PR 05705.026 Minnesota

A. PR 02-008 Widow's Benefits, Putative Marriage - Minnesota, Kathleen M. D~, Putative Widow of Numberholder

DATE: January 22, 2002

1. SYLLABUS

The claimant can be considered the NH's putative widow in Minnesota if the SSA fact-finder finds that: (1) she had a good faith belief at the time she married the NH that he either had never married or had divorced prior to marrying her, so that he was free to marry; and (2) this good faith belief continued until Roger died. The evidence in this case does not compel a finding that this test was either met or not met. Cases involving Minnesota putative marriages should continue to be submitted for a legal opinion where, as in this case, there is some question as to whether the facts of the case compel a finding that the legal test for putative spouse either is or is not met. However, where the evidence is clear on its face that good faith, and continued good faith, did or did not exist, the case may be decided without a legal opinion.

2. OPINION

Kathleen D~ (Kathleen) has applied for widow's benefits based on the earnings of Roger D~ (Roger). You have asked whether she can be entitled to widow's benefits based on a putative marriage in Minnesota. You have also asked for clarification of GN 00305.085G., which states that all cases with an allegation of a putative marriage must be submitted for a legal opinion.

For the reasons discussed below, we conclude that Kathleen can be considered Roger's putative wife if the Agency fact-finder finds that: 1) Kathleen had a good faith belief at the time she married Roger that he either had never been married or had divorced prior to marrying her, so that he was free to marry; and 2) that this good faith belief continued until Roger died. We conclude that the evidence of record does not compel a find that this test was either met or not met. As for GN 00305.085G., in our opinion such cases should continue to be submitted for a legal opinion where, as here, there is some question as to whether the peculiar facts of the case may compel a finding that that the legal test for putative spouse either is or is not met as a matter of law. The interpretation of whether Minnesota courts would consider evidence of good faith submitted by the claimant involves legal analysis based on the particular facts of each case. Where, however, the evidence is clear on its face that good faith, and continued good faith, did or did not exist, the case may be decided without a legal opinion.

FACTS

As we understand the facts, Roger D~ (Roger) married Regina B~ (Regina) on May 28, 1949 in Providence, Rhode Island. The marriage ended by divorce on October 17, 1977 in Los Angeles, California. On December 18, 1971, Roger “married” Kathleen D~ (Kathleen) in St. Paul, Minnesota. Roger and Kathleen had two children, one in 1976 and the other in 1980. Roger and Kathleen separated around 1978, and, apparently, did not live together after that date. Roger died in Minnesota on July 4, 2000. Because dates are a key component of this case, it is useful to consider them in a timeline.

  • May 28, 1949, Roger married Regina. See Regina's statement 8/10/93, and Roger's statement 2/16/88.

  • December 18, 1971, Roger married Kathleen; copy of marriage certificate is in the file.

  • Sometime in 1973, Regina told Kathleen that she and Roger were not divorced.

  • At some point after that, Kathleen claims that she sought advice from an attorney, and states that he assured her that a person could obtain a divorce without the spouse's knowledge, in which case the subsequent marriage was valid.

  • April 9, 1976, David Roger D~ was born. A copy of his birth certificate lists his mother as Kathleen and his father as Roger.

  • October 17, 1977, Regina and Roger divorced. See Regina's statement 8/10/93; file states proof of divorce was obtained.

  • 1978 or 1980, Kathleen and Roger separated. See Roger's 4/88 (1978) and Kathleen's statement 7/31/00 (1980).

  • January 14, 1980, James Aaron D~ was born. A copy of his birth certificate lists his mother as Kathleen and his father as Roger. On February 16, 1988, Roger filed for, and received, retirement benefits. On his application, he reported that he married Regina in 1949 and divorced in 1971.

  • On April 11, 1988, Kathleen filed for young spouse's benefits, as well as benefits for their two children. In an undated form (but presumably April 1988), Roger stated that his marriage to Regina ended in divorce in 1971 and that he separated from Kathleen in 1978. Benefits were awarded to Kathleen and the two children effective February 1988.

  • August 10, 1993, Regina filed for, and received, divorced spouse's benefits. The file states that proof of divorce was obtained.

  • Kathleen's spousal benefits were terminated January 1996, when her youngest child attained age sixteen.

  • July 4, 2000, Roger died in Minnesota.

  • July 31, 2000, Kathleen filed for widow's benefits. She stated that Roger had not been married previously, and that, to the best of her knowledge, Roger never married anyone else.

  • January 22, 2001, at our request, Kathleen completed a statement that, at the time of the marriage (1971), she believed that Roger had been married before but was divorced and free to marry. Kathleen stated that about two years later (1973), Regina informed her that no divorce had taken place. Kathleen then stated that she sought legal advice as described above. Kathleen further stated that she and Roger “eventually” separated, but that she did not seek a divorce, nor was she ever notified that Roger sought a divorce.

DISCUSSION

In order to establish entitlement for widow's benefits, Kathleen must establish that she is Roger's widow under one of three methods set out by the Social Security Act. First, Kathleen would be Roger's widow if Minnesota law would find that Kathleen and Roger “were validly married . . . at the time he died.” 42 U.S.C. § 416(h)(1)(A)(i). Second, Kathleen would be considered Roger's widow if the Commissioner is satisfied that Kathleen, in good faith, went through a marriage ceremony with Roger resulting in a purported marriage between them which, but for a legal impediment not known to Kathleen at the time of the ceremony, would have been a valid marriage. 42 U.S.C. § 416(h)(1)(B)(i). However, such a marriage would not be deemed a valid marriage unless Kathleen and Roger were living in the same household at the time of Roger's death. 42 U.S.C. § 416(h)(1)(B)(i). Third, Kathleen would be considered Roger's widow if she could inherit a widow's share of Roger's personal property under Minnesota intestate inheritance law. 42 U.S.C. § 416(h)(1)(A)(ii); see also 20 C.F.R. § 404.345.

Kathleen does not meet the requirements of 42 U.S.C. § 416(h)(1)(A)(i) because she was not validly married to Roger at the time of his death

The initial method for determining family status in this case is whether Kathleen was validly married to Roger under Minnesota law. Minnesota Statutes Annotated (M.S.A.) § 517.03, subd. 1 (a) specifically notes that “a marriage entered into before the dissolution of an earlier marriage of one of the parties becomes final” is prohibited. This section had been amended in 1978, but even prior law clearly stated that “[n]o marriage shall be contracted while either of the parties has a husband or wife living.” See Historical and Statutory Notes following M.S.A. § 517.03. Moreover, with one exception not applicable to this case, Minnesota law further clarifies that “[a]ll marriages which are prohibited by section 517.03 shall be absolutely void.” M.S.A. § 518.01. In our opinion, Minnesota law is clear that the marriage between Kathleen and Roger was not a valid marriage at its inception.

In certain situations, a previously invalid marriage may become valid upon the removal of the impediment to marriage if the parties continue to live together. For example, in a voidable marriage, such as one where one spouse was under age, becomes valid after the impediment has been cleared with the subsequent voluntary cohabitation of the parties. See M.S.A. § 518.04 (voidable marriage ratified by cohabitation when impediment removed). However, in a void or prohibited marriage, such as a subsequent marriage before the dissolution of the earlier marriage, the subsequent divorce and cohabitation will not ratify the marriage. See M.S.A. § 518.02 (marriage prohibited by M.S.A. § 417.03 absolutely void). In this case, since Kathleen and Roger's marriage was void (not voidable) it did not become a valid marriage after Roger's 1977 divorce even though the couple continued to live together.

The Minnesota putative spouse statute, found at M.S.A. 518.055, does not validate Kathleen and Roger's marriage either. That statute, although conferring some rights under certain circumstances (such as inheritance rights), does not make valid an invalid marriage. Thus, Kathleen and Roger were not validly married at the time he died and Kathleen cannot establish entitlement for widow's benefits under 42 U.S.C. § 416(h)(1)(A)(i).

Kathleen does not meet the requirements of 42 U.S.C. § 416(h)(1)(B)(i) because Kathleen and Roger were not living together at the time of Roger's death

Another method for determining family status in this case is whether the Commissioner is satisfied that Kathleen, in good faith, went through a marriage ceremony with Roger resulting in a purported marriage between them which, but for a legal impediment not known to Kathleen at the time of the ceremony, would have been a valid marriage. 42 U.S.C. § 416(h)(1)(B)(i). The second requirement to this test is that Kathleen and Roger needed to be living in the same household at the time of Roger's death. 42 U.S.C. § 416(h)(1)(B)(i). Even assuming that Kathleen met the first requirement, the second requirment is not met. As noted in the timeline above, Kathleen and Roger separated about 1978, and were not living together at the time of Roger's death in 2000. Therefore, Kathleen has not established entitlement to widow's benefits under 42 U.S.C. 416(h)(1)(B)(i).

If the Agency finds that Kathleen could inherit a widow's share of Roger's personal property, then Kathleen could establish entitlement to widow's benefits under 42 U.S.C. § 416(h)(1)(A)(ii).

Under the third method, Kathleen would be considered Roger's widow under Social Security law if she could inherit a widow's share of his personal property under Minnesota intestate inheritance law. 42 U.S.C. § 416(h)(1)(A)(ii). As discussed above, Kathleen and Roger were not validly married at the time of Roger's death, so the only way Kathleen could inherit would be if Minnesota's putative marriage statute applied to her situation and would allow her to inherit from Roger's estate as if she were his spouse. Under Minnesota's putative marriage statute, Kathleen may acquire rights as a spouse under certain circumstances. In this case, to award widow's benefits, the Agency must find that Kathleen married Roger in the good faith belief that he was free to marry (either because he had never married before or that he had been married and was already divorced) and that she continued, until Roger's death in 2000, to believe that he was free to marry her in 1971. See M.S.A. § 518.055. Both conditions must be met before Kathleen can establish entitlement to widow's benefits under Social Security.

The Minnesota putative spouse statute explains that putative spouse status is conferred upon “a person who has cohabited with another to whom the person is not legally married in the good faith belief that the person was married to the other.” M.S.A. § 518.055. Kathleen stated on January 22, 2001, that at the time of her marriage (1971), she believed, relying on Roger's representations to her, that he had been married before but was divorced and free to marry. See Kathleen's good faith statement. This statement is inconsistent with Kathleen's July 31, 2000, statement that Roger had not been married previously and that, to the best of her knowledge, Roger had never married anyone but her. See Kathleen's filing statement when she filed for widow's benefits. This inconsistency raises some doubt as to Kathleen's credibility, but even assuming that she entered into the marriage with the good faith belief that Roger was free to marry, the Agency must decide whether Kathleen continued in that belief until Roger's death.

The second condition of the Minnesota putative spouse statute is that the putative spouse retains such status “until knowledge of the fact that the person is not legally married” which terminates the putative spouse statute and prevents acquisition of further rights. M.S.A. § 518.055. Since it is not possible to establish with absolute certainty that Kathleen did or did not have such knowledge, credibility becomes an essential element and is a decision for the Agency to make. The discussion below notes the various factors that the Agency may wish to consider in its determination whether Kathleen knew that she was not legally married.

According to Kathleen, sometime in 1973, Regina called her and she “learned” that Regina and Roger were not divorced. See Kathleen's statement of January 22, 2001. Kathleen reported that she sought legal advice from “the county attorney” and was told that sometimes one member of a couple could get a divorce without the other person knowing it. Id. Kathleen stated that the attorney told her that “legally” she and Roger were married. Id. This, however, does not necessarily establish that Kathleen had a good faith basis for continuing to believe, without question, that her marriage to Roger was valid. A fact-finder could conclude that, once she had some reason to doubt that Roger had divorced Regina, she had some obligation to try to verify the divorce. The county attorney's statements are based on the assumption that if Roger had divorced Regina without telling Regina, the subsequent marriage would be valid. Kathleen does not state that either she or the county attorney made any attempt to verify whether Roger had done so. Furthermore, Kathleen says in her statement that she “learned” that Regina and Roger “were never divorced.” This might suggest to a fact-finder that Kathleen believed the statement. Kathleen did not say that Regina “told her” or “claimed” they were not divorced, which would seem more appropriate if Kathleen did not believe that the couple was never divorced. In any event, this evidence neither compels a finding of continued good faith, nor compels a finding that she no longer had a good faith belief that her marriage was valid.

Roger has consistently reported to Social Security that his divorce from Regina was in 1971. See Roger's February 16, 1988 application for retirement benefits; see also, Roger's form filed with Kathleen's application for young spouse's benefits and children's benefits on April 11, 1988. However, his divorce decree (supplied by Regina in August 1993), listed October 17, 1977, as his divorce date from Regina. See Regina's statement on August 10, 1993; the file states that proof of divorce was obtained at that time. A fact-finder could conclude that, the fact that Roger consistently reported that he was divorced in 1971, and that Roger and Kathleen never sought to be re-married even after the 1977 divorce, tend to support Kathleen's statements that Roger had told her that he was divorced in 1971. However, the real focus is on whether Kathleen is credible and whether the fact-finder believes that Kathleen had a continuing good faith belief that Roger had divorced in 1971 and her marriage to him was valid.

