On March 4, 2014, after marrying Donald and collecting spousal benefits based on Donald’s
record, Theresa applied for widow’s benefits based on the death of her first husband,
Jackie. You requested an opinion on three issues in connection with Theresa’s application
1. Notwithstanding the presumption of validity that the law affords to an individual’s
latest marriage, is Theresa nevertheless entitled to widow’s benefits based on Jackie’s
record given that a Florida court has declared her marriage to Donald null and void?
2. Is Theresa estopped from denying the validity of her divorce from Jackie?
3. Is the agency entitled to re-open Theresa’s spouse claim on Donald’s record due
to fraud or similar fault?
Based upon our review of the facts of this case and our research of relevant law,
Theresa most likely has rebutted the presumption favoring the validity of her second
marriage to Donald by producing a Florida court’s judgment of annulment. However,
while Theresa likely has rebutted this presumption, she may still be estopped from
claiming widow’s benefits based on Jackie’s death. Although Theresa’s conduct in this
case is suspicious and may estop her from claiming widow’s benefits, the agency should
further develop the record to determine whether her conduct rises to the level of
“fraud or similar fault,” as those terms are defined by the agency’s rulings and operating
Theresa was born on September, making her 81 years old when she applied for widow’s
benefits in March 2014. See Certified Transcript of Birth; but see Certified Transcript of Marriage between Jackie and Theresa (listing Theresa’s birth
as September). On August 28, 1954, when she was 21 years old, she married Jackie in
New York. See Certified Transcript of Marriage between Jackie and Theresa.
On May 24, 1973, the County Clerk of Rock Island, Illinois, issued a marriage certificate
to Theresa and another man, Donald. See Marriage License (Adult) from Dept. of Public Health (Rock Island County, Ill.).
Notably, there is no documentation of a divorce between Jackie and Theresa. Moreover,
the Illinois marriage license of Donald and Theresa does not mention Theresa’s prior
marriage to Jackie. To the contrary, it states: “Number of Bride’s Marriage: First.”
See id. However, the Illinois marriage license refers to Theresa as “Theresa ,” Jackie’s
last name, even though Theresa apparently represented to the clerk that this was her
first marriage. We understand that Jackie remarried in September 1977, although we
do not have a record of his marriage license.
Years later, in September 1996, Theresa began to receive benefits on her own record
and on Donald’s record. When Theresa applied for spousal benefits on Donald’s record,
she represented that she was divorced from Jackie. She did not provide a divorce date
or any other proof of divorce for that matter. Around that same time, Donald similarly
represented that Theresa was “free to remarry after her divorce from Jackie.” The
divorce purportedly occurred in
North Tonawanda, New York. See Aug. 12, 2014 e-mail memo to B. O’D~ (setting forth known facts).
When Jackie applied for benefits on his own record, he also stated that he was divorced.
Just as in the case of Theresa and Donald, Jackie did not specify when the divorce
occurred, nor did he provide any other proof of divorce. According to Jackie, the
divorce took place in Utica, New York. See id.
On March 20, 2007, Jackie died. See Florida Certificate of Death. At the time of his death, he was living in Ocala, Florida.
Id. Based on the agency’s records, Jackie had been living in Florida for at least four
years before he died. Jackie’s death certificate identifies Thelma as his surviving
spouse. Id. The certificate does not mention Theresa. Id.
Over five years after Jackie died, in October 2012, Theresa completed a Social Security
Administration form titled Statement of Claimant or Other Person. Notwithstanding her prior representation to the agency that she was divorced from
Jackie (when she applied for spousal benefits based on Donald’s record), she certified
in this form that she lived with Jackie for 16 years, she started divorce proceedings
in 1968 in New York, but the divorce was never finalized. See Form 0960-0045.
On February 20, 2014, at Theresa’s request, a county court in Florida issued a judgment
of annulment, declaring her marriage to Donald null and void. See Final Judgment of Annulment. In its annulment order, the court made several findings
based on the court file and other evidence before the Court: (1) Theresa had divorce
papers drafted, but no divorce was obtained; (2) Theresa and Jackie were estranged
until he died in 2007; (3) at some unspecified time, Jackie told Theresa that they
were divorced even though she had not received any paperwork to that effect; (4) Jackie
married someone else, which verified Theresa’s belief that they were divorced; (5)
when Theresa married Donald in 1973, she was “mistaken in her belief, unaware and
did not understand that she was still ‘lawfully’ married to Jackie”;
(6) under Florida law, her second marriage to Donald was considered a “bigamous marriage,”
which is void (not merely voidable); and (7) once Theresa realized this, she “made
all attempts to correct this matter.” Id. at 1, ¶¶ 1-6. Based on its findings, the court declared the marriage between Theresa
and Donald null and void, stated that it was annulled, and restored Theresa’s former
last name of “W~.” Id. at 2, ¶¶ A-C.
