This responds to your request for assistance in determining the status of Edith L.
K~ and Faye H. K~ as the widows of Robert H. K~. You have also asked whether Lori,
Ronald, and Rhonda K~ are entitled to benefits as the children of Robert H. K~. We
conclude, for the reasons discussed below, that: (1) Edith K~ is the "putative spouse"
of the wage earner under Illinois law; (2) Faye K~ is the legal widow of the wage
earner; and (3) Lori, Ronald, and Rhonda K~ are each entitled to benefits as the children
of Robert H. K~.
The relevant facts may be briefly summarized: Robert H. K~, the wage earner, married
Edith L~ (one of the claimants in this case) on December 6, 1959 in Mt. Vernon, Illinois.
The wage earner's previous two marriages had ended in death and divorce, respectively.
Edith had previously been married to Joseph S~ . A Jefferson County circuit court
orally granted Edith and S~ a divorce at a September 24, 1959 hearing. The parties'
attorneys subsequently submitted a prepared decree for the court's approval.
According to a December 23, 1959 letter from S~'s attorney to his client, "some time
elapsed [after the September 24, 1959 hearing] before it [the decree] was presented
to the court." The decree was signed but not dated by the judge, and was filed on
December 8, 1959, two days after Edith's marriage to the wage earner.
The wage earner and Edith lived in Mt. Vernon until 1964, when they moved to St. Charles.
Sometime after 1964, the parties separated. The record contains several statements
of Edith K~ in addition to statements of Robert E. K~ (the wage earner's son by his
first marriage) and Mike S~ (Edith's son by her previous marriage). These statements
substantially conflict with one another concerning the date of the parties' separation
and their subsequent contacts. According to these statements the parties sepa- anywhere
from a "sporadic" to "frequent" basis until 1974. During this period Edith had three
children: Lori (born December 1, 1965) and Ronald and Rhonda (both born July 5, 1969).
The wage earner filed separate applications for retirement and disability benefits
in 1972. On each application he indicated that he was married but separated from Edith
L~ K~. He listed no children. The wage earner was awarded retirement benefits. At
no time prior to the wage earner's death in 1982 did Edith apply for benefits on behalf
of Lori, Ronald, and Rhonda based on the wage earner's record.
The wage earner married Faye H~ (one of the claimants in this case) on July 7, 1977.
A search of divorce records between 1966 and 1977 in all counties where the wage earner
resided produced no evidence of a divorce between the wage earner and Edith. 1/ Edith
states that she never divorced the wage earner, was never told by the wage earner
that he had divorced her, and was never served with a divorce judgment. As noted above,
the wage earner stated on applications for retirement and disability benefits in 1972
that he was then married to Edith. However, when Faye applied for wife's benefits
in 1978, the wage earner did not list his marriage to Edith on the husband's certification
form. Edith states that she was aware of the wage earner's marriage to Faye.
The wage earner was hospitalized in 1982, and then entered a nursing home where he
died on August 18, 1982 domiciled in Illinois. A newspaper obituary did not mention
Faye, but instead listed Edith as the wage earner's surviving wife. The obituary listed
the wage earner's children by his first two marriages, but did not list Lori, Rhonda,
and Ronald K~. The information contained in the obituary was apparently supplied by
the wage earner's children by his first marriage, who assumed complete control over
the wage earner's affairs when he entered the nursing home. Faye indicates that she
did not know that the wage earner had died until she read the obituary. Moreover,
the funeral director's statement indicated that Edith was the wage earner's surviving
The issues in this case are (1) whether Edith K~ and/or Faye K~ qualify as the legal
widow or the putative spouse, under Illinois law, of the wage earner, and (2) whether
Lori, Rhonda, and Ronald K~ are entitled to benefits as the children of the wage earner.
