earner was hospitalized in 1982, and then entered a nursing home where he died on August 18, 1982 domiciled in Illinois. A newspaper obituary did not mention Faye, but instead listed Edith as the wage earner's surviving wife. The obituary listed the wage earner's children by his first two marriages, but did not list Lori, Rhonda, and Ronald K~ . The information contained in the obituary was apparently supplied by the wage earner's children by his first marriage, who assumed complete control over the wage earner's affairs when he entered the nursing home. Faye indicates that she did not know that the wage earner had died until she read the obituary. Moreover, the funeral director's statement indicated that Edith was the wage earner's surviving wife.

Discussion

The issues in this case are (1) whether Edith K~ and/or Faye K~ qualify as the legal widow or the putative spouse, under Illinois law, of the wage earner, and (2) whether Lori, Rhonda, and Ronald K~ are entitled to benefits as the children of the wage earner.

1. Edith K~ and Faye K~ - The validity of both Edith's and Faye's marriages to the wage earner depends on the effective date of Edith's 1959 divorce from Joseph S~ . if Edith's divorce from S~ was not effective prior to her December 6, 1959 marriage to the wage earner, then the latter marriage is invalid under Ill. Rev. Stat. ch.40 § 212(a) unless it was subsequently validated pursuant to § 212(b). If Edith's marriage to the wage earner was neither valid from its inception nor subsequently validated, then Edith is not the legal widow of the wage earner and Faye is the legal widow. Edith could still be a "putative spouse" under Ill. Rev. Stat. ch.40 § 305 and therefore be a "widow" under Section 216(h)(1)(A) of the Social Security Act. 2/ If, on the other hand, Edith's marriage to the. wage earner was either valid--from its inception or was subsequently validated, then Edith would be the wage earner's legal widow. In that case, the presumption of the validity of the latter of two or more conflicting marriages would be rebutted by the absence of any evidence of a divorce between the wage earner and Edith. Sparling v. Industrial Commission, 270 N.E.2d 411 (Ill. 1971). Faye would not be the legal widow of the wage earner but could still qualify as either the "putative spouse" of the wage earner under Ill. Rev. Stat. ch.40 § 305 or a "deemed widow" under Section 216(h)(1)(B) of the Social Security Act. 3/ Based on the evidence before us, we find that 1) Edith's divorce from Joseph S~ did not become effective until December 8, 1959; 2) Edith's December 6, 1959 marriage to the wage earner was not valid nor did the marriage subsequently become validated under Ill. Rev. Stat. ch.4D § 212; 3) Edith qualifies as the "putative spouse" of the wage earner under Illinois law; and 4) Faye is the legal widow of the wage earner.

First, we find that Edith's divorce from S~ was not effective until December 7, 1959 at the earliest. In Russell H~ ,~ , RA V (Dorn) to Reg. Comm. SSA 6/19/78, we determined that a divorce becomes effective in Illinois once a written decree is signed by the judge although the decree in that case was not filed until two weeks after the judge signed it. We based this conclusion on our finding that the filing of a judgment is considered in Illinois to be merely a ministerial act performed by the clerk. In re Estate of Young, 112 N.E.2d 113, 117 (Ill. 1953). We also stated in H~ that an oral pronouncement of divorce made before the signing of a divorce decree has no effect. Jackman v. North, 75 N.E.2d 324 (1947); Pope v. Pope, 299 N.E.2d 161 (Ill. App. 1973); Norwood v. Norwood, 77 'N.E.2d 552 (Ill. App. 1948); Richmond v. Richmond, 61 N.E.2d 573 (Ill. App. 1945). 4/ This rule has also been applied in cases decided subsequent to the H~ opinion. Heyman v. Heyman, 548 F. Supp. 1041, 1044 (N.D, Ill. 1982) (under Illinois law, a divorce is not effective until written decree is approved by the judge); In re Marriage of Ayers, 402 N.E.2d 401, 403 (Ill. App. 1980). Thus, the oral judgment of divorce between Edith and S~ rendered at the September 24, 1959 proceedings had no effect. The signed divorce decree was filed by the clerk on December 8, 1959. While the divorce was actually effective when the decree was signed rather than when it was filed, the decree itself is not dated nor is there any extrinsic evidence to indicate the date on which the judge signed the decree. We have found no Illinois cases indicating when an undated decree is considered to have been signed.. In the normal course of judicial proceedings, however, a judgment is filed either on the day the judge signs it or on the following day. Since we presume the regularity of administrative procedures in the absence of evidence to the contrary, we conclude here that the decree was signed, and was therefore effective, either on December 8, 1959 (a Tuesday), the day it was filed, or on December 7, 1959.

Second, because Edith's marriage to S~ was undissolved at the time of her December 6, 1959 marriage to the wage earner, the latter marriage was invalid under the former Marriage Act (Ill. Rev. Star. ch.89 § 1 (1975)) and its predecessors. Prior to 1977, the subsequent dissolution of a prior marriage by death or divorce did not validate a bigamous marriage in the absence of resolemnization of that marriage. Schmisseur v. Beatrie, 35 N.E. 525 (Ill. 1893); see also Historical and Practice Notes, Ill. Rev. Stat. ch.40 § 212 (1980). However, under paragraph 212(b) of the Illinois Marriage and Dissolution of Marriage Act of 1977, Ill. Rev. Stat. ch.40 § 101 et seq., a bigamous marriage becomes valid when the prior undissolved marriage is ended by death or divorce and the parties to the second marriage cohabit after removal of the impediment. In Ambers G~ , ~ RA V (Abrams) to Director, IPBV, 12/11/80, we stated that paragraph 212 would be applied only in those cases where the wage earner died on or after October 1, 1977, the effective date of the Marriage and Dissolution of Marriage Act. In the present case, the wage earner died on August 18, 1982, and the wage earner and Edith cohabited following the removal of the impediment to their marriage. However, we have also stated that based on case law and the legislative history of paragraph 212, that provision does not validate a marriage contracted prior to October 1, 1977 where the parties no longer cohabited subsequent to that date. Marvin B~ , ~, RA V (Dorn) to Director, IPB, 11/29/83; Morris B~ ,~ ,RA V (Dorn) to Director, IPB, 7/19/82. Although it is not clear precisely when Edith and the wage earner separated, the evidence indicates that they separated no later than 1968. Thus, paragraph 212(b) does not validate their marriage.

Third, we think that Edith does qualify as the "putative spouse" of the wage earner under paragraph 305 of the Illinois Marriage and Dissolution of Marriage Act of 1977. Under that provision, a person who goes through a marriage ceremony and cohabits with another person in the good faith belief that he or she is validly married to that person is a putative spouse and acquires all the rights of a legal spouse (including the right to inherit) until knowledge of the fact that he or she is not legally married terminates such status and prevents the acquisition of further rights. In the G~ opinion, we stated that paragraph 305, like paragraph 212(b), was inapplicable in the cases of wage earners dying prior to October 1, 1977. However, in the Br~ and Bu~ opinions we stated that unlike paragraph 212(b), paragrapher305 validates a pre-October 1, 1977 marriage even though the parties did not cohabit subsequent to that date, so long as the claiming party maintained a good faith belief in the validity of the marriage subsequent to October 1, 1977. Br~ , p. 6; Bu~ , note 3. We have also stated that paragraph 305 does not require any particular length of cohabitation, and that separation of the parties does not itself terminate putative spouse status, assuming that the separation is for reasons other than knowledge of the legal invalidity of the marriage. Bu~, p. 6. In the present case, Edith could have reasonably believed that her marriage to S ~ had been dissolved by the oral pronouncement of divorce on September 24, 1959. Thus, Edith probably believed that she was free to marry the wage earner on December 6, 1959. Moreover, Edith's later knowledge of the wage earner's 1977 marriage to Faye did not affect her good faith belief in the validity of her "marriage" to the wage earner, since Edith had no reason to believe that her own "marriage" had been invalid. Edith could reasonably assume that it was the wage earner's marriage to Faye that was invalid. Therefore, Edith likely maintained her good faith belief until the wage earner's death. We conclude that Edith is the "putative spouse" of the wage earner under Illinois law. 5--/

Fourth, since Edith was not validly married to the wage earner, nor was her marriage subsequently validated, Faye was validly married to the wage earner and is his legal widow. Faye previously applied for, and was awarded, widow's benefits. However, these benefits may now be decreased based on the entitlement of Edith and her children.