However, Kathleen's contradictory statements from July 31, 2000, and January 22, 2001, cast some doubt on her credibility. In July 31, 2000, she affirmed that, to the best of her knowledge, Roger was never married to anyone else. See 7/31/00 statement. However, when questioned by the Agency, she stated that she believed that Roger had been married before but was divorced and free to marry in 1971.

If the Agency decides that Kathleen has established that she held and continued to hold a good faith belief that Roger was divorced in 1971 and was, therefore, free to marry her in December 1971, Kathleen would be considered a putative spouse under M.S.A. § 518.055. The only remaining requirement is that Kathleen must not be married to another at the time of her filing. See POMS GN 00305.085A.2. Kathleen stated in her application on July 31, 2000, that she was married to Roger at the date of his July 4, 2000, and did not indicate that she had re-married. See statement 7/31/00 and good faith statement 1/22/01. Thus, the Agency must make a credibility finding, and may need additional facts to do so. Once that decision is made, the rules of M.S.A. § 518.055 will establish whether or not Kathleen is entitled to widow's benefits based on 42 U.S.C. § 416(h)(1)(A)(ii).

CONCLUSION

In summary, we conclude that Kathleen may be entitled to widow's benefits on Roger's account if the Agency finds that 1) she had a good faith belief when she married Roger that he was either unmarried or divorced and free to marry; and 2) that she continued to have this belief, in good faith, until Roger died. The evidence of record does not compel a finding of good faith and continued good faith, nor does it compel a finding that Kathleen did not have good faith or continued good faith. As for GN 00305.085G., in our opinion such cases should continue to be submitted for a legal opinion where, as here, there is some question as to whether the evidence might compel a finding of good faith or lack of good faith. Where, however, the evidence clearly shows good faith or lack of good faith, we agree that the case may be appropriately decided without obtaining a legal opinion. This, however, may necessitate a change in the POMS.

Thomas W. C~
Regional Chief Counsel
Office of the General Council, Region V

Janet M. G~
Assistant Regional Counsel

B. PR 02-044 Entitlement of a Spouse Due to Putative Marriage Under Minnesota Law; Edna J~, Putative Spouse of Numberholder Raymond L. J~, SSN ~ DATE: February 25, 2002

1. SYLLABUS

The SSA adjudicator can find that the spouse claimant is the NH's putative wife and entitled to benefits so long as the fact-finder determines that (1) the claimant had a good faith belief at the time she married the NH that he either had never been married or had divorced prior to marrying her, so that he was free to marry; and (2) this good faith belief continued. Once the good faith belief ended, she would no longer be considered his putative wife. The SSA fact-finder may want to consider factors that Minnesota courts have looked at in determining whether good faith existed.

2. OPINION

Edna J~ (Edna) applied for spouse's benefits based on the earnings of Raymond L. J~ (Ray). You have asked whether Edna's marriage to Ray constitutes a putative marriage according to the state laws in Minnesota. You have also asked whether we can still apply the good faith belief in this case, and if not whether it would prevent entitlement to spouse's benefits.

For the reasons discussed below, we conclude that Edna could be considered Ray's putative wife and entitled to benefits so long as the Agency fact-finder determines that: 1) Edna had a good faith belief at the time she married Roger that he either had never been married or had divorced prior to marrying her, so that he was free to marry, and 2) that this good faith belief continued. If the Agency informed Edna that Ray had not divorced his first wife at the time he married Edna, this may have destroyed Edna's good faith belief. If and when Edna's good faith ended, her entitlement to benefits would end at the same time.

FACTS

As we understand the facts, Raymond J~ (Ray) married Josephine M~ in June 1955 in St. Gabriel, California. While still married to Josephine, Ray married Edna H~ (Edna) on July 2, 1957 in Chicago, Illinois. Edna claims that she knew of Ray's prior marriage, but was told by Ray and his mother that Ray was divorced. See Edna's statement on November 14, 2000 and statement on May 29, 2001. Edna claims that Ray even listed himself as divorced when they completed the marriage license. See Edna's statement on May 29, 2001. Ray, however, claims that Edna knew he was still married to Josephine. See Ray's statement on SSA-5002 submitted to Agency on October 30, 2000 and Report of Contact on May 31, 2001. and the Ray divorced Josephine on September 11, 1958. Subsequently, on November 13, 1967, Ray married Lucille R~ in Waynesdale, Missouri.

Edna admits that she was aware that Ray had married again, but apparently may have still believed her marriage to him was valid because she was not aware that he had divorced her. It appears that Edna and Ray lived together until after Edna's first child was born in 1958, and the last time Edna saw Ray was sometime between 1968 and 1971.

On May 18, 1984, Edna filed an SSI application and listed Raymond J~ as her husband. She indicated that they had been living apart since 1971. On November 26, 1985, Edna filed an SSI application and listed Raymond J~ as her husband. She indicated that they had been living apart since 1968. On March 10, 1986, Edna filed a statement for determining continuing eligibility for SSI payments - she indicated that she was married and living in a separate household from her spouse. On October 19, 2000, Edna filed an application for spouse's benefits. According to the information provided, at the time Edna filed her application, Ray was domiciled in Minnesota.

On December 1, 1986, Ray filed for disability insurance benefits.

On application, he listed two marriages, those to Josephine and Lucille. In 1991, Ray filed for disability benefits. On his application, he again listed two marriages, to Josephine and Lucille. DISCUSSION

In order to establish entitlement for spouse's benefits, Edna must establish that she is Ray's spouse under one of three methods set out by the Social Security Act. First, the Act provides that "[a]n applicant is the wife, husband, widow, widower" of an insured individual if "the courts of the State in which such insured individual is domiciled at the time such applicant files an application . . . would find such that such applicant and such insured individual were validly married at the time such applicant files an application . . . ." 42 U.S.C. § 416(h)(1)(A)(i).

Second, the Act permits the Commissioner to find that a marriage is valid if she is satisfied that an applicant in good faith went through a marriage ceremony with the insured individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage. 42 U.S.C. § 416(b)(1)(B)(i). However, such a marriage would not be deemed a valid marriage unless the applicant and the insured individual were living in the same household at the time the applicant filed the application. 42 U.S.C. § 416(h)(1)(B)(i).

Third, The Act allows a finding that the applicant is the wife, husband, widow, or widower if the courts of the State in which the insured is domiciled at the time the applicant filed the application would determine that the applicant could inherit a wife's husband's, widow's, or widower's share of the insured's personal property if he died without leaving a will. 42 U.S.C. § 416(h)(1)(A)(ii); see also 20 C.F.R. § 404.345.

Edna cannot establish entitlement under the first two methods. She may be able to establish entitlement under the third method, but only so long as she had a good faith belief that she was validly married to Ray.

1. Edna does not meet the requirements of 42 U.S.C. § 416(h)(1)(A)(i) because she was not validly married to Ray at the time she filed the application for spouse's benefits.

The initial method for determining whether Edna could be entitled to spouse's benefits on Ray's account is whether Edna would be found to have validly married Ray under Minnesota law, because Ray was domiciled in Minnesota at the time Edna filed an application for spouse's benefits in October 2000.

According to Minnesota law, "[a] marriage entered into before the dissolution of an earlier marriage of one of the parties becomes final" is prohibited. Minnesota Statutes Annotated (M.S.A.) § 517.03(a). This section was amended in 1978, but even prior law clearly stated that "[n]o marriage shall be contracted while either of the parties has a husband or wife living." See Historical and Statutory Notes following M.S.A. § 517.03. Thus, Edna and Ray's marriage was not a valid marriage at its inception.

In certain situations, a previously invalid marriage may become valid upon the removal of the impediment to marriage if the parties continue to live together. For example, a voidable marriage, such as one where one spouse was under age, becomes valid after the impediment has been cleared with the subsequent voluntary cohabitation of the parties. See M.S.A. § 518.04 (voidable marriage ratified by cohabitation when impediment removed). However, in a void or prohibited marriage, such as a subsequent marriage before the dissolution of the earlier marriage, the subsequent divorce and cohabitation will not ratify the marriage. See M.S.A. § 518.01 (marriage prohibited by M.S.A. § 517.03 absolutely void). In this case, since Edna and Ray's marriage was void (not voidable) it did not become a valid marriage after Ray's 1958 divorce from Josephine, even though it appears that Edna and Ray may have been living together at that time. See Edna's May 29, 2001 statement.

Additionally, Edna and Ray's marriage would not be considered "valid" under the Minnesota putative spouse statute, found at M.S.A. § 518.055. That statute, although conferring some rights under certain circumstances (such as inheritance rights), does not make valid an invalid marriage. See M.S.A. §§ 517.03, 518.01, 518.055. Thus, Edna and Ray were not validly married at the time Edna filed her application for spouse's benefits, and thus, she cannot establish entitlement for spouse's benefits under 42 U.S.C. § 416(h)(1)(A)(i).

2. Edna does not meet the requirements of 42 U.S.C. § 416(h)(1)(B)(i) because Edna and Ray were not living together at the time Edna filed her application for spouse's benefits.

Another method for determining family status in this case is if the Agency is satisfied that Edna, in good faith, went through a marriage ceremony with Ray resulting in a purported marriage between them which, but for a legal impediment not known to Edna at the time of the ceremony, would have been a valid marriage. 42 U.S.C. § 416(h)(1)(B)(i). The second requirement to this test is that Edna and Ray were living in the same household at the time Edna filed her application. 42 U.S.C. § 416(h)(1)(B)(i). Even assuming that Edna met the first requirement, the second requirement is not met. According to Edna, she has not seen Ray since at least 1971. Thus, there is no evidence that the two were living together at the time Edna filed her application for spouse's benefits in October 2000. Therefore, Edna has not established entitlement to spouse's benefits under 42 U.S.C. 416(h)(1)(B)(i).

3. Edna may be able to establish entitlement to spouse's benefits under 42 U.S.C. § 416(h)(1)(A)(ii)

Under the third method, Edna would be considered Ray's spouse under the Act if Minnesota courts would determine that Edna could inherit a widow's share of Ray's personal property if he died without leaving a will. See 42 U.S.C. § 416(h)(1)(A)(ii). Because Edna and Ray were not validly married, as discussed above, the only way she could inherit personal property would be if Minnesota's putative marriage statute applied to her situation and would allow her to inherit from Ray's estate as if she were his spouse. Minnesota's putative marriage statute states:

Any person who has cohabitated with another to whom the person is not legally married in the good faith belief that the person was married to the other is a putative spouse until knowledge of the fact that the person is not legally married terminates the status and prevents acquisition of further rights. A putative spouse acquires the right conferred upon a legal spouse . . . .

M.S.A. § 518.055. Under Minnesota's putative marriage statute, Edna must show that she married Ray in the good faith belief that he was free to marry, and that she had such belief at the time she filed her application for benefits. See M.S.A. § 518.055. Further, Edna could continue to receive benefits only as long as her good faith belief that her marriage to Ray was valid continued. See M.S.A. § 518.005; see also POMS GN 00305.085 G2.

Edna stated that at the time of her marriage, she believed, relying on the representations of Ray and his mother, that he had been married before but was divorced and free to re-marry. See Edna's statement on November 14, 2000 and May 29, 2001. Ray, however, asserts that Edna knew at the time of the marriage that he was still married to someone else. The Agency adjudicator must determine whether Edna has shown that she had such a belief at the time of the marriage (i.e., whether Edna is more credible than Ray). The adjudicator must also determine whether that good faith belief continued, or whether and when it ended. In your June 12, 2001 Memorandum to this office, you indicated that the Agency "may have inadvertently made Edna aware that her marriage to Roy [sic] was not legal." If the Agency's representations to Edna did provide her with knowledge that she was not legally married to Ray, this would extinguish her good faith belief, and her putative spouse status would end. Accordingly, at that time, she would not be entitled to spouse's benefits. Therefore, if Edna's good faith belief ended prior to her filing the application for spouse's benefits, she would not be eligible for any spouse's benefits. If, on the other hand, she had a goof faith belief at the time she filed, but her good faith belief subsequently ended, Edna's benefits would terminate at the time her good faith belief ended.

