PR 06410.027 Mississippi
A. PR 86-034 Validity of Mississippi Marriage to Minor — Entitlement To Wife's Benefits on Account of Leroy J~, A/N~
DATE: October 1, 1986
MARRIAGE — CEREMONIAL MARRIAGE — STATUTORY REQUIREMENTS — VALIDATION OF ILLEGAL MARRIAGE — ILLINOIS
A marriage contracted in Mississippi of a minor girl age 14 followed by cohabitation would not be void in Mississippi and would not be void as against public policy in Illinois notwithstanding its validity in Mississippi. Because Illinois will not apply Mississippi's rules of estoppel, the wage earner's first wife would not be estopped from denying the termination of her first marriage. (J~, Leroy, — RAV (A~), to ARC, Programs, 10/01/86.)
This is in response to .your request for our assistance in determining whether the wage earner, Leroy J~ ,'s first undissolved marriage was valid. Even if valid, you have inquired if Leroy's first "wife" would be estopped from denying the termination of her marriage because of her subsequent remarriages. You have requested our opinion because Leroy J~'s second wife, Christine J~ ("Christine"), has applied for wife's benefits on Leroy's account. For the reasons discussed below, we conclude that Christine is neither Leroy's legal nor putative spouse.
Based upon the materials furnished to us, the relevant facts are as follows. Although on his June 9, 1975 application for benefits Leroy listed only his marriage to Christine, the claimant, in a subsequent statement Leroy acknowledged that he was first married to Ruth M. D~. A marriage certificate shows that he married Ruth M. in Mississippi on October 21, 1936. At the time of the marriage, Ruth M. was only fourteen years old and did not have parental consent to marry. After sever or eight months, they separated. Leroy states that he did not get a divorce because "Down south we didn't get a divorce, we just separated and went our own way." Ruth M. confirms that she never obtained a divorce from Leroy.
On January 14, 1941, Leroy married Christine in Mississippi. In Leroy's 1975 application for benefits and a 1983 report of contact, it is stated that Christine and Leroy are separated, but apparently not divorced. In the 1983 report of contact, you also stated that Christine cannot he Leroy's putative spouse because of her own statement that she knows of Leroy's undissolved marriage to Ruth M.. Both Christine and Leroy reside in Illinois.
After Ruth M.'s separation from Leroy, she married John P~ on February 21, 1940 in Mississippi. She lived with John P~ until his death in 1976. She subsequently married Lloyd W~ and is receiving widow's benefits on his account.
Pursuant to the Social Security Act and its implementing regulations, a claimant is entitled to benefits as the wife or widow of a wage earner on the basis of (1) a valid ceremonial marriage, (2) a "deemed" or de facto marriage, (3) a common-law marriage recognized under applicable state law, or (4) a "putative" marriage recognized under applicable state law. 42 U.S.C. §416(h)(1); 20 C.F.R. §§404.344 - 404.346, 404.723 - 404.727. The law of the state in which the wage earner is domiciled at the time of the claimant's application governs. In this case, Illinois law controls.
A "deemed" marriage that is a marriage in which the claimant went through a marriage ceremony with the wage earner in good faith although the marriage is later determined to be invalid due either to a defect in the procedure followed or to a prior undissolved marriage of one of the parties. The claimant must have been living with the wage earner at the time the application for benefits is filed if the wage earner is living. 42 U.S.C. §416(h)(1)(B); 20 C.F.R. §404.346. Here, Christine could not qualify as Leroy's "deemed" wife because she was separated from him at the time of her application.
Likewise, Christine could not be eligible for benefits as a common law spouse because Illinois does not recognize common-law marriages entered into after June 30, 1985. Ill. Ann. Star. Ch. 40 ~214 (S~-H~). Christine is not entitled to benefits as Leroy's "putative" spouse because her "putative" spouse status ceased when she discovered that Leroy had a previous undissolved marriage. Upon that discovery, her good faith belief in the validity of her marriage ceased. Ill. Rev'. Stat. ch. 40 ~305.
Therefore, only if Christine is Leroy's legal wife will she be entitled to "wife's" benefits. We have previously determined that Illinois will not apply Mississippi's doctrine of estoppel. That doctrine precludes a spouse, here Ruth M., who separated from her first spouse and entered into a subsequent bigamous marriage from denying the termination of the former marriage. See Minne B~, ~ ,RA V (A~) to Washington, ARC, SSA-V, 11/4/82; Hilllard B~ ,~ RA V (A~) to Washington, ARC, SSA- V, 10/16/85. Hence, unless Leroy's and Ruth M.'s Mississippi marriage was void ab initio, Christine cannot be Leroy's legal wife.
Illinois follows the general 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.
