TN 1 (06-09)

PR 05705.048 Texas

A. PR 09-106 Texas State Law When More Than One Person Claims To Be Surviving Spouse (Number Holder (NH), Joe M~, Jr., SSN ~ - REPLY

DATE: May 13, 2009

1. SYLLABUS

The agency received competing claims for surviving spouse's benefits. Once evidence is presented that the previous marriage was not dissolved, determining whether the presumption of validity of the last marriage applies is a factual decision. A spouse's acknowledgment of the marriage and the births of children are factors to consider in determining whether the presumption applies. The fact that the number holder (NH) never divorced his first wife rebuts the presumption of the validity of the later marriage to the claimant. Under Texas law the marriage is considered void if it is entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse. The claimant reported that she was unaware that the NH was previously married. The claimant's status as a putative spouse would not permit her to inherit the NH's intestate property. Thus, she cannot qualify for surviving spouse's benefits.

2. OPINION

This memorandum is in response to your request for an opinion regarding whether Jenny L. D~ (Ms. D~) can receive surviving spouse's benefits on the Social Security record of Joe M~, Jr. (Mr. M~). Specifically, you have asked whether the Texas presumption of the validity of the last marriage applies when Ms. D~ was the second of at least four spouses of Mr. M~ and there is no evidence of a divorce between Mr. M~ and his first alleged spouse, Minnie M~ M~ (Ms. M~). If Ms. D~ is not entitled to surviving spouse's benefits, you have asked whether she can receive surviving divorced spouse's benefits on Mr. M~'s record. In our opinion, evidence that Ms. M~ and Mr. M~ never divorced rebuts the presumption of the validity of the later marriage between Ms. D~ and Mr. M~. As a result, the marriage between Ms. D~ and Mr. M~ was void under Texas state law. Since Ms. D~ and Mr. M~ were never validly married, she is similarly ineligible for surviving divorced spouse's benefits.

As we understand the facts, Mr. M~ was entitled to Disability Insurance Benefits from May 1993 until his death, which occurred in Texas on December 8, 1993. There are competing claims for surviving spouse benefits on Mr. M~'s Social Security record. The evidence you provided shows that Mr. M~ had at least four marriages./

On November 2, 1965, Mr. M~ married Ms. M~. Ms. M~ reported that she and Mr. M~ separated in 1970 or 1971. She stated that to her knowledge there was never a divorce. The Social Security Administration (agency) searches of divorce records indicated that divorce proceedings were initiated on two occasions in Galveston, Texas, but a divorce was never finalized.

On March 25, 1970, Mr. M~ married Ms. D~. According to Ms. D~, she and Mr. M~ separated in 1971. She reported that she never divorced Mr. M~ and that Mr. M~ never notified her that he divorced her. Agency searches of divorce records produced no evidence of a divorce between Mr. M~ and Ms. D~.

On December 26, 1974, Mr. M~ married Annie D. H~ (Ms. H~). A child, Lowanda M~ (Lowanda), was born during the marriage. The agency indicates that it received evidence that Mr. M~ and Ms. H~ divorced in June 1979 in Many, Louisiana.

On May 8, 1985, Mr. M~ married Ora T~ (Ms. T~). The marriage ended with Ms. T~'s death on July 9, 1993.

The file contains the following documented evidence:

1) Mr. M~'s January 28, 1993, Disability Application: At the time of the application, Mr. M~ was living in Texas City, Texas. Mr. M~ stated that he was currently married to Ms. T~. He reported that he had married Ms. T~ on May 8, 1985, in Port Arthur, Texas. Mr. M~ also reported one prior marriage to Virginia (Surname Unknown). He stated that the marriage took place in Port Arthur, Texas in 1969, and that the marriage ended by divorce on an unknown date in Orange, Texas.

2) Mr. M~'s Numident: Mr. M~ was born in Pleasant Hill, Louisiana.

3) Ms. H~'s March 25, 1994, Application for Surviving Child Benefits for Lowanda: Ms. H~ stated that she and Mr. M~ married in June 1974 in Center, Texas, and divorced about June 1979 in Many, Louisiana. During the marriage, Lowanda was born on October 2, 1975, in Seattle, Washington. The agency reviewed divorce papers listing Lowanda as a child of Mr. M~ and Ms. H~.

