The parties married in Utah but an Oregon court entered the judgment of annulment. Generally the law of the place in which the marriage occurred determines the validity of the marriage. Under Utah and Oregon law a marriage is void when one party is already married. Therefore, the marriage was void under the laws of either State and surviving mother's benefits should be reinstated.

QUESTION

Whether a marriage is “void” or “voidable,” for purposes of determining an individual’s entitlement to reinstatement of surviving mother’s benefits, when one party to the marriage is already married. The parties were married in Utah and an Oregon court entered a judgment of annulment.

SHORT ANSWER

A marriage is void under Utah and Oregon law when one party is already married. Therefore, surviving mother’s benefits should be reinstated as of the month of the prior termination of benefits.

SUMMARY OF EVIDENCE

Ms. H received surviving mother’s benefits on the record of her deceased spouse, Mr. H, after his death in February 2002. She received benefits through January 2008, when the benefits terminated due to her marriage to Mr. C on February 15, 2008, in Utah. In September 2008, an Oregon court entered a judgment of annulment on the ground that the marriage was void because Mr. C was married to another woman. The court also awarded spousal support in the amount of $400.00 per month for a period of twelve months for Ms. H’s lost surviving mother’s benefits.

ANALYSIS

For purposes of reinstating benefits previously terminated because of remarriage, the agency distinguishes between marriages that are “voidable” and marriages that are “void” under applicable state law. Program Operations Manual System (POMS) GN 00305.130, 00305.125. A “void” marriage is “a marriage which is legally nonexistent from the beginning under State law, with or without a judicial decree.” POMS GN 00305.125. Benefits previously terminated because of remarriage that is determined to be void are reinstated as of the month of the prior termination. POMS GN 00305.125.

In this matter, the parties married in Utah, but an Oregon court entered the judgment of annulment. Ordinarily, the law of the place in which the marriage occurred determines the validity of the marriage. POMS GN 00305.005. In Utah, a marriage is void when there is a husband or wife living, from whom the person marrying has not been divorced. Utah Code Ann. § 30-1-2. Similarly such a marriage is also “void from the beginning” under Oregon law. Or. Rev. Stat. §§ 106.020(1), 107.005(1). Accordingly, the marriage was void under the laws of either state. Therefore, Ms. H’s surviving mother’s benefits should be reinstated as of February 2008, the month of termination.

CONCLUSION

It is our opinion that Ms. H’s marriage to Mr. C was void under Utah and Oregon law. Her surviving mother’s benefits should be reinstated effective February 2008.

An annulment decree issued after the NH's death was based on a finding that his marriage to the claimant was void. Therefore, she is not the NH's widow and is not entitled to widow's insurance benefits on the NH's record.

QUESTION PRESENTED

You asked what effect a delayed annulment, issued after an individual's death, would have on an individual's entitlement to widow's insurance benefits.

BACKGROUND

Sharon R. B~ applied for widow's insurance benefits in February 2003. She married the number holder, Karl J. B~ on April 23, 1979. She was estranged from Mr. B~ at the time of his death on May 12, 1990. At the time of the application for benefits, the Claims Representative (CR) sent a request to the Oregon Bureau of Vital Statistics to determine if Mr. and Ms. B~ had ever been divorced. The search came back indicating no records of divorce. As a result, the CR determined Ms. B~ was eligible for widow's insurance benefits.

Subsequent to the granting of benefits, the CR received a document from the Oregon Bureau of Vital Statistics indicating that Mr. and Ms. B~'s marriage had been annulled effective February 15, 1991. The effective date was nine months after Mr. B~'s death. The CR immediately contacted Ms. B~ regarding this development; however, Ms. B~ claimed to have no knowledge regarding the annulment proceedings.

We obtained a copy of the official court file, which revealed that Mr. B~ filed a Petition for Annulment of Marriage on April 10, 1990, a month before his death. He claimed that his marriage to Ms. B~ was obtained by fraud because Ms. B~ was married to Joe E. H~ at the time of their marriage. A Certificate of Service included within the court file indicated that Ms. B~ was personally served with the Petition for Annulment of Marriage on April 11, 1990. On May 10, 1990, Ms. B~'s attorney filed a one-sentence response to the petition denying that the marriage was obtained by fraud. Therefore, despite Ms. B~'s claim to the CR that she had no knowledge regarding the annulment proceedings, she in fact had knowledge and hired an attorney to represent her in the matter.

After Mr. B~'s death on May 12, 1990, his attorney filed a Motion to Substitute Parties in the Annulment proceeding. On June 20, 1990, the court ordered that Patti J. H~, Personal Representative for the Estate of Mr. B~, be allowed to substitute for Mr. B~ as petitioner and to pursue the annulment proceedings previously filed on behalf of the Estate of Mr. B~.

On May 21, 1990, the court ordered that the case be transferred to arbitration. On October 3, 1990, the Arbitrator ruled that Ms. B~'s prior marriage to Mr. H~ was never resolved before her subsequent marriage to Mr. B~. The Arbitrator then noted that, after Ms. B~ obtained a dissolution of marriage to Mr. H~, she and Mr. B~ never remarried. He then concluded the marriage between Ms. B~ and Mr. B~ was void. On January 15, 1991, a judge from the Circuit Court of the State of Oregon issued a Decree of Annulment of Marriage, terminating the marriage. Ms. B~ did not appeal the Decree of Annulment.

DISCUSSION

Ms. B~ is entitled to widow's insurance benefits if she is Mr. B~'s widow. 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.335(a). The relationship requirement is met if Mr. B~ and Ms. B~ were validly married under state law at time of the Mr. B~'s death. 20 C.F.R. § 404.345. We look to the law of the State where Mr. B~ had his permanent home when he died. Id. Mr. B~ died in the State of Oregon. In Oregon, a marriage may be declared "absolutely void" from the beginning when either party to the marriage had a wife or husband living at the time of such marriage. OR. REV. STAT. (O.R.S.) §§ 106.020, 107.005.

Here, an Annulment Decree was issued based on the Arbitrator's finding that Ms. B~'s prior marriage to Mr. H~ was not resolved prior to her marriage to Mr. B~. As a result, the subsequent marriage between Mr. B~ and Ms. B~ was void. "A void marriage is a marriage which is legally nonexistent from the beginning under State law, without a judicial decree. The parties to a void marriage are considered never to have been husband and wife." Program Operations Manual System (POMS) GN 00305.125; see also O.R.S. § 107.005. Since Mr. and Ms. B~ were not validly married from the beginning under Oregon law, Ms. B~ is not Mr. B~'s widow and thus is not entitled to widow's insurance benefits on Mr. B~'s account.

David M~

Regional Chief Counsel

By: /s

Franco L. B~

Assistant Regional Counsel