The number holder (NH) died while domiciled in Texas; therefore, we look to Texas law to determine if the Claimant is the NH’s widow. Under the Texas law, the Claimant and the NH had a valid ceremonial marriage at the time of the NH’s death in July 2004. Although they had filed for divorce, the court dismissed their divorce action for want of prosecution in 1995. This meant the Claimant and NH were not legally divorced and as a result, her March 2004 ceremonial marriage to her current spouse was void. The Claimant’s marriage to the NH did not end until the NH’s death in July 2004. The Claimant and her current spouse have a valid Texas common law which produces the same legal consequences as a ceremonial marriage and the presumption of the validity of the most recent marriage is one of the strongest presumptions under Texas law.

Because the Claimant had a valid, subsequent common-law marriage to her current spouse since 2005, she was not unmarried at the time she applied for widow’s benefits in 2016. Therefore, the Claimant does not meet this requirement for entitlement to widow’s benefits on the NH’s account.

QUESTION PRESENTED

The purpose of this memorandum is to respond to your request for our opinion regarding the possible entitlement of R~ (R~) to widow’s insurance benefits as the widow of J~, the deceased number holder (NH). See 42 U.S.C. § 402(e)(1) (entitlement to widow’s insurance benefits). For determining whether R~ is the NH’s widow as section 216(c) of the Social Security Act (Act) defines, you asked whether under Texas law, R~ and the NH were validly married at the time of the NH’s death. See 42 U.S.C. § 416(c), (h)(1)(A)(i). For widow’s benefits on the NH’s record, R~ must also be unmarried and thus, you also asked us to determine the status of R~’s subsequent marriage to her second alleged spouse, M~ (M~). See 42 U.S.C. § 416(e)(1)(A). Specifically, you asked whether under Texas law R~ and M~ had a valid common-law marriage and if so, the effective date of when such marriage began.

ANSWER

Based on the evidence submitted, we believe that there is legal support for the agency to find that under Texas law R~ and the NH had a valid ceremonial marriage at the time of the NH’s death in July 2004. Although they had filed for divorce, the court dismissed their divorce action for want of prosecution in 1995. Therefore, R~’s marriage to the NH did not end until the NH’s death on July XX, 2004.

Although R~’s subsequent March XX, 2004 ceremonial marriage to M~ in Nevada was void because R~ was still married to the NH at that time, we believe that there is legal support for the agency to find that after the NH’s death and upon moving to Texas in 2005, R~ and M~ entered into a valid common-law marriage under Texas law effective sometime in 2005 when they began living as husband and wife in Texas. Because R~ and M~ have a valid common-law marriage, R~ was not unmarried at the time she applied for widow’s benefits on the NH’s record in 2016.

BACKGROUND

The evidence provided shows that R~ has had three purported marriages, as described below:

A. R~’s 1985 Ceremonial Marriage to the NH in Texas

R~ provided a copy of a completed and recorded Texas marriage license and certificate, which stated that she and the NH married in a ceremony on June XX, 1985 in E~ County, Texas. In 1995, the NH filed for divorce from R~. The evidence contains a copy of a Dismissal Order for Lack of Prosecution signed October XX, 1995 (and filed November XX, 1995), from the 34th District Court of E~ County, Texas showing that the divorce petition between R~ and the NH was dismissed after neither the parties nor their attorneys appeared for trial. The District Clerk for E~ County wrote a letter dated September XX, 2016, certifying that she searched the civil index records for the dates from 1985 to 2004 and found that the divorce case between the NH and R~ was closed with an Order for Dismissal for Want of Prosecution on November XX, 1995. R~ stated she believed she was divorced from the NH because he gave her divorce papers to sign and did not learn that the court dismissed the divorce petition until she tried to obtain proof of the divorce when she was buying a house in 2013. On July XX, 2004, the NH died domiciled in Texas.

