You have requested our opinion as to whether the claimant, Dora L. S~ , meets the
definition of legal widow of Elmo E~, the number holder, who died on August 8, 1972,
while domiciled in Georgia.
The facts, as contained in your letter, are that the number holder and claimant, Dora,
were ceremonially married on November 19, 1938, in Mississippi. Dora stated that they
separated in 1940. When the number holder filed for retirement benefits in May 1971,
he did not indicate his marriage to Dora, but stated only that he married Mable H~
on December 23, 1945 (the evidence in the file indicates this marriage actually occurred
on December 23, 1944). Dora married Jessie S~ in 1943 in Mississippi; she states they
divorced in 1952. She then married James S~ in 1953 in Mississippi, and they divorced
Under the provisions of 42 U.S.C §416(h) (1) (A), the claimant would be the lawful
widow of the insured wage earner if the, "courts of the State in which he was domiciled
at the time of death ... would find that such. applicant and such insured individual
were validly married ... if such insured individual is dead, at the time he died ....
" If such courts would not find that such applicant and such insured individual were
validly married at such time, such applicant shall, nevertheless, be deemed to be
the ... widow .. of such individual if such applicant would, under the laws applied
by such courts in determining the devolution of intestate property, have the same
status with respect to the taking of such property as a ... widow ... of such insured
individual. At the time of his death, Elmo E~ was domiciled in Georgia; consequently,
the laws of the State of Georgia are determinative of whether Dora is the legal widow
of Elmo E~.
The Georgia Supreme Court has adopted the general rule that the validity of a marriage
is determined by the lex loci contractus unless that law is contrary to the public
policy of the domicile of the parties. Lefkoff v. Sicro, 189 Ga. 554, 6 S.E. 637 (1939); Eubanks v. Banks, 34 Ga. 407 (1866). The parties married in Mississippi. The record contains a copy
of the Marriage License issued by Scott County for the State of Mississippi which
indicates that Elmo E~ and Dora L.C~ "celebrated the Rites of Matrimony" on November
19, 1938. There is no indication in the file that this marriage was not valid at the
time it was performed; it appears to be in conformity with the laws of the State of
Mississippi which regulate marriages. Further, a record search has revealed no record
of divorce in any county in which Elmo E~ lived from the time he and Dora separated
(approximately, 1942) until Elmo's death in 1972. Dora, by her own admission, never
obtained a divorce from Elmo.
The issue in this claim arises because the subsequent conduct of the parties indicates
that each party abandoned the marriage relation. Elmo E~ "married" again in 1944.
The claimant "married" and divorced two other men, one "marriage" in 1943 ended with
a 1952 divorce and the other "marriage" in 1953 also ended in divorce in 1969. Under
Mississippi law, because of the abandonment of a marriage relation, an individual
may be estopped or barred from asserting her claim as the widow of a deceased individual
(See. Office of General Counsel precedent opinion, S.T. W~ , ~, RA IV (W~) to Assistant
Regional Commissioner, Insurance Program Branch, 10-14-83). As stated by the Mississippi
Supreme Court in Minor v. Higdon, 61 So.2d 350 (1952),
"Our own court has adopted the principle that a wife of a husband who has contracted
a bigamous marriage with another person during the lifetime of a spouse in whose estate
a right to inherit is asserted is barred from asserting such right."
This holding was affirmed and enlarged upon by the Mississippi Supreme Court in the
case of In Re Estate of Irwin, 317 So.2d 55 (Miss. 1975).
Nevertheless, it is our opinion that the State of Georgia would apply the laws of
the State of Mississippi with respect to the validity of the marriage only, and, as
noted earlier, the marriage in issue is apparently valid. The application of the equitable
principle of estoppel by Mississippi courts does not affect the validity of a marriage;
it merely is a legal expression of the Mississippi public policy which seeks to bar
an individual from asserting the validity of a marriage because of inconsistent subsequent
conduct. See 28 Am Jur 2d, Estoppel and Waiver, §28. The State of Georgia has, however, enunciated
a different public policy and has determined that the rules of estoppel cannot be
invoked to determine the validity of a marriage.
As stated by the court in Hayes v. Schweiker, 575 F. Supp. 402, 404 (N.D. Ga., 1983)
This court cannot (apply the principle of equitable estoppel), for the Georgia Supreme
Court has clearly and succinctly stated the law in Georgia as follows: "The rules
of estoppel between parties can not be invoked to determine the validity of a marriage."
Bell v. Bell, 206 Ga. 194, 198, 56 S.E.2d 289 (1949). In Bell, the court found that a ceremonial marriage between the parties was invalid since
the defendant was under a disability to contract marriage and "the defendant was not
estopped from attacking the validity of' the marriage, although the plaintiff had
entered into the marriage in good faith, and they had lived together as husband and
wife for seventeen years." 206 Ga. at 198, 56 S.E.2d 289. This court does not hold
that equitable estoppel may never be used in a Social Security case in determining
the validity of a marriage, since some states may allow estoppel principles to be
used in determining the validity of a marriage or divorce. This court simply holds
that since Georgia does not allow the validity of a marriage to be challenged through
estoppel, this court may not utilize such principle in determining the validity of
the marriages and divorces at issue in this litigation.
Thus, it is our opinion that the State of Georgia would find that the 1938 marriage
of the claimant and Elmo E~ was valid under the laws of the lex loci contractus, Mississippi,
and, further, that the State of Georgia would not allow the rules of estoppel, recognized
in Mississippi, to be invoked, in contravention of Georgia's public policy, to bar
the claimant from asserting the validity of said marriage.