2. Lori, Rhonda, and Ronald K~ - You have asked whether the children of a "putative marriage" under' § 305 are presumed legitimate. Such children are considered legitimate under Illinois law, albeit pursuant to Ill. Rev. Stat. ch.40 § 212(c) rather than § 305. The former section provides that "children born or adopted of a prohibited or common law marriage are legitimate." On the other hand, § 305 merely confers a certain status on a "spouse" to a prohibited marriage. Moreover, § 212(c) does not require that one of the "spouses" enter into a marriage in "good faith" in order for the children of that marriage to be considered legitimate. Furthermore, § 212(c) does not require that the parties to a prohibited marriage have cohabited in order for the children of that marriage to be considered legitimate.

Section 216(h)(2)(B) of the Social Security Act also enables the child of a prohibited marriage to qualify for child's benefits without reference to state law. That section provides that the son or daughter of an insured individual is eligible for benefits if the insured individual and the child's other parent went through a ceremony that would have resulted in a valid marriage but for the existence of a prior undissolved marriage or a defect in the procedure followed in connection with the purported marriage. Unlike the "deemed widow" provisions of Section 216(h)(1)(B), the "deemed child" provisions of Section 216(h)(1)(A) do not require the existence of good faith or a period of cohabitation in Order for the child of the prohibited marriage to be eligible for benefits. However, Section 216(h)(2)(B) does require satisfactory evidence that the claimant is the biological child of the wage earner. See 20 C.F.R. §404.355(b); POMS GN 00306.150.

In the present case, three children were born during the "prohibited" marriage of the wage earner and Edith K~ - Lori (born December 1, 1965), Ronald (born July 5, 1969), and Rhonda (also born July 5, 1969). Lori K~ 's birth certificate lists a Robert K~ (no middle initial), age 55, as the father. The wage earner was born in 1910. Such evidence satisfactorily establishes the paternity of the wage earner with respect to Lori for purposes of Section 216(h)(2)(B) of the Social Security Act. See POMS GN 00306.150. We do not think that the absence of a middle initial on the birth certificate raises any significant inference that the father of Lori is not the wage earner but Robert E. K~ , the wage earner's son by his' first marriage. Although the record presents considerable conflicting evidence regarding the relationships of the wage earner and Edith K~ on the one hand, and Robert E. K~ and Edith on the other hand, during late 1968 when Rhonda and Ronald K~ were conceived, there is substantially less dispute regarding the period in early 1965 when Lori was conceived. We conclude that Lori is entitled to benefits under Section 216(h)(2)(B) of the Social Security Act.

The paternity issue with respect to Ronald and Rhonda K~ is a much more difficult matter. Simply put, the evidence is in hopeless conflict regarding when the wage .earner and Edith separated, and regarding the extent of their relationship during the period in late 1968 when Rhonda and Ronald were conceived. Similarly, the evidence is in hopeless conflict regarding the extent of Edith's relationship with Robert E. K~ during this period. We do not think that such evidence satisfactorily establishes the paternity of the wage earner with respect to Ronald and Rhonda K~ for purposes of Section 216(h)(2)(B).

However, Ill. Rev. Stat. ch.40 § 212(c) accords the same presumption of legitimacy to a child born during a prohibited marriage as is accorded to a child born during a valid marriage. Valle v. Valle, 447 N.E.2d 945, 949 (Ill. App. 1983). See also Cardenas v. Cardenas, 140 N.E.2d 377 (Ill. App. 1957). We have repeatedly stated in prior opinions that under Illinois law, this presumption applies even though the spouses were separated during the period of possible conception and may be rebutted only by "clear, convincing, and irrefragable proof" that the husband had no access to the mother during this period. William M~, ~, RA V (Dorn) to ARC-Programs, 11/10/831 A1 S~ , RA V (Dorn) to ARC-Programs, 7/28/80. We think that under § 212(c) the same evidentiary standards apply to children born during a prohibited marriage. 6--/

We explained in the M~ and S~ opinions that although the standard for rebutting the presumption of legitimacy appears to be particularly onerous, the Illinois courts have in practice allowed credible proof of nonaccess to overcome the presumption. The courts have generally found that the presumption of legitimacy is rebutted where there is: (1) credible testimony by both the husband and wife of nonaccess to each other during the period of conception, (2) evidence of a relationship between the mother and putative father during. the period of conception, and (3) other persuasive evidence that corroborates the testimony of the mother. In the present case, we think the evidence is clearly insufficient to rebut the presumption of legitimacy with respect to Lori K~ . With respect to Ronald and Rhonda K~ , we agree that considerable doubt exists that the wage earner was their father. Edith K~ s' numerous statements are in considerable conflict with respect to the extent of her relationships both with the wage earner and with Robert E. K~ , the wage earner's son, during the period of possible conception in late lg68. The statements of Robert E. K~ and Mike S~, Edith's son by her prior marriage to Joseph S~ , fail to clarify the issue of access by the wage earner and Robert E. K~ to Edith during the period of possible conception. The wage earner himself failed to acknowledge any of the three children in his applications for retirement and disability benefits in 1972. Some evidence submitted in connection with the wage earner's disability application suggests that he had prostate problems in late 1968 (possibly resulting in surgery in early 1969). Especially troubling is the fact that although the birth certificates of Ronald and Rhonda K~ do not list the name of a father, they originally listed the father's age as 37 before Edith altered the listed age to 57.

Although the actual paternity of Ronald and Rhonda K~ is an open question, we are unable to conclude that the presumption of legitimacy conferred by Illinois law is, on the basis of the available record, rebutted by "clear, convincing, and irrefragable proof" to the contrary, even given the somewhat relaxed application of this standard in practice by the Illinois courts. We acknowledge that absent the presumption, the evidence would be clearly insufficient to establish that the wage earner was the father of Ronald and Rhonda K~ . But the issue here is not whether the wage earner was the father, but whether the available evidence is sufficient to rebut the presumption established under Illinois law that the wage earner was the father. The evidentiary standard for rebutting the presumption, while not as onerous as it might initially appear, nevertheless remains a heavy one. We conclude that that standard has not been met here.

In summary, we conclude that:

(1) Faye H~ is entitled to widow's benefits as the legal widow of the wage earner under Illinois law.

(2) Edith L~ is the "putative" widow of the wage earner under Illinois law and is entitled to mother's insurance benefits.

(3) Lori, Ronald, and Rhonda K~ are entitled to benefits as the children of the wage earner.

1/ Your memorandum indicates that no search was conducted for the period from 1978 until the wage earner's death on August 18, 1982. Inasmuch as we conclude below that Edith was not validly married to the wage earner, it is unnecessary to determine whether Edith and the wage earner obtained a divorce after 1977.

2/ Edith cannot have "deemed widow" status under Section 216(h)(1)(B) of the Act since she was not living with the wage earner at the time of his death.

3/ Faye indicated in a statement that the wage earner had told her about--his first marriage but had not mentioned any other marriage. When the wage earner entered a nursing home in 1982, his children by his first marriage told Faye that the wage earner had been married to Edith. Until that point, Faye believed that Edith was married to the wage earner's son by his first marriage, Robert E. K~ , with whom Edith had been living since 1970. However, the record fails to show that Faye knew that the wage earner's "marriage" to Edith had not ended in divorce. Thus, Faye likely maintained a good faith belief in the validity of her own marriage to the wage earner until his death. Faye therefore qualifies as a "putative spouse" under Ill. Rev. Stat. ch.40 § 305. We also think that Faye would be a "deemed widow" under Section 216 (h)(1)(B) of the Social Security Act, which requires only that a claimant enter into a marriage in good faith. Faye was "living with" the wage earner at the time of his death although he was required to then reside in a nursing home. However, in view of the fact that we find that Faye was the legal widow of the wage earner it is unnecessary to conclusively determine whether Faye is a "putative spouse" or "deemed widow."

4/ The reason for this rule is that divorce proceedings are equitable in nature. Traditionally the oral pronouncements of a chancellor were not binding unless and until embodied in a written decree approved by him. Anastaplo v. Radford, 153 N.E.2d 37 (Ill. 1958).