B. R~’s Purported Ceremonial Marriage to M~ in Nevada

On March XX, 2004, R~ entered into a ceremonial marriage with M~ in Nevada under the belief that she and the NH were divorced. She provided a copy of a Nevada certified abstract of marriage record showing that she and M~ married in a solemnized marriage ceremony in C~ County, Nevada on March XX, 2004. They apparently lived in Arizona at this time from March 2004 until August 2004, but married in a ceremony in Nevada. R~ and M~ moved to L~, California in 2004, and later moved to E~, Texas in 2005, where they continue to live.

C. R~’s Subsequent Purported Common-Law Marriage to M~ in Texas

R~ submitted a SSA-754 Statement of Marital Relationship, which she competed in February 2017, stating that she and M~ began living together as husband and wife in March 2004. She stated that they lived together as husband and wife, considered themselves to be married, and referred to each other as husband and wife. In addition, R~ stated that from March 2004 to August 2004, she and M~ lived together as husband and wife in M~ Arizona, and that from August 2004 to sometime in 2005, R~ and M~ lived as husband and wife in L~, California. Beginning at some point later in 2005, R~ and M~ began living as husband and wife in E~, Texas, where they continue to reside together in 2017. She listed her address as E~, Texas. She reported that they opened joint bank accounts showing themselves as married, they had insurance policies showing that they were married, and they filed tax returns as a married couple.

M~ also submitted a SSA-754, which he completed in February 2017, stating and he and R~ lived together as husband and wife, considered themselves to be married, and referred to each other as husband and wife. He stated that they began living together as husband and wife in March 2004 in Arizona, then they lived together in California from 2004 to 2005, and then they lived together in E~, Texas from 2005 until 2017. He also stated that they filed tax returns as a married couple, opened joint bank accounts as a married couple, and have life insurance policies showing they are married. He listed the same home address as R~ in E~, Texas.

ANALYSIS

A. Federal Law: Entitlement to Widow’s Insurance Benefits Under the Act

A claimant is entitled to widow’s insurance benefits under Title II of the Act if, among other things, she shows that she is the widow of a person who died a fully insured individual, that their marriage lasted nine months immediately before the insured died, and that she is unmarried. See 42 U.S.C. §§ 402(e)(1), 416(c); 20 C.F.R. §§ 404.335(a)(1) (you are married and your marriage lasted for at least 9 months), (e) (you are unmarried), 404.345 (your relationship as a surviving spouse under state law) Thus, R~ must show that she is the NH’s widow, that they were married for at least 9 months immediately before the NH died in July 2004, and that she is unmarried.

The agency will determine whether an applicant is an insured individual’s widow by determining if the courts of the state in which the insured individual had a permanent home at the time of death “would find that such applicant and such insured individual were validly married” at the time such insured individual died, or if, under application of that state’s intestate succession laws, the applicant would be able to inherit a spouse’s share of the insured’s personal property. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. Permanent home means the true and fixed home or legal domicile of the insured individual. 20 C.F.R. § 404.303. Because the NH was domiciled in Texas at the time he died, we look to Texas law to determine whether R~ is the NH’s widow.