Less than a month after the Florida court issued its judgment of annulment, on March
4, 2014, Theresa applied for widow’s benefits under Jackie’s social security number.
A report of contact from April 3, 2014, states: Theresa “filed for divorce in 1970
but the divorce was never finalized. She stated the divorce papers were sent to [Jackie]
and they were returned in the mail unsigned. . . . [Theresa] got married to Donald
knowing that she was still married to Jackie. She stated that Jackie could have divorced
her without her knowledge . . . This claim is being denied because Theresa remains
married to Donald and cannot establish her entitlement to survivor benefits on the
Deceased Wage Earner’s record.” See Apr. 3, 2014 Report of Contact. Theresa provided the agency with the Florida court’s
judgment of annulment.
1. 1. Theresa Most Likely Has Rebutted the Presumption Favoring the Validity of Her Second
Marriage to Donald.
The first issue is whether Theresa has overcome the presumption of validity that the
law affords to an individual’s latest marriage. Theresa most likely has overcome that
presumption favoring her second marriage to Donald, given that a Florida court has
declared her second marriage null and void.
In most states, there is “a presumption in favor of the validity of the last of two
or more conflicting marriages.” Program Operations Manual System (POMS) GN 305.035(A)(1).
The POMS instructs that “[i]f the State of the worker’s domicile when he/she died
. . . has such a presumption, apply it where all the information and evidence supplied
still leaves doubt whether a former marriage was terminated.” Id. “If the results of all development leave doubt about whether the former marriage
ended and the domiciliary State’s presumption is in favor of the latest marriage,
benefits may not be payable to the former spouse claimant.” Id.
Given that Jackie was domiciled in Florida when he died, Florida law applies here.
See Smith v. Heckler, 707 F.2d 1284, 1285 (11th Cir. 1983) (stating that the “validity of the last marriage
for purposes of entitlement to widow’s benefits is tested by state law” and applying
Florida law). “In Florida, it is firmly established that when the validity of a subsequent
marriage is challenged, as against a previous one of the same person, one of the strongest
presumptions in the law exists in favor of the validity of the last marriage, whether
the marriage was ceremonial or by common law.” Id. at 1285-86 (internal quotations omitted); accord Teel v. Nolen Brown Motors, Inc., 93 So.2d 874, 876 (Fla. 1957) (setting forth presumption).
The party who seeks to attack “the validity of the second marriage bears the burden
of proving that a first marriage nullifies the second one.” Smith, 707 F.2d at 1286. Further, “the degree of proof required to overcome the presumption
is ‘clear and convincing evidence.’” Id. (citations omitted). Where, as here, a claimant seeks to overcome this presumption
by arguing that she and her first husband never obtained a valid divorce, she must
“tender evidence which when weighed collectively established the absence of a reasonable
probability that her husband actually secured the divorce.” Teel, 93 So.2d at 876.
To that end, as the Eleventh Circuit explained, the “burden rests heavy upon one who
attacks the validity of a second marriage on the basis that a prior marriage was never
terminated.” Smith, 707 F.2d at 1288 (internal quotations omitted). The mere testimony of the claimant
that she and her first husband were not divorced is “legally insufficient to overcome
the presumption in favor of the validity of her [later] marriage.” Id. Rather, “Florida courts have frequently reiterated that all public records available
should be exhausted in an effort to establish the fact of the absence of a divorce.”
Id. As one Florida appellate court noted, “in this day of well-kept public records covering
vital statistics, such as, births, marriages and divorces, we feel that to the extent
possible the public records available should be exhausted in an effort to establish
the fact of divorce or the absence of divorce as the case may be.” Jablonski v. Caputo, 297 So.2d 310, 312 (Fla. Dist. Ct. App. 1974) (requiring first wife to exhaust a
search of public record).