5/ Because Edith was born in 1932, she is not yet eligible for widow's benefits under Section 202(c) of the Social Security Act. However, we conclude below that Lori, Rhonda, and Ronald K~ are entitled to benefits as the children of the wage earner. Therefore, Edith is entitled to mother's benefits under Section 202(g) of the Act.

6/ We believe that § 212(c) may be applied in all cases where the wage earner died on or after October 1, 1977. As discussed above,. we have determined in prior opinions that the marriage validation provisions of § 212(b) apply only where the wage earner died on or after October 1, 1977 and the parties cohabited on or after that date. We have also determined that the putative spouse provisions of § 305 apply only where the wage earner died on or after October 1, 1977 and the claiming spouse maintained a good faith belief in the validity of the marriage subsequent to that date. However, the "deemed legitimacy" provisions of § 212(c) do not require good faith on the part of either party to a prohibited marriage or that the child have been born during the cohabitation of the parties (as required under Ill. Rev. Stat. ch.89 § 17a prior to October 1, 1977). We think that consistent with our opinion in Ambers G~ , ~ , RA v (A~) to Director, IPBV, 12/11/80, in which we limited the application of the 1977 marriage statute to claims where the wage earner died on or after October 1, 1977, the "deemed legitimacy" provisions of § 212(c) may be applied in all cases where the wage earner died on or after October 1, 1977, regardless of when the prohibited marriage was contracted or when the child was born.

We also note that on May 22, 1984 SSA amended 20 C.F.R. §404.354(b) to clarify that the relationship of an applicant for child's benefits to an insured individual is determined by the state laws in effect at the time the insured individual died. 49 Fed. Reg. 21,512.

D. PR 84-027 Divorced Spouse's Benefits Based On Putative Marriage - Illinois Felman L~

DATE: May 22, 1984

1. SYLLABUS

UNMARRIED CONSORT ENTITLED TO INHERIT AS SPOUSE -- PUTATIVE MARRIAGE -- ILLINOIS

Effective October 1, 1977, Illinois law provides that where a person goes through a ceremonial marriage and cohabits with an individual in the good faith belief that they are validly married, that person is a putative spouse with all the rights of a legal spouse (including inheritance) until the status is terminated by knowledge of an impediment at which point no new rights may be acquired. The impediment need not have been removed and the status may continue after separation.

A divorced putative spouse acquires rights of maintenance subsequent to termination of the benefits and thus is entitled to benefits on the basis of an application or death of the number holder after October 1, 1977, the effective date of the Illinois statute. (L~, Felman, ~ -- RAV (P~), to ARC, 05/22/84.)

2. OPINION

You have asked us to review the file of Eva L~ for a determination of her possible eligibility for wife's insurance benefits on the account of Felman L~ . For the reasons discussed below, we believe that the claimant may be entitled to benefits if she can demonstrate her good faith belief in the validity of her marriage to Felman L~.

FACTUAL BACKGROUND

The wage, earner, Felman L~ , married Gertrude K~ in Georgia in 1934. They separated in '1936 Lester claims a divorce was granted by a court in Eastman, Georgia during 1972. Despite several attempts, the Social Security Administration has been unable to locate the supposed divorce certificate. 1_/

Felman L~ married Eva L~ in Chicago on January 12, 1948. They lived together .until 1969 and a divorce was granted on September 11, 1974 on the ground of desertion..

L~ entered into a third marriage to Maxine S~ in Chicago in November, 1973.' The latest information in the claims folder indicates that they are still living together.

L~ has apparently further admitted lathering a child with Dorothy W~ . A support order-Was entered against L~ requiring him to contribute to his minor son's support.

Eva L~ marriage to Felman L~ was her second marriage. Her prior marriage to Curtis P~ , begun in 1937, ended in divorce in 1941.

Felman L~ became entitled to retirement insurance benefits in August, 1979. On August 6, 1979, Eva L~ filed for wife's benefits on Felman L~'s account. She has been receiving benefits since then. Gertrude L~ (K~ ) also sought benefits from the L~ account on September 29, 1981.

DISCUSSION

The Social Security Act defines the requirements for claiming wife's status. Section 216(h)(1)(A) of the Act provides that:

An applicant is the wife .... or widow of a fully or currently insured individual for purposes of this title if the courts of the State in which such insured individual is domiciled at the time such applicant files an application, or, if such insured individual is dead, the courts of the State in which he was domiciled at the time of death, or, if such insured individual is or was not so domiciled in any State, the courts of the District of Columbia, would find that such applicant and such insured individual were validly married at the time such applicant files such application or, if such insured individual is dead, at the time he died.

42 U.S.C. §416(h)(1)(A)- 20 C.F.R. §404.345 (1980). Since Felman L~ was domiciled in Illinois at the time he applied for benefits, reference to Illinois law is required to determine whether he and Eva entered into a valid marriage.

1. Putative spouse status

You have asked us if the above facts constitute a putative marital relationship between Eva and Felman L~ under Illinois Law. Effective October 1, 1977, the State of Illinois enacted the Marriage and Dissolution of Marriage Act, codified at Ill. Rev. Stats. Ch. 40, §§101-802 and derived in large part from the Uniform Marriage and Divorce Act. Paragraph 305 of the Act recognizes a putative spouse. The Act provides that a person who goes through a marriage ceremony and cohabits with another person in the good faith belief that he or she is validly married to that person is a putative spouse and acquires all the rights of a legal spouse (including the right to inherit) until knowledge of the fact that he or she is not legally married terminates such status and prevents the acquisition of further rights. See Daniels v. Retirement Bd. of Policeman's Annuity, 62 Ill. App. 3d 412, 62 Ill. Dec. 304, 435 N.E.2d 1276 (1982); Sostock v. Reiss, 92 Ill. App. 3d 200, 47 Ill. Dec. 781, 415 N.E.2d 1094 (1980). Estate of Schisler, 81 Ill. App. 3d 280, 36 Ill. Dec. 620, 401 N.E.2d 301 (3d Dist. 1980). Paragraph 305 does not require removal of the impediment to a prohibited marriage in order to confer putative spouse status and does not require that the parties cohabit after removal of the impediment. Moreover, Paragraph 305 does not require continued cohabitation of the parties to maintain the status of putative spouse. Therefore, separation of the parties does not itself terminate putative spouse status, assuming that the separation is for reasons other than knowledge of the legal invalidity of the marriage. See Morris B~ , ~~ RA (Dorn) to Director, IPB V, 7/19/82; Ambers H~ G~ , ~, RA V (A~) to Director, IPB V, 12/11/80 at 4.

In this case, Eva and Felman went through a ceremonial marriage in Illinois and have submitted their marriage certificate to SSA. They lived together for over 20 years, had children and thus presumably met the cohabitation requirement. The record must show that Eva had a good faith belief in the validity of her marriage to Felman until the date of his application for benefits in order to be entitled to putative spouse status. Paragraph 305 does not specify what is required to establish good faith. Its existence is a question of fact to be determined on a case by case basis, by reviewing the claimant's statements in conjunction with anything which would cast doubt upon the credibility of those statements. Additional development is needed by SSA on this point.. See In re Marriage of Flores, 96 Ill. App. 3d 279, 421 N.E.2d 393 (1st Dist. 1981) (individual is entitled to evidentiary hearing by courts on putative spouse status). There is no indication in the record whether Eva was aware of either 'the existence of Felman's prior marriage or its status. If SSA is satisfied that she meets the good faith test, we believe Eva L~ is entitled to benefits on Felman's account. See Marvin B~, ~ , RA V (Dorn) to Director, IPB 4/29/83; B~ supra at 6,'"'7; Robert M~ , ~, RA VIII (C~) to RC, SSA, 4/29/79. We are enclosing several opinions which have analyzed the good faith problem for your use.

3. Divorced spouse benefits to a putative spouse

You have asked us whether a divorced spouse may base a claim for benefits upon putative spouse status. We believe that a spouse may in Illinois. Ill. Rev. Stat. ch. 404, §305 assumes that a divorced putative spouse acquires the rights conferred upon a legal spouse "including the right to maintenance following termination of his status." The statute notes that rights acquired by putative spouses may not exceed those of a legal spouse but "the court shall apportion property, maintenance and support rights among the claimants as appropriate in the circumstances and in the interests of justice." The historical and practice notes accompanying the statute specify that the "rights of the putative spouse include the right to division of marital property under Section 503, the right to maintenance under 504 and inheritance rights." The notes further provide that the purpose of the putative spouse statute is to protect those "who in good faith consider themselves married, who have established and maintained a family relationship and who, in the absence of such a statute, would be denied both the economic and status incidents of marriage." This rationale applies equally to divorced and widowed spouses. The Act's language regarding division of marital property and maintenance would be superfluous if it did not apply to divorced spouses.