1. Edith K~ and Faye K~ - The validity of both Edith's and Faye's marriages to the
wage earner depends on the effective date of Edith's divorce from Joseph S~. If Edith's
divorce from S~ was not effec- prior to her December 6, 1959 marriage to the wage
earner then the tter marriage is invalid under Ill. Rev. Stat. ch.40 § 212(a) unless
it was subsequently validated pursuant to § 212(b). If Edith's marriage to the wage
earner was neither valid from its inception nor subsequently validated, then Edith
is not the legal widow of the wage earner and Faye is the legal widow. Edith could
still be a "putative spouse" under Ill. Rev. Stat. ch.40 § 305 and therefore be a
"widow" under Section 216(h)(1)(A) of the Social Security Act. 2/ If, on the other
hand, Edith's marriage to the, wage earner was either valid-from its inception or
was subsequently validated, then Edith would be the wage earner's legal widow. In
that case, the presumption of the validity of the latter of two or more conflicting
marriages would be rebutted by the absence of any evidence of a divorce between the
wage earner and Edith. Sparling v. Industrial Commission, 270 N.E.2d 411 (Ill. 1971). Faye would not be the legal widow of the wage earner
but could still qualify as either the "putative spouse" of the wage earner under Ill.
Rev. Stat. ch.40 § 305 or a "deemed widow" under Section 216(h)(1)(B) of the Social
Security Act. 3/ Based on the evidence before us, we find that 1) Edith's divorce
from Joseph S~ did not become effective until December 8, 1959; 2) Edith's December
6, 1959 marriage to the wage earner was not valid nor did the marriage subsequently
become validated under Ill. Rev. Stat. ch.40 § 212; 3) Edith qualifies as the "putative
spouse" of the wage earner under Illinois law; and 4) Faye is the legal widow of the
First, we find that Edith's divorce from S~ was not effective until December 7, 1959
at the earliest. In Russell H~, ~, RA V (D~) to Reg. Comm. SSA 6/19/78, we determined
that a divorce becomes effective in Illinois once a written decree is signed by the
judge although the decree in that case was not filed until two weeks after the judge
signed it. We based this conclusion on our finding that the filing of a judgment is
considered in Illinois to be merely a ministerial act performed by the clerk. In re
Estate of Young, 112 N.E.2d 113, 117 (Ill. 1953). We also stated in H~ that an oral' pronouncement
of divorce made before the signing of a divorce decree has no effect. Jackman v. North, 75 N.E.2d 324 (1947); Pope v. Pope, 299 N.E.2d 161 (Ill. App. 1973); Norwood v. Norwood, 77 N.E.2d 552 (Ill. App. 1948); Richmond v. Richmond, 61N.E.2d 573 (Ill. App. 1945). 4/ This rule has also been applied in cases decided
subsequent to the H~ opinion. Heyman v. Heyman, 548 F. Supp. 1041, 1044 (N.D. Ill. 1982) (under Illinois law, a divorce is not effective
until' written decree is approved by the judge); In re Marriage of Ayers, 402 N.E.2d 401, 403 (Ill. App. 1980). Thus, the oral judgment of divorce between
Edith and S~ rendered at the September 24, 1959 proceedings had no effect. The signed
divorce decree was filed by the clerk on December 8, 1959. While the divorce was actually
effective when the decree was signed rather than when it was filed, the decree itself
is not dated nor is there any extrinsic evidence to indicate the date on which the
judge signed the decree. We have found no Illinois cases indicating when an undated
decree is considered to have been signed.. In the normal course of judicial proceedings,
however, a judgment is filed either on the day the judge signs it or on the following
day. Since we presume the regularity of administrative procedures in the absence of
evidence to the contrary, we conclude here that the decree was signed, and was therefore
effective, either on December 8, 1959 (a Tuesday), the day it was filed, or on December
Second, because Edith's marriage to S~ was undissolved at the time of her December
6, 1959 marriage to the wage earner, the latter marriage was invalid under the former
Marriage Act (Ill. Rev. Stat. ch.89 § 1 (1975)) and its predecessors. Prior to 1977,
the subsequent dissolution of a prior marriage by death or divorce did not validate
a bigamous marriage in the absence of resolemnization of that marriage. Schmisseur v. Beattie, 35 N.E. 525 (Ill. 1893); see also Historical and Practice Notes, Ill. Rev. Stat. ch.40 § 212 (1980). However, under
paragraph 212(b) of the Illinois Marriage and Dissolution of Marriage Act of 1977,
Ill. Rev. Stat. ch.40 § 101 et seq,, a bigamous marriage becomes valid when the prior
undissolved marriage is ended by death or divorce and the parties to the second marriage
cohabit after removal of the impediment. In Ambers G~ , ~~ RA V (A~) to Director,
IPBV, 12/11/80, we stated that paragraph 212 would be applied only in those cases
where the wage earner died on or after October 1, 1977, the effective date of the
Marriage and Dissolution of Marriage Act. In the present case, the wage earner died
on August 18, 1982, and the wage earner and Edith cohabited following the removal
of the impediment to their marriage. However, we have also stated that based on case
law and the legislative history of paragraph 212, that provision does not validate
a marriage contracted prior to October 1, 1977 where the parties no longer cohabited
subsequent to that date. Marvin B~ , ~ , RA V (D~) to Director, IPB, 11/29/83; Morris
B~ , ~, RA V (D~) to Director, IPB, 7/19/82. Although it is not clear precisely when
Edith and the wage earner separated, the evidence indicates that they separated no
later than 1968. Thus, paragraph 212(b) does not validate their marriage.