4) Ms. M~'s January 30, 2002, Application for Widow's Benefits: At the time of her application, Ms. M~ was living in Bossier City, Louisiana. Ms. M~ stated that she and Mr. M~ married on November 2, 1965, in Orange City, Texas. She reported that Mr. M~ had one prior marriage that ended in divorce, but she did not have any further information about the prior marriage. Ms. M~ stated that she and Mr. M~ lived together for eight or nine years before separating. She indicated that she never filed for divorce and never received any notice that Mr. M~ had filed for a divorce.

5) Ms. D~'s August 8, 2005, Disability Application: At the time of her application, Ms. D~ was living in Franklin, Louisiana. Ms. D~ stated that she married Mr. M~ in January 1970 in Orange, Texas. She stated they had separated for 20 years, but had not divorced. She did not know his social security number or have enough information to permit the agency to locate Mr. M~'s record at that time.

6) Ms. D~'s April 2, 2007, Disability Application: Ms. D~'s address had not changed. She stated that she had Mr. M~ had married in January 1964 in Erns, Texas, and had not divorced. Ms. D~ supplied no proof of the marriage.

7) Ms. D~'s July 18, 2007, Retirement Application: Ms. D~'s address had not changed. She stated that she and Mr. M~ married in May 1970. Ms. D~ had no proof of marriage. She reported that Mr. M~ had shot her 25 years before, and she had not seen him since. She stated that to the best of her knowledge she and Mr. M~ were still legally married.

8) Ms. D~'s and Mr. M~'s Marriage Certificate: On March 25, 1970, Mr. M~ and Ms. D~ were married before a Justice of the Peace in Orange, Texas.

9) Ms. D~'s Remarks: Ms. D~ stated that she met Mr. M~ in Orange, Texas, around 1968, and he did not state that he had ever been married. She stated that Mr. M~ shot her in Franklin, Louisiana, where they were visiting. Ms. D~ reported that afterward she moved to New Orleans, Louisiana, to get away from him. Ms. D~ stated that Mr. M~ was caught and brought back to Franklin, Louisiana, for trial. She stated she did not know what happened at trial. Ms. D~ reported that she did not divorce him, and Mr. M~ never notified her that he divorced her. The agency noted that Mr. M~ died domiciled in Texas City, Texas.

10) Report of Contact with Ms. M~: Ms. M~ stated that she married Mr. M~ in Orange, Texas, on November 2, 1965. She reported that they moved to Galveston, Texas, where their two children were born. Ms. M~ stated that they moved to Starks, Louisiana, around 1969. She reported that she and Mr. M~ separated in 1970 or 1971. Ms. M~ reported that she then moved to Homer, Louisiana, and she believed that Mr. M~ moved to Orange, Texas. She stated that she saw Mr. M~ in the late 1970s or early 1980s in Shreveport, Louisiana, where he was then living and working. Ms. M~ stated that Mr. M~ told her they were still married and that he had no intention of ever seeking a divorce from her. Ms. M~ indicated that Mr. M~ did not mention any other marriages. She indicated that her sister, who lived in Orange, Texas, told her Mr. M~ later moved back to Orange, Texas. Ms. M~ reported that she moved to Bossier City, Louisiana in October 1990. She stated as far as she knew, she and Mr. M~ were still married at the time of his death.

11) Divorce Records Searches: The agency requested divorce records searches between Mr. M~ and Ms. M~ from 1965 through 1993 and between Mr. M~ and Ms. D~ from 1970 through 1993 in the following areas:

a) Homer, Louisiana: Neither the Claiborne Parish nor Webster Parish Clerks of Courts had records of divorce between Mr. M~ and Ms. M~ or Ms. D~.

b) Shreveport, Louisiana: The Parish clerk found no divorce records.

c) Bossier City, Louisiana: The Parish clerk found no divorce records.

d) Starks, Louisiana: No divorce documents were found for either party.