The POMS manual is in accord with this position. The Illinois section of GN 00305.275 F states that:

"A putative marriage may be established in Illinois to give the status of wife or husband to a person who applies for benefits as the spouse of a WE on or after October 1, 1977, or to give the status of widow or widower to a person who applies for benefits as the surviving spouse of a WE who died on or after October 1, 1977.

See also "Divorced Mother's Benefits based on putative marriage, ~ - Arthur C. K~" 10/29/80.

4. Benefits on putative spouse basis may be claimed if the WE either applied for benefits or died after October 1, 1977.

The putative spouse provision of the Illinois statute came into effect on October 1, 1977. The Act is not retroactive. See G~ supra at 4-5. However, the key point at which the relationship is analyzed is either at the time of a WE's application for benefits or at his or her death. Separation prior to October, 1977 does not mean a loss of benefits to the spouse seeking benefits on the WE's account if the application for benefits or death occurred after October 1977 and the claiming party maintained a good faith belief in the validity of the marriage subsequent to that date. See B~, supra Alberta K~ , ~ , RA (K~) to Director, IPB 2/12/82; Willie A~ , ~ , RA V (B~) to RC SSA V, 8/31/81; Frank P~ ,

The POMS provision reflects and is consistent with these opinions. GN 00305.275F states that putative spouse status may be established where either the WE applies for benefits or dies after October 1, 1977.

In summary, our review of the facts and law in this case lead us to conclude that Eva L~ may claim benefits on Felman's account if she can meet the good faith standard required by Illinois law. We believe you may wish to develop additional facts to make a determination as to the existence of good faith.

1_/ Gertrude K~ claims that the marriage was never terminated. Felman L~ has been unwilling to cooperate with SS. He maintains that he was divorced from Gertrude but wasn't going to talk to SSA about it (Report of Contact 4/29/81).

E. PR 83-007 Putative Marriage in Illinois - Marvin B~, DWE,~ Mayme B~, Claimant DATE: April 29, 1983

1. SYLLABUS

MARRIAGE -- VALIDATION OF ILLEGAL MARRIAGE -- ILLINOIS

The presumption of the validity of the latter of two or more conflicting marriages can be rebutted by convincing evidence.

The validity of the marriage cannot be upheld based upon a statute which provides that a marriage prohibited due to an undissolved prior marriage may become valid when the impediment is removed because the claimant was not living with the wage earner at the time of his death. (B~ Marvin, ~ -- RAV (Dorn), to ARC, 04/29/83.)

UNMARRIED CONSORT ENTITLED TO INHERIT AS SPOUSE -- PUTATIVE MARRIAGE -- ILLINOIS

Evidence that the claimant believed in good faith that she was validly married to the wage earner and maintained that belief up until the time of his death would enable her to meet the requirements of a putative spouse. (B~, Marvin, ~ -- RAV (Dorn), to ARC, 04/29/83.)

2. OPINION

This is in response to your memorandum requesting our assistance in determining whether Mayme B~ is entitled to widow's benefits as the "putative spouse," under Illinois law, of Marvin B~ The wage earner died on July 22, 1980. We conclude that, assuming the existence of a good faith belief on the claimant's part in the validity of her 1946 marriage to the wage earner that continued up until the date of his death, the claimant is entitled to benefits.

Facts

The relevant facts may be briefly summarized: The wage earner married Gertrude F~ on October 16, 1940 in Atlanta, Georgia. The parties separated in 1946, and the wage earner moved to Chicago shortly thereafter. The wage earner married Mayme H~ (the claimant in this case) on December 25, 1946 in Chicago. Although the claimant and the wage earner separated in 1953 or 1954, a search of Cook County divorce records from 1946 to 1980 indicates no evidence of a divorce between the claimant and the wage earner. The wage earner apparently lived in Cook County from 1946 until his death in 1980. On October 5, 1954, the wage earner obtained in Cook County Circuit Court an ex parte divorce from his first wife, Gertrude. l_/ The wage earner married Faye W~ on December 2, 1958 in Lake County, Indiana.

The wage earner applied for disability benefits on March 28, 1979. On his application, he listed his "current or last" marriage as being to Faye B~ in "1958" in Indiana, with the marriage ending in divorce in Chicago in "1975." He listed his "previous" marriage as being to Gertrude F~ in "1940" in Georgia, with the marriage ending in divorce in Chicago in "1945." In a subsequent statement, the wage earner indicated that he had married Mayme B~ in "1946" in Chicago and had divorced her "prior to my marriage to Faye in 1958."

Gertrude B~ applied for and was awarded surviving divorced wife's benefits in 1980. In her August 18, 1980 application, Gertrude listed her marriage to the wage earner as the latter's only marriage. She indicated that the marriage had ended in divorce in Chicago in the "late 1950's." She also stated that she never filed for divorce from the wage earner, whose mother had informed her "sometime during the 1950's or 1960's" that he was filing for divorce. However, Gertrude "never heard if he went through with it."

The claimant applied for widow's benefits on May 24, 1982. She listed her own marriage to the wage earner as ending in his death and listed the wage earner's marriage to Gertrude as a "previous marriage" that had ended in divorce. She indicated that the information as to the dates and locations of the wage earner's marriage to and divorce from Gertrude was contained in a "prior file," presumably referring to the wage earner's 1979 application for disability benefits. The claimant did give Gertrude's date of birth as July 1, 1915. The claimant also stated that she never divorced the wage earner nor was she aware that the wage earner had divorced her. She also indicated:

I do know that he [the wage earner] had been married to another woman .... I do not know if he married the other woman before our marriage or after our marriage.

Finally, the file contains an application dated August 19, 1980 for lump-sum death benefits. This application was filed by Betty H~ , the claimant's daughter by the wage earner. According to Betty, the wage earner married Faye G~ in Chicago, "date unknown," and was divorced from her in "1975" in Chicago. He married Mayme H~ in Chicago on December 25, 1946, and was divorced from her in Chicago, "date unknown." He married Gertrude - last name "unknown" - in Atlanta, Georgia, "date unknown," and was divorced from her in Atlanta, "date unknown."

Analysis

Pursuant to the Social Security Act and its implementing regulations, a claimant is entitled to benefits as the wife or widow of a wage earner on the basis of (1) a valid ceremonial marriage, (2) a "deemed" or "de facto" marriage, (3) a common-law marriage recognized under applicable state law, 2_/ or (4) a "putative" marriage recognized under applicable state law. 3_/ 42 U.S.C. 416(h)(1); 20 C.F.R. 404.344-404.346, 404.723-404.727, POMS GN 00305.040. Illinois does not recognize common-law marriage entered into after June 30, 1905. Ill. Ann. Stat. ch. 40 ~214 (S~-H~ 1980). The claimant is not entitled to benefits as the "deemed spouse" of the wage earner under 42 U.S.C. 416(h)(1)/B) since she was not living with the wage earner at the time of his death (even assuming that she had a good faith belief in the validity of her marriage to the wage earner). Thus, the issue in this case is whether either (1) a valid ceremonial marriage between the claimant and the wage earner existed or (2) the claimant satisfies the requirements of a "putative spouse" under Illinois law. We conclude that the claimant is not entitled to benefits under the first possibility, but may be entitled to benefits as a putative spouse if you determine that she possessed the requisite "good faith belief" in the validity of her marriage to the wage earner.