Third, we think that Edith does qualify as the "putative spouse" of the wage earner
under paragraph 305 of the Illinois Marriage and Dissolution of Marriage Act of 1977.
Under that provision, a person who goes through a marriage ceremony and cohabits with
another person in the good faith belief that he or she is validly married to that
person is a putative spouse and acquires all the rights of a legal spouse (including
the right to inherit) until knowledge of the fact that he or she is not legally married
terminates such status and prevents the acquisition of further rights. In the G~ opinion,
we stated that paragraph 305, like paragraph 212(b), was inaptable in the cases of
wage earners dying prior to October 1, 1977. However, in the B~ and Bu~ opinions we
stated that unlike paragraph 212(b), paragraph-305 validates a pre-October 1, 1977
marriage even though the parties did not cohabit subsequent to that date, so long
as the claiming party maintained a good faith belief in the validity of the marriage
subsequent to October 1, 1977. Br~, p. 6; Bu~, note 3. We have also stated that paragraph
305 does not require any particular length of cohabitation, and that separation of
the parties does not itself terminate putative spouse status, assuming that the separation
is for reasons other than knowledge of the legal invalidity of the marriage. B~, p.
6. In the present case, Edith could have reasonably believed that her marriage to
S~ had been dissolved by the oral pronouncement of divorce on September 24, 1959.
Thus, Edith probably believed that she was free to marry the wage earner on December
6, 1959. Moreover, Edith's later knowledge of the wage earner's 1977 marriage to Faye
did not affect her good faith belief in the validity of her "marriage" to the wage
earner, since Edith had no reason to believe that her own "marriage" had been invalid.
Edith could reasonably assume that it was the wage earner's marriage to Faye that
was invalid. Therefore, Edith likely maintained her good faith belief until the wage
earner's death. We conclude that Edith is the "putative spouse" of the wage earner
under Illinois law. 5_/
Fourth, since Edith was not validly married to the wage earner, nor was her marriage
subsequently validated, Faye was validly married to the wage earner and is his legal
widow. Faye previously applied for, and was awarded, widow's benefits. However, these
benefits may now be decreased based on the entitlement of Edith and her children.
2. Lori, Rhonda, and Ronald K~ - You have asked whether the children of a "putative
marriage" under § 305 are presumed legitimate. Such children are considered legitimate
under Illinois law, albeit pursuant to Ill. Rev. Stat. ch.40 §212(c) rather than §
305. The former section provides that "children born or adopted of a prohibited or
common law marriage are legitimate." On the other hand, § 305 merely confers a certain
status on a "spouse" to a prohibited marriage. Moreover, § 212(c) does not require
that one of the "spouses" enter into a marriage in "good faith" in order for the children
of that marriage to be considered legitimate. Furthermore, § 212(c) does not require
that the parties to a prohibited marriage have cohabited in order for the children
of that marriage to be considered legitimate.
Section 216(h)(2)(B) of the Social Security Act also enables the child of a prohibited
marriage to qualify for child's benefits without reference to state law. That section
provides that the son or daughter of an insured individual is eligible for benefits
if the insured individual and the child's other parent went through a ceremony that
would have resulted in a valid marriage but for the existence of a prior undissolved
marriage or a defect in the procedure followed in connection with the purported marriage.
Unlike the "deemed widow" provisions of Section 216(h)(1)(B), the "deemed child" provisions
of Section 216(h)(1)(A) do not require the existence of good faith or a period of
cohabitation in order for the child of the prohibited marriage to be eligible for
benefits. However, Section 216(h)(2)(B) does require satisfactory evidence that the
claimant is the biological child of the wage earner. See 20 C.F.R. §404.355(b); POMS GN 00306.150.