e) Pleasant Hill, Louisiana: The Sabine Parish Clerk of Court verified that there were no records of divorce between Mr. M~ and Ms. M~ or Ms. D~.

f) Galveston, Texas: There were two divorce actions filed between Mr. M~ and Ms. M~, but neither party followed through. Thus, the divorce was never finalized. There was no record of a divorce between Mr. M~ and Ms. D~.

g) Orange County, Texas: There was no record of a divorce for either party.

h) Seattle, Washington: The agency was unable to obtain records from King County. The agency concluded that it was unlikely that Mr. M~ would have obtained a divorce with any of the parties in Seattle, Washington, and, thus, did not request further search of these records.

i) Jefferson County, Texas: There was no record of a divorce for either party.

12) Divorce Records Search: The agency requested divorce records searches between only Mr. M~ and Ms. M~ from 1965 through 1993 in the following areas:

a) Center, Texas: There was no record of divorce in Shelby County.

b) Franklin, Louisiana: There was no record of divorce in St. Mary Parish.

13) Divorce Records Search: The agency requested divorce record searches between only Mr. M~ and Ms. D~ from 1970 through 1993 in the following areas and counties:

a) Franklin, Louisiana: There was no record of divorce in St. Mary Parish.

b) Center, Texas: There was no record of divorce in Shelby County.

c) Rayne, Louisiana: The Lafayette Perish Clerk of Court found no divorce record.

d) Orleans Parish, Louisiana: There were no divorce records located.

14) Marriage Records: The agency requested the following marriage record searches:

a) Shelby County, Texas: Mr. M~ and Ms. H~ married on December 26, 1974.

b) Orange County, Texas, Online Search: Mr. M~ and Ms. D~ married on March 25, 1970.

c) Orange County, Texas, Volume Search: Mr. M~ and Ms. M~ married on November 2, 1965.

The Social Security Act provides that a claimant is entitled to surviving spouse's benefits if she is the number holder's widow and meets the other requirements for eligibility. 42 U.S.C. § 402(e)(1) (2009); 20 C.F.R. § 404.335(a) (2009)./ A claimant can meet this relationship requirement if she and the number holder were validly married under state law at the time the number holder died. See 42 U.S.C. § 416(h)(1)(A)(i) (2009); 20 C.F.R. § 404.345 (2009). In addition, a claimant can meet the relationship requirement if she would be able to inherit a wife's share of the number holder's personal property under state law if the number holder were to die without leaving a will. 20 C.F.R. § 404.345 (2009). The controlling law is the law of the state where the number holder had a permanent home at the time of his death. Id. Permanent home means the number holder's true and fixed home or legal domicile. 20 C.F.R. § 404.303 (2009). In this case, Mr. M~ died while domiciled in Texas. Thus, Texas law is controlling.

Every marriage entered into in Texas is presumed valid unless expressly void or expressly voidable and the marriage is annulled. Tex. Fam. Code Ann. § 1.101 (Vernon 2009). Under Texas law, a marriage is void if it is "entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse." Tex. Fam. Code Ann. § 6.202 (Vernon 2009). Here, Ms. D~'s marriage to Mr. M~ was later than Ms. M~'s marriage to Mr. M~. The evidence shows Ms. D~ married Mr. M~ on March 25, 1970, in Orange County, Texas. The agency's search of divorce records uncovered no evidence of a divorce between Ms. D~ and Mr. M~. However, the agency obtained evidence that Ms. M~ married Mr. M~ five years before his marriage to Ms. D~, on November 2, 1965, in Orange County, Texas. The agency found no record of a finalized divorce between Ms. M~ and Mr. M~. Thus, Ms. D~ and Mr. M~ entered into their marriage at a time when Mr. M~ was married to Ms. M~. This preexisting marriage between Ms. M~ and Mr. M~, if sufficiently proven, would render the later marriage between Ms. D~ and Mr. M~ void.