1. Ceremonial marriage - The claimant and the wage earner entered into a ceremonial marriage in Chicago on December 25, 1946. However, the wage earner had married Gertrude F~ on October 16, 1940, and there is no evidence of the dissolution of this latter marriage other than the October 5, 1954 Cook County divorce decree. Nevertheless, the claimant may possibly be considered the legal wife of the wage earner pursuant to Illinois' presumption in favor of the validity of the latter of two or more conflicting marriages. Sparling v. Industrial Commission, 270 N.E.2d 411 (Ill. 1971); Davis v. Califano, 603 F.2d 618 (7th Cir. 1970). In the alternative, the claimant's marriage to the wage earner may possibly have been validated pursuant to Ill. Rev. Stat. ch. 40 ~212 (S~-H~ 1980), which, as enacted in 1977, provides that a marriage prohibited because it was entered into prior to the dissolution of an earlier marriage of one of the parties becomes valid when the impediment is removed and the parties continue to cohabit after removal of the impediment. However, we have concluded that neither the above-cited evidentiary presumption nor the statutory provision validate the claimant's marriage to the wage earner.

Illinois' presumption of the validity of the latter of two or more conflicting marriages may be rebutted "by evidence which, standing alone, affords reasonable grounds for concluding that no divorce (of the prior marriage) has been secured." Sparling v. Industrial Commission, 270 N.E.2d 411 (Ill. 1971). We have previously indicated that this standard is not a strict one. P~, Frank L.,~~, RA V (D~) to Director, IPBV, 8/24/81. In the instant case, the wage earner stated on his March 28, 1979 application for disability benefits that his marriage to Gertrude had ended in divorce in Chicago in "1945"; however, this assertion is undermined by the October 5, 1954 divorce decree that indicates that the wage earner had sought the divorce from Gertrude. For her part, Gertrude stated in her 1980 application for surviving divorced wife's benefits that she had never divorced the wage earner and that the latter's mother had informed her that the wage earner had obtained a divorce "sometime during the 1950s or 1960s." We recognize that Gertrude would be unlikely to admit to a divorce between the wage earner and her prior to 1950, since a surviving divorced wife, under the Social Security Act, must have been married to the wage earner for at least ten years. We also note that Gertrude and the wage earner were married in Atlanta in 1940, and there is no evidence as to whether either Gertrude or the wage earner obtained a divorce in Georgia prior to December 25, 1946 (When the wage earner married the claimant in Chicago). _4/ Based on the available evidence, however, we deem it unlikely that either party obtained such a divorce.

While the issue is not free from doubt, we believe that the evidence reasonably indicates that Gertrude's marriage to the wage earner had not been terminated prior to December 25, 1946. Thus, the presumption of the validity of the claimant's marriage to the wage earner is rebutted. Because the wage earner's prior to marriage to Gertrude was undissolved at the time of his marriage to the claimant, the latter marriage was invalid under the former Marriage Act (Ill. Rev. Stat. ch. 89, ~11 (1975)) and its predecessors.

Under paragraph 212(b) of the Illinois Marriage and Dissolution of Marriage Act of 1977, Ill. Rev. Stat. ch. 40 ~101 et seq., a marriage that is prohibited because it was entered into prior to the dissolution of an earlier marriage of one of the parties becomes valid when the impediment is removed and the 'parties continue to cohabit after removal of the impediment. As just discussed, Mayme's marriage to the wage earner in 1946 was prohibited under Illinois law. In G~ , Ambers Harlan, ~, RA V (Abrams) to Director, IPB V, 12/11/80, we stated that paragraph 212 would be applied only in those cases where the wage earner died on or after October l, 1977, the effective date of the Marriage and Dissolution of Marriage of Act. In the present case, the wage earner died on July 22, 1980. Nevertheless, paragraph 212 does not validate the claimant's marriage to the wage earner. First, the statute requires that the parties have cohabited following removal of the impediment. The impediment to the claimant's marriage to the wage earner was removed by the October 5, 1954 decree of divorce between the wage earner and Gertrude B~ . The claimant has stated that she and the wage earner separated in "1953 or 1954;" thus, it is unlikely that the parties cohabited following removal of the impediment. Second, we stated in B~ , Morris, , RA V (Dorn) to Director, IPB V, 7/19/82, that paragraph 212 "does not validate a marriage contracted prior to October 1, 1977, where the impediment to the marriage was removed prior to that date and the parties no longer cohabited after that date." This conclusion was based on case law and the legislative history of paragraph 212. 5_/ Since the claimant and the wage earner did not cohabit subsequent to October l, 1977 (even assuming that they cohabited following removal of the impediment), paragraph 212 does not validate their marriage.

2. Putative spouse - Paragraph 305 of the Illinois Marriage and Dissolution of Marriage Act of 1977 provides that a person who goes through a marriage ceremony and cohabits with another person in the good faith belief that he or she is validly married to that person is a putative spouse and acquires all the rights of a legal spouse (including the right to inherit) until knowledge of the fact that he or she is not legally married terminates such status and prevents the acquisition of further rights. In the G~ opinion, we stated that paragraph 305, like paragraph 212(b), was inapplicable in the cases of wage earners dying prior to October l, 1977. However, in the B~ opinion, we stated that unlike paragraph 212(b), paragraph 305 does not requires the parties to have cohabited subsequent to October 1, 1977, so long as the claiming party maintained a good faith belief in the validity of the marriage subsequent to that date. B~, supra, at note 3; see also K~ , Alberta, ~, RA V (K~) to Director, IPB V, 2/12/82; P~, Frank L., ~, RA V (Dorn) to Director, IPB V, 8/24/81.

Moreover, paragraph 305 does not require removal of the impediment to a prohibited marriage in order to confer putative spouse status, and accordingly, does not require that the parties have cohabited after removal of the impediment. We have also indicated that paragraph 305 does not require continued cohabitation of the parties to maintain the status of putative spouse. Accordingly, separation of the parties does not itself terminate putative spouse status, assuming that the separation is for reasons other than knowledge of the legal invalidity of the marriage. B~, supra, at page 6; G~, supra, at page 4.

Thus, the claimant qualifies as the putative spouse of the wage earner so long as she maintained a good faith belief in the validity of her marriage to the wage earner up until the date of his death. We believe that it is most appropriate for your office to make this determination. The existence of good faith is a question of fact to be determined on an individual case basis, by reviewing the claimant's statements in conjunction with anything in the record which would cost doubt upon the credibility of those statements. By way of comment, we observe that it is unclear, based upon the claimant's statements along with the rest of the record, whether the claimant possessed the requisite good faith belief. On her May 24, 1982 application for widow's benefits, the claimant stated that she knew that the wage earner "had been married to another woman" but that she did not know "if he married the other woman before our marriage or after our marriage." However, on the same application, the claimant listed the wage earner's marriage to Gertrude B~ as a "previous marriage." It is not clear whether the claimant acquired this apparent knowledge of the wage earner's "previous" marriage before or after his death. We have previously indicated that a claimant's right to inherit personal property as a putative spouse under Illinois law (and thus be entitled to widow's benefits under 42 U.S.C. 416(h)(1)) vests at the time of the wage earner's death and cannot be divested even if the claimant later learns of the wage earner's prior marriages. P~ , supra, at pages 5-6.

You may wish to develop additional facts pertinent to a determination of the existence of good faith. We conclude here that so long as Mayme B~ meets her burden of establishing a good faith belief in the validity of her marriage to the wage earner that continued up until the date of his death, she is entitled to widow's benefits.

1/ The stated ground for the divorce was Gertrude's "desertion" of the wage earner in 1946.

2/ A "deemed" or "de facto" marriage is one in which the claimant went through a marriage ceremony with the wage earner in good faith, although the marriage is later determined to be invalid due to a defect in the procedure followed or due to a prior undissolved marriage of. one of the parties; the claimant must have been living with the wage earner at the time the application for benefits is filed (if the wage earner is living) or at the time of the wage earner's death. 42 U.S.C. §416(h)(1)(B); 20 C.F.R. §404.346.

3/ A "putative" marriage is one which even though not valid permits a good faith spouse to inherit under a state's intestate succession law. 42 U.S.C. §416(h)(1)(A); 20 C.F.R. §404.345. A "putative" marriage is distinguished from a "deemed" marriage (note 2, supra) in that the latter may be established without reference to state law.

4/ You may wish to determine whether either Gertrude or the wage earner secured a divorce in Georgia prior to December 25, 1946. If either did so, then Mayme's marriage to the Claimant would be valid, and Mayme would be entitled to widow's benefits as the wage earner's legal widow.