Although a ceremonial marriage with a spouse under the age of fifteen is not valid in Mississippi, Miss. Code §93-1-5, failure to adhere to this statutory provision will not effect the validity of such marriage if it is followed by cohabitation. Miss. Code §93-1-9; Hunt v. Hunt, 172 Miss. 732, 161 So. 119 (1935) (Marriage of girl 13 years and 10 months of age followed by cohabitation not voidable on account of girl's age alone). Because Leroy and Ruth M. lived together for several months after their marriage, Mississippi would consider the marriage valid. See Richmond P. M~, ~, RA IX (F~) to RC, SSA-IX,
The question remains, however, whether a marriage with a fourteen year old girl would be void as against Illinois public policy notwithstanding its validity in Mississippi. Three sections of the Illinois Marriage and Dissolution Act are relevant to our analysis. Section 216 prohibits Illinois residents from going to another state to avoid prohibited marriages in Illinois. Since neither Leroy nor Ruth M. were Illinois residents at the time of their marriage, this section would not be applicable. Section 208 permits the issuance of a license to a party 16 or 17 years old after a reasonable effort has been made to notify parents. This section might be interpreted to mean that marriages for individuals under sixteen are not allowable. Most significant, however, is Section 212 which lists the types of marriage which Illinois prohibits. Marriage with a minor is not among the list of prohibited marriages. Therefore, it appears that the legislature did not intend to render void those marriages entered into without full compliance with such other statutory requirements such as age of the parties. See Boysen v. Boysen, 301 Ill. App. 573, 23 N.E.2d 231 (1st Dist. 1939).' See Chester A. B~ , ~, RA V (C~) to Reg. Rep., BRSI, Kansas-City Payment Center, 7/27/72. Further, Illinois courts have held that a marriage in which one or both of the parties were minors, who married without their parents' consent, had to be treated as valid unless declared void by a court. People. v. Reynolds, 217 Ill. App. 577 (1920). No such declaration was obtained regarding Leroy and Ruth M.'s marriage. Hence, we believe that Illinois would not consider Leroy and Ruth M.'s marriage against public policy.
Leroy and Ruth M.'s marriage was valid in Mississippi. Because Illinois will not apply Mississippi's rule of estoppel, Ruth M. would not be estopped from denying the termination of her first marriage even though she has "re- married." Hence, Christine is not Leroy's legal wife.
Based upon this opinion, we recommend that you investigate whether Ruth M. is entitled to continue to receive widow's benefits on Lloyd W~ account.
B. PR 83-004 D~ Jessie - SSN~, Application of the Doctrine of Estoppel
DATE: March 18, 1983
DIVORCE — RIGHTS OR PRIOR SPOUSE TERMINATED BY ESTOPPEL TO ASSERT INVALIDITY OF DIVORCE — MISSISSIPPI
Under Mississippi law, a claimant will be estopped from asserting that she is the lawful wife of the wage earner where evidence indicates that she abandoned the marriage either by remarriage or by living with another person without benefit of divorce.
(D~, Jessie - SSN ~, Application of the Doctrine of Estoppel, RAIV [J~], to Assistant Regional Commissioner, Programs, March 18, 1983.)
In your memorandum of September 21, 1982, you asked whether Mississippi's theory of estoppel should be applied to deny Julia D. H~ wife's benefits on the record of Jessie D~. Specifically, you wanted to know whether wife's benefits should be denied for all months (June 1974 to the present) or should estoppel be applied beginning in October 1975, the month she remarried.
According to the information contained in the case file, the facts are as follows: The wage earner, Jessie D~ and the claimant, Julia D. H~, were ceremonially married on March 3, 1929, in Walthall County, Mississippi. They separated in the mid-1940's and neither party ever obtained a divorce. Mr. D~ has never remarried nor has he entered into a living arrangement with another woman.
Julia D~ and Sanford H~ entered into a ceremonial marriage in St. Louis, Missouri, on October 11, 1975. Prior to the ceremonial marriage, Sanford H~ stated in an application for disability benefits, in 1973, that he and Julia had begun living together as husband and wife in 1957. Julia, in the Statement of Claimant Report, claimed that Sanford H~ first began living with her as a boarder in 1954 and remained a boarder until their marriage in October 1975. Sanford and Julia continued to live as husband and wife until his death in December 1981.
On March 28, 1974, Julia filed for retirement benefits on her own record, effective June 1974, the month she turned 62. On April 12, 1982, Julia was awarded widow's benefits on H~ record. On June 16, 1982, she applied for wife's benefits on Jessie D~ record. In an application for wife's benefits, she indicated that she and Jessie had never been divorced.