It is up to the Agency fact-finder to determine whether Edna's good faith belief ended, and if so, when it ended. In making this determination, the Agency fact-finder may want to consider factors that Minnesota courts have looked at in determining whether a good faith belief existed. In Johnson and Johnson v. Commissioner of Revenue, No. 2907, 1979 WL 1142, at *7 (Minn. Tax. Ct. November 26, 1979), the court considered the following factors in determining that Sylvia J~ was the putative spouse of Vernon J~: Sylvia sold her home, quit her job and went to live with Vernon; Sylvia took Vernon's last name; the church bulletin announcing the baptism of Sylvia and Vernon's two children noted that the parents were Mr. and Mrs. Vernon J~; savings and checking accounts were opened in both their names; an insurance policy on the life of Vernon named Sylvia as the wife and beneficiary; Vernon had reassured Sylvia about the legality of their marriage; and Vernon's will stated that the beneficiary was his wife, Sylvia. In addition, Minnesota courts have considered factors including personal observations and statements and representations made by the parties and others. See Aldainy v. Aldainy, No. C2-97-784, 1997 WL 561267, at*2 (Minn. Ct. App. Sept. 9, 1997); Mjolsness v. Mjolsness, 363 N.W.2d 839, 841 (Minn. Ct. App. 1985). Other factors that may be considered in determining whether a good faith belief exists include: intelligence, experience, education, maturity level, and whether circumstances existed which required further investigation. See Christopher L. Blakesley, The Putative Marriage Doctrine, 60 Tul. L. Rev. 1, 20 (1985). CONCLUSION

In summary, we conclude that the Agency adjudicator could find that Edna is Ray's putative wife and entitled to benefits so long as the Agency fact-finder determines that: 1) Edna had a good faith belief at the time she married Roger that he either had never been married or had divorced prior to marrying her, so that he was free to marry, and 2) that this good faith belief continued. Once that good faith belief ended, Edna would no longer be considered Ray's putative wife. If the Agency informed Edna that Ray had never divorced his first wife, this may have destroyed Edna's good faith belief.

C. PR 86-036 Putative Marriage Under Minnesota Law Robert A. H~, ~, Ilene H~, Claimant

DATE: October 8, 1986

1. SYLLABUS

UNMARRIED CONSORT ENTITLED TO INHERIT AS SPOUSE — PUTATIVE MARRIAGE — MINNESOTA

A Minnesota statute enacted in 1978 with an effective date of March 1, 1979 that confers certain rights on a putative spouse is not applicable to the situation where the individual from whom inheritance rights are derived has died prior to that effective date. Application of the statute retroactively to persons who have died before the date of enactment would unconstitutionally deprive other individuals of inheritance rights that vested at the time of the death.

(H~, Robert A., ~ — RAY (Abrams), to ARC, Programs, 10/08/86.)

2. OPINION

This is in response to your request for our assistance in determining whether Ilene H~ ("Ilene") is entitled to widow's benefits as the putative spouse of the wage earner, Robert H~ ("Robert") under Minnesota law. We conclude, for the reasons set forth below, that Ilene is not Robert's putative spouse under Minnesota law.

FACTS

The relevant facts may be briefly summarized. Robert married Ilene in Minnesota on October 11, 1966, and they lived together until Robert's death in Minnesota on August 2, 1975. Robert also legally adopted Ilene's two children.

Ilene had been married twice prior to her marriage to Robert. She married Arthur B~ in Arkansas on January 6, 1940 and lived with him until his death on April 5, 1954. Ilene also married Ewald P~ on January 3, 1956, but divorced him in June l965. Ilene has been receiving mother's and widow's benefits on Arthur B~'s account.

Robert H~ had also been married prior to his marriage to Ilene. Robert married Mildred H~ in Michigan on November 4, 1959 and separated from her in September 1965. A search of divorce records from 1964 to 1980 in Lansing, Michigan; Frankfort, Kentucky; and Hennepin and Arkansas counties in Minnesota revealed no divorce between Robert and Mildred HI. Mildred H~ advised Ilene H~ after the wage earner's death, that she and Robert were never divorced. Mildred is currently receiving widow's benefits on Robert' account.

In a statement of the claimant, Ilene stated that Robert told her that he was divorced from Mildred prior to their marriage. There is no evidence in the claims folder which contradicts Ilene's assertion.

DISCUSSION

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, or 4) a "putative" marriage recognized under applicable state law. 42 U.S.C. §416(h)(1); 20 C.F.R. §§404.344-404.346, 404.723-404.727; POMS GN 00305.040.

Minnesota does not recognize common-law marriages entered into after April 26, 1941. M.S.A. §517.01 (West.). A "deemed" or "de facto" marriage or 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 is not applicable here. Because Mildred is receiving benefits as Robert's legal widow, Ilene is precluded from being a "deemed" spouse under 42 U.S.C. §416(h)(l)(B). Further, Mildred's status as Robert's legal widow precludes the determination that Robert and Ilene's marriage was valid. Thus, the sole issue in this case is whether Ilene satisfies the requirements of a "putative spouse" under Minnesota law. We conclude that Ilene is not entitled to benefits as a putative spouse.

Minnesota's "putative spouse" statute provides as follows:

Any person 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 or declared a nullity.

If there is a legal spouse or other putative spouses, 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 interests of justice.

M.S.A. §518.055 (West). This statute was enacted in 1978 (Laws 1975, c. 772, §21) with an effective date of March 1, 1979.

In the present case, the wage earner died on August 2, 1975. Under these circumstances, we must conclude that Section 518.055 is inapplicable to Ilene's claim.

Section 216(h)(1)(A) of the Social Security Act, 42 U.S.C. §416(h)(1)(A), provides that a claimant is the widow of an insured individual for benefit purposes "if... the courts of the state in which [the insured individual] was domiciled at the time of his death... would find that such applicant and such insured individual were validly married ... at the time he died: (emphasis added) or, in the alternative, if the claimant would, under the laws applied by such courts in determining the devolution of intestate personal property, have the same status with respect to the taking of such property as a... widow... of such insured individual." In this case, at the time of the wage earner's death Minnesota courts would not have held Ilene to be either his legal or putative spouse. The issue therefore is whether Section 518.055 may be applied retroactively so as to confer inheritance rights upon Ilene as the "putative spouse" of Robert. We have previously determined that this statute cannot be applied retroactively. See S~, William, ~, RA V (Dorn) to ARC-Programs V, 3/7/83. That conclusion was based upon our reasoning with respect to the Illinois putative spouse in G~, Ambers H~, RA V (Abrams) to ARC-Programs V, 12/11/80. The Minnesota statue essentially mirrors the Illinois statute.

The Illinois putative spouse statute in G~ was enacted effective October 1, 1977 as part of the Marriage and Dissolution of Marriage Act. Section 801 of that Act provided that the Act would be applicable to "all proceedings commenced on or after its effective date" as well as to proceedings commenced but not terminated as of October 1, 1977 and to proceedings after that date which seek to modify judgments or orders entered under prior Illinois law. We concluded that Section 801 did not result in the retroactive application of the new putative spouse statute so as to confer inheritance rights upon survivors of individuals who died prior to October 1, 1977. We noted the general rule that a survivor's right to inherit an individual's personal property becomes fixed or vested at the time of the individual's death and may not subsequently be changed by the legislature. We also observed that a retroactive application of the new putative spouse statute would, by creating "new" heirs, at least partially divest those heirs whose rights had become fixed at the time of a decedent's death. Because retroactive statutes are unconstitutional if they impair vested rights and because statutes are presumed to be valid, we concluded that the Illinois legislature did not intend for the new statute to be applied in such a way as to infringe upon vested rights of inheritance. We explained that Section 801 of the 1977 Marriage Act, which made the Act applicable to all "proceedings" pending on or after October 1, 1977, pertained only to "proceedings" brought pursuant to the Marriage act, since a broader construction would require a conclusion that provisions of the Marriage Act could operate to divest vested rights. Thus, although Illinois law allowed a proceeding to determine heirships of an individual who died prior to October 1, 1977 to be brought after that date, we concluded that the Marriage Act could not be applied retroactively to change the legal status of an individual whose decedent died prior to that date. Hence, the retroactive effect of the Marriage Act was limited to proceedings involving individuals living as of October 1, 1977.

Similarly, although Section 61 of Minnesota Laws 1978, c. 772 states that the putative spouse provision applied to all "actions and proceedings" pending on or commenced after March 1, 1979, we believe that this provision only encompasses proceedings involving individuals living as of March 1, 1979. While no Minnesota case addresses this issue, we have not found any Minnesota case which permits retroactive changes in inheritance rights.

Moreover, under SSA policy, changes in state law are generally applicable only in cases of wage earners dying on or after the effective date of such changes. See generally POMS GN 00306.135. We do not believe that the Social Security Act requires application of a 1979 change in state law to a claim for benefits based on the earnings record of a wage earner who died in 1975.

CONCLUSION

Accordingly, we conclude that Ilene H~ is not entitled to benefits as the putative spouse of Robert H~. We are returning the claims folder.

D. PR 86-033 Putative Marriage Under Minnesota Law — Walter J. B~ ~, Shirley J. B~, Claimant

DATE: August 20, 1986

1. SYLLABUS

"DE FACTO" MARRIAGE — GOOD FAITH BELIEF IN VALIDITY OF MARRIAGE — MINNESOTA

Additional documentation to support the self-serving allegations of the claimant for widow's benefits is needed to resolve the issue as to whether there was the requisite good faith belief to establish the putative marital relationship. "Good faith" requires an inquiry into the claimant's state of mind and it must be determined whether the claimant's actions and statements are consistent with her allegations.

(B~, Walter J., ~ — RAV (L~), to ARC, Programs, 08/20/86.)

2. OPINION

This is in response to your request for assistance in determining whether under Minnesota law, Shirley J. B~ ("Shirley") is entitled to wife's benefits as the "putative spouse" of the wage earner Walter J. B~ ("Walter"). For the reasons discussed below, we believe that based on the facts presented in the claims folder, and the reasonable inferences drawn therefrom, Shirley does not appear to have had a "good faith" belief in the validity of her marriage to the wage earner and thus is not a "putative spouse" under. Minnesota law. 1/ As we previously advised you, however, see George A. H~ ~, RAV (Dorn) to ARC-Programs, 1/31/84, the final determination as to "good faith," upon which the' ultimate decision as to entitlement is based, should be made by your office. In this case, we recommend that before making your final decision on the "good faith" issue, you undertake additional development of the facts in accordance with the suggestions we outline below.

The claims folder reveals the following relevant information. On May 8, 19/0, Walter filed an application for retirement insurance benefits. In this application, he stated that he had been married to Shirley since December 31, 1966. He listed no previous marriages. _2/ Walter died in St. Paul, Minnesota on June 8, 1982. Shortly after his death, Shirley filed an application for widow's benefits on Walter's account. On this application, she stated that she married Walter on December 31, 1966 in Tijuana, Mexico. She reported that she had been married twice previously, to Irving F~ from 1939 until July 10, 1946, and to Walter F. H~ from July 20, 1946 until his death in 1963. 3_/ She also disclosed that the wage earner Walter J. B~ had himself been married previously from 1926 to 1945.

About a month after she filed for benefits on Walter's account, Shirley filed another application for widow's benefits on the account of Walter F. H~, her second husband. She advised SSA that she had elected to receive monthly benefits on his account until she reached age 65, when she planned to claim benefits on Walter J. B~' account. 4/ In completing her application on H~'s account, Shirley told the Social Security Administration ("SSA") that she had not heard from Walter J. B~'s first wife or children for the past 25 years and did not know anyone who would be familiar with their whereabouts. She stated that she knew only that he was married in Illinois in approximately 1926 and divorced in approximately 1945. She advised that she had no further information regarding this marriage. Based on the information Shirley submitted, SSA began paying her retirement benefits on H~'s account and also paid her the lump sum death benefit on Walter J. B~' account. 5_/

Nearly two years later, Clara E. B~ ("Clara") inquired about receiving benefits on Walter's account. 6_/ In response to her inquiry, SSA apparently informed Clara that Walter had died in 1982. Clara then filed an application for widow's benefits on Walter's account. She stated on the claim form that she and Walter were married on August 29, 1926 in Chicago, Illinois and separated in 1952 due to marital difficulties. 7_/

In a signed statement dated May 31, 1984, Clara provided SSA with the following additional information about her marriage to Walter. She stated that Walter left her in 1952 and moved to Minnesota to work. 8_/ About a year later she visited him twice in Minnesota in an attempt to get support money. She never saw him again after those 'visits and did not remain in contact with his family. Clara stated that she last heard of Walter about 15 years ago after her daughter visited him. This daughter told her that Walter was not well. Clara advised that she never filed for divorce, and was never served with divorce papers. She did not know that Walter had married Shirley or that he had died until she inquired about receiving benefits on his account.

On July 11, 1984, Shirley submitted a signed statement to SSA. She stated that Walter never talked about his marriage to Clara, and that she never asked him about it. Shirley reported that she had a book stating Walter was divorced in Illinois in 1945. She stated that she met Walter in Cohato, Minnesota, and that they were married in Tijuana, Mexico in 1967.

Prior to reaching a decision on Clara's application for widow's benefits, SSA initiated a search of divorce records in the following counties: Wright County, Minnesota (1945-1986); Hennepin County, Minnesota (1944-1982); Cook County, Illinois (Circuit and Superior Courts, 1944-1954); Cicero and Maywood, Illinois (Circuit Court, 1945-1963); Calumet City, Blue Island and Chicago Heights, Illinois (Circuit Court, 1945-1952); Ramsey County, Minnesota (1945-1982); and Washington County, Minnesota (1939-1983). These jurisdictions reported no record of any divorce between Walter J. and Clara E. B~ during the years indicated above. Based on this information and on Clara's signed statement, SSA determined that Clara and Halter were never divorced. Accordingly, SSA awarded Clara widow's benefits on Walter's account beginning in January 1984. 9_/

Several months before her 65th birthday in April 1986, Shirley once again filed for widow's benefits on Walter's account. On the claim form, she stated that Walter had been divorced from Clara "prior to 1955" in Chicago, Illinois. Shirley submitted her Mexican marriage certificate stating that she and Walter were married in a civil ceremony on February 11, 1967 in San Isidro, Tlaxcala, Mexico. She also presented a "marriage recording receipt" acknowledging that on December 31, 1966, the couple paid $39.00 "for the recording and validating of their marriage in the Republic of Mexico."