5/ As we noted in the B~ opinion, however, so long as the parties have cohabited subsequent to October l, 1977, paragraph 212 applies even though the prohibited marriage occurred prior to that date. See F~ , Louis, ~ , RA V (M~) to Director, IPB V, 3/28/80. We also observed in B~ that while 'the parties must have cohabited at some point subsequent to October l, 1977, no particular period of cohabitation is required. B~, supra, at note 2.

F. PR 82-016 Putative Spouse - Illinois - J. C. W~, DWE, ~, Mercy W~ Claimant

DATE: June 17, 1982

FROM:

1. SYLLABUS

MARRIAGE - Validity -- In General

In order to establish a putative marriage one must have gone through a marriage ceremony and have cohabited with another party in the good faith belief that they were married to each other. A determination as to the credibility of the person obliging the good faith belief is necessary.

(W~ Jo C. - Putative Spouse (W~) RA V to DIR., IPB 6/17/82)

MARRIAGE - Presumption of Validity of Second Marriage

Putative spouse status ended at the point of which the wife believed that the husband divorced her and, proceeding on that belief, married another.

(W~ Jo C. - Putative Marriage (W~) RA V to DIR., IPB 6/17/82)

2. OPINION

This is with reference to your memorandum pertaining to the above captioned matter.

Mercy W. W~, the claimant, filed an SSA-4 on January 11, 1978 for benefits for her and J. C. W~ son, Verdale J. W~ Simultaneously, the district office began to review the possibility of claimant receiving wife's benefits as the widow of J. C. W~ the deceased wage earner.

The wife's benefits review centered around a marriage certificate which indicated that claimant and the wage earner were married on July 20, 1965 in Muskegon, Michigan. The wage earner, however, had filed an SSA-1 on August 10, 1976 which showed that his only marriage was to a Carrie L. G~ (Carrie) in 1930. He indicated that he and Carrie were separated, and on January 3, 1978 he stated that he and claimant were never married. On an SSA-3 signed by the wage- earner on May 6, 1980, he indicated that there was no marriage to claimant and that his only marriage was to Carrie, to whom he was still married. The wage- earner said later that he and claimant were married for a while, but that she had divorced him in Chicago in either 1968 or 1969. A search of divorce records was made by the department, but no such record was found.

On January 26, 1979 claimant stated that the wage earner told her that he had divorced her in Muskegon, Michigan. No record of this divorce was found. Later, on February 27, 1981, claimant stated that a friend of the wage earner informed her that the wage earner had divorced her.

Claimant alleged that she had no knowledge of the wage earner's prior marriage. She stated that to the best of her knowledge, wage earner had never been married before, although their marriage license indicated that he had one prior marriage. When confronted with this fact, claimant stated simply that she did not read the marriage license before she signed it. Claimant had two prior marriages, one of which ended by death, the other by divorce.

At present, claimant is separated from a fourth "husband." She stated that based on the wage earner's statement that he had divorced her, she married Levi in 1973. W~ told her that his wife was dead. She later discovered that his wife was alive and that his prior marriage had not been dissolved. Upon gaining this information, claimant left

The wage earner died on May 28, 1980. Carrie G. W~ filed an application for the lump-sum death payment. She stated that she had never divorced the wage earner and had not been informed that he had divorced her. Furthermore, she paid all burial expenses and was paid the lump-sum based on equitable entitlement. She did not file an application for widow's benefits because she is receiving higher benefits on her own record.

The issue presented by your memorandum is whether claimant is entitled to benefits as the wife and widow of the wage earner under section 305 of the Illinois Marriage and Dissolution of Marriage Act (hereinafter "Act").

Section 305 of the Act, in pertinent part, provides:

Any person, having gone through a marriage ceremony, who has cohabited with another to whom he is not legally married in the good faith belief that he was married to that person is a putative spouse until knowledge of the fact that he is not legally married terminates his status and prevents acquisition of further rights. A putative spouse acquires the rights conferred upon a legal spouse including the right to maintenance following termination of his status, whether or not the marriage is prohibited, under Section 212, or declared invalid, under Section 301. If there is a legal spouse or other putative spouse, rights acquired by a putative spouse do not supersede the rights of the legal spouse or those acquired by other putative spouses, but the court shall apportion property, maintenance and support rights among the claimants as appropriate in the circumstances and in the interest of justice... (Footnotes omitted).

Pursuant to section 305, therefore, claimant will be entitled to benefits as the wife and widow of the deceased wage earner if she can be deemed to have been his putative spouse at the time of his death. Under the statute, in order to be considered a putative spouse one must satisfy two requirements: one must have gone through a marriage ceremony; and one must have cohabited with another in the good faith belief that they were married to each other. Auerbach, M. and Jenner, A. Historical and Practice Notes, following Ill. Ann. Stats. ch 40, §305 (S~-H~).

Under this two-pronged test, it appears that claimant can be deemed to have the putative spouse of the wage earner in 1965. The facts reveal that they went through a marriage ceremony. The Certificate of Marriage indicates that claimant and the wage earner were married in Muskegon, Michigan on July 20, 1965. While section 305 does not specify what constitutes proof of a "marriage ceremony," section 2452(c) of the Claims Manual denominates a marriage certificate as valid proof of a ceremonial marriage. Thus, claimant satisfies the first prong of the test.

It is questionable, however, whether claimant cohabited with the wage earner in the good faith belief that they were married to each other. The operative phrase in this test is "good faith belief." Good faith is always a question of fact. The commentators have suggested that in making that factual determination factors such as the education, intelligence and experience of the person claiming putative spouse status should be considered. 50 Cal. L. Rev. 866, 866 (1962). It is against this background that the facts in this case must be evaluated.

On the one hand, it appears that claimant, an older woman of average intelligence, reasonably could have believed that she was the legal spouse of the wage earner. Claimant and the wage earner lived together as husband and wife from the date of their marriage until the early 1970's. During that time, they conceived a child, Verdale J. W~, on whose birth certificate J. C. W~ (the wage earner) is listed as the father and Mercy L. W~ (claimant) as the mother. Additionally, they filed a joint tax return as husband and wife for the year 1969. These facts, coupled with their marriage ceremony, indicate that the claimant had a reasonable basis for the good faith belief that she was cohabiting with the wage earner as his spouse.

Conversely, there are facts which raise doubts about claimant's credibility and, therefore, her good faith. Claimant stated that she did not know that the wage earner had a prior marriage, although their marriage license stated clearly that he was married once before. When confronted with that fact, Mercy claimed not to have read that entry. On the Affidavit For License to Marry which claimant signed, creating a legal presumption she had read the information contained thereon, there is a statement indicating that the wage earner had been married and divorced. This could be interpreted to indicate that she was deceptive when stating that she knew nothing of W~ marital history.

Furthermore, on her application for wife's benefits, dated April 29, 1980, claimant indicated that she had "never been notified that Mr. W~ divorced [her]..." If this statement means that she had never been told by anyone, either officially or unofficially, that the wage earner divorced her, it is inconsistent with all of her prior statements to the effect that wage earner and his friends informed her that he had divorced her. This inconsistency would cast further doubts on her credibility. If, however, the statement means that she never received official notification, e.g. divorce papers, then there is no inconsistency, since the wage earner never filed for a divorce.

Although claimant's credibility is somewhat questionable, the greater weight of the evidence suggests that she satisfies the second prong of the putative spouse test. That is, claimant appears to have acted in good faith at the time that she married the deceased wage earner. Thus, having satisfied the requirements for putative spouse status, claimant may be deemed to have been the wage earner's putative spouse beginning in 1965.

Despite the fact that claimant should be accorded putative spouse status beginning in 1965, the question remains whether claimant can be considered the wage earner's widow. Resolution of this issue depends upon when claimant's status as the putative spouse of the deceased wage earner ended. If it ended prior to his death, then she cannot be considered his widow for benefit purposes. If her status continued until his death, then she may be considered his widow for benefit purposes.

Purusant to the Illinois Marriage and Dissolution of Marriage Act, putative spouse status terminates when the putative spouse learns that he or she is not legally married to the other person. Ill. Ann. Stats. Ch. 40, §305 (S~-H~). In this case, claimant's putative spouse status ended at the point at which she believed that the wage earner had divorced her and, proceeding on that belief, she married Levi W~ At that point, claimant believed that her marriage to W~ had been legally terminated by divorce and, more importantly, she no longer had a good faith belief in the validity of her marriage to the wage earner as required by the Act. Moreover, once claimant left W~ , she made no attempt to revive her putative spouse status with the wage earner. She never resumed cohabitation with the wage earner nor did she have ongoing contact with him.