Because Theresa is challenging the validity of her second marriage to Donald, she
carries the burden of proving by clear and convincing evidence that there is no reasonable
probability that Jackie ever secured the divorce. Smith, 707 F.2d at 1286; Teel, 93 So.2d at 876. By producing the Florida court’s judgment annulling her second
marriage to Donald, Theresa probably has rebutted the presumption. On its face, that
judgment declares Theresa’s marriage to Donald a “‘bigamous marriage’ which is void.”
Final Judgment of Annulment at 1, ¶ 5.  By producing that order, Theresa likely has “tender[ed] evidence which when weighed
collectively established the absence of a reasonable probability that her husband
actually secured the divorce.” Teel, 93 So.2d at 876.
In any event, it may not make a difference given that Theresa is likely estopped from
claiming widow’s benefits, as discussed below.
2. Even Though Theresa Likely Has Rebutted the Presumption Favoring Her Second Marriage,
She May Still Be Estopped From Claiming Widow’s Benefits Based on Jackie’s Death.
Although Theresa may have produced enough evidence rebutting the presumption of validity
the law affords to her second marriage, the analysis should not stop there. There
still is an issue whether Theresa’s conduct following her separation from Jackie estops
her from now claiming that, because she never actually got divorced from Jackie, she
is entitled to widow’s benefits based on his death. Under the agency’s internal operating
procedures and Florida law, Theresa may be estopped from asserting rights under her
first marriage to Jackie.
Pursuant to the POMS, “even though a worker’s divorce would not be valid under the
law of his/her domicile, the other party to the divorce may be estopped from denying
its validity.” POMS GN 305.175(A)(1). For example, a party may be estopped from denying
the validity of a divorce where she remarries after the divorce or “otherwise accepted
or acted in recognition of the decree as valid (e.g., knew of the divorce and allowed
it to stand unchallenged for a long time).” Id. 305.175(A)(2). Although the POMS sets forth the basic principle of estoppel, it does
not answer the precise question posed by this case, namely whether a party is estopped
from asserting a right to widow’s benefits where she claims that she was never validly
divorced to the decedent.
Case law offers guidance on this issue. The Commissioner looks to the law of the wage
earner’s domicile at the time of his death in determining a claimant’s marital status
for purposes of determining widow’s benefits. 20 C.F.R. §§ 404.344, .345. Because
Jackie was domiciled in Florida when he died, Florida law applies here. Under Florida
law, “a prior spouse can be deemed to have repudiated his or her status by certain
conduct.” Eds v. Sullivan,
No. 88-837, 1991 WL 280032, at *3 (M.D. Fla. Sept. 7, 1991). In those instances, “the
spouse would be estopped from asserting rights under that marriage, including rights
as a widow.” Id.
Two cases from Florida bear a strong resemblance to this case. In both instances,
the courts held that the claimant was estopped from claiming rights as a widow. In
In re Butler , 444 So.2d 477 (Fla. Dist. Ct. App. 1984), Georgia and Nathaniel married, lived together
briefly, and then separated. While the marriage was not legally dissolved, Nathaniel
told Georgia that he had “bought” a divorce and Georgia believed him. Several years
later, Georgia married another man and changed her last name. Nathaniel also remarried.
Georgia was aware of Nathaniel’s second marriage. Nathaniel then died. At some unknown
time (before or after Nathaniel died), Georgia found out that she and Nathaniel had
never actually been divorced. Six years after Nathaniel died, Georgia filed a petition
for administration of his estate, seeking to be appointed as the personal representative
because she was Nathaniel’s surviving spouse.
The Florida district court of appeal held that Georgia was estopped from asserting
rights under her marriage to Nathaniel. The court explained that Georgia “lived as
if she had been divorced from Nathaniel and made no attempt to represent herself as
his wife until six years after Nathaniel died.” Id. at 479. “[A]fter having taken advantage of the ‘divorce’ that Nathaniel told her
he had bought, [she] cannot now claim the benefits of a marriage which she herself
has repudiated by her subsequent conduct.” Id. The court rejected Georgia’s argument that estoppel did not apply because “she was
a victim of her husband’s deceit.” Id. Quoting from a case that the Florida Supreme Court had cited with approval in Doherty v. Troxler, 66 So.2d 274 (Fla. 1953), the court stated that mere ignorance is “no excuse for
[a claimant] contracting a bigamous marriage relationship with a second husband.”
Id. (quoting Minor v. Higdon, 61 So.2d 350 (Miss. 1952)). Thus, the court held that Georgia was estopped from
her making her claim.
