TN 2 (01-20)

PR 05305.032 New Hampshire

A. PR 19-225 Widow's Benefits-Polygamous Marriage

Date: December 11, 2019

1. Syllabus

We believe that the New Hampshire law would apply in this case because the number holder’s (NH’s) permanent home was in New Hampshire when he died. The claimant remarried after the NH’s death. Her second husband was already married to another woman at the time of this remarriage. The 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 Agency should consider the claimant unmarried at the time of filing, and therefore eligible for surviving spouse’s benefits.

2. Opinion

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.




Our advice presumes the accuracy of the claimant’s July 2019 statement that her second marriage was polygamous. However, should SSA learn or conclude that the marriage was not polygamous, our opinion would change.


Our discussion of Pakistani law is based on information we received from the Law Library of Congress. See T A, Report for the U.S. Social Security Administration, Pakistan: Legality of Polygamy in Pakistan, LL File No. 2019-018254 (October 2019) (Law Library of Congress Report).


The claimant was evidently living in Maryland when she filed her application for surviving spouse’s benefits, but there is no indication that Mr. M~ ever lived with her there.


New Hampshire recognizes common-law marriages, in limited circumstances, for purposes of intestate succession. SeeN.H. Rev. Stat. Ann. § 457:39 (“ Persons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for the period of 3 years, and until the decease of one of them, shall thereafter be deemed to have been legally married.”); In re Mallett, 163 N.H. 202, 206, 37 A.3d 333, 336 (2012) (if the prerequisites of N.H. Rev. Stat. Ann. 457:39 are met, the surviving individual may be “treated as the spouse” of the decedent); see also POMS GN 00305.075.B (discussing recognition of common-law marriage in New Hampshire after one spouse dies). But this limited recognition of common-law marriages applies only to persons who are competent to contract marriage together, seeHilliard v. Baldwin, 80 A. 129 (1911), and thus does not apply where one spouse is already married to another, see Fowler, 79 A.2d at 26; see also POMS PR 04805.032(A) (finding that claimant could not be considered number holder’s common-law spouse under New Hampshire law where number holder was already married at the time of marriage to claimant).

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