In developing Shirley's application on Walter's account, SSA searched additional divorce records: Madison County Illinois (1938-1968); Wright County, Minnesota (1943-1986); and Ramsey County, Minnesota (1943-1968). These records disclosed no record of a divorce between Walter and Clara.

Under Section 216(h)(11 of the Social Security Act and its implementing regulations, a claimant may be considered the spouse of a wage earner based on: (1) a valid ceremonial marriage; (2) a common-law marriage recognized by the appropriate state of domicile; (3) a "deemed" marriage in which the claimant in good faith goes through a marriage ceremony with the wage earner but the marriage is not valid because of a prior undissolved marriage or because of a procedural defect; 10_/ or (4) a "putative" marriage recognized for purposes of inheritance by the appropriate state of domicile. 11/ 42 U.S.C. §416(h)(1); 20 C.F.R. §§404.344-404.346; 404.723-404.727; POM GN 00305.040.

Absent a valid ceremonial marriage, Shirley and Walter cannot be considered common-law spouses because Minnesota does not recognize common-law marriages entered into after April 26, 1941. M.S.A. §517.01 (West). Moreover, it is unnecessary to determine whether a "deemed" or "de facto" marriage existed between Shirley and Walter under 42 U.S.C. §416( I)(B) because Shirley would not be entitled to benefits as a "deemed" spouse under this section if, as you have concluded, Walter and Clara were never divorced. Consequently, the sole issues presented here are (1) whether Shirley and Walter participated in a valid ceremonial marriage; and (2) whether Shirley satisfies the requirements of Minnesota's "putative" spouse law. Our responses to these questions follow.

(1) Walter and Shirley did not enter into a valid ceremonial marriage.

In deciding which of two or more conflicting marriages are valid, Minnesota courts consider both the presumption favoring continuation of a prior marriage and the presumption of the validity of a later marriage. Appeal of O'Rourke, 246 N.W.2d 461 (Minn. 1976). In determining which of these 'presumptions shall prevail in a given case, "the court must look to the underlying policies intended to be served by [each] presumption and the extent to which those policies will actually be served under the facts of a particular case." 246 N.W.2d at 463. The length of each marriage at issue and whether children were born to the claiming spouse are facts that should be taken into account. Id.

Here, policy reasons tip slightly in favor of presuming the continuation of Walter's marriage to Clara. Walter and Clara lived together as man and wife for 26 years, while Walter and Shirley were married only 15 years. Clara apparently bore Walter two children; Shirley and Walter had no children. Moreover, the facts as presented in the claims folder strongly suggest that Walter and Clara's marriage never ended in divorce. Numerous court records were searched in both Illinois and Minnesota, the only two states in which Walter and Clara lived. Clara stated that she neither divorced Walter nor received notice that he had divorced her.12_/ Based on our facts, we concluded that Clara is Walter's legal widow and is entitled to the benefits she has been receiving since 1984. Because Shirley's marriage to Walter is invalid, she is not his legal widow and, is receiving benefits on his account, Shirley is not entitled to "deemed" spouse benefits.

(2) Based on the information contained in the claims folder, Shirley does not appear to satisfy the requirements of Minnesota's "putative" spouse law.

Minnesota's "putative spouse" statute provides

Any person 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 of maintenance following termination of his status, whether or not the marriage is prohibited or declared a nullity. If there is a legal spouse or other putative spouses, 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 interests of justice.

M.S.A. 518.055 (West). This statute, enacted in 1978 (Laws 1978, c. 772, 21) with an effective date of March 1, 1979, does not define "good faith." As we previously advised you in Hasse, supra at 4, the question of "good faith" requires an inquiry into the claimant's state of mind and is therefore difficult to prove or disprove. In making this inquiry, the claims representative must determine whether the claimant's actions and statements are consistent with an allegation of "good faith." Id. 13/

Since our memo to you in H~, one Minnesota Court has invoked the putative spouse provision. In Mjolsness v. Mjolsness, 363 N~ 841 (Minn. App. 1985), the Court of Appeals affirmed the trial court that Mr. Mjolsness was not a putative spouse on facts vastly different from those presented here. The Mjolsnesses were validly divorced in 1970. Mjolsness alleged that they resumed their martial relationship on the ~, the day their divorce was final based on Mrs. Mjolsness' representation to do so would invalidate the divorce. Id. at 840. After the parties separated again in 1980, Mr. Mjolsness sought a court order declaring him a putative spouse entitled to a one-half share of certain real property in his ex-wife's name. Id. at 840. In affirming the trial court, the appellate court pointed to evidence inconsistent with Mr. Mjolsness' allegation of a good faith belief in the continuation of his marriage. This evidence includes his receipt of the divorce decree; his preparation of Mrs. Mjolsness' tax returns naming her as a single individual; and a reported discussion between the parties about the possibility of remarrying. Id. at 841.

In this case, no such strikingly inconsistent evidence appears in the claims folder to refute the existence of Shirley's good faith belief in the validity of her marriage to Walter. Nevertheless, Shirley's good faith belief in the validity of her marriage to Walter is questionable. She stated that Walter did not speak about his first marriage, and that she never asked him about it. Assuming the truth of this allegation (which we find doubtful), Shirley's good faith belief does not then rest on information she had acquired about Walter's divorce directly from him. Instead, the primary foundation for Shirley's belief appears to be a "book" she claims to have had that stated Walter was divorced in Illinois in 1945. Shirley has never produced this book, however. Moreover, Shirley alleges that in 1982, she saw Walter write that he was divorced in 1945. Again, she has not presented this document. Finally, contrary to her earlier statements that Walter was divorced in 1945, Shirley recently stated that Walter was divorced "prior to 1955". Based on this evidence and the reasonable inferences drawn therefrom, Shirley's good faith belief in Walter's divorce is highly questionable.

As we advised you in H~, supra at 4, the determination of "good faith" is a factual, not a legal question. Because the claims representative has personal contact with the claimant and is more familiar than we are with the facts of a given case, he or she is in a better position to judge the claimant's believability. We therefore leave to your office the final decision on whether Shirley has established the requisite "good faith" belief.

Before making your decision on Shirley's application, however, we recommend that you conduct the following additional developments. First, although it is unlikely that Walter returned to Illinois from Minnesota in order to obtain a divorce from Clara, it is possible. All of the Cook County Circuit and Superior Court divorce records, however, do not appear to have been searched from 1952-1967. Instead, the claims folder seems to indicate a search of Cook County Circuit and Superior Courts from 1944-1954; Cicero and Maywood from 1945-1963; and Calumet City, Blue Island and Chicago Heights from 1945-1952. As Clara lived in Chicago until about 1977, we recommend that you perform a thorough search of Cook County records from 1945-1967. 14_/ Second, because Walter and Shirley may have obtained a Mexican divorce. If, in your experience, a search of the Mexican divorce register would be feasible you may wish to explore this avenue as well.

Finally, we suggest that you attempt to take statements from friends and relatives of Shirley and Clara in an effort to discover (1) where and if at a11, Walter might possibly have obtained a divorce from Clara, and what, if any, additional information about Walter's alleged divorce Shirley may have relied upon in formulating her good faith belief. One source information might be Clara and Walter's daughter who, according to Clara, visited Walter in approximately 1969, after he married Shirley. This daughter may be able to shed light on the above questions.

1_/ As discussed below, we also believe that the presumption in favor of the continuation of Walter's first marriage to Clara should prevail. Thus, we conclude that under Minnesota law, Shirley's 1966 marriage to Walter was invalid, and she is not Walter's legal widow.

2_/ Item 19 on the application asks the individual claiming retirement benefits to provide information on prior marriages only if his or her present spouse is applying for benefits, As Shirley was not then applying for benefits, Walter did not have to reveal the details of any prior marriage.

3_/ Shirley also stated that she received survivors' benefits on Walter F. H~'s account for herself and their daughter until she married Walter J. B~

4_/ Apparently SSA explained to Shirley the relative benefits of filing claims on each wage earner's account.

5_/ SSA apparently did not investigate whether Shirley was in fact Walter's "widow" for purpose of paying her the lump sum death benefit under 20 C,F.R, §404.391.

6_/ Clara has been receiving retirement benefits on her own account since-1969.

7_/ The claims folder contains a photocopy of a marriage license confirming that Walter and Clara were married in Chicago on August 29, 1926.

8_/ Clara remained in Chicago until approximately 1977, when she moved to Lyons, Illinois.

9_/ The monthly widow's benefit was $132.90 as of December 1984.

10_/ A "deemed" or' "de facto" marriage is one in which the claimant went through marriage ceremony with the wage earner in gooch, although the marriage is later determined to be invalid due to a deficit in the procedure followed or due to a prior undissolved marriage of on of the parties. To be entitled to benefits on the basis of a "deemed marriage," a claimant also must have been living with the wage earner at the time of the latter's death or (if the wage earner is living) at the time of application for benefits. Section 216(b)(1)(B)of the Social Security Act; 20 C.F.R. §404.346.

11_/ A "putative" marriage is one which even though not valid permits a 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, unlike a "deemed" or "de facto" marriage, is determined with reference to state law. See, note 10, supra.

12_/ We do, however, recommend that you investigate further the existence of a divorce between Walter and Clara. See discussion infra at 6-7.

13_/ The statute provides that a putative spouse loses her status as such, when she learns she is not legally married. Once the wage earner dies, however, the putative spouse's rights become fixed. Therefore, even if the putative spouse learns her marriage is invalid after the wage earner dies, this knowledge should not affect her entitlement to survivor's benefits. See Ambers H. G~, A/N ~, CL-8-13-1 RA V (Abrams) to Acting ARC-Programs, 12/11/80. Furthermore, as we noted in Gunter, two claimants may have the status of widow of a deceased wage earner, and each may be entitled to ~ survivor's benefits.

14_/ The State of Illinois apparently has a master index of divorce proceedings beginning January 1, 1962.

15_/ We need not address the issue of under what circumstances, if any Minnesota would recognize a Mexican divorce.

E. PR 85-009 Putative Marriage Under Minnesota Law - Kenneth B~, ~, Ione B~ , Claimant

DATE: April 11, 1985

1. SYLLABUS

"DE FACTO" Marriage — GOOD FAITH BELIEF IN VALIDITY OF MARRIAGE Minnesota law does not recognize the creation of a common law marriage relationship by parties who temporarily reside in a state which recognizes the validity of common law marriages.

A couple cannot qualify under the "putative spouse" provision of the law where the good faith belief necessary to establish the relationship arises solely from an award of benefits by the Social Security Administration. The claimant, however, appeared to be "without fault" based upon the above facts and thus waiver of recovery of the overpayment would be appropriate should the elements of "defeat the purpose of title If" or "against equity and good conscience" be established. (B~, Kenneth, — ~— RAV(Dorn) to ARC, 04/11/85)

MINNESOTA

2. OPINION

This responds to your request for assistance in determining whether Ione B~ is entitled to wife's benefits as the "putative spouse" of the wage earner under Minnesota law. Specifically, you have asked whether a 1981 award of benefits to the claimant, based on an erroneous determination that she was the legal wife of the wage earner, may nevertheless be upheld on the alternate ground that the award itself created a good faith belief on the claimant's part that she was married to the wage earner, thereby entitling her to benefits as the "putative" if not the 'legal' spouse of the wage earner under Minnesota law. We answer this novel question in the negative, and therefore conclude that the 1981 award was erroneous as a matter of law. However, we think that the claimant may, after further development, be entitled to waiver of recovery of the overpayment.

The relevant background of this issue may be briefly summarized.. The claimant and the wage earner began living together in Minnesota in 1943 and, except for a brief period of residence in Wisconsin, have lived there since that date. The claimant applied for "young wife's' benefits 1/ in 1981. Both the claimant and the wage earner acknowledged in separate statements that they had never been legally married although each had always considered the other to be his or her spouse. The parties also stated that they had intended to have a marriage ceremony but 'never got around to it" for financial reasons. The parties had ten children, filed joint tax returns, owned property in joint tenancy, signed various documents as husband and wife, and generally held themselves out as a married couple to friends, relatives, and the community.

