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.
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
(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
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.