In the present case, three children were born during the "prohibited" marriage of
the wage earner and Edith K~ - Lori (born December 1, 1965), Ronald (born July 5,
1969), and Rhonda (also born July 5, 1969). Lori K~ birth certificate lists a Robert
K~ (no middle initial), age 55, as the father. The wage earner was born in 1910. Such
evidence satisfactorily establishes the paternity of the wage earner with respect
to Lori for purposes of Section 216(h)(2)(B) of the Social Security Act. See POMS GN 00306.150. We do not think that the absence of a middle initial on the birth certificate raises
any significant inference that the father of Lori is not the wage earner but Robert
E. K~, the wage earner's son by his first marriage. Although the record presents considerable
conflicting evidence regarding the relationships of the wage earner and Edith K~ on
the one hand, and Robert E. K~ and Edith on the other hand, during late 1968 when
Rhonda and Ronald K~ were conceived, there is substantially less dispute regarding
the period in early 1965 when Lori was conceived. We conclude that Lori is entitled
to benefits under Section 216(h)(2)(B) of the Social Security Act.
The paternity issue with respect to Ronald and Rhonda K~ is a much more difficult
matter. Simply put, the evidence is in hopeless conflict regarding when the wage earner
and Edith separated, and regarding the extent of their relationship during the period
in late 1968 when Rhonda and Ronald were conceived. Similarly, the evidence is in
hopeless conflict regarding the extent of Edith's relationship with Robert E. K~ during
this period. We do not think that such evidence satisfactorily establishes the paternity
of the wage earner with respect to Ronald and Rhonda K~ for purposes of Section 216(h)(2)(B).
However, Ill. Rev. Stat. ch.40 § 212(c) accords the same presumption of legitimacy
to a child born during a prohibited marriage as is accorded to a child born during
a valid marriage. Valle v. Valle, 447 N.E.2d 945, 949 (Ill. App. 1983). See also Cardenas v. Cardenas, 140 N.E.2d 377 (Ill. App. 1957). We have repeatedly stated in prior opinions that
under Illinois law, this presumption applies even though the spouses were separated
during the period of possible conception and may be rebutted only by "clear, convincing,
and irrefragable proof" that the husband had no access to the mother during this period.
William M~, ~, RA V (D~) to ARC-Programs, 11/10/83; A1 S~ , ~~ ,~RA v (born) to ARC-Programs,
7/28/80. We think that under § 212(c) the same evidentiary standards apply to children
born during a prohibited marriage. 6_/
We explained in the M~ and S~ opinions that although the standard for rebutting the
presumption of legitimacy appears to be particularly onerous, the Illinois courts
have in practice allowed credible proof of nonaccess to overcome the presumption.
The courts have generally found that the presumption of legitimacy is rebutted where
there is: (1) credible testimony by both the husband and wife of nonaccess to each
other during the period of conception, (2) evidence of a relationship between the
mother and putative father during the period of conception, and (3) other persuasive
evidence that corroborates the testimony of the mother. In the present case, we think
the evidence is clearly insufficient to rebut the presumption of legitimacy with respect
to Lori K~. With respect to Ronald and Rhonda K~, we agree that considerable doubt
exists that the wage earner was their father. Edith K~ s' numerous statements are
in considerable conflict with respect to the extent of her relationships both with
the wage earner and with Robert E. K~, the wage earner's son, during the period of
possible conception in late lg68. The statements of Robert E. K~ and Mike S~, Edith's
son by her prior marriage to Joseph S~, fail to clarify the issue of access by the
wage earner and Robert E. K~ to Edith during the period of possible conception. The
wage earner himself failed to acknowledge any of the three children in his applications
for retirement and disability benefits in 1972. Some evidence submitted in connection
with the wage earner's disability application suggests that he had prostate problems
in late 1968 (possibly resulting in surgery in early 1969). Especially troubling is
the fact that although the birth certificates of Ronald and Rhonda K~ do not list
the name of a father, they originally listed the father's age as 37 before Edith altered
the listed age to 57.