The presumption of the validity of the most recent marriage is one of the strongest presumptions under Texas law. Texas Employer's Ins. Ass'n. v. Elder, 282 S.W.2d 371, 373 (Tex. 1955). When two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each prior marriage until the validity of a prior marriage is proven. Tex. Fam. Code Ann. § 1.102 (Vernon 2009). The presumption increases over time, by the spouses' acknowledgments of the marriage, and by the births of children. See Texas Employer's Ins. Ass'n, 282 S.W.2d at 373. The burden of proving that the most recent marriage is invalid is on the party seeking to invalidate the marriage. Tex. Fam. Code Ann. § 1.101 (Vernon 2009). Here, we have evidence and allegations that Mr. M~ married several different spouses without obtaining a divorce. Because the agency received competing claims for surviving spouse benefits from Ms. M~ and Ms. D~, we consider the validity of these two marriages./ Because Ms. D~'s marriage to Mr. M~ is more recent than Ms. M~'s marriage to Mr. M~, Ms. M~ has the burden of proving that she was married to Mr. M~ at the time he married Ms. D~ and that neither she nor Mr. M~ obtained a divorce from the other. See Chandler v. Chandler, 991 S.W.2d 367, 393 (Tex. App. El. Paso, 1999). The agency conducted a volume search of the marriage records in Orange County, Texas, and located the marriage license for Ms. M~ and Mr. M~. In addition, the agency conducted searches of the divorce records in each Texas county or Louisiana parish where either Ms. M~ or Mr. M~ were known to reside. The agency found no divorce record. Ms. M~ was not required to "prove the non-existence of a divorce or annulment in every jurisdiction where such proceedings could have been possible, but only where the parties might reasonably have been expected to have pursued them." Medrano v. State of Texas, 701 S.W.2d 337, 341 (Tex. App. 1985). Thus, the evidence would suggest that Ms. M~ and Mr. M~ were never divorced.

Mr. M~'s statements on his disability application suggested that he had resided in the following Texas counties: Galveston, Jefferson, and Orange. He was born in Pleasant Hill, Louisiana, within Sabine Parish. The agency discovered that two divorce actions were filed in Galveston County between Mr. M~ and Ms. M~, but neither divorce was finalized. In Texas, a marriage can only be dissolved by court decree or death; there is no common-law divorce. Estate of Claveria v. Claveria, 615 S.W.2d 164 (Tex. 1981). The divorce action filings in Galveston County did not result in a court decree granting a divorce. Thus, the filings did not dissolve the marriage between Ms. M~ and Mr. M~. The agency's search of the divorce records in Jefferson County, Orange County, and Sabine Parish also established that there had been no divorce between Ms. M~ and Mr. M~.

Ms. H~' application for surviving child benefits on Lowanda's behalf stated that she and Mr. M~ married in Center, Texas, within Shelby County, Texas. The agency found no record of divorce between Ms. M~ and Mr. M~ in Shelby County. Ms. H~ also reported that Lowanda was born in Seattle, Washington, within King County. The agency was unable to search the divorce records in King County, but concluded that it was unlikely that Mr. M~ obtained a divorce from Ms. M~ in that county. Ms. M~ was only required to prove the non-existence of a divorce in jurisdictions where the parties might reasonably have been expected to pursue them. Medrano, 701 S.W.2d at 341. According to statements the agency provided, Mr. M~ was a truck driver who traveled across the country, but there is no evidence that he changed his residence outside of Texas or Louisiana. Because there is no evidence indicating that Mr. M~ ever resided in Seattle, Washington, it would not be reasonable to expect that he would have obtained a divorce there. Thus, the unavailability of a divorce record search from King County, Washington does not affect this case.

Ms. M~ reported that she has lived in following areas: Orange County, Texas; Galveston County, Texas; Starks Parish, Louisiana; Claiborne Parish, Louisiana; Webster Parish, Louisiana; and Bossier City, Louisiana. In addition, she stated that she was aware that Mr. M~ lived in Orange County, Texas, and Bossier City/Shreveport, Louisiana, after their separation. The agency's search of these areas showed that neither party obtained a divorce in any of these jurisdictions.

