This is with reference to your inquiry as to whether Lovie O~ is the surviving divorced
wife of Robert B~ , the number holder, who died on April 24, 1981 in Indiana. The
facts, based on the development that has been done, are as follow.
Lovie W~ l_/ (now Lovie O~) and Robert B~ were married in Tate County, Mississippi
in 1917. Although there is no marriage certificate, you have secondary evidence of
the marriage. Your inquiry indicates that they separated in 1929. Lovie B~ subsequently
married Eugene O~ on July 25, 1961 in Memphis, Tennessee. 2_/ Although you indicate
that she had not obtained a divorce from the number holder, Robert B~, the claims
folder states that no search of the divorce records of all known residences of Lovie
W. B~ was made and it indicated that further development may be needed. Eugene O~
died on May 17, 1973 in Memphis, Tennessee.
On June 4, 1962 Robert B~ obtained a divorce from Lovie B~ in Memphis, Tennessee.
A determination of award of benefits in the claims folder indicates that Robert B~
married Ellen B~ on July 9, 1962. 3_/ Documents in the claims folder indicate that
Ellen B~ died on September 23, 1979. It appears that Robert B~ lived in Memphis until
October, 1979 when he moved to Indiana. 4_/ He died on April 24, 1981 in South Bend,
Lovie O~ has filed an application for surviving divorced wife's benefits on the account
of Robert B~. In addition to asking whether Lovie O~ meets the definition as surviving
divorced wife of Robert B~ , you have also asked whether the state of Indiana would
look to Mississippi law to determine the validity of the marriage of Lovie W~ to Robert
B~ and would apply Mississippi estoppel law and find that Lovie O~ is not the surviving
divorced wife of Robert B~ because of her marriage to Eugene O~ while she was still
married to Robert B~.
Claimant's entitlement to benefits is dependent upon whether she is the surviving
divorced wife of Robert B~ within the meaning of section 216(d)(2) of the Social Security
Act and 20 C.F.R. Section 404.336. Section 216(d)(2) defines "surviving divorced wife"
as a woman divorced from an individual who has died, but only if she had been married
to the individual for a period of 10 years immediately before the date the divorce
20 C.F.R. Section 404.336 indicates that the woman must have been validly married
to the insured as determined by the law of the state in which the insured was domiciled
at his death (in this case Indiana).
Indiana follows the rule that the validity of a marriage depends upon the law of the
place where it occurs. Bolkovac v. State, 98 N.E.2d 250, 254 (Ind. 1951). Thus, Indiana would recognize a marriage validly
entered into in Mississippi. However, Indiana also applies the presumption, where
there are conflicting marriages, that the second marriage is the valid marriage. Rainier v. Snider, 369 N.E.2d 666 (Ind. Ct. App. 1977). The law presumes that the prior marriage was
terminated by death or divorce. Id. However, this resumption "is not conclusive and it may be rebutted by competent evidence
that at the time of the subsequent marriage the former spouse is still alive and had
not obtained a divorce." Id. at 669. Competent evidence that there was no divorce would require only an investigation
as to whether there were divorce proceedings in forums where the former spouse might
reasonably be expected to pursue them. Id. in this case Mr. B~ was alive at the time
of claimant's marriage to Eugene O~ , but there appears to have been no search of
the appropriate records for a divorce by Mr. B~ prior to the marriage to Eugene 0~,
so as to rebut the presumption that the marriage of Robert B~ and Lovie B~ had been
legally dissolved by divorce. Also, as noted, there has been no search of records
to determine whether Lovie B~ had obtained a divorce from Robert B~. It appears that
in Indiana evidence of a divorce proceeding brought by the former spouse after the
second marriage would not, by itself, rebut the presumption. Boulden v. McIntire, 119 Ind. 574 (1889); Compton v. Benham, 44 Ind. App. 51, 85 N.E. 365 (1908).
However, POMS, GN 00305.110, states that regardless of the presumption applied by a state, full development is
necessary before the presumption can be applied. Therefore, without full development
in accordance with POMS, the presumption cannot be applied in this case.
We would note that if development indicated that Lovie B~ had been divorced from Robert
B~ prior to any subsequent marriages by her, there would be no need to determine whether
Indiana would apply Mississippi estoppel law in this case for there would be no bigamous
marriage. Further, if development did indicate a final divorce prior to the June 4,
1962 divorce, the date of the earlier divorce would be the time from which the ten
year period in the statute would be measured.
Absent such development we assume for purposes of this opinion that the presumption
does not apply and that June 4, 1962 is the date of the final divorce. Thus, we address
the question of whether Indiana would apply Mississippi estoppel law. If further development
is done, our opinion should considered in light of the additional facts developed.