Under Section 216(h)(1) of the Social Security Act and its implementing regulations, a claimant may be considered the spouse of a wage earner on the basis of: i(1) a valid ceremonial marriage; (2) a common-law marriage recognized by the appropriate state of domicile; (3) a 'deemed' marriage in which the claimant in good faith goes through a marriage ceremony with the wage earner and the marriage is not valid because of a prior undissolved marriage or because of a procedural defect; 2_/ or (4) a "putative' marriage recognized for purposes of inheritance by the appropriate state of domicile. Because the parties did not go through a marriage ceremony, the first and third possibilities were not met. Since the evidence showed that the parties were aware of the requirements for a valid marriage, Minnesota's 'putative spouse" statute did not apply. 3_/ Moreover, Minnesota does not recognize common-law marriages entered into after April 26, 1941, thus apparently eliminating the remaining possibility for entitlement. Nevertheless, the Social Security Administration (SSA) awarded the claimant benefits in August, 1981 (effective January, 1981) based on the so-called "sojourn doctrine." Under this rule which has been applied in making benefit determinations since at least 1944, a common-law marriage will be recognized based on brief visits of the parties to a state recognizing each marriages. See POMS GN §§00305.225, 00305.240. In the present case, the parties made several visits to relatives in Iowa, a state recognizing common-law marriages. SSA thus awarded "young wife's" benefits to Ione based on a "common-law' marriage to the wage earner.

Ione's benefits were terminated in September 1983 when no child was entitled to child's benefits'. Ione subsequently applied for "wife's" benefits in June, 1984 when she turned 62. While processing this new claim, SSA determined that the former award of "young wife's" benefits, based on a determination of a 'common law marriage," had been erroneous as a matter of law. In Ocasio, P~,~ , RA V (Dorn) to Director, GLPSC, 4/6/79, we reaffirmed the "sojourn doctrine" based on a thorough review of prior opinions dating back to 1944, but announced that the rule would be applied in the future only if the state of the parties' domicile generally recognizes the common-law marriages of its residents based upon brief visits to common-law marriage states. 4_/ Subsequently, in "Recent Minnesota Court Decision on Common Law Marriages, etc.,' RA V (Dorn) to ARC-Programs V, 4/1/80, we determined that under the Minnesota Supreme Court's decision in Laikola v. Engineered Concrete, 277 N.W.2d 653 (Minn. 1979), Minnesota does not recognize the marriages of its residents based on temporary visits to common-law marriage states.

The Court in Laikola rejected a claim for the widow's share of a worker's compensation award by a woman claiming to be the worker's common-law wife based on a three week trip to Montana, a common-law marriage state. The Court stated that "Minnesota residents may not enter into a valid common-law marriage by temporarily visiting a state which. allows common-law marriages." Laikola, 277 N.W.2d at 656. 5/ Laikola was decided on March 23, 1979, and our opinion was issued on April-1, 1980, both well prior to the August, 1981 award of benefits. Moreover, our opinion concluding that the "sojourn doctrine" was inapplicable to Minnesota residents was subsequently incorporated in the Claims Manual (CM. R2465.5) in July 1980, and later in the Program Operations Manual System (GN §00305.215).

Because of the determination that the August, 1981 award had been erroneous, SSA sought to develop both the 1984 claim and the 1981 claim as possible "putative spouse" cases (See note 3, supra) However, the evidence secured in connection with the 1984 claim simply confirms that although the parties genuinely considered themselves husband and wife, they were aware that they had never been legally married. Your memorandum suggests that the August, 1981 award itself may have created a good faith belief on Ione's part that she was validly married to the wage earner, thus entitling her to benefits as a 'putative spouse' at least as of August, 1981. We reject this theory, but first address two preliminary issues raised by this case.

The first issue concerns whether the August, 1981 award may be reopened. A determination that is favorable to a claimant may be reopened within four years of its issuance if 'the evidence that was considered in making the determination... clearly shows on its face that an error was made." 20 C.F.R. §§404.988(b), 404.989(a)(3). In Munsinger v. Schweiker, 709 F.2d 1212 (8th Cir. 1983), the Court of Appeals for the Eighth Circuit (which includes Minnesota) held that errors of law are 'errors on the face of the evidence" within the meaning of §404.989(a)(3)(1981). The Munsinger Court cited with approval the provisions of CM §7015 (now POMS GN §04010.080) which state that an error on the face of the evidence exists where "on the basis of all the evidence in the file on which the determination... was based, it is clear that the determination... was incorrect." 709 F.2d at 1216. The above Manual provision also states that "clear' means obvious, unmistakable, certain, positive.' However, the Munsinger Court noted that under 20 C.F.R. §404.989(b), a determination will not be reopened due to a subsequent 'change' in the legal standard upon which the determination was originally based. 709 F.2d at 1216. Accordingly, the Manual states that "a determination which was reasonable on the basis of the evidence in the file. and the [legal]. . precedents... existing at the time the determinations . . was made will not be reopened merely because... a different rule of law would now be applied." The Munsinger Court concluded that SSA may reopen a determination only if it was legally erroneous 'at the time it was reached.' 709 F.2d at 1216.

Under these standards, the August, 1981 award of "young wife's" benefits to the claimant may be reopened, since that determination was clearly erroneous based on existing Minnesota court decisions. The Minnesota Supreme Court's decision in Laikola was issued on March 23, 1979, well prior to the August, 1981 determination. Furthermore, both our opinion explaining the effect of Laikola and the Claims Manual revision reflecting our opinion (CM R2465.5, revised in July, 1980) were also issued prior to the determination. Had Laikola been decided subsequently to the award of benefits, reopening would not be permitted under the regulations since Minnesota case law was previously silent on the applicability of the "sojourn doctrine' to Minnesota residents. Thus, an award of benefits prior to Laikola would not have been "clearly" erroneous. However, in this case where Minnesota case law was clear at the time of the August, 1981 award that Minnesota residents may not contract a common-law marriage by visiting a common-law marriage state, that award may be reopened.

The second preliminary issue concerns whether the requisite 'good faith belief' under the Minnesota statute may be acquired at some point other than at the inception of the purported 'marriage." The statute is silent on this issue, stating only that a "putative spouse" must be one who 'has cohabited' with another in the good faith belief that he or she was married to that person. In the absence of any reported decision indicating that this language requires a good faith belief to be present from the inception of a relationship, we conclude that a 'good faith belief" may be acquired at any point in the purported 'marriage,' provided, of course, that such belief continues until the' time at which the "putative spouse" asserts a legal right (such as the right of inheritance) based on that status. For example, it is possible that parties to a ceremonial marriage may originally believe that one of them has a living spouse only to subsequently learn, erroneously, that such spouse died before the 'marriage.' In other cases, it may be difficult to show that an individual who originally knew that the marriage was invalid somehow later came to believe in good faith that the marriage was in fact valid. Because of our conclusion in this case that the 1981 award did not cause the claimant to be a 'putative spouse,' we leave further discussion of this issue to subsequent cases. For purposes of this opinion, we conclude that a "good faith belief' in the validity of a 'marriage' may be acquired at some point other than at the inception of the parties' relationship.

The main issue in this case is whether the August, 1981 award itself, though legally erroneous insofar as it was based on a determination that the claimant was the wage earner's 'legal wife,' nevertheless caused her to be a 'putative spouse' under M.S.A. §518.055 by indicating to her that she was married to the wage earner. While this theory is somewhat appealing at first glance, we must reject it for at least two compelling reasons.

1. First, we cannot agree with your factual premise that the August, 1981 award letter actually indicated to the claimant that she was indeed the wage earner's legal wife. We do not doubt the possibility that the parties to an invalid marriage may in good faith believe the marriage to be valid based on a third party's authoritative representations. For example, a marriage may be invalid because one of the parties is sixteen rather than eighteen as state law requires, or because one of the parties waited only ten months after his divorce rather than one year as state law requires. The parties may believe the marriage to be valid because the clerk of the court or an attorney, upon inquiry, incorrectly informs them that the age of consent in the state is sixteen or that state law requires only a wait of six months following divorce for a party to remarry.

However, we find no basis for concluding that an award of benefits based on a determination of marital status "tells" a claimant that he or she is or was validly married to a wage earner. Instead, an award of benefits simply informs a claimant that he or she is entitled to benefits, and nothing more. We decline to attribute to such an award an authoritative determination notifying the claimant that she is in fact the valid legal wife of the wage earner. The file does not contain the actual August, 1981 award letter to the claimant. We presume, however, that the letter informs the claimant that she has been awarded benefits. We doubt that any claimant could in good faith draw from that award the inference that she may now consider herself the legal wife of the wage earner. This is particularly true in the present case, where the statements of the claimant both before and after the award letter indicate an awareness that she is not legally married to the wage earner. In this context, all that the award letter can reasonably mean to the claimant is that notwithstanding the fact that she is not legally married to the wage earner, she is entitled to social security benefits. We decline to make this award into something more, especially in a case where the parties did not even go through a marriage ceremony.

2. Even if we could agree that the August, 1981 award letter somehow authoritatively indicated to the claimant that she was the wage earner's legal wife, important policy considerations would nevertheless compel us to conclude that the award letter does not confer 'putative spouse' status under Minnesota law. The Social Security Act directs SSA to determine the marital status of a claimant under state law. In making this determination, SSA must look at the ongoing actual relationship of the parties under the appropriate state law. Here, for almost forty years from 1943 until she applied for benefits in August, 1981, the claimant considered herself the wage earner's 'wife' but nevertheless knew from the inception of their "marriage" that she was not legally married to him. There is absolutely no doubt on this record that on the day before she received the August, 1981 award letter, the claimant was not the "putative spouse" of the wage earner under Minnesota law. We cannot accept the proposition that notwithstanding the parties' actual relationship for almost forty years, SSA in one stroke itself altered not only that relationship but also their status under state law. SSA's function under the Act is to determine the marital status of individuals under state law, not to create such status.

We think that marital status must be determined based on the parties' actual relationship separate and apart from what happens during the claims adjudication process itself. We see virtually no end to the problems that may be created if marital status may be made to depend on statements or conduct by SSA during that process. For example, in the present case Ione was awarded benefits in August, 1981 effective January, 1981. Even if the August, 1981 award itself is deemed to confer upon Ione the status of a "putative spouse" under Minnesota law, she would only be entitled to benefits effective beginning with that month. Benefits paid for the months of January, 1981 through July, 1981 would constitute an overpayment. Since the notice of an overpayment must set forth the reasons for that determination, that notice would have to indicate that the August, 1981 award had been based on an erroneous determination that the claimant was the legal wife of the wage earner. Of course, that notice would itself terminate the putative spouse status allegedly created by the August, 1981 award. The only alternative - not to pursue the overpayment at all - would constitute an evasion of SSA's responsibility under the Act.

Your memorandum suggests that because the district office said nothing to the claimant indicating that the prior determination of a common-law marriage was erroneous, the claimant's status as a "putative spouse" continued. Leaving aside the scenario described in the previous paragraph, we think that your suggestion itself illustrates the pitfalls of making marital status under state law depend on what SSA personnel say or do not say to a claimant. Otherwise, when the wage earner dies and the claimant applies for widow's benefits, her entitlement will depend not on her actual relationship with the wage earner (which clearly demonstrates that she is not a 'putative spouse") but on the fortuitous circumstances of what SSA says or does not say to her in processing her claim.

Putative spouse statutes are intended to remedy the harsh situation where a party to a marital relationship later asserts a legal right based on that relationship only to find out that the marriage was never valid because the other party had a living spouse at the time of the marriage, a prior divorce of one of the parties was not yet effective at the time of the marriage, or for other similar reasons. The typical situations encompassed by these statutes are where the parties believe they have a valid marriage because they have gone through a ceremony with all the formal trappings 'and neither party is aware of any defect such as an existing spouse. Minnesota's "putative spouse" statute, of course, does not expressly require a marriage ceremony. Whether this omission was intentional or a result of poor draftsmanship is impossible to determine. We are certain, however, that the Minnesota legislature could not have possibly contemplated that an individual who has known for over forty years that she was not legally married because she did not participate in a ceremony is nevertheless a "putative spouse" simply because of the fortuitous circumstance of an erroneous award of benefits.

We think that the determination of the marital status of parties under state law must be based on their actual relationship and cannot be affected by what happens during adjudication of a claim for benefits based on that status. Accordingly, we conclude that the August, 1981 award of benefits was erroneous, that the determination may be reopened, and that Ione was not entitled to 'young wife's' benefits in 1981 and is not currently entitled to "wife's" benefits. We also conclude that-Ione is not the legal wife, the common-law wife, or the "putative spouse" of the wage earner under Minnesota law.

The benefits paid to Ione since August, 1981 therefore constitute an overpayment. However, we think that waiver of this overpayment may be appropriate after further development. Ione was clearly 'without fault' in receiving the overpayment. Although there is insufficient information in the record to establish whether recovery would defeat the purpose of Title II or would be against equity and good conscience, we note that recovery of almost four years of benefits would apparently cause a substantial financial hardship since the wage earner is himself dependent on his own retirement benefits. We leave the final determination to your office.

1/ 'Young wife's' benefits are awarded to the wife, under age 62, of a retired wage earner who has in her care a child entitled to child's benefits on the wage earner's account.

2/ To be entitled to benefits on the basis of a "deemed marriage," a claimant also must have been living with the wage earner at the time of the latter's death or (if the wage earner is living) at the time of application for benefits. Section 216(b)(1)(B) of the Social Security Act.