In Edwards v. Sullivan, No. 88-837, 1991 WL 280032 (M.D. Fla. Sept. 7, 1991), the United States District
Court for the Middle District of Florida extended Butler to deny a claimant’s application for widow’s benefits under the Social Security Act.
In Edwards, Ruby married Paul. Several years later, Ruby married again and Paul also married
someone else. There was no evidence that Paul and Ruby got divorced. However, Ruby
later admitted that her second marriage was not legal because she had not gotten divorced
from Paul. When Paul died, his second wife filed an application for widow’s disability
insurance. Ruby filed an application for those benefits as well.
In evaluating which woman was entitled to benefits, the district court initially noted
that the administrative law judge’s finding that the claimant rebutted the presumption
favoring the validity of her second marriage was supported by substantial evidence.
Id. at *3. However, the court explained, “our analysis cannot stop at this point, since
the effect of Ruby’s conduct has not been examined.” Id. The court looked to Butler, which “present[ed] virtually identical facts.” Id. at *3. Relying on Butler, the district court held that Ruby’s “actions clearly repudiate her marital status
to [Paul, the] wage earner.” Id. at *4. Ruby, “knowing that she was not divorced, remarried . . . and lived with [her
second husband] as his wife until they separated six years later. It was not until
[Paul] died, and the possibility of benefits arose, that Ruby asserted her claim as
the wage earner’s wife.” Id. at *3. Based on her conduct, the court concluded, Ruby “should therefore be estopped
from asserting her position as the wage earner’s first wife.” Id. at *4.
The same result seems warranted here. Just like the claimants in Butler and Edwards, Theresa
(1) married her first spouse and then separated from him, (2) allegedly never secured
a valid divorce, (3) re-married another man, (4) lived with her second husband for
years without ever raising the notion that her second marriage was invalid, and (5)
waited until after her first husband died, when the possibility of benefits arose,
to argue that she had never divorced her first spouse. In fact, Theresa took even
more actions to repudiate her first marriage than the claimants did in Butler and Edwards: Theresa refused to disclose her first marriage on her marriage license to Donald,
she applied for and received spousal benefits based on Donald’s record, and, most
notably, she represented in that application for spousal benefits that she was divorced
from Jackie. Cf. Montanez v. Crockett, Franklin & Chasen, P.A. , 687 So.2d 943, 947 (Fla. Dist. Ct. App. 1997) (where claimant represented on marriage
license application that she was divorced, she was “estopped from assuming the role
of [her former spouse’s] widow”). Thus, these facts present an arguably stronger case
to apply estoppel than those in Butler and Edwards.
There are several dated Florida decisions in which courts refused to estop claimants
from challenging the validity of their divorces. However, those decisions are distinguishable
from this case. See Robison v. Krause, 136 So.2d 373 (Fla. Dist. Ct. App. 1962) (resting its decision on interpretation
of Florida dowry statute, which is inapplicable here); Kreisel v. Ingham, 113 So.2d 205 (Fla. Dist. Ct. App. 1959) (interpreting inheritance laws). Not only
are Butler and Edwards directly on point, but they reflect Florida courts’ more recent views on estoppel
and also are more persuasive than Robison and Kreisel.
Moreover, the Butler decision forecloses any argument Theresa may have that she innocently relied on Jackie’s
representation that he had finalized the divorce. The Butler court rejected the claimant’s argument that she should not be estopped because she
had relied on her first husband’s representation that he “bought” a divorce. 444 So.2d
at 479. Further, according to a report of contact on April 3, 2014, Theresa got married
to Donald “knowing that she was still married to Jackie.” Apr. 3, 2014 Report of Contact.
Therefore, based on her subsequent conduct, Theresa is likely to be estopped from
asserting her rights based on her prior marriage to Jackie.
3. The Agency Should Further Develop the Record to Determine if It Can Reopen Theresa’s
Spouse Claim on Donald’s Record Based on Fraud or Similar Fault.
The final issue is whether the agency can re-open its decision to award spousal benefits
to Theresa, which she received based on Donald’s record, due to fraud or similar fault.
While Theresa’s conduct is very suspicious and may estop her from claiming widow’s
benefits on Jackie’s record, the agency needs additional facts to determine whether
her conduct rises to the level of “fraud or similar fault” to reopen her application
for spousal benefits on Donald’s record.