For the reasons enumerated below we do not believe that Indiana would apply Mississippi
estoppel law in this case. Under Mississippi law, an insured individual's undivorced
wife, who enters into a bigamous marriage after separation from the insured, is estopped
from the denying the termination of the prior marriage and attacking the validity
of the subsequent marriage of the insured. Lee C~, ~, RA IV (S~) to L~, Director,
Southeastern Program Service Center, 11/30/78. Lee C~ involved the question of whether
the claimant was the wife of the wage earner within the meaning of Section 216(h)(1)A)
at the time she applied for benefits. It held that since the claimant had entered
into a subsequent bigamous marriage under Mississippi law she was estopped to assert
the invalidity of the wage earner's second marriage and could not be considered to
be the wife of the wage earner. Lee C~ did not involve the question of whether an
individual was a surviving divorced wife and somewhat different considerations apply
to that question. As the term "surviving divorced wife" suggests, the question in
that case is not whether the claimant was the wife of the insured at the time she
applied for benefits or at the insured's death, but whether she had been validly married
to the insured under applicable state law and was validly married to the insured for
at least ten years immediately before the divorce became final. It does not appear
that Lee C~ or Mississippi law would estop a claimant who entered into a bigamous
marriage from asserting that she had been validly married to the insured. It only
holds that by entering into the bigamous marriage she renounced her marital relationship
and can no longer assert that she is the wife of the insured. Thus, if C~ applies
in the context of a determination of whether a claimant is the surviving divorced
wife of the insured, it would apply only to the extent that an individual who entered
into a bigamous marriage, and who was subsequently divorced from the insured, may
be estopped from asserting that she was married to the insured for at least 10 years
immediately before the divorce became final.
We have found no Indiana cases in which an individual who left or was separated from
his or her spouse, and who without obtaining a divorce, entered into a subsequent
bigamous marriage, has been estopped from denying the termination of the former marriage.
However, in Indiana by statute, Ind. Code Ann., section 29-1-2-14 (Burns), part of
Indiana's law of intestate succession, a spouse who has left or abandoned the other
spouse and who is living in adultery at the time of the other spouse's death is prohibited
from taking any part of the deceased spouse's estate.
The Indiana Supreme Court has intimated, without expressly deciding, that it would
hold that entering into and living in a bigamous marriage could, in a strictly legal
sense, constitute living in adultery for purposes of the statute. Shaffer v. Richardson's Administrator, 27 Ind. 122 (1866). The basis for this is that since the first spouse was living
and there had been no divorce, the second marriage was void. However, in Shaffer the plaintiff was living in a bigamous marriage at the time of the death of her first
husband. It is clear, however, that the preclusion applies only to the spouse who
is living in adultery at the time of the death of the other spouse, not to a spouse
who at some time (other than at the time of death) following the abandonment was living
in adultery. As the Court stated in Spade v. Hawkins, 60 Ind. App. 388, 110 N.E. 1010 (1916):
Doubtless the legislative purpose in the enactment of (the statute) was to preclude
the surviving unfaithful immoral husband or wife from participating as a distributee
in the estate of the deceased spouse, and thus, to some extent, to promote fidelity
to the marital vows. The standard respecting the wife is that she must have left her
husband and be living in adultery at the time of his decease. 110 N.E. at 1013.
In this case even if Indiana law would find, since Mr. B~ was still living and had
not been divorced from Lovie B~ at the time of her marriage to Eugene O~, that her
second marriage was void and therefore her living with Mr. O~ could constitute living
in adultery, there is no evidence that she was living in adultery at the time of Mr.
B~'s death. In fact, Lovie O~'S marriage to Eugene O~ had ended with his death on
May 17, 1973, almost eight years prior to Mr. B~ 's death.
Thus, the fact that a spouse had entered into a bigamous marriage during the lifetime
of the other spouse would not, in and of itself, under Indiana law preclude that spouse
from asserting a right in the other spouse's estate, as it would under Mississippi
law. (See Minor v. Hidon, 215 Miss. 513, 61So.2d 350 (1952)).
Since, it is living in adultery at the time of the death of the other spouse and not
the fact that the spouse may once have lived in a bigamous marriage that is required
under the Indiana statute, similarly we do not believe that Indiana would apply Mississippi
estoppel law in this case and hold that a bigamous marriage which had ended almost
eight years earlier would bar the claimant from asserting that she had been married
to Robert B~ up until the time of their divorce. Thus, if Lovie O~ had been married
to Robert B~ for a period of 10 years immediately before the date their divorce became
final and if the other requirements or 20 C.F.R. Sec. 404.336 are met, she would not
be estopped under Indiana law from asserting she is the surviving divorced wife of
1_/ Census records in the claims folder indicate claimant's name is W~ and not "W~."
2_/ The name on the marriage certificate is Lovie S~ and not Lovie B~ or Lovie W~.
There is no explanation for this in the claims folder nor is there any indication
that Lovie O~ asked about this. The claims folder also contains an application for
a Social Security number dated August 8, 1955 in the name of Lovie S~.
3_/ However, an application for lump-sum death payment filed by Bobbie B~ on Robert
B~'s number states that Robert B~ married Ellen B~ in 1940.
4_/ Although your inquiry indicates that he stayed in Memphis until June 30, 1980,
there is a printout for a change of address action for Robert B~ dated October 5,
1979 showing an Elkhart, Indiana address.