This is in response to your request for our assistance in determining whether the
claimant, John A~ ("John"), is entitled to Social Security benefits on the account
of his first wife, Minnie B~ ("Minnie"). Specifically, you inquired whether Illinois
would apply the principle of estoppel established under Mississippi law which would
preclude John from claiming benefits on Minnie's account. We conclude, for the reasons
set forth below, that Illinois would not apply the Mississippi doctrine of estoppel,
and that Illinois would consider John legally married to Minnie.
Based upon the materials furnished us, the facts are as follows. On May 16, 1979,
John filed an application for husband's benefits on the. account of his wife, F~ L.
A~ ("F~"), whom he married on December 2, 1938 in Water Valley, Mississippi. 1_/ Both
are still living in Mississippi. In that application, in response to the question
concerning prior marriages, John first listed "none" which was crossed out, and the
words "will furnish" were substituted. A May 18, 1979 report of contact indicates
that John stated that he had no other wives and that his wife, F~, who had apparently
filled out the application for John, did not have that information. John began receiving
husband's benefits retroactive to April 1979, and is presently receiving benefits
on F~'s account.
Notwithstanding his receipt of husband's benefits on F~'s account, John filed another
application for husband's benefits on Minnie's account on April 3, 1980, in spite
of his previous denial of a prior marriage. 2_/ He was married to Minnie on December
25, 1928 in Tallahatchi County, Summer, Mississippi. 3_/ Of course, in this application
he had to acknowledge his marriage to Minnie. He described his marriage relationship
with Minnie "as being separated since 1932." He also noted his present marriage to
F~. As an explanation for the inconsistent information provided in his applications,
he signed a June 19, 1980 statement saying that:
Before I married F~, I saw Minnie at town one day. Minnie told me that she was living
with another man. She did not tell me the man's name. She did not actually tell me
that she had remarried, 4_/ but since she was living with this man, I assumed they
were married ....
Since Minnie left me and the children and started living with another man (to whom
I assumed she was married), I thought that I could also remarry.
Minnie, who is now domiciled in Chicago, Illinois, in a December 8, 1980 statement,
acknowledges that she had married John around 1928 in Rome, Mississippi and they had
separated in 1935. She further stated that she never divorced John nor did she receive
notice that he intended to divorce her. 5_/ The Social Security Administration ("SSA")
denied John's application for benefits on Minnie's account pending a legal determination
whether Mississippi law of estoppel applies.
Although you limited your request to John's most recent application, we believe our
perspective must be broader. We are presented with a situation in which an individual
is claiming husband's benefits, as a current husband for two wives, an inherently
inconsistent position. Although under the Social Security Act, an individual may receive
benefits on more than one account, for example as a spouse and a divorced spouse,
see 20 C.F.R. §404.330 et seq., this is not the situation here. In this case, John is
claiming that he is entitled to benefits because he is the husband of both F~ and
Minnie. We believe that John is not entitled to husband's benefits as the simultaneous
spouse of two wives.
We will first address the entitlement of John to benefits on F~'s account. John's
entitlement to benefits is dependent upon whether he is the husband of F~ within the
meaning of Section 216(h)(1)(A) of the Social Security Act at the time he applied
for benefits. Section 216(h)(1)(A) provides that the question of whether John is the
husband of F~ for purposes of entitlement to wife's benefits is determined by the
law of the state of the domicile of the insured, in this case, Mississippi. We recommend
that you refer this question to the Regional Attorney's Office in Atlanta for a complete
analysis of Mississippi law, but we do note that in Mississippi a bigamous marriage
is a bar to a spouse from asserting a right in the other spouse's estate. See Minor v. Hidon, 215 Miss. 513, 61So.2d 350 (1952). Since John was still married to Minnie at the
time of his marriage to F~, his marriage to F~ was bigamous. However, in the file
you have indicated a belief that John may be the deemed spouse of F~. We suggest that
you seek a legal opinion concerning this issue under Mississippi law because of the
element of good faith required to establish a deemed spouse. 20 C.F.R. §404.727.
Moreover, we recommend that you consider referring this matter for development as
a potential fraud case. Not only did John not reveal all significant facts on his
initial application, but his application for benefits on Minnie's account casts doubts
on his statements that he thought she divorced him. If he believed he was divorced,
it would appear inconsistent to apply for husband's benefits on that account. If John
is not entitled to benefits on F~'s account, you may wish to consider an action for
an overpayment for past benefits since they were awarded as a result of erroneous
information supplied by the claimant.
Regarding John's entitlement to husband's benefits on Minnie's account, the law of
Illinois would apply because it is Minnie's domicile. You asked whether the principle
of estoppel established under Mississippi law would apply to this aspect of the case.
Under Mississippi law, an insured individual's undivorced spouse, who enters into
a bigamous marriage after separation from the insured, is estopped from denying the
termination of the prior marriage and attacking the validity of a subsequent marriage
of the insured. Lee C~, ~, RA:V (S~) to L~, Director, Southeastern Program Service
Illinois follows the rule that the validity of a marriage depends upon the law of
the place where it occurs, except where contrary to the public policy of Illinois.