3/ M.S.A. §518.055 provides that a person who has cohabited with another in the 'good faith belief" that he or she is married to that person is a "putative spouse" entitled to the rights of a legal spouse, including the right of inheritance, until knowledge of the fact that he or she is not legally married terminates that status. The statute does not require that the parties have gone through a marriage ceremony, although Minnesota does not recognize common- law marriages entered into after April 26, 1941. With respect to common-law relationships, we have stated that "good faith" is not present under §518.055 where a claimant is aware of the requirements for a valid ceremonial marriage and has rejected these requirements, no matter how sincerely. George A. H~, RA V (Dorn) to ARC-Programs, 1/31/85.

4/ We also stated two other criteria for application of the rule: (1) the parties enter the common-law marriage state with existing marital intent (as evidenced by agreement, cohabitation, and repute in the state of domicile) and (2) the sojourn itself satisfies the sojourn state's requirements for a common-law marriage.

5/ The Court did state, however, that the valid common-law marriage of parties who have resided in a common-law marriage state will be recognized upon the parties' subsequent removal to Minnesota.

In addition to Minnesota, we have determined that Illinois and Wisconsin will not recognize the marriages of their residents or domiciliaries based on brief visits to common-law marriage states. L~ , W~ , RA V RA V (born) to ARC-RSI V, 1/15/80 (Illinois); L~ , L~ , RA V (Dorn) to Director, IPB V, 8/4/82 (Wisconsin). We have determined that Michigan and Indiana will recognize such marriages. J~ , A~ ,~ RA V (Dorn) to Director, GLPSC, 7/13/79 (Michigan): K~ , Anthony, ~ , RA V (Dorn) to ARC-RS1 V, 1/4/80 (Indiana). These determinations are currently summarized in POMS GN §00305.215.

F. PR 85-004 - Putative Marriage - Wolodymyr W~, Deceased Wage Earner Katherine G. W~, Claimant

DATE: March 7, 1985

1. SYLLABUS

Where a man and a woman who emigrated to the United States from Poland obtained a marriage license but were unable to have a ceremonial marriage performed in the church of their choice because of the inability of the man to furnish proof of the death of his former spouse, but believed they were civilly married due to the obtaining of the marriage license as is the case in Eastern European countries, a finding of "good faith belief" in the validity 'of their marriage to support the existence of a putative marriage would be Justified. (W~, Katherine G., ~ — RA V (W~) to ARC, 03/07/85.)

2. OPINION

You have requested our assistance in determining whether Katherine G. W~ is entitled to widow's benefits as the "putative spouse" of the wage earner under Minnesota law. We conclude, for the reasons discussed below, that Katherine G. W~ is entitled to benefits.

The relevant facts may be briefly summarized: The wage earner emigrated to the United States from Poland in 1951. Although the record is not clear, it appears that the claimant emigrated to the United States from Poland together with the wage earner at the same time. Both the wage earner and the claimant spoke and understood little English when they arrived, and the claimant speaks and understands little English now. The wage earner and the claimant obtained a marriage license at the Ramsey County, Minnesota court- house on March 28, 1961. The parties thereafter attempted to have their marriage "blessed' by the Eastern Rite Church, a Catholic sect, but were unsuccessful because the wage earner could not obtain proof of the death of his first wife. 1/ The parties obtained a new marriage license in October, 1961, but still did not solemnize their marriage, presumably for the same reasons. The marriage license expired on April 3, 1962 under then-applicable Minnesota law. Nevertheless, the parties lived together as husband and wife until the wage earner's death on May 11, 1984.

The record contains three affidavits. The claimant, in a July 19, 1984 affidavit "marked" by her and completed by her attorney, states that she believed that the parties had a valid "civil" marriage as a result of obtaining the marriage license, since obtaining a license created a valid "civil" marriage in Eastern Europe. The claimant also states that she was unaware that she had not been validly married under Minnesota law until her attorney advised her of this fact following the wage earner's death. The claimant's attorney, in a July 19, 1984 affidavit, states that he was retained by the claimant after the wage earner's death and discovered that the claimant and the wage earner had obtained a license but never solemnized their marriage. He states that when he told the claimant that no ceremony had taken place, the claimant insisted that she had married the wage earner at the Ramsey County courthouse in 1961. The attorney also states that he believed that the claimant has always considered herself to be the lawful wife of the wage earner.

The record contains a third affidavit, dated July 12, 1984, by D.D. W~, also an attorney, who was a family friend since the parties' arrival in the United States and represented them in several matters from the purchase of their home in 1961 until his appointment as an appellate judge in 1983. Judge W~ states that at the time they purchased their home in 1961, the parties informed him that they had been married at the Ramsey County court- house. He states that until the wage earner's death, the parties always considered themselves to be married to each other. Following the wage earner's death, the claimant's attorney advised Judge W~ that there had been no legal marriage under Minnesota law. The claimant then explained to Judge W~ that she believed that obtaining a marriage license was all that was necessary to be validly married in the United States, consistent with Eastern European custom. Judge W~ further states that he believes that the claimant had, and continues to have, a "good faith" belief in the validity of her marriage to the wage earner.

The record also contains a Notice of Condemnation joining the parties as respondents, a condemnation award recognizing the parties as owners of certain property, and an affidavit of survivorship filed by the claimant's present attorney on her behalf. Finally, the record contains a Report of Contact between a claims representative and the claimant. According to the claims representative, Katherine explained to him that although the parties had been unable to have their marriage solemnized by the church since the wage earner had not obtained proof of his first wife's death, she had considered herself married "by the Court' based on the marriage license. The claims representative concluded that the claimant possessed the requisite 'good faith' belief in the validity Of her marriage.

Since the parties did not go through a ceremonial marriage and Minnesota does not recognize common-law marriages entered into after April 26, 1941, 2--/ Katherine is entitled to benefits only if she satisfies the requirements for status as a 'punitive spouse' under Minnesota law. 3/ Minnesota's 'putative spouse" provision, M.S.A. §518.055 (West), states as follows:

Any person 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 the 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 or declared a nullity.

We have previously stated that this statute is applicable to claims for benefits on the accounts of wage earners dying on or after March 1, 1979, the statute's effective date. William S~ , Jr., ~ , RA V (Dorn) to

ARC-Programs V, 4/7/83. Although no reported Minnesota appellate case has interpreted this provision (which does not require a marriage ceremony), we have discussed the meaning of the statute's "good faith" requirement on several occasions. We have indicated that "good faith" in general requires a lack of knowledge of the requirements of a valid marriage or a belief that such requirements were followed. The belief of a claimant, however genuinely held, that the parties did not need to follow the usual requirements of solemnization to be "married," and could consider themselves to be married so long as they lived together and held themselves out to the community as husband and wife, does not constitute a "good faith" belief in the validity of a common law relationship. Instead, such a belief reflects an awareness and conscious rejection, however sincere, of the requirements for a valid marriage. Thus, in Arthur L. F~ , ~, RA V (Dorn) to ARC-RSI V,

10/22/79, we concluded that the claimant had not possessed a "good faith" belief in the validity of her "marriage" where she stated that "my husband and ! always figured this way and I did that if we loved each other and cared enough for each other, we didn't have to have a paper, you know, to tell us, you know, that we had to be married." Similarly, in Henry J. G.~ ,~ , RA V (Dorn) to ARC-Programs V, 12/14/82, we concluded that the claimant was not a "putative spouse" under Minnesota law where she genuinely considered the wage earner to be her husband but knew that the requirement of a ceremonial marriage had not been followed. And in George A. H~ , ~ , RA V (Dorn) to ARC-Programs, 1/31/84, we determined that the claimant, notwithstanding her genuine belief that the wage earner was her husband, was not a "putative spouse" where the evidence showed that the parties chose not to go through a marriage ceremony because they were aware of the wage earner's prior undissolved marriage and instead decided to cohabit as "husband and wife" as an alternative to solemnization.

The present case, however, is different from F~, G~ , and H~. Here, although the claimant was unable to solemnize her marriage in a religious ceremony, she genuinely believed, consistent with Eastern European custom, that she had contracted a valid "civil" marriage by obtaining a marriage license. The claimant spoke virtually no English at the time of her "marriage," speaks little now, and has a minimal knowledge of United States laws and customs. Rather than an awareness and conscious rejection of marriage requirements, this case involves lack of knowledge of such requirements and a belief that all known requirements had been met. We conclude, therefore, that Katherine G. W~ is the "putative spouse" of the wage earner under Minnesota law and therefore is entitled to widow's benefits.

1/ In her July 19, 1984 application for widow's benefits (completed by a claims representative and "marked" by the claimant), Katherine states that the wage earner's first wife died in Poland in 1959 or 1960.

2/ There is no evidence that the parties lived in or visited any other state that recognizes common-law marriages.

3/ Section 216(h)(1)(A) of the Social Security Act, 42 U.S.C. §416(h) (1)(A), provides that a claimant may be considered the 'widow" of an insured individual if she would have the status of a "widow" for purposes of inheritance under state law.

G. PR 84-006 Putative Marriage - George A. H', Deceased Wage Earner ~, Betty O. H~ , Claimant

DATE: January 31, 1984

1. SYLLABUS

UNMARRIED CONSORT ENTITLED TO INHERIT AS SPOUSE — PUTATIVE MARRIAGE — MINNESOTA

Minnesota common law did not recognize common law marriages. A statute in 1979 explicitly retains the prohibition against common law marriages entered into after April 26, 1941. There is a Minnesota statute recognizing the status of "putative spouse," providing that where a spouse lives with another in the "good faith belief" that he or she is married to the other, the rights conferred upon a legal spouse are attributed to the "putative spouse" until such time as the "putative spouse" becomes aware that the marriage is not legally valid. A ceremonial marriage is not required to establish the status of "putative spouse" in Minnesota. The question of whether or not an alleged "putative spouse" has a "good faith belief" that a valid marriage existed is a matter of fact that must be determined on a case by case basis. An inquiry as to the demonstrated attitude and credibility of the alleged "putative spouse" is necessary. In the instant case where the alleged husband had a previous undissolved marriage at the time the parties are alleged to have begun living together and statements indicate that the parties did not believe they were required to comply with the requirements of a ceremonial marriage, thus indicating an intent to circumvent the requirement rather than mere ignorance of it, there probably would not be sufficient grounds upon which to establish the existence of a "good faith belief" on the part of the alleged "putative spouse." (H~ George A., ~ -- RAV (Dorn), to ARC, O1/31/84.)

2. OPINION

You have requested our assistance in determining whether Betty H~ is entitled to widow's benefits as the "putative spouse" of the wage earner under Minnesota law. We believe that the claimant did not and does not have the requisite "good faith" belief in the validity of her marriage to the wage earner and hence is not a "putative spouse" under Minnesota law. However, we think that the final determination as to "good faith," upon which the ultimate decision as to entitlement is based, should be made by your office. We also suggest some general guidelines to be applied in future "putative spouse" cases in Minnesota.

The relevant facts may be briefly summarized: In a November 10, 1941 application for a social security number, the wage earner indicated that he was then married. Although there is no formal record of such a marriage, the wage earner's nephew stated that the wage earner was married to Helen B~ in 1931 in Washington County, Minnesota. According to the nephew, the wage earner and Helen B~ separated in 1946, and were divorced one or two years later. The nephew states that following the separation in 1946, the wage earner moved to Garrison, Minnesota. According to the claimant, Betty H~ she and the wage earner began living together in Garrison, Minnesota in May, 1946. The wage earner and Helen B~ were divorced on February 3, 1948 in Washington County. 1_/ The wage earner and the claimant continued living together until the wage earner's death on July 8, 1982. The parties never went through a marriage ceremony. In their respective applications for retirement benefits dated March 19, 1962 and May 23, 1968, both the claimant and the wage earner listed the other as their current spouse and gave the date of "marriage" as May 12 1951. There is no formal record of a May 12 1951 marriage of the parties, and no independent significance of the May 12, 1951 date is apparent from the claims folder. In neither application for retirement benefits did the claimant or wage earner state how the May 12, 1951 "marriage" was performed, as the other spouse was not then applying for benefits.

In her September 2, 1982 application for retirement benefits, the claimant listed the date of marriage to the wage earner as "5/ /46." With respect to the category "Marriage performed by," the claimant first checked, and then scratched out, "Clergyman or public official." The claimant then checked "Other," and further stated that she and the wage earner always lived in Minnesota since May, 1946, "were never married by a clergyman or public official," and never traveled outside of the state. In a subsequent statement, the claimant asserted that she and the wage earner began living together in 1946 "as husband and wife." The claimant also stated that the parties "lived together in good faith" and considered themselves to be husband and wife under the "common law." According to the claimant, "the community knew us as man and wife."