In order for the claimant to be entitled to wife's benefits on the wage earner's record, the claimant must satisfy Section 216(h)(1)(A) of the Social Security Act. Section 216(h)(1)(A) requires the claimant to show that she and the wage earner "were validly married at the time such applicant files such application .... 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 wife, husband, widow or widower, as the case may be, of such insured individual if such applicant would, under the laws applied by such courts in determining the devolution of intestate personal property, have the same status with respect to the taking of such property as a wife, husband, widow, or widower of such insured individual." Section 216(h)(1)(A) provides that the question of who is the spouse of the wage earner must be resolved by looking to the law of the domicile of the wage earner, in this case, Mississippi.
Under Mississippi law, the principle of estoppel prevents an individual from claiming the benefit of a prior marriage when the parties by their subsequent conduct after a separation treat the marriage as being terminated. Entering into a bigamous marriage is sufficient to estop a claimant from asserting that she is the lawful wife of the wage earner. (C~, Lee ~ RAIV [H~-S~] to Director, Southeastern Program Service Center (SEPSC), November 22, 1978.)
However, remarriage is not the only conduct which Mississippi courts have viewed as being indicative of abandoning the marital relationship and being sufficient to invoke the estoppel doctrine. In the recent opinion of H~, Wiley (RA IV W~) to Director, SEPSC, November 10, 1982, our office stated that living with another constitutes conduct indicative of abandonment of the marriage relationship and is sufficient to invoke the doctrine of estoppel. Our conclusion was based on the cases of Gatson v. Gatson, 358 So.2d 376 (1978) and Tillman v. Williams, 403 So.2d 880 (1981).
In Gatson, the Mississippi Supreme Court held that the parties had abandoned the marriage by separating and living with others. The parties in that case separated in 1935 and never obtained a divorce. The wife moved to Illinois and lived with another individual for 28 years, but she never married him. The husband had two subsequent marriages and remained married to the last wife until his death. The court found that because of the first wife's conduct (living with another for 28 years) she had abandoned the first marriage, thereby invoking the doctrine of estoppel and barring her from asserting her status as the deceased's widow.
In Tillman, the Mississippi Supreme Court provided further clarification of its position on the estoppel doctrine. In this case, the parties separated for a period of over 20 years without obtaining a divorce. However, neither party entered into a living arrangement with another individual. Consequently, the court held that long separations, without anything more, does not amount to such abandonment of the marriage that will justify invoking the doctrine of estoppel.
In the present case, the claimant has openly lived with another individual, although there is a question about the exact time the living arrangement commenced. According to the claimant, she began living with Sanford H~ in the mid-1950's but did not marry him until October 1975. Notwithstanding Julia's assertion that she was his landlord only prior to the marriage, Sanford H~ stated in an application for disability benefits in 1973 that he and the claimant began living together as husband and wife in 1957.
We believe the evidence in the record would warrant you to find that Julia and Sanford began living together in the mid-1950's. Clearly this living arrangement falls within the purview of the Gatson opinion. This claimant, just like the wife in the Gatson case, openly lived with another who was not her lawful husband for over 20 years without benefit of a divorce. Consequently, if you find Julia's living with Sanford constitutes conduct indicative of abandonment of the first marriage, it would constitute a sufficient basis to give rise to the doctrine of estoppel under Mississippi law.
In conclusion, we believe you would be warranted in finding that the claimant is barred from claiming her status as the wife of the wage earner because of the doctrine of estoppel. Based on the above discussion, her conduct (living with another) should estop her from asserting her status as the wage earner's wife because at the time of filing her application she and the wage earner would not be considered validly married, nor would she be entitled to the same relative to the taking of intestate personal property as a wife under the law of Mississippi. Consequently, she should not be entitled to any benefits on the wage earner's record.
C. PR 82-012 John J. F~, Deceased Social Security No. ~ - Estoppel in Mississippi
DATE: May 21, 1982
DIVORCE — In General - KENTUCKY
Under Kentucky law, the law of Mississippi is applicable for the purpose of determining the validity of a marriage consummated in Mississippi. Damon v. Damon, 192 S.W.2d 741 (1946).