S.H.A. ch. 40, §213 (1980). See Walker v. Walker, 316 Ill. App. 251, 44 N.E.2d 937 (1942); Ertel v. Ertel, 313 Ill. App. 326, 40 N.E.2d 85 (1942). Thus, Illinois would recognize a marriage
validly entered into in Mississippi. 6_/ Illinois also applies the presumption, where
there are conflicting marriages, that the second marriage is the valid marriage. See Belluomini v. Belluomini, 73 Ill. App. 3d 836, 392 N.E.2d 669 (1979); Baer v. De Berry, 31 III. App. 2d 86, 175 N.E.2d 673 (1961). The validity of a second marriage is
presumed only because of the presumption that a person will not commit bigamy. In
re Dedmore's Estate, 257 Ill. App. 519 (1930).
However, the presumption may be rebutted "by evidence which, standing alone, affords
reasonable grounds for concluding that no divorce [of the prior marriage] has been
secured." Sparling v. Industrial Commission, 48 Ill. 2d 332, 270 N.E.2d 411, 413 (1971). We believe that in this case such evidence
has been presented: Minnie is still alive and indicates she never divorced John, no
divorce papers have been found, and John admits that he never divorced Minnie.
Once the validity of the second marriage is rebutted, a presumption concerning the
validity of the first marriage necessarily follows. This was the situation presented
in Davis v. Califano, 603 F.2d 618 (7th Cir. 1979). In that case, a deceased wage earner's second wife
filed suit seeking review of the Secretary of Health, Education, and Welfare's denial
of her claim for widow's disability insurance benefits. The wage earner married his
first wife in Tennessee and then abandoned her. His wife, domiciled in Tennessee,
had secured a "divorce from bed and board" from the wage earner, but not a final divorce.
The wage earner than married his second wife in Missouri representing that he was
divorced. They moved to Chicago and lived there for thirty years until the wage earner's
death. Although his second wife had lived with him for thirty years, the Court affirmed
the findings of the Secretary that the evidence presented concerning the lack of a
final divorce from the first wife rebutted the presumption of the validity of the
second marriage, and that the first wife was the legal spouse. In addition, the Court
held that the second wife did not meet the test of a deemed widow because of the presence
of a legal widow. See 42 U.S.C. §416(h)(1)(B).
We are still presented with the question of whether Illinois, in this case, would
apply the doctrine of estoppel to preclude consideration of evidence similar to that
presented in the Davis case to attack the validity of the termination of the first
marriage. In some Illinois cases, the application of the doctrine of estoppel has
prevented an individual from denying the termination of a former marriage.
In general, equitable estoppel or "estoppel in pais" 7_/ will not apply unless someone
has been misled into some action by the action of the person to be estopped, and the
former will suffer some legal detriment or injury if the latter is allowed to contradict
or repudiate his action. See Perlman v. First National Bank of Chicago, 15 Ill. App. 3d 784, 305 N.E.2d 236 (1973); Young v. Ill. Athletic Club, 310 Ill. 75, 141N.E. 369 (1923). In this case, equitable estoppel apparently would
not be appropriate because Minnie did not remarry, she did not rely on John's actions,
and there is no detriment to her eligibility for benefits on her own wage earnings
record if John is found to be her spouse.
Many states, including Illinois, do apply the doctrine of estoppel to preclude an
individual from attacking the validity of a divorce attained, especially if he has
remarried in reliance on the decree. McDonald v. Heale, 35 Ill. App. 2d 140, 182 N.E.2d 366 (1952). Consistent with the general principles
of equitable estoppel, the use of estoppel is based on the detrimental reliance by
the prior spouse and the need to avoid uncertainty about the marital status of the
parties. In this case, it is John who is claiming that he detrimentally relied on
Minnie's actions and who now seeks to attack his own alleged reliance. However, the
estoppel doctrine has also been applied to a spouse who did not obtain the divorce,
but took advantage of it by remarrying. Varap v. Varap, 76 Ill. App. 2d 702, 222 N.E.2d 77 (1966). In that case, the husband alleged that
his present wife was not entitled to a divorce and alimony because his first wife's
divorce was defective. In rejecting the husband's position, the Court held that:
It would be grossly unfair to allow him to escape the obligations he has incurred
to his second spouse, whom he married in reliance upon the validity of the prior divorce,
and who undoubtedly married him in the belief that he was free to enter into a valid
marriage, by asserting the validity of the former decree. The law will not tolerate
such inconsistent positions ....
Furthermore, Ill. Rev. Stat., (1963) ch. 40, para 1, declares in part that when there
has been a bigamous marriage the injured party may obtain a divorce and dissolution
of the marriage. Chapter 40, paragraph 20, provides that when a woman is granted a
divorce from a man who had another spouse living at the time of the marriage, the
court may allow the plaintiff alimony as in other divorce cases ....