Although the actual paternity of Ronald and Rhonda K~ is an open question, we are
unable to conclude that the presumption of legitimacy conferred by Illinois law is,
on the basis of the available record, rebutted by "clear, convincing, and irrefragable
proof" to the contrary, even given the somewhat relaxed application of this standard
in practice by the Illinois courts. We acknowledge that absent the presumption, the
evidence would be clearly insufficient to establish that the wage earner was the father
of Ronald and Rhonda K~ . But the issue here is not whether the wage earner was the
father, but whether the available evidence is sufficient to rebut the presumption
established under Illinois law that the wage earner was the father. The evidentiary
standard for rebutting the presumption, while not as onerous as it might initially
appear, nevertheless remains a heavy one. We conclude that that standard has not been
In summary, we conclude that:
(1) Faye H~ is entitled to widow's benefits as the legal widow of the wage earner
under Illinois law.
(2) Edith L~ is the "putative" widow of the wage earner under Illinois law and is
entitled to mother's insurance benefits.
(3) Lori, Ronald, and Rhonda K~ are entitled to benefits as the children of the wage
1/ Your memorandum indicates that no search was conducted for the period from 1978
until the wage earner's death on August 18, 1982. Inasmuch as we conclude below that
Edith was not validly married to the wage earner, it is unnecessary to determine whether
Edith and the wage earner obtained a divorce after 1977.
2/Edith cannot have "deemed widow" status under Section 216(h)(1)(B) of the Act since
she was not living with the wage earner at the time of his death.
3/ Faye indicated in a statement that the wage earner had told her about--his first
marriage but had not mentioned any other marriage. When the wage earner entered a
nursing home in 1982, his children by his first marriage told Faye that the wage earner
had been married to Edith. Until that point, Faye believed that Edith was married
to the wage earner's son by his first marriage, Robert E. K~ , with whom Edith had
been living since 1970. However, the record fails to show that Faye knew that the
wage earner's "marriage" to Edith had not ended in divorce. Thus, Faye likely maintained
a good faith belief in the validity of her own marriage to the wage earner until his
death. Faye therefore qualifies as a "putative spouse" under Ill. Rev. Stat. ch.40
§ 305. We also think that Faye would be a "deemed widow" under Section 216 (h)(1)(B)
of the Social Security Act, which requires only that a claimant enter into a marriage
in good faith. Faye was "living with" the wage earner at the time of his death although
he was required to then reside in a nursing home. However, in view of the fact that
we find that Faye was the legal widow of the wage earner it is unnecessary to conclusively
determine whether Faye is a "putative spouse" or "deemed widow."
4/ The reason for this rule is that divorce proceedings are equitable in nature. Traditionally
the oral pronouncements of a chancellor were not binding unless and until embodied
in a written decree approved by him. Anastaplo v. Radford, 153 N.E.2d 37 (Ill. 1958).
5/ Because Edith was born in 1932, she is not yet eligible for widow's benefits under
Section 202(c) of the Social Security Act. However, we conclude below that Lori, Rhonda,
and Ronald K~ are entitled to benefits as the children of the wage earner. Therefore,
Edith is entitled to mother's benefits under Section 202(g) of the Act.
6/ We believe that § 212(c) may be applied in all cases where the wage earner died
on or after October 1, 1977. As discussed above, we have determined in prior opinions
that the marriage validation provisions of § 212(b) apply only where the wage earner
died on or after October 1, 1977 and the parties cohabited on or after that date.
We have also determined that the putative spouse provisions of § 305 apply only where
the wage earner died on or after October 1, 1977 and the claiming spouse maintained
a good faith belief in the validity of the marriage subsequent to that date. However,
the "deemed legitimacy" provisions of § 212(c) do not require good faith on the part
of either party to a prohibited marriage or that the child have been born during the
cohabitation of the parties (as required under Ill. Rev. Stat. ch.89 § 17a prior to
October 1, 1977). We think that consistent with our opinion in Ambers G~ , ~, RA V
(A~) to Director, IPBV, 12/11/80, in which we limited the application of the 1977
marriage statute to claims where the wage earner died on or after October 1, 1977,
the "deemed legitimacy" provisions of § 212(c) may be applied in all cases where the
wage earner died on or after October 1, 1977, regardless of when the prohibited marriage
was contracted or when the child was born.
We also note that on May 22, 1984 SSA amended 20 C.F.R. §404.354(b) to clarify that
the relationship of an applicant for child's benefits to an insured individual is
determined by the state laws in effect at the time the insured individual died. 49
Fed. Reg. 21,512.