Under Mississippi law, the insured's undivorced wife who entered into a bigamous marriage after separation from the insured is precluded under the theory of estoppel from denying the termination of her marriage with the insured or from attacking the validity of the insured's second marriage. (C~, Lee — ~ — RAIV (H~-S~) to DIR. SEPC, (11/22/78))
(F~, John, RAIV (W~) to ARC, IPB, 5/18/82)
In your memorandum of February 3, 1981, you asked whether the Kentucky courts would apply its own law or that of the State of Mississippi in determining whether Evelyn S~ is the legal widow of the deceased insured John J. F~
The insured and Evelyn were ceremonially married on July 17, 1937 in Lula, Mississippi. Evelyn and the insured separated in 1941. The insured was sent to prison for the period 1941-1947. On December 7, 1946 Evelyn married (ceremonially) Ollie S~ also in Lula, Mississippi. In 1950 Evelyn came back to live with the insured and continued to live with him until 1953. Evelyn then went to Chicago, Illinois with Ollie S~ with whom she lived until his death on November 19, 1963. Evelyn apparently continues to reside in Chicago, Illinois. Evelyn has used the last name of "S~" in each of her two applications for widow's benefits on the earnings record of the insured. These applications were file on April 29, 1980 and on December 1, 1980. In her first application, Evelyn indicates she had only one marriage and that her only spouse was the insured. In her second application she stated she was married to both the insured and Ollie S~.
The insured stated in his application for retirement benefits filed on October 6, 1976 that he married Linda P~ in 1949. The file does not reflect where such alleged marriage took place, or whether it was ceremonial or common law. The relationship with Linda P~ was apparently very brief because Evelyn resumed living with the insured in 1950 and continued to live with him until 1953 when she resumed living with Ollie S~ in Illinois. The insured also had a relationship with Jessie B. M~ in Bowling Green, Kentucky. Jessie was married to Phillip M~ during her relationship with the insured. A child was born of this relationship, and the insured was determined to be the father by a Kentucky Court. This child has been determined to be the child of the insured for Social Security purposes. The insured stated he had no other wives than Evelyn and Linda. The insured applied for retirement benefits in 1976 while domiciled in Bowling Green, Kentucky. The insured died on March 12, 1980 domiciled in Bowling Green, Kentucky. Despite their remarriages and other relationships, it is undisputed that neither the insured nor Evelyn terminated their marriage to one another by divorce.
Pursuant to Section 216(h)(1)(A), an applicant is the widow of an insured if the courts of the state in which the insured is domiciled would find such applicant and the insured were validly married at the time of the insured's death or if not validly married, the applicant is entitled to widow's benefits if the applicant would be entitled to an intestate share of the insured's estate under the law of the insured's domicile. Since the insured was domiciled in Kentucky at the time of his death, Kentucky law would be applicable to a determination of Evelyn's status as the insured's widow. Kentucky follows the general rule that a marriage valid in the state where it is consummated will be valid in Kentucky. Damon v. Damon, 192 S.W.2d 741 (1946). Therefore, Kentucky would apply Mississippi law to determine the validity of Evelyn's marriage to the insured.
The insured and Evelyn were married in 1937 in Lula, Mississippi but separated in 1941. Without procuring a divorce from the insured, Evelyn married Ollie S~ in Lula, Mississippi in 1946 and lived with him until 1950 at which time she apparently began living with the insured and continued to live with the insured for the period 1950 to 1953. In 1953 Evelyn resumed living with Ollie S~ in Chicago, Illinois and she continued to live with him until his death in 1963. Evelyn apparently remained in Chicago subsequent to Ollie S~ death and continues to live there presently. Given these circumstances and in particular assuming Evelyn entered into a bigamous marriage with Ollie S~ , Evelyn would be estopped from asserting either her status as the legal wife of the insured or asserting a right to inherit intestate as the widow of the insured under Mississippi law. See, C~, Lee — ~ — RAIV (H~-S~) to DIR. SEPC, (11/22/78).
Assuming Kentucky would apply Mississippi law to determine the validity of the marriage between the insured and Evelyn and applying the Mississippi estoppel doctrine, Evelyn would not be recognized as the legal widow of the insured under Mississippi law.
Lacking the status of the insured's widow, Evelyn lacks any standing to assert any claim to the insured's personal estate under Kentucky law. Therefore, Evelyn has not satisfied either the inheritance or valid marriage tests pursuant to Section 216(h)(1)(A) of the Social Security Act. It is also noteworthy regarding the inheritance test that a woman who commits bigamy forfeits her claim to dower (i.e. legal right or interest a wife acquired by marriage in the estate of her husband) under Kentucky law. Ky. Rev. Stat. § 392.100.
It is the opinion of this office that Kentucky would apply the Mississippi law in determining whether Evelyn was the legal wife of the insured. Under the estoppel doctrine of Mississippi and through the application of that doctrine, Evelyn would be barred from asserting her status as the legal wife of the insured. Lacking the status of the insured's wife coupled with her apparently bigamous marriage to Ollie S~, Evelyn could not inherit intestate from the insured under Kentucky law. Therefore, you would be justified in concluding that Evelyn has not satisfied the criteria for widow's benefits pursuant to 216(h)(1)(A) of the Social Security Act.