The Commissioner “may reopen a final determination or decision on [her] own initiative”
and, in doing so, “may revise that determination or decision.” 20 C.F.R. § 404.987(b).
As relevant here, the Commissioner may reopen a decision “at any time” when that decision
was “obtained by fraud or similar fault.” Id. § 404.988(c)(1). In evaluating whether a decision was obtained by “fraud or similar
fault,” the Commissioner “will take into account any physical, mental, educational,
or linguistic limitation (including any lack of facility with the English language)
which [the claimant] may have had at the time.” Id. § 416.1488(c).
For a claimant’s actions to amount to “fraud,” the claimant must (1) have the “intent
to defraud” and (2) make a false statement or misrepresentation of material fact,
or conceal or fail to disclose a material fact, for use in determining benefits. POMS
DI 27505.015(A). In this case, Theresa represented to the agency that she was divorced from Jackie
at the time she applied for spousal benefits on Donald’s record. Years later, after
Jackie died and the possibility of benefits arose, she then claimed that she never
actually obtained a valid divorce from him. While Theresa’s conduct in this case is
dubious and may effectively repudiate her first marriage for purposes of applying
estoppel, the record, as it currently stands, seems to fall short of establishing
that she “intend[ed] to defraud” the agency to receive Donald’s spousal benefits.
The more difficult issue is whether the “similar fault” provision applies here. “Similar
fault” does not require showing “fraudulent intent.” Rather, a claimant is at “similar
fault” whether she either (1) “[k]knowingly makes an incorrect or incomplete statement
that is material to the determination” or (2) “[k]knowingly conceals information that
is material to the determination.” Id. 27505.015(B). Where “a preponderance of evidence does not establish knowledge and
intent to defraud, but establishes that the recipient (or other person) knowingly
did something wrong (but intent cannot be established), then SSA can determine ‘similar
fault’ and can reopen and revise a determination at any time.” SSR 85-23, 1985 WL
56859, at *1 (SSA).  “A preponderance of evidence is evidence that produces a stronger impression and
is more convincing as to its truth than the evidence in opposition.” Id.
To satisfy the definition of “similar fault” and reopen a determination which is more
than two years old (as in this case), the following factors are required to be met:
(1) “The changed event is material (i.e., will change the SSI payments) and will create
a new overpayment or enlarge an existing overpayment,” (2) “[a] wide discrepancy exists
between the new data and the data reported,” (3) “[t]he SSI recipient (or other person)
knowingly completed an incorrect or incomplete report, knowingly concealed events
or changes, or knowingly neglected to report events or changes that affect payments,”
(4) “[t]he event (income, resource, etc.) can and will be verified,” (5) “[t]he event
(income, resource, etc.) is clearly attributable to the SSI recipient (or the ineligible
spouse, parent or sponsor of an alien in deeming situations),” and (6) “[t]he case
does not involve intent to defraud.” Id. at *2.
There is not enough information in the current record to determine whether Theresa’s
conduct satisfies the “similar fault” criteria. On the one hand, according to the
Florida judgment of annulment, Theresa mistakenly believed she was divorced from Jackie.
See Judgment of Annulment at 1, ¶ 1. Theresa also noted in a report of contact that Jackie
“could have divorced her without her knowledge.” Apr. 3, 2014 Report of Contact. On
the other hand, according to that same report of contact, Theresa got married to Donald
“knowing that she was still married to Jackie.” Id. In addition, we do not know what information Theresa provided to the Florida court
when she sought to annul her marriage to Donald, which could be crucial to determining
whether Theresa “knowingly completed an incorrect or incomplete report” when she applied
for benefits on Donald’s record.
Ultimately, the agency must be convinced that it is more likely than not that Theresa
knowingly provided incorrect information. If the agency wishes to rely on the fraud/similar
fault reopening provision, it should further develop the record in accordance with
For the reasons stated above, it is our opinion that (1) Theresa most likely has rebutted
the presumption favoring the validity of her second marriage to Donald, (2) she nevertheless
is likely estopped from claiming widow’s benefits based on Jackie’s death, and (3)
the agency should further develop the factual record to determine whether Theresa’s
conduct rises to the level of “fraud or similar fault,” thereby justifying reopening
the decision on her spousal benefits based on Donald’s record.
Nora R. Koch
Acting Regional Chief Counsel, Region III
Joseph J. Langkamer
Assistant Regional Counsel