Betty was not married prior to her "marriage" to the wage earner, although she did give birth to a child out of wedlock prior to her "marriage." The claims folder contains several contracts of deed, bank statements and checks, and income tax returns that refer to "George and Betty HI" as husband and wife. The wage earner's will, dated April 22, 1975, refers to Betty HI as his "wife" and also bequeaths money to the wage earner's "stepdaughter." The claimant executed a consent whereby she agreed to take under the will of her "husband" rather than under her statutory share. The wage earner's nephew, the nephew's wife, the attorney for the wage earner's estate, and the claimant's attorney all state that they and the rest of the community believed the parties to be husband and wife, and that in settling the wage earner's estate they discovered that no marriage certificate existed and no ceremony had taken place. The claimant's attorney stated that since the claimant received only a life estate in the wage earner's homestead, he was considering action to contest the will and establish the claimant's entitlement to a statutory share as a "putative spouse" under Minnesota law. The attorney believed that such litigation would be "lengthy and expensive," but expected that such litigation would be unnecessary since the primary beneficiary of the will (the wage earner's nephew) was offering a large settlement. Finally, the attorney for the estate asserted that the wage earner and the claimant conducted business transactions as husband and wife, although this last point was disputed by the nephew.

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/ (3) a common-law marriage recognized under applicable state law, or (4) a "putative" marriage recognized under applicable state law. 4/ 42 U.S.C. 416(h)(1). 20 C.F.R. 404.344-404.346, 404.723-404.727; POMS GN 00305.040. Minnesota does not recognize common-law marriages entered into after April 26, 1941. M.S.A. 517.0t (West). There was no ceremonial marriage in this case, and thus the claimant cannot qualify for benefits under either of the first two criteria. Thus, the only issue here is whether the claimant satisfies the requirements for status as a "putative spouse" under Minnesota law.

Minnesota's "putative spouse" provision, M.S.A. 518.055 (West), states as follows:

Any person 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 or declared a nullity.

This statute was enacted in 1978 (Laws 1978, c.772, §21) with an effective date of March 1, 1979. We have previously stated that the statute may not be applied to claims for benefits on the accounts of wage earners who died prior to March 1, 1979. William S~, Jr., ~ RA V (Dorn) to ARC-Programs V, 4/7/83. We also stated in S~ p.4 that the statute does not require any particular period of cohabitation and does not require the parties to be cohabiting either at the time one of the spouses dies or at any other time a spouse asserts a right based upon a claimed "putative" marriage. Moreover, we concluded in I (note 4) that so long as the wage earner died on or after March 1, 1979, a "putative marriage" may be established even if the parties "married" prior to March 1, 1979 and ceased cohabiting before that date, provided that the claiming party maintained his or her good faith belief in the validity of the marriage subsequent to that date. In the present case, the claimant lived with the wage earner from 1946 until the latter's death on July 8, 1982.

Unlike the "putative spouse" provisions of other States such as Illinois, the Minnesota statute does not require that the parties go through a marriage ceremony. Nevertheless, in enacting the 1979 revision of the marriage laws, the Minnesota legislature expressly retained the prohibition of common law marriages entered into after April 26, 1941. M.S.A. §517.01 (West). While the "putative spouse" statute does not actually validate a common law marriage but only confers certain legal rights upon an individual who in good faith enters into and maintains a common law relationship, the distinction between a prohibited common law marriage and a "putative" common law marriage is obviously less than clear. The statute does not define "good faith," and we have found no reported case addressing the "good faith" requirement. The question of "good faith" involves an inquiry into the mental state of an individual, and hence an allegation of "good faith" will ordinarily be difficult to either prove or disprove. In deciding claims for benefits based on Minnesota's "putative spouse" statute, a claims representative will ultimately be required to determine whether an individual's statements and actions are consistent or inconsistent with an allegation of "good faith."

As a general proposition, however, we think that an attitude of a claimant, however genuinely held, that the parties did not need to follow the usual requirements of solemnization to be "married," and could consider themselves to be married so long as they lived together and held themselves out to the community as husband and wife, does not necessarily equate to a "good faith" belief in the validity of a common law relationship. Although the "putative spouse" statute should be applied fairly and equitably, we believe that in most cases, allegations of "good faith" will essentially boil down to this type of attitude. In Arthur L. F~,~~, RA V (Dorn) to ARC-RSI V, 10/22/79, the claimant and the wage earner never obtained a marriage license or went through a formal religious or civil marriage ceremony. Instead, as the claimant stated, "my husband always figured this way and I did that if we loved each other and cared enough for each other, we didn't have to have paper, you know, to tell us, you know, that we had to be married." The claimant also stated that she and the wage earner had gone to church one evening and had a "private ceremony" between themselves. We concluded that the claimant had not demonstrated the requisite "good faith" belief in the validity of her marriage to the wage earner. We reasoned that "the claimant's statements... demonstrate an awareness and conscious rejection of the requirements of a valid marriage (i.e., a formal ceremony and a license) rather than a lack of knowledge of such requirements or a belief that such requirements were followed." We also based this conclusion on the fact that the claimant had been married and divorced prior to her purported marriage to the wage earner.

Since the "good faith" criterion requires a factual rather than a legal determination, we think that such a determination is more properly made by program representatives. Claims representatives have personal contact with the claimant and other significant individuals, as well as a greater acquaintance with the important facts, and hence are usually in a much better position than we are to decide the "good faith" question, which often depends on the credibility and believability of a claimant. The preceding two paragraphs suggest general guidelines to be applied in future cases. However, the "good faith" determination will of necessity .be made on a case-by-case basis. With respect to the present case, we leave the final determination as to whether the claimant demonstrated the requisite "good faith" belief to your office.

Although the question is close, based upon our own review of the record and the reasonable inferences therefrom, we are left with the conviction that the claimant did not, and does not, have the requisite good faith belief that she was validity married to the wage earner. While the claimant on her application for widow's benefits listed the date of her "marriage" to the wage earner as "5/ /46,' on her earlier application for retirement benefits in 1962 she had listed the date of "marriage" as May 12, 1951. Indeed, the fact that both the claimant and the wage earner had listed the latter date in their respective applications for retirement benefits suggests a mutual awareness that although the parties had begun cohabiting as "husband and wife" in 1946, they could not consider themselves "married" at that time due to the wage earner's prior undissolved marriage. Moreover, this evidence suggests that the parties chose not to go through a ceremony in 1946 because they were both aware of the wage earner's prior undissolved marriage. Instead, the parties decided to live together as "husband and wife" as an alternative to solemnization. None of the claimant's statements indicate an unawareness of the legal requirements of solemnization; indeed, the claimant freely acknowledged in her application for widow's benefits that "we were never married by a clergy- man or public official." The wage earner himself was a self-employed retailer of furniture for many years and even served as a justice of the peace in the 1960's. Under these circumstances, and given his prior marriage, we think it highly unlikely that the wage earner actually believed until his death that he was validly "married" to the claimant by virtue of their common law relationship. We are unwilling to presume on this record that the claimant, who lived with the wage earner for 37 years, was more naive or unaware concerning the validity of their "marriage."

We do not doubt that the claimant genuinely thought that she could consider herself "married" to the wage earner based on the fact that the parties lived together and held themselves out to the community as "husband and wife." As we have explained above, however, this attitude does not equate with a "good faith" belief in the validity of one's marriage. We think that the evidence most plausibly suggests that the parties were aware of the legal requirements for marriage when they began living together in 1946, but recognized that they could not comply with those requirements due to the wage earner's prior undissolved marriage. Hence, the parties simply chose to consider themselves "husband and wife" and hold themselves out to the community as such. 5/

We conclude that your office should make the final determination of whether the claimant believed in good faith that she was validly married to the wage earner. Based on our review of the record, our own view is that the requisite "good faith" belief is not present.

1/ Although your memorandum states that the wage earner and Helen B~ were divorced on February 3, 1948, we find no confirmation of this fact in the claims folder. For purposes of this memorandum, however, we presume that this information was obtained in the course of investigation of the claim.

2/ The applications for retirement benefits at those times requested the applicant to indicate how the marriage was performed only if "your husband or wife is applying for benefits."

3/ 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(N)(1)(B); 20 C.F.R. §404.346.

4/ 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 3, supra) in that the latter may be established without reference to state law.

5/ Common law marriages were not abolished in Minnesota until 1941, and it is quite possible that the claimant and the wage earner, who were respectively born in 1900 and 1903, were acquainted with a number of valid common law marriages prior to 1941. We also do not discount the possibility that the claimant (and the wage earner) were unaware that common law marriages had been abolished when the parties began living together in 1946. However, we do not think that such speculation can be substituted for the reasonable inference from the record that the parties were aware of the legal requirements for marriage in 1946. In any event, it is highly unlikely that the parties' unawareness that common law marriages had been abolished could have continued until the wage earner's death in 1982.

H. PR 82-059 Putative Marriage in Minnesota - Henry J. G~ DWE, Mary G~, Claimant

DATE: December 14, 1982

1. SYLLABUS

MARRIAGE — PRESUMPTION OF EXISTENCE OF VALID MARRIAGE — MINNESOTA

The absence of any documentation of a ceremonial marriage or any secondary evidence of one does not preclude a finding that one took place. A presumption can arise from the allegation of one of the parties plus the uncontrovertial fact the party cohabited and held themselves out as husband and wife over a long period of time. However numerous contradictory and unsubstantiated statements and her conduct are sufficient to rebut such a presumption. (G~ Henry J., ~ -- RA V (Dorn) to ARC 12/14/82).

MARRIAGE — PUTATIVE MARRIAGE — MINNESOTA

Contradictory statements and other conduct showing that the claimant knew of the legal requirement of a ceremonial marriage precludes a finding that the party had a good faith belief that the legal requirements for a valid marriage had been satisfied. (G~ Henry J., ~ -- RA V (Dom) to ARC 12/14/82).

2. OPINION

This is in response to your request for our assistance in determining whether Mary G~ is entitled to benefits as the widow of Henry J. G~. We conclude, for the reasons set forth below, that Mary G~ is not entitled to benefits.

The principal issues in this case is whether Mary G~ and Henry G~ were validly married in Blaine, Washington on June 28, 1966, or, in the alternative, whether Mary G~ satisfies the requirements for a "putative spouse" under the law of Minnesota, where the wage earner died domiciled on October 20, 1980. However, you have supplied us with considerable information, and the pertinent claims folders, concerning several prior marriages of both Mary G~ and Henry G~. Henry was married at least three times prior to 1966. Mary was married to Joseph B~ (also known as Jack B~) in Texas in 1928. It is not clear whether this marriage was void from its inception (because E~ was married in 1921 to Marie M~ from whom he was divorced in 1939), was terminated by divorce either in 1938 in Minnesota or in 1947 in Texas, or was terminated by E~ death in 1960 in Minnesota (at which time he was married to his stepdaughter). Mary later married Alfred E~ in Washington on December 24, 1948. Alfred died in Oregon in 1965, at which time Mary applied for and was awarded lump sum death benefits on his account. Following Henry G~ death in October 20, 1980, Mary applied for and was awarded widow's benefits on E~ account, and also filed the present application for widow's benefits on G~ account.

On her application dated August 19, 1965 for lump sum death benefits on E~ account, Mary stated that she had been married to Henry G~ on July 4, 1941 in Minnesota, and that this marriage had been annulled in Minnesota in 1942. However, in connection with her present application for widow's benefits based on the alleged 1966 marriage to G~ Mary has denied ever being married to G~ prior to 1966, or ever stating that she was married to G~ prior to 1966. On the other hand, the file indicates that Mary used the name G~ in applying for a social security account number in 1943 and also used the name G~ in applying for a license to marry Alfred E~ in 1948 (although she stated on the license application that she had not been previously married).

Much of the considerable confusion in the record stems from the numerous conflicting statements made by Mary in connection with her application in 1965 for lump sum benefits on E~ account, her own application in 1969 for retirement benefits, her applications for widow's benefits on both E~ and G~ accounts in 1980, and from the independent evidence gathered by the Social Security Administration. Nevertheless, it is apparent that whether their prior marriages were dissolved by death or divorce or were not valid to begin with, both Henry G~ and Mary G~ possessed the legal capacity to marry each other as of June 28, 1966, the date of their alleged marriage. Your memorandum implicitly assumes that as of that date, neither Henry nor Mary was married to another person. We therefore find it unnecessary to set forth in greater detail the myriad facts surrounding their prior marriages. However, as we discuss below, some of these facts bear on the issue of Mary's good faith belief that she was validly married to Henry G~.

Mary claims that she was married to Henry G~ on June 28, 1966 in a courthouse in Blaine, Washington by a Judge L~. Although Mary has submitted a personal, updated marriage record prepared by herself, no marriage certificate or other public or religious record of the marriage can be located in Whatcom County, Washington (where Blaine is located). Mary has contended in various statements (which differ considerably as to details) that immediately after their marriage, she and Henry went to Minnesota to attend the marriage of relatives, and that when they returned they attempted to obtain a copy of the marriage certificate, only to discover that either the entire courthouse or most of its records had been destroyed by a Fourth of July rock concert riot and fire and a storm. Investigation of these allegations failed to verify the existence of a judge named L~ in either Whatcom County or the surrounding area, and also failed to verify that a courthouse in either Whatcom County or the surrounding area had been destroyed in a riot, fire, or storm in 1966. Of the two individuals listed by Mary as witnesses to the alleged ceremony, one is deceased and the whereabouts of the other are unknown. No other secondary evidence of probative value exists indicating that a ceremony took place.

