You asked for the proper effective date of the termination of widow’s benefits on
the account of the number holder (NH), the widow’s first husband, in light of a Vermont
Supreme Court decision reversing the decision of the trial court and vacating the
divorce between the widow and her second husband, resulting in the widow failing to
be “unmarried” at the time she applied for widow’s benefits.
The NH, Gilbert , died on June 11, 1979, while married to claimant Catherine. Prior
to attaining age 60, claimant married Philip a Canadian citizen, on June 11, 1983. Claimant
was diagnosed with dementia in early 2007, and Gregory , claimant’s son with the NH,
applied for and was named claimant’s permanent guardian in June 2007. In August 2007,
claimant’s guardian filed for divorce from Philip on claimant’s behalf. The Orelans
Family Court granted the divorce petition effective May 15, 2009.
Philip challenged the Orleans Family Court decision, and, by order dated February
18, 2011, the Vermont Supreme Court reversed the Orleans Family Court decision granting
the divorce decree on the basis that claimant’s guardian lacked standing to file for
divorce on claimant’s behalf.
A surviving spouse of an insured who has died is entitled to widow’s benefits if,
among other things, such surviving spouse (1) files an application; (2) is at least
60 years old; (3) was validly married to the insured under State law; (4) was married
to the insured for at least 9 months immediately before the insured died; and (5)
is not currently married. Section 202(e) of the Social Security Act (the Act), 42
U.S.C. § 402(e); 20 C.F.R. § 404.335. Accordingly, a widow may not collect widow’s
benefits on the account of an insured if she was married at the time she applied for
Under Vermont law, a marriage remains in effect until it is terminated by death, divorce,
or annulment. See 15 Vt. Stat. Ann. §§ 511-51 (West 2013). The Vermont Supreme Court’s decision reversing
the Orleans Family Court’s grant of claimant’s divorce petition effectively nullified
the divorce, meaning that claimant and Philip have been married since June 1983. A
review of Vermont law did not reveal any authority that would nullify or otherwise
invalidate a marriage for the period between the original divorce decree and an appellate
decision vacating the underlying divorce decree. Therefore, claimant was married at
the time of her May 2009 application for widow’s benefits on the NH’s account, although,
at the time, she believed she was divorced based on the Orleans Family Court order.
Accordingly, she did not satisfy the fifth requirement of Section 202(e) of the Social
Security Act (the Act), 42 U.S.C. § 402(e), and 20 C.F.R. § 404.335, because she was
married at the time of her application for benefits.
For the foregoing reasons, we believe that the proper effective date of the termination
of claimant’s benefits on the NH’s account is her application date in May 2009, because
she was married on this date.
The February 2011 decision of the Vermont Supreme Court reversed the Orleans Family
Court’s May 2009 grant of claimant’s divorce petition. Accordingly, claimant was legally
married at the time she applied for widow’s benefits on the NH’s account. Therefore,
the proper effective date of the termination of claimant’s benefits on the NH’s account
is the date of her May 2009 application, because she was not “unmarried” on that date.
Eric P. Kressman,
Regional Chief Counsel,
Region III By: __________________________
Melissa K. Curry
Assistant Regional Counsel