Ms. D~ indicated that she and Mr. M~ had married in Orange County, Texas. As noted above, the agency's search of the divorce records in Orange County, Texas, established that neither Ms. M~ nor Mr. M~ obtained a divorce in that county. Ms. D~ stated that after Mr. M~ shot her, he was arrested and brought to jail in Franklin, Louisiana. The agency's search of divorce records in St. Mary's Parish, Louisiana, where Franklin, Louisiana, is located, showed no divorce between Ms. M~ and Mr. M~. Ms. D~ had no other information about where Mr. M~ might have lived, as she had no further contact with him.

Based on the evidence presented, we conclude that the agency has searched the divorce records in every jurisdiction where Ms. M~ or Mr. M~ might reasonably have obtained a divorce. See Medrano, 701 S.W.2d at 341. The evidence establishes that Mr. M~ was married to Ms. M~ at the time that he married Ms. D~, and that neither Mr. M~ nor Ms. M~ ever divorced the other. Once evidence is presented that the previous marriage was not dissolved, determining whether the presumption of validity of the last marriage applies is a factual decision. See Bailey-Mason v. Mason, 122 S.W.3d 894, 898 (Tex. App. 2003). Here, Mr. M~ did not acknowledge his marriage to Ms. M~ or Ms. D~ in his disability application. However, Ms. M~ reported that she spoke with Mr. M~ in the late 1970s or early 1980s and that he acknowledged that they were still married. Mr. M~ also fathered two children with Ms. M~ and no children with Ms. D~. A spouse's acknowledgments of the marriage and the births of children are factors to consider in determining whether the presumption applies. See Texas Employer's Ins. Ass'n, 282 S.W.2d at 373. We conclude that the evidence that Ms. M~ and Mr. M~ did not divorce rebuts the presumption of validity of the marriage between Ms. D~ and Mr. M~. Because the marriage between Ms. D~ and Mr. M~ was void, Ms. D~ was not Mr. M~'s spouse under Texas law.

Ms. D~ also does not alternatively qualify as Mr. M~'s surviving spouse as an individual who could inherit a wife's share of Mr. M~'s personal property under Texas intestate succession laws. 20 C.F.R. § 404.345 (2009). Even though a marriage may be void because of the existence of a prior marriage, Texas recognizes a putative marriage as giving certain property rights to a spouse that enters into the marriage in good faith. See Garduno v. Garduno, 760 S.W. 2d 735, 738-39 (Tex. App. - Corpus Christi 1988, no writ); see also Consolidated Underwriters v. Kelly, 15 S.W.2d 229 (Tex. Comm'n. App. 1929, judgm't adopted). Good faith requires that the putative spouse be unaware of the cause that prevents a valid marriage. Dean v. Goldwire, 480 S.W.2d 494, 496 (Tex. App. - Waco 1972, writ denied). Here, Ms. D~ reported that she was unaware that Mr. M~ had ever been married prior to their marriage. Thus, she could potentially qualify as a putative spouse.

Her status as a putative spouse, however, would not permit her to inherit Mr. M~'s intestate property. Under Texas law, a putative spouse is allowed the same right in property acquired during the marital relationship as if she were a lawful spouse. Davis v. Davis, 521 S.W.2d 603, 606 (Tex. 1975). However, this property right extends only to her own one-half community or joint tenancy interest in property the couple acquired during the putative marriage. It does not entitled the putative spouse to inherit any share of the decedent's one-half property interest. Hammond v. Hammond, 108 S.W. 1024 (Tex. Civ. App. 1908). Even though Ms. D~ may qualify as a putative spouse, she cannot inherit a wife's share of Mr. M~'s intestate property under Texas law. Thus, she cannot qualify for surviving spouse benefits under Mr. M~'s record.

Finally, we conclude that Ms. D~ cannot qualify for surviving divorced spouse benefits under Mr. M~'s record. An individual may be entitled to surviving divorced spouse's benefits if she is the number holder's surviving divorce spouse and meets the other requirements for eligibility. 42 U.S.C. § 402(e)(1) (2009); 20 C.F.R. § 404.336 (2009)./ A claimant can meet this relationship requirement if she and the number holder were validly married under state law or were deemed to be validly married under state law. See 42 U.S.C. § 416(h)(1)(A)(i) (2009); 20 C.F.R. §§ 404.336, 404.345, 404.346 (2009). The standard for the validity of a marriage under state law is the same for surviving