MARRIAGE — Presumption of Validity of Second Marriage — State Law - TENNESSEE

The claimant divorced her first husband, the wage earner, and remarried. Subsequently the claimant discovered her second husband had a prior undissolved marriage, that impediment to a valid marriage was removed by divorce. After the removal of that impediment, the claimant and her second husband continued to live as husband and wife. While Tennessee does not recognize common law marriage, the claimant would be estopped from asserting her second marriage was invalid. Claimant was not eligible for surviving divorced mother's benefits on her first husband's account.

Your memorandum of November 17, 1980, requested our opinion as to whether Leonia E~ was estopped from denying the validity of her marriage to Ernest C. E~ thereby rendering her ineligible for surviving mother's benefits on the account of her prior husband, Sammy A~. While the facts need to be developed further, if the facts show Leonia and Ernest E~ considered themselves married at the time she filed for the benefits in question, she would be estopped from denying the validity of her marriage to Ernest E~.

While the facts furnished this office are somewhat sparse, the relevant facts or factual assumptions are listed below. Sammy A~ and Leonia E~ (the claimant) were married prior to November 1965. It is assumed that Sammy A~ and the claimant had a child prior to November 1965. Sammy A~ and the claimant were divorced prior to 1965. Ruby P~ E~ and Ernest E~ were married in 1955. Leonia E~ and Ernest E~ were married in 1965. Ernest and Ruby E~ were divorced in 1970. Sammy A~, the wage earner, died in 1976. It is assumed that Sammy A~ died a resident of Tennessee. Leonia E~ applied for surviving divorced mother's benefits on the account of Sammy A~ in 1977. At the time Leonia E~ married Ernest E~ in 1965 she believed her marriage to him was valid since she had no knowledge of Ernest prior undissolved marriage to Ruby. Since the divorce of Ruby E~ and Ernest E~ , Leonia has continued to reside with Ernest E~ as husband and wife.

The claimant would not be eligible for surviving divorced mother's benefits on Sammy A~ account if she was married to any other individual during the period for which she sought benefits. Section 202(g)(1)(A) of the Social Security Act, 42 U.S.C. §402(g) (1) (A). Social Security Regulation 4 Section 404.335(a)(3) (42 C.F.R. §404.335(a) (3)).

The claimant divorced Sammy A~ prior to November 1965. The claimant married Ernest E~ on November 6, 1965 in a ceremonial marriage. If the claimant's marriage to Mr. E~ was valid or if she was estopped from asserting its invalidity, the claimant would not be entitled to mother's insurance benefits on Sammy A~ account.

Tennessee does not recognize common law marriage, therefore, unless Leonia and Ernest E~ held themselves out as married in a state which recognizes common law marriage after his impediment to marriage was removed, Leonia and Ernest would not be validly married. However, if Leonia and Ernest continued to rely upon their marriage ceremony as constituting a marriage after the defect in their marriage surfaced Leonia would be estopped from denying that she was validly married to Ernest. (J~ , Willert T., — ~ — RA IV (K~) 9/7/71.) There should be further development of the file to determine whether Leonia and Ernest E~ continued to treat themselves as a married couple after his divorce. Also, as the information furnished with the request for an opinion was sketchy the factual assumptions stated in this opinion should of course be verified.