QUESTION
You asked whether the claimant’s purported marriage to a third party is valid for
determining the claimant’s eligibility for widow’s insurance benefits (WIB) as the
surviving divorced wife on the number holder’s earnings record.
OPINION
The claimant’s marriage to the third party is void and would not preclude her eligibility
for WIB as the number holder’s surviving divorced wife.
BACKGROUND
According to the information provided, in May 2017, G~ (Claimant) applied for WIB
on the earnings record of O~, the number holder (NH), alleging that she was his surviving
divorced wife. Claimant presented a marriage license and certificate showing she married
NH in July 1966 in G2~, South Carolina. A Report of Divorce or Annulment of Marriage
(Report of Divorce) from the South Carolina Department of Health and Environmental
Control provides that a divorce decree was granted to NH in January 1981. NH died
on April XX, 2003, in South Carolina.
On her application, Claimant also stated that she married L~ in August 1979, but that
she believes the marriage was not legal because she was still married to NH at the
time. She presented a State of New York Marriage license or certificate stating that
she married L~ in N~, New York, on August XX, 1979. Claimant presented no evidence
showing that she divorced L~.
DISCUSSION
A claimant may be eligible for WIB if the claimant is the surviving divorced wife
of an individual who died fully insured and she was validly married to the insured
individual for at least ten (10) years before the divorce became final. See Social Security Act (Act) §§ 202(e)(1), 216(d)(2); 20 C.F.R. § 404.336(a) (2017);[1] Program Operations Manual System (POMS) RS 00207.001A.2.a. A claimant may qualify as the surviving divorced wife of an insured individual if
the courts of the state in which the insured individual was domiciled at the time
of death would find the claimant and insured individual were validly married when
the insured individual died. See Act § 216(h)(1)(A)(i); 20 C.F.R. §§ 404.336(a)(1), 404.345; POMS RS 00207.001A.1.a, A.2.a.; POMS GN 00305.001A.2.a.
NH was a resident of South Carolina when he died. Claimant presented a South Carolina
Marriage License and Report of Divorce showing that she was married to NH from July
1966 to January 1981. See POMS RS 00207.006D.1 (providing that while a divorce decree, a certified copy, or an abstract certification
is always required, generally the validity of a divorce will not be questioned). Thus,
the evidence shows that Claimant and NH were validly married for more than ten years
before their divorce became final.
Generally, a surviving divorced wife also must be unmarried to be eligible for WIB.[2] See Act § 202(e)(1)(A); 20 C.F.R. § 404.336(e); POMS RS 00207.001A.2.b.3; POMS RS 00207.003A. A New York marriage license or certificate states that Claimant married L~ in August
1979. However, both New York and South Carolina would deem Claimant’s marriage to
L~ void.[3] South Carolina deems marriages contracted while either of the parties has a former
husband or wife still living void. See S.C. Code Ann. § 20-1-80 (West 2017);[4] Lukich v. Lukich, 666 S.E.2d 906, 907 (S.C. 2008) (holding bigamous marriage was void at its inception).
Likewise, New York deems marriages contracted while either of the parties has a former
spouse still living and the first marriage with the former spouse had not been annulled
or dissolved at the time of remarriage absolutely void. See N.Y. Domestic Relations Law § 6 (McKinney 2017). Because Claimant was still married
to NH at the time of her 1979 marriage to L~, her marriage to L~ was void at the time
of its inception. See S.C. Code Ann. § 20-1-80; N.Y. Domestic Relations Law § 6; Lukich, 666 S.E.2d at 907. A remarriage that is void does not preclude entitlement to WIB.
See POMS RS 00207.003C; see also POMS GN 00305.125B.1 (stating “[a] void marriage does not preclude initial entitlement to benefits of
claimants who must not be married”).
Nor would Claimant’s conduct in marrying L~ estop her from being entitled to WIB on
NH’s record as his surviving divorced wife. Estoppel is “a term applied to a situation
where, because of something which he/she has done or omitted to do, a party is denied
the right to plead or prove an otherwise important fact.” POMS GN ATL00305.175C. Generally, the principal of estoppel could be applied to prevent a party to a divorce
from denying its validity if he or she remarried after the purported divorce. See POMS GN 00305.175A.1, 2.c; POMS GN ATL00305.175B. Claimant, however, did not seek or obtain a divorce, valid or not, from NH before
she married L~. Rather, her divorce from NH did not occur until 1981 after her marriage
to L~.
We also could not find any South Carolina cases applying the principle of estoppel
where the parties to a marriage separated without obtaining a divorce or other similar
judgment and one spouse remarried. See POMS GN 00305.175A.1 (providing that Mississippi and North Carolina are the only states that recognize
the concept of estoppel based on a separation rather than a divorce action); Scheper v. Scheper 118 S.E. 178, 181, 183-85 (S.C. 1923) (declining to consider whether conduct including
remarriage after separation was sufficient to create an estoppel, but finding conduct
reinforced conclusion that North Carolina judgment granting divorce a mensa et thoro that included termination of property rights effectively estopped husband from asserting
any property right on deceased wife’s estate). In any event, even in states that do
recognize estoppel based on a separation and subsequent remarriage, the agency’s policy
is to recognize the estopped spouse as the legal spouse of the number holder for claims
adjudicated on or after May 23, 2000. See POMS GN 00305.175A.1. Moreover, Claimant was married to NH for over ten years before her purported marriage
to L and, thus, even if South Carolina were to estop her from claiming certain marital
and inheritance rights, this purported estoppel would not invalidate her marriage
to NH. See POMS GN 00305.180D.
CONCLUSION
Claimant’s purported marriage to L~ was void under South Carolina and New York law
and would not affect Claimant’s eligibility for WIB on NH’s earnings record as his
surviving divorced spouse.