According to Mary's statement, she and Henry lived in Washington from June 28, 1966 (the date of their alleged marriage) until July 1, 1975; subsequently, the parties moved to Minnesota, where they lived until G~ death on October 20, 1980. The file contains numerous statements from friends and relatives indicating that Henry and Mary held themselves out as husband and wife, although none of these individuals have knowledge or other indirect reliable information that a marriage ceremony between Henry and Mary took place. The file also indicates that Henry and Mary filed joint tax returns, had joint bank accounts, and owned property as husband and wife. Henry's will refers to Mary as his wife and makes provisions for Mary's children by Joseph E~ . Mary's statements indicate that she always considered that she and Henry were husband and wife.

Mary applied for retirement benefits on her own account on June 26, 1969. On her application at that time, Mary stated that she had married Henry G~ on March 24, 1967, in contrast to the June 28, 1966 date which she later gave in connection with her 1981 application for widow's benefits. The file indicates that at the time she filed for retirement benefits (in 1969), she was informed that she would be entitled to greater benefits on G~ record than she would be entitled to on her own record. Mary declined to file for wife's benefits and, according to a report of contact, refused to reveal any facts concerning her marriage to G~.

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, a common-law marriage recognized under applicable state law, or (4) a "putative" marriage recognized under applicable state law. 42 U.S.C. §416(h)(1); 20 C.F.R. §§404.344-404.346, 404.723-404.727; POMS GN 00305.040. Washington does not recognize common-law marriages (POMS GN 00305.215), and Minnesota does not recognize common-law marriages entered into after April 26, 1941 (M.S.A. §517.01 (West)). Washington has no "putative spouse" statute (POMS GN 00305.275); however, Minnesota law recognizes as a putative spouse for inheritance and other purposes "any person who has cohabited with another to whom he is not legally married in the good faith belief that he was married to that person . . . ." M.S.A. §518.055 (West). Minnesota's "putative spouse" provision is applicable to all claims for benefits pending on or after March 1, 1979, regardless of when the marriage took place. POMS GN 00305.275G; F , Arthur L., CL-8-13-1, RA V (Dorn) to Director, MAMPSC V, 10/22/79; "Minnesota - POMS GN 00305.435 Regarding Restriction on Remarriage," RA V (Dorn) to Director, IPB V, 11/15/82.

Thus, the issue in this case is whether either (1) a ceremonial marriage between the parties took place, or (2) whether Mary satisfies the requirements of a "putative spouse" under Minnesota law. Although neither issue is free from doubt, we believe that the sounder view is that Mary is not entitled to benefits under either possibility.

1. Ceremonial marriage - There exists no primary evidence (a public or religious record) or secondary evidence (statements of the performing official, witnesses, or other individuals who know that a marriage ceremony took place, newspaper accounts, or other probative evidence) that a marriage ceremony took place between Mary G~ and Henry G~. See 20 C.F.R. §404.725; POMS GN 00305.075-00305.100. Your memorandum asks only whether Mary G~ may be a "putative spouse" and thus assumes that no finding of a ceremonial marriage is possible under the facts of this case. We do not believe that the issue is so simple. An allegation of a ceremonial marriage, accompanied by a substantial showing of cohabitation and repute, is adequate to give rise to a presumption that a ceremonial marriage did, in fact, take place. POMS GN 00305.105. In this case, the inference of a ceremonial marriage is made stronger by the length of their cohabitation (fourteen years) and the substantial holding out as husband and wife.

However, we believe that any presumption of a ceremonial marriage is rebutted by a number of factors. Among these are: (1) the lack of a consistent, satisfactory, or verifiable explanation of why no primary or secondary evidence of a marriage ceremony exists; (2) the lack of proof of the existence of a Judge L~ or of the destruction of courthouse records near the Washington- Canada border in 1966; (3) the fact that in her June 26, 1969 application for retirement benefits Mary listed the date of her marriage to Henry G~ as March 24, 1967, in contrast to the date of June 28, 1966 given in connection with her 1981 applications for widow's benefits on the accounts of E~ and G~; (4) the fact that she declined at the time of her application for retirement benefits to apply for more substantial benefits as G~ wife; and (5) the fact that at that same time she refused to reveal any facts concerning her marriage to G~.

Moreover, although not directly relevant to the issue of a ceremonial marriage, Mary's numerous misrepresentations and conflicting statements with respect to her past marriages necessarily bear on the credibility of her allegations of a ceremonial marriage to Henry G~. For example, with respect to her marriage to Joseph E~, Mary has at various times stated that she married him in 1928 in Texas, that she married him in 1929 in Texas, that she was divorced from him in 1939 in Minnesota, that she was divorced from him in 1947 in Texas, and that she never divorced E~ because she learned that he was a bigamist. Similarly, in applying for lump sum benefits on Alfred E~ account in 1965, Mary stated that she had married Henry G~ in 1941 and that the marriage had been annulled in Minnesota in 1942. However, in her 1981 applications for widow's benefits on both the accounts of E~ and G~ she has denied being married to G~ prior to 1966 or making any prior statement to this effect. On the other hand, independent evidence in the file indicates that Mary used the name G~ in applying for a social security account number in 1943 and in applying for a license to marry Alfred E~ in 1947. In our opinion, all of there factors dictate against a finding that Mary and Henry G~ entered into a ceremonial marriage.

2. "Putative" marriage - The Minnesota statute requires a "good faith belief" on the part of an individual that he is married to another person, but does not by its terms require that the parties have gone through a marriage ceremony. M.S.A. §518.055 (West). Thus, a person may acquire the rights of a "putative spouse" under the statute even though a ceremony never took place, so long as the person believed in good faith that he was married. A person may therefore be a "putative spouse" on the basis of a common-law relationship, even though common-law marriages are not recognized as such in Minnesota. We have found no reported Minnesota appellate case interpreting this statutory provision.

The facts of this case demonstrate that Mary G~ and Henry G~ cohabited and held themselves out as husband and wife. We may assume that Mary G~ considered Henry G~ to be her husband. However, the fact that Mary G~ may have considered Henry G~ to be her husband does not necessarily equate to a good faith belief on her part that she was in fact married to him. Mary's past marriages demonstrate an awareness on her part of the requirements for a valid marriage. Her claim that she is the wife of Henry G~ is not based on any contention that she was unaware of the requirements for a marriage or believed that such requirements had been followed. Nor does she expressly base her claim on the existence of a common-law relationship. Instead, Mary's claim is based on unverifiable and uncorroborated allegations of a marriage ceremony which apparently never took place. Moreover, the same factors discussed above with respect to Mary's numerous conflicting statements and misrepresentations strongly negate the existence of a good faith belief on her part that she was married to Henry G~.

Under these circumstances, we believe that the fact Mary G~ considered Henry G~ to be her husband stems from an awareness and conscious rejection of the requirements of a valid marriage rather than a lack of knowledge of such requirements or a belief that such requirements were followed. Mary may well have considered Henry G~ to be her "husband" despite her knowledge of the requirements for a legally recognized marriage; the fact remains, however, that Mary had such knowledge. We do not believe that the Minnesota putative spouse provision may be construed so broadly as to confer "putative spouse" status on any individual who considered another individual to be his or her "spouse", particularly in view of the statutory provision against common-law marriages. M.S.A. §518.041 (West).

We conclude, therefore, that Mary G~ is not entitled to benefits as the widow of Henry G~. T

1_/ Although in her November 7, 1980 application for widow's benefits on G~ account, Mary states that her marriage to G~ took place in Blaine, Washington, in other statements Mary asserts that she cannot now recall the name of the town in which the ceremony took place, although the town was near the Washington-Canadian border. No evidence of a 1966 marriage between Mary G~ and Henry G~ can be located in any of the counties near the Washington-Canadian border, and there is no evidence of a courthouse in any of the counties near the Washington-Canadian border being destroyed by fire or storm in 1966, or immediately prior or subsequent thereto. Moreover, no evidence of a marriage can be located in Portland, Oregon, where the parties lived prior to June 28, 1966. Finally, it is not clear from the record whether Blaine, Washington had a courthouse prior to June 28, 1966, or has one now.

2_/ G~ at that time was receiving retirement benefits.

3_/ A "de facto" marriage is one in which the claimant went through a marriage ceremony with a 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. §040.346.

4_/ 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 3, supra) in that the latter may be established without reference to state law.

5_/ Because, as discussed above, there was no prior impediment to a marriage between Mary G~ and Henry G~ in 1966, a determination that a ceremonial marriage took place would make unnecessary any determination as to the existence of a "deemed marriage" under 42 U.S.C. §416(h)(1)(B). Conversely, if no ceremonial marriage took place, the "deemed marriage" provisions are inapplicable.

6_/ Because no ceremony is required under §518.055, a "putative" marriage may be found under §518.055 based upon the relationship of the parties in Minnesota alone.

I. PR 82-009 Requirements for Putative Spouse Status Under Minnesota Law; Vernon J~, Deceased, A/N ~, J~, Claimant

DATE: April 28, 1982

1. SYLLABUS

MARRIAGE — Validity — In General

Based upon a determination of the Minnesota Tax Court that the claimant is the putative spouse for inheritance tax purposes Minnesota Courts of general jurisdiction would probably find the same. The tax court has the power to make findings of fact and conclusions of law and in this case the finding as to the existence of a "good faith belief" that there was a valid marriage was based upon a thorough and well-reasoned review of the facts.

(J~, Vernon, Deceased, ~ - RA V (M~) to ARC - 4/28/82)

2. OPINION

This memorandum is in response to your March 10, 1982 request for legal assistance, on the question of whether or not Sylvia J~ can claim benefits as the putative spouse of Vernon J~ You have directed our attention to an earlier opinion of this office, dated October 17, 1979, pertaining to Arthur L. F~ A/N ~, RAV (Dorn) to RC SSA V (W~), October 17, 1979, which you feel interprets Minnesota Law so as to find no putative spouse status in this situation. You also include two opinions of the Minnesota Tax Court in this matter finding that Sylvia J~ was the putative spouse of Vernon J~ for inheritance tax purposes.

The Social Security Act, 42 U.S.C.A. section 416(h)(1)(A) defers to State law to ascertain the question of familial status. In the Fee opinion this office interpreted the precise statutes relevant to this situation and found no putative spouse status for four reasons --1/, including that there was no "good faith belief" that the marriage was valid under Section 518.055 of the Minnesota Statutes Annotated, as amended on March l, 1979.

We agree that the prior opinion is closely in point, but it is different in one very important respect. In this matter, a "good faith belief" in a valid marriage was held by claimant. The determination in each case arising under Section 518.055, as to whether there is a "good faith belief" in a valid marriage, must be made on the peculiar facts of that case, and it may differ in two nearly identical cases because the beliefs of the parties might differ on similar facts.

In this case, no determination at all need be made because the Minnesota Tax Court, ruling on an inheritance tax matter, has treated Sylvia J~ as a putative spouse under Section 518.055. Johnson v. Commissioner of Revenue, (Minn. Tax Ct., Docket No. 2807, November 26, 1979 and March 6, 1980)(copies attached hereto). While the Tax Court is not a court of general jurisdiction in Minnesota, it does have the power to make findings of fact and conclusions of law which are binding on the parties and review is by appeal to the State Supreme Court. See generally, Minn. Stat. Ann., § 271.01 et seq. (Supp. 1982). In this case, the crucial finding of the Minnesota Tax Court was expressed in Conclusion of Law No. l, Order of November 26, 1979 at p.5:

1. The evidence in this case aptly establishes that Sylvia J~ had the good faith belief that she was married to the decedent and therefore was his putative spouse.

The Minnesota Tax Court further held, in Conclusion of Law No. 2, id., that the right to inherit as a surviving spouse was one that accrues to a putative spouse by virtue of Section 518.055. We note that the tax court made a thorough and well-reasoned review of the facts prior to rendering its opinions.

Taking these two conclusions of law together with our understanding of the jurisdiction of the Minnesota Tax Court, with its limitations, it is our opinion that the courts of Minnesota would treat claimant Sylvia J~ as the deceased wage-earner's wife, in determining the devolution of intestate personal property. 2/ Consequently, Sylvia appears to comply with the provisions of the final sentence of 42 U.S.C.A, section 416(h)(1)(A) (1974 rev. vol.) defining a "deemed" spouse (as distinguished from a "deemed" marriage). She is, therefore, deemed the wife of Vernon. 3_/

The only substantial, but crucial, difference between this situation and the earlier matter relating to Arthur F~ , see above, is that here there is a finding that Sylvia maintained a "good faith belief" and thus was the putative spouse of Vernon under Minnesota law.

1_/ The reasons were: No valid ceremony, no deemed marriage because of no ceremony whatsoever, common law marriages are not allowed in Minnesota and no "good faith belief" in a valid marriage.

2_/ The courts of Minnesota, i.e., the Tax Court, have already treated claimant as the wife of the deceased wage-earner in terms of consequences on devolution of property by will.

3_/ Sylvia J~ also satisfies one definition of wife because she was the mother of Vernon's children. 42 U.S.C.A. Section 416(b)(1) (Supp. 1982).


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