Furthermore, claimant cannot be entitled to benefits as a "surviving divorced wife" since, pursuant to Section 216(d)(2) of the Social Security Act, that status is reserved for a woman who had been married to an individual for a period of ten (10) years before the divorce became effective. Accordingly, "surviving divorced wife" status would be inappropriate in this case since claimant was the putative spouse of J. C. W~ for, at most, eight (8) years, from 1965 through 1973, the point at which she married Levi W~

It is our opinion, therefore, that claimant was not the putative spouse of the deceased wage earner at the time of his death. Claimant's putative spouse status ended at the point at which she no longer believed that she was married to the wage earner. Claimant, therefore, is not entitled to wife's benefits as either the wage earner's widow or as his surviving divorced wife.

G. PR 82-001 Putative Marriage in Illinois -- Alberta K~ (A/N ~)

DATE: February 12, 1982

1. SYLLABUS

ILLINOIS--Where a marriage took place prior to the date of the divorce of one of the parties from a previous spouse, and the parties continued to cohabit after the date of the divorce at which time the impediment to the marriage was removed, the fact that the cohabitation was terminated prior to the enactment of the statute providing for putative marriage does not affect the claimant's status as putative spouse. (K~, Alberta, DWE, ~ - RA V (K~) to ARC, Programs - 2/12/82)

2. OPINION

This is with reference to your inquiry concerning whether the claimant, Mars K~, can be considered to be the surviving putative spouse of the wage earner, Alberta K~, and thus entitled to father's insurance benefits on her account.

Mars K~ married Clara V. F~ on July 4, 1959. That marriage ended in divorce on February 15, 1972. He married the wage earner on January 12, 1971, and that marriage ended with her death on September 7, 1980. Information in the claims folder indicated that Mars and the wage earner cohabited for several months after the February 15, 1972 divorce, the date of the removal of the impediment, but not subsequent to October 1977. The marriage license is included in the file.

Pursuant to Section 216(h)(1)(A) of the Social Security Act, 42 U.S.C. §416(h)(1)(A), an individual will be deemed the widower of a deceased wage earner if he would have the status of her widower for purposes of intestate succession under the laws of the state in which she was domiciled at her death. We have previously advised that since October 1, 1977 Illinois has provided for the recognition of a putative spouse if there has been a marriage ceremony and the moving party has cohabited with his or her partner in the good faith belief that they were validly married. Ill. Rev. Stat. ch. 40, §§212(b) andg305; CM §R2471; A~

Harlan G~,~ RA V (Abrams' to Actin( ARC SSA V (C~-J~), 12/11/80; Bloomey M~, A/N ~, RA V (Abrams) to Acting ARC (C~-J~), 1/6/81. However, neither section 212(b)nor section 305 of the Marriage Act, Ill. Rev. Stat. ch. 40, §§212(b) and 305, may be applied retroactively to affect the legal status of the decedent's survivors. Ambers H. G~, supra.

You have indicated that the precedential opinions concerning the interpretation of sections 212(b) and 305 of the Illinois Marriage Act, supra, involve couples whose impediments were removed after October 1, 1977, and who continued to cohabit after October l, 1977, the date of the enactment of the law in question. The question presented herein is whether the conclusions reached in our prior opinions apply where the couples last cohabited prior to October 1, 1977.

We believe that the question of how Mr. K~ separation from Alberta prior to October 1977 affected his possible status as a putative spouse has been previously answered. Ambers H~ G~, supra; Willie A~, ~, RA V (B~) to RC SSA V, 8/31/81. Copies of both opinions are attached hereto. The A~ case involved a wage earner who separated from the claimant in 'Illinois in 1975, four years before his death and two years before the enactment of the Illinois law recognizing putative marriages. The relevant portion of the G~ opinion quoted at page 3 of A~ states:

Section 305 also requires cohabitation of the parties, but does not stipulate that continued cohabitation is necessary to maintain the status of a putative spouse. Accordingly, in the absence of case law or commentary to the contrary, we do not believe that Section 305 requires termination of putative spouse status upon separation of the parties, assuming that any such separation was for reasons other than knowledge of the legal invalidity of the marriage.

Illinois Courts have even noted that the length of cohabitation is irrelevant and in one case a court stated "we assume that even one night of cohabitation is sufficient to invoke Section 212(b)." Matter of Estate of Schisler, 81 Ill. App. 280, 401 N.E. 2d 301, 303 (1980).

Accordingly, we conclude that Mars K~ may be considered the surviving putative spouse of the wage earner and entitled to father's insurance benefits on her account.

H. PR 81-010 Frank L. P~, D/W/E (a/k/a Louis P~ and Lewis P~), ~, - Sarah P~, Claimant for Mother's Benefits, Audrey P~, Claimant for Mother's Benefits

DATE: August 24, 1981

1. SYLLABUS

1. Marriage--Presumption of the validity of the last of two or more conflicting marriages - Illinois

Where there are two or more conflicting marriages, the most recent one is presumed to be valid. This presumption may be rebutted by evidence which, standing alone, affords a reasonable grounds for concluding that no divorce has been secured.

The testimony of a prior wife, together with a search of the divorce records of the husband's places of residence, is found to be sufficient evidence that no divorce had taken place and so rebuts the presumption of the validity of a subsequent marriage.

In the situation where testimony of the wife is unavailable and the places of residence of the husband were unknown for relevant periods of time so that divorce records could not be examined, the presumption of the validity of a subsequent marriage is not rebutted as there is insufficient evidence to indicate that no divorce had taken place.

2. Marriage--Putative

A person is considered a putative wife, i.e., has the same rights as a widow to inherit personal property under State law if (1) there was a marriage ceremony, (2) there was cohabitation, and (3) the spouse entered into the marriage in good faith. The putative relationship exists up until the time the spouse is informed of the prior undissolved marriage. However, should an individual die before his or her spouse is informed of the prior undissolved marriage inheritance rights vest at the time of death.

2. OPINION

This is in reference to your request for our assistance in determining whether either Sarah P~ or Audrey P~ is entitled to mother's benefits on the account of Frank L. P~. We conclude, for the reasons outlined below, that both claimants are so entitled - Sarah as the wage earner's legal widow and Audrey as his putative spouse under Illinois law. We also conclude that Audrey's entitlement may continue even if she later learns of the wage earner's prior marriage to Sarah,

The relevant facts may be briefly summarized: The wage earner was married at least four times prior to his death on November 16, 1979 in Chicago, Illinois. The first marriage was to Thelma G~ on December 15, 1945 in Columbus, Mississippi. This marriage was a ceremonial marriage. According to the wage earner's father, who lived in Columbus, the wage earner and Thelma separated shortly after their marriage but did not divorce. The wage earner married Eloise S~ on May 11, 1946 in Columbus. This marriage was also a ceremonial marriage. According to the wage earner's father, the wage earner and Eloise separated before the wage earner came to Chicago but never obtained a divorce. It is not clear from either the father's statement or the rest of the record when the wage earner came to Chicago, and there is no evidence of the wage earner's activities between 1946 and 1967.

OPINION

The wage earner married Sarah F~ on March 9, 1967 in Chicago. In her statement, Sarah alleged that the wage earner never told her about any prior marriage either before they were married or after they were separated in 1968. She also stated that she never divorced the wage earner and was never notified that the wage earner had divorced her. The wage earner married Audrey J~ on July 19, 1974. In her statement, Audrey. also alleged that the wage earner had never told her about any prior marriages. The wage earner listed Audrey as his spouse in an application for disability benefits in 1975. The wage earner and Audrey separated in 1976, and did not divorce prior to the wage earner's death.

The claims folder also indicates that the wage earner had a relationship with an Amanda B~ in Mississippi prior to 1950, but the nature and length of that relationship is unclear. A daughter, Barbara M~, was born in 1949. Both Sarah P~ and Audrey P~ knew Barbara. Sarah alleged that Barbara M~ informed her that the wage earner had been married once before he married Sarah. Barbara M~ did not tell Sarah the name of the first wife, but only that the first wife had divorced the wage earner before he married Sarah. Audrey alleged that Barbara M~~ told her that Audrey was the wage earner's only wife. As for Barbara, she orally stated to the District Office that she did not know anything about the wage earner's marital status. She also stated that he had been married to her mother, Amanda H~, in Mississippi, although she did not know where or when. She refused to make a written statement or furnish Amanda's address. There is no evidence of a ceremonial marriage between the wage earner and Amanda, nor is there evidence which would establish a valid common-law marriage in Mississippi (which was recognized until 1956).