222 N.E.2d at 81-82.
We have not found, however, any Illinois cases in which an individual who was separated
from his spouse, but who was not divorced and who entered into a subsequent bigamous
marriage, has been estopped from denying the termination of the former marriage. Nor
does Illinois, as in some other states, 8_/ by statute preclude a spouse living in
adultery from taking any part of the deceased spouse's estate.
Other OGC opinions concerning the applicability of the Mississippi estoppel law to
other states' determinations of marital status have concluded that the Mississippi
law does not apply. See OGC opinions re Mary M~, RA:VII (B~) to D~ (ARC, Chicago),
9/11/81; Mamie W~, RA VII (B~) to T~ (ARC, Kansas); Henry R~ ,~~ RA:V (G~) to M~ (ARC,
Chicago), 1/8/81. 9_/ We concur with the reasoning of those opinions.
The estoppel doctrine which precludes attacking the validity of a prior divorce is
based upon the existence of a divorce decree and is much more limited than Mississippi's
rule of estoppel. 10_/ Moreover, Mississippi's application of the doctrine of estoppel
when there has been no divorce may be unique to that state. See GC opinion re Mary Miller, supra. As noted previously, we have not found any Illinois cases which have applied
this estoppel doctrine in the absence of a divorce.
Although applying the Mississippi estoppel doctrine to the facts of this case would
not be manifestly unjust, we are reluctant, in the absence of any case law, to apply
a doctrine which significantly expands the law existing in most other jurisdictions.
In the Cole opinion which construed Mississippi law, the decision was based upon specific court cases.
Furthermore, upholding the validity of a marriage which was apparently valid in Mississippi
when performed promotes the public policy of Illinois. One of the purposes of the
Illinois Marriage and Dissolution of Marriage Act, S.H.A. ch. 40, §102, is to strengthen
and preserve the integrity of marriage and to prevent "the marriage relation from
becoming in effect a private contract terminable at will." Hewitt v. Hewitt, 77 Ill. 2d 49, 394 N.E.2d 1204, 1210 (1979). Thus, it is likely that the Illinois
courts would not readily conclude that a valid marriage was dissolved without the
Therefore, we believe Illinois would probably not apply the doctrine of estoppel where
there has been no purported divorce unless conflict of laws principles in the particular
case dictate the application of the law of Mississippi rather than the law of the
forum. As mentioned previously, the general conflicts of law rule is that the marital
status is governed by the laws of the state in which the marriage was performed. S.H.A.
ch. 40, §213 (1980). 11_/ There is no indication in the file that the marriage between
John and Minnie was not valid in Mississippi at the time performed.
Accordingly, we conclude that if John and Minnie were validly married and never divorced,
the fact that he subsequently married F~ would not, under Illinois law, estop him
from asserting that he is Minnie's husband. In addition, we recommend that you re-evaluate
the determination that John is the lawful husband of F~.
1_/ There is no marriage certificate in the file. This information was stated in a
summary of the facts in the file, but it does not appear to be disputed.
2_/ There is no explanation as to the reason for John deciding that he was still Minnie's
spouse, and to file on both accounts.
3_/ The marriage certificate is not in the file, but neither John or Minnie now dispute
4_/ This in part conflicts with a February 19, 1980 statement by John that "I have
never divorced Minnie. I heard that she'd remarried and I thought this divorced us."
5_/ There is no explanation in the file why she changed her name back to her maiden
name of B~
6_/ This does not mean, however, that Mississippi law will govern the question of
the continuation of that marriage when the wage earner takes up residence in another
7_/ Estoppel is a substantive rule of law because it precludes a person from asserting
what otherwise would be his right. 28 Am. Jur.2d Estoppel and Waiver §27 (1966).
8_/ See GC opinion re Russell L~, RA: V (J~) to Washington, Director, ARC Programs,
9_/ But see GC opinion re Silas P~, ~~, RA:V (G~) to G~ (ARC, Atlanta), 6/15/81. Based upon the
facts of this case, we conclude that Illinois would not apply the Mississippi law
of estoppel. This opinion supercedes any aspects of the Parker opinion which may be inconsistent.
10_/ A previous opinion cited in footnote 9, indicated that the doctrines of estoppel
are analogous. In reconsidering the issue, we believe that the existence of the doctrine
of estoppel for attacking prior divorce under the facts of this case does not warrant
the application of Mississippi's doctrine of estoppel.
11_/ The Second Restatement of the Law on Conflicts of Laws proposes a change in the
law to provide that the choice of state law to be applied would be governed by the
most significant relationship approach rather than the traditional validity of the
marriage forum approach. Restatement (Second) of Conflict of Laws §283 (1971). We
have not found any Illinois cases which have adopted this approach. However, if such
an approach were followed, we believe Mississippi law might apply: John and Minnie
were married in Mississippi; John has lived there for over sixty years; his second
marriage took place in Mississippi, and it is Mississippi law which will govern the
status of that case; if John is eligible for benefits, he will receive them in Mississippi.
In summary, John has committed all the relevant actions in Mississippi.