I. Question Presented
You asked whether the claimant, R~ S~, could be considered the widow of T~ S~, the
deceased number holder (NH), under New Hampshire law, even though she had remarried
by the time she filed for benefits on the NH’s record, when her second husband was
already married at the time of her remarriage in Pakistan.
II. Short Answer
Yes. Although the claimant’s second marriage was likely valid in Pakistan, New Hampshire
courts consider bigamous marriages void, and likely would not recognize a bigamous
marriage even if it was valid where contracted. Therefore, the Agency should consider
the claimant unmarried at the time of filing, and therefore eligible for surviving
spouse’s benefits.
III. Background
The claimant and the NH were married in Pakistan in May 1979. Thereafter, they resided
in New Hampshire, and remained married until the NH’s death in December 1993. In April
1994, the claimant applied for Child-in-Care benefits as the NH’s widow and the mother
of their child. In May 1994, the claimant married S~ M~ in Pakistan. Because of this
remarriage, SSA terminated her Child-in-Care benefits as of July 1997.
In June 2019, the claimant filed an application for surviving spouse’s benefits based
on her marriage to the NH. She admitted that she was still married to Mr. M~, but
claimed that she had separated from him in 2005 and moved back to the United States.
She argued that SSA should not recognize this marriage because it was “polygamous”:
Mr. M~ was already married to another woman when she married him, and remained married
to that woman.[1] Therefore, the claimant is asking that SSA consider her to be the NH’s widow notwithstanding
her remarriage, and award her benefits as a widow on the NH’s record.
IV. Analysis
A. Federal Law
To be entitled to widow’s insurance benefits under the Act, a claimant must show,
among other things, that she is the widow of the insured. See 42 U.S.C. § 402(e)(1).
The Act defines a widow as the surviving wife of an individual who was married to
the individual for at least nine months prior to the date of the individual’s death.
42 U.S.C. § 416(c)(1). As relevant here, the individual’s widow must also be unmarried
at the time she applies for such benefits. See id. § 416(h)(1)(B)(iii) (entitlement
to benefits ends if the widow “enters into a marriage, valid without regard to this
subparagraph, with a person other than such insured individual”); see also 20 C.F.R.
§ 404.335(e) (with several exceptions not pertinent here, widow must be unmarried
to qualify for benefits); POMS RS 00207.001(A)(1)(b)(3). However, the widow’s remarriage is not disqualifying if it is “absolutely
void.” POMS RS 00207.003(C) (“A remarriage which is absolutely void does not preclude entitlement to widow(er)’s
benefits.”). Here, determination of whether the claimant’s remarriage to Mr. M~ was
void requires examination of both state and foreign law.
The law of the state or country where the marriage occurred ordinarily determines
its validity. POMS GN 00305.005(B)(1). But in some cases, a marriage that is valid where it was celebrated might
be void in the state of the individual’s domicile if it violates the law or public
policy of that state (e.g., a bigamous/polygamous marriage). Id. At the same time,
some states may consider a foreign polygamous marriage that was contracted in a jurisdiction
that recognizes such marriages valid to the extent that the spouses share equally
in the intestate personal property of the worker. Id. § 00305.005(B)(2).
Here, the claimant married Mr. M~ in Pakistan, which, in general, permits a man to
be married to more than one woman at the same time. [2] And (in general) if a man has more than one wife, his wives receive a collective
share of his estate, which is to be divided equally among them. But even if this marriage
was valid in Pakistan, SSA can recognize it only if it would be recognized under the
relevant state law.
Normally, SSA looks to the laws of the state where the NH had a permanent home when
he or she died to determine whether the claimant is the NH’s widow or widower, or,
if the insured’s home was outside the United States, to the laws of the District of
Columbia. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. But neither the Act nor
the regulations address which law governs the validity of a widow’s remarriage to
a third party. We believe that New Hampshire law would apply here because the NH’s
permanent home was in New Hampshire when he died, he and the claimant resided in New
Hampshire together until his death, and there is no indication that the claimant and
Mr. M~ ever lived together in any other state. [3] See POMS PR 05005.024(A) (determining validity of claimant’s Mexican divorce from his second wife under
the laws of Massachusetts, because his first wife, the NH, lived there at the time
of her death – even though claimant and second wife had subsequently resided together
in South Carolina); see also POMS PR 05005.021(A) (determining claimant’s eligibility for widow’s benefits under law of state where
NH was domiciled when he died, notwithstanding claimant’s subsequent remarriages in
other states); POMS PR 05005.018(A) (determining validity of divorced spouse’s remarriage under laws of state where
union occurred and where all parties resided). Therefore, the claimant’s eligibility
for benefits depends on whether the courts of New Hampshire would consider her marriage
to Mr. M~ “valid.”