The evidence therefore indicates that the wage earner was married four times: first, to Thelma G~ in Mississippi in 1945; second, to Eloise S~ in Mississippi in 1946; third, to Sarah F~ in Illinois in 1967; and fourth, to Audrey J~ in Illinois in 1974. Mississippi divorce records checked from 1945 through 1962 indicate no divorce between the wage earner and Thelma or between the wage earner and Eloise. Illinois divorce records checked from 1945 through November 1979 (the date of the wage earner's death) indicate no divorce between the wage earner and Thelma, the wage earner and Eloise, or the wage earner and Sarah. According to the wage earner's father, the wage earner was never divorced from either Thelma or Eloise. Thelma and Eloise apparently cannot be located. Sarah alleges that she and the wage earner were never divorced.

Sarah has filed for mother's benefits and child's benefits for Frank L. P~, born September 12, 1967. Audrey has filed for mother's benefits and child's benefits for Frank T. P~ born March 14, 1973. The entitlement of both children to benefits is not at issue here. You have asked us whether either Sarah or Audrey may be entitled as putative spouses under Section 305 of the Illinois Marriage and Dissolution of Marriage Act of 1977, ILL. REV. STAT., Ch. 40, par. 305 (S~-H~). We must first determine, however, whether either woman may be entitled as the legal widow of the wage earner.

Illinois follows the presumption of the validity of the last of two or more conflicting marriages. Sparling v. Industrial Commission, 270 N.E. 2d 411 (Ill. 1971); Davis v. Califano, 603 F.2d 618 (7th Cir. 1979); Baer v. DeBarry, 175 N.E. 2d 673 (Ill. App. 1971). Thus, in the absence of evidence to the contrary, a previous divorce will be presumed in order to sustain a subsequent marriage. Under this rule, the marriages of the wage earner to Thelma, Eloise, and Audrey are therefore presumed to have terminated in divorce (or death), and his marriage to Audrey is presumed to be valid.

However, the presumption may be rebutted 'by evidence which, standing alone, affords reasonable grounds for concluding that no divorce has been secured." Sparling v. Industrial Conmission, 270 N.E. 2d at 413. This standard is not a strict one. In Sparling, the Illinois Supreme Court found the presumption rebutted on the basis of the prior wife's testimony, along with the lack of evidence that a divorce had been obtained prior to the deceased's second marriage (although divorce records were not checked). In Davis v. Califano, 603 F.2d 615 (7th Cir. 1979), which involved the claims of the deceased wage earner's two wives to widow's disability benefits, the Seventh Circuit, after examining Illinois law, found that the presumption of the validity of the second marriage was rebutted by the testimony of the first wife and by searches of the divorce records of the wage earner's places of residence, which revealed nothing.

Based on these precedents, we find that the presumption of the validity of the wage earner's fourth marriage to Audrey is rebutted with regard to his third marriage to Sarah. Sarah stated that she never divorced the wage earner nor was she ever notified that the wage earner had divorced her. A search of Cook County divorce records revealed no divorce between the wage earner and Sarah. There is no evidence that either the wage earner or Sarah resided elsewhere from the time of their marriage in 1967 until the wage earner's death. The available evidence thus affords "reasonable grounds" for concluding that no divorce was ever secured between the wage earner and Sarah. Thus, as between Sarah and Audrey, Sarah is the legal widow of the wage earner.

As between the wage earner's marriage to Sarah and his prior two marriages to Thelma and Eloise in Mississippi, however, the presumption of the validity of the marriage to Sarah is not rebutted. While divorce records in Columbus, Mississippi from 1945 through 1962 and in Chicago, Illinois from 1945 through 1979 reveal no divorce between the wage earner and either Thelma or Eloise, the claims file does not indicate the exact whereabouts of the wage earner-between 1946 (the date of his marriage to Eloise in Mississippi) and 1967'(the date of his marriage to Sarah). There is also no evidence concerning the residences of either Thelma or Eloise subsequent to the time each separated from the wage earner. While the wage earner's father stated that the wage earner was never divorced from either Thelma or Eloise, this statement is probative only as to the time the wage earner resided in Mississippi. The available evidence therefore fails to afford "reasonable grounds" for concluding that no divorce was secured between the wage earner and either Thelma or Eloise. Accordingly, we conclude that Sarah P~ is the legal widow of the wage earner and is entitled to mother's benefits based on his account.

We must also determine, however, whether Audrey may also be entitled to benefits as the wage earner's putative spouse. Under Section 202(g)(1) of the Social Security Act, 42 U.S.C. §402(g)(1), an individual is entitled to mother's insurance benefits if she is the "widow" of a fully or currently insured individual and has in her care a child of such individual entitled to a child's benefit. Under Section 216(h)(1)(A), 42 U.S.C. §416(h)(1)(A), an applicant is the widow of a deceased wage earner if she was validly married to the wage earner under state law or if she has the same rights as a widow to inherit personal property under state law. See also 20 C.F.R. §§404.339(a), 404.345; 'Claims Manual §502(a). l/

Illinois law provides that a person who goes through a marriage ceremony and cohabits with another person in the good faith belief that he or she is validly married to that person is a putative spouse and acquires all the rights of a legal spouse (including the right to inherit) until knowledge of the fact that he or she is not legally married terminates such status and prevents the acquisition of further rights. ILL. REV. STAT. Ch. 40 par. 305 (S~-H~). We believe that under this provision Audrey is the putative spouse of the wage earner and would therefore be entitled to inherit personal property from his estate. Section 305 sets forth three requirements for the status of putative spouse: (1) a marriage ceremony, (2) cohabitation, and (3) good faith. The wage earner and Audrey went through. a marriage ceremony, as indicated by the marriage certificate submitted by Audrey. The statute does not require any specific period of cohabitation. In Estate of S~, 401 N.E. 2d 301 (Ill. 1980), however, the Illinois Supreme Court held that since §212(b) of the Marriage Act, which validates prohibited marriages where the parties cohabit after removal of the impediment, mentions no length of time, "even one night of cohabitation" was sufficient to invoke its provisions. Similarly, we believe that one night of cohabitation is sufficient under §305. Finally, while §305 does not specify what is required to establish good faith, the Court in Schisler found a putative marriage under §305 on the basis of the putative spouse's uncontradicted testimony. In the present case, we find Audrey's allegations of good faith to be uncontradicted by the other evidence in the record.

Audrey is therefore the putative spouse of the wage earner under Illinois law 2--/ and is entitled to mother's benefits on that basis. You have also asked us whether the entitlement of Sarah or Audrey would terminate if either subsequently learned of the wage earner's prior marriages. We answer this question in the negative. Since under Illinois law, the first two marriages of the wage earner are presumed to have ended in divorce and Sarah is the legal widow of the wage earner, it is irrelevant whether Sarah learns of the prior marriages. With regard to Audrey, her rights to inherit the wage earner's personal property became vested at the time of his death and cannot be divested even if she later learns of the prior marriages. Since there is no evidence that Audrey knew of the earlier marriages prior to the wage earner's death, her right to inherit, and her subsequent right to mother's benefits, are fixed and cannot be affected even if she subsequently learns of the prior marriages.

We conclude, therefore, that both Sarah P~ and Audrey P~ are entitled to mother's insurance benefits and will continue to be so entitled until one of the specified events in Section 202(g)(.1) occurs.

1/ Claims Manual §502(a) states in part: -- In some instances it may be possible for more than one person to meet the relationship test on the same [earnings record], i.e., one claimant can meet the valid marriage test, and another can qualify under the inheritance test.

2/ While 6305 was not effective until October 1, 1977 and Audrey's marriage to the wage earner occurred in 1974, we believe that §305 is still applicable. Because inheritance rights vest at the time of the decedent's death, Audrey's status as a putative spouse is to be determined as of that date.


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PR 05705.016 - Illinois - 07/18/2008
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