B. New Hampshire Law
It does not appear that New Hampshire courts would recognize this marriage as valid,
regardless of its validity in Pakistan.
New Hampshire law does not recognize bigamous or polygamous marriages. See N.H. Rev. Stat. Ann § 457:2 (“No person shall be allowed to be married to more than
one person at any given time.”). Moreover, New Hampshire considers bigamous marriages
to be absolutely void, not merely voidable. Id. § 458:1 (“All marriages prohibited by law . . . where either has a former wife or
husband living, knowing such wife or husband to be alive and knowing that their marriage
had not been legally dissolved, if solemnized in this state, shall be absolutely void
without any legal process.”); accord POMS GN 00305.075(B) (“Under New Hampshire law, a marriage is absolutely void where either party to
the marriage has a former spouse still living and knows that the former marriage has
not been legally dissolved.”); Patey v. Peasley, 111 A.2d 194, 195 (N.H. 1955) (“In this state the Legislature has specifically provided
that bigamous marriages . . . are void.”); Fowler v. Fowler, 79 A2d 24, 26 (1951) (deeming marriage invalid because one party was married when
it was contracted); Vigno v.
Vigno, 106 A. 285, 285 (N.H. 1918) (marriage “had no validity, and was absolutely void,”
if one party was married at the time it was contracted).
Moreover, New Hampshire law appears to prohibit recognition of such marriages regardless
of where they are contracted. See N.H. Rev. Stat. Ann. § 457:3 (“Marriages legally
contracted outside the state of New Hampshire which would be prohibited under [section]
457:2 if contracted in New Hampshire shall not be legally recognized in this state.”).
Although there is no recent case law on point, historically, New Hampshire courts
have voided marriages deemed contrary to public policy even if valid where contracted.
See Sirois v. Sirois, 50 A.2d 88, 88-89 (N.H. 1946) (concerning underage marriage: “[I]f the parties to
a marriage contract are both domiciled in a particular state and marry in another
state, intending to return, and do return, to the state of their domicile to make
a home there, the domiciliary state has a substantial interest in the marriage, and
if it is repugnant to the public policy of the domiciliary state, that state, through
its courts, has the power to annul it.”) (internal citations omitted); True
v. Ranney, 21 N.H. 52, 55 (N.H. 1850) (concerning marriage where one party was severely mentally
impaired: although the validity of marriage contracts is generally to be determined
by the laws of the country where they are made, this rule “holds only where it does
not stand opposed to the religion, morality, or municipal institutions of the country
in which it is sought to be applied”).
Therefore, although it does not appear that New Hampshire courts have confronted the
precise situation at issue here, there is a state statute that explicitly prohibits
recognition of marriages, like the claimant’s, that would not be valid if contracted
in New Hampshire. See N.H. Rev. Stat. Ann. §§ 457:2 (prohibiting bigamy), 457:3 (denying
recognition of marriages which are legally contracted elsewhere, but which would be
prohibited if contracted in New Hampshire). And case law suggests that if the claimant
were ever to return to New Hampshire and begin residing with Mr. M~ there, New Hampshire
courts could annul her marriage. Sirois, 50 A.2d at 88-89.
We recognize that some state courts have held that polygamous marriages, which would
otherwise be invalid, could be treated as valid for the limited purpose of intestate
succession. See , e.g. , In re Lenherr’s Estate , 455 Pa. 225, 231 (Pa. 1974) (citing In re Dalip Singh Bir’s Estate , 83 Cal. App. 2d 256, 188 P.2d 499 (Ca. Dist. Ct. App. 1948) (finding that
no public policy would be affected by dividing the intestate’s estate between two
surviving wives where marriage took place in a foreign province allowing polygamous
marriages and where the marriages would be held valid in California to the extent
of allowing the wives to share intestate’s estate equally). New Hampshire courts,
however, have not endorsed this exception. [4]
In sum, because the claimant’s marriage to Mr. M~ is not valid under New Hampshire
law, she can be considered an unmarried widow for purposes of entitlement to surviving
spouse’s benefits. See 42 U.S.C. § 416(h)(1)(B)(iii) (entitlement to benefits ends
only if widow enters into a “valid” marriage) see also POMS RS 00207.003(C) (“A remarriage which is absolutely void does not preclude entitlement to widow(er)’s
benefits.”).
V. Conclusion
We believe that New Hampshire courts would deem the claimant to be the NH’s widow
despite her remarriage following his death. Her second husband was already married
to another woman at the time of this remarriage, and New Hampshire statutes and case
law deem bigamous marriages void, and prohibit their recognition even if they are
valid in the state or country where contracted. Therefore, the claimant can be considered
unmarried at the time she filed for surviving spouse’s benefits, for purposes of determining
her eligibility for such benefits.