B. Texas State Law: R~’s Marriages to the NH and to M~

1. R~ Was Validly Married to the NH at the Time of His Death in July 2004

In Texas, marriages may be either ceremonial or informal. See Tex. Fam. Code Ann. §§ 2.001 – 2.602; Russell v. Russell, 865 S.W.2d 929, 931-33 (Tex. 1993) (“[c]ommon law marriages have been recognized in Texas since 1847”). A Texas common-law marriage produces the same legal consequences as a ceremonial marriage. Whaley v. Peat, 377 S.W.2d 855, 857 (Tex. Civ. App. - Houston 1964, writ ref’d n.r.e). Here, there is evidence of R~’s ceremonial marriage to the NH in Texas in 1985, her ceremonial marriage to M~ in Nevada in March 2004, and a common-law marriage to M~ in Texas in 2005. When two or more marriages of a person to different spouses are alleged, Texas law presumes the validity of the most recent marriage until the validity of the prior marriage is proven. Tex. Fam. Code Ann. § 1.102. The presumption of the validity of the most recent marriage is one of the strongest presumptions under Texas law. See Texas Employer’s Ins. Ass’n. v. Elder, 282 S.W.2d 371, 373 (Tex. 1955). The burden is on the party attacking the validity of the most recent marriage, who must establish both the existence of the prior marriage and its continuing validity at the time of the later alleged marriage and must introduce sufficient evidence, standing alone, to negate the dissolution of the prior marriage. See Estate of Claveria v. Claveria, 615 S.W.2d 164, 165 (Tex. 1981); In re Estate of Loveless, 64 S.W.3d 564, 574 (Tex. App. – Texarkana 2001, no pet.).

Here, R~s March 2004 ceremonial marriage to M~ is her most recent marriage and therefore, is presumed valid. See Tex. Fam. Code Ann. § 1.103 (Texas law applies to persons married elsewhere who are domiciled in this state). However, as presented above, the evidence indicates that R may still have been married to the NH at the time she married M~ in March 2004. Under Texas law, a marriage is void if entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the other spouse’s death. Tex. Fam. Code Ann. § 6.202(a); see also Romano v. Newell Recycling of San Antonio, L.P., 2008 WL 227974 at *3 (Tex. App.-San Antonio January 30, 2008, no pet.) (mem. op.) (“This rule rendering the subsequent marriage void applies whether the marriage is ceremonial or common law.”); Phillips v. The Dow Chemical Company, 186 S.W.3d 121, 127 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (“Thus, a marriage entered into while one party is married to another person is void from the outset as a matter of law.”). Therefore, we consider whether R~ and the NH were validly married and remained married at the time she later entered into this ceremonial marriage with M~ in March 2004, such that her ceremonial marriage to M~ was void.

Here, the evidence indicates that R~ and the NH entered into a ceremonial marriage in Texas. A ceremonial marriage requires parties to the marriage to obtain a marriage license from a county clerk, participate in a marriage ceremony an authorized person performed, and return the marriage license after the ceremony to the county clerk, who then records the completed marriage license and mails the certified copy to the married couple. See Tex. Fam. Code Ann. §§ 2.202, 2.203(a), 2.206(a), 2.208(a). The recorded marriage license with the completed marriage certificate is proof of a valid marriage. See Black v. Shell Oil Co., 397 S.W.2d 877, 881 (Tex. Civ. App. - Texarkana 1965, writ ref’d n.r.e.); Jones v. State, 17 S.W.2d 1053, 1056 (Tex. Crim. App. 1928); see also Simpson v. Simpson, 380 S.W.2d 855, 858 (Tex. Civ. App. – Dallas 1964, writ ref’d n.r.e) (“It has long been the established law of Texas that a ceremonial marriage entered into in accordance with legal forms will raise the presumption, or inference of its legality.”).

As described above in the background section, the evidence provided shows R~ and the NH had a valid ceremonial marriage in Texas that began in 1985 and continued until the time of the NH’s death in July 2004. R~ and the NH’s 1985 recorded Texas marriage license with the completed marriage certificate is proof of a valid marriage. See Black v. Shell Oil Co., 397 S.W.2d at 881; see also Simpson v. Simpson, 380 S.W.2d at 858 (“It has long been the established law of Texas that a ceremonial marriage entered into in accordance with legal forms will raise the presumption, or inference of its legality.”). Once a marriage exists, it may be terminated only by death, a court decree of divorce, or annulment. Estate of Claveria v. Claveria, 615 S.W.2d 164, 167 (Tex. 1981); Tatum v. Tatum, 476 S.W.2d 629, 631 (Tex. Civ. App. – Fort Worth, 1972, writ dsm’d w.o.j.). The information you provided shows that R~ believed she later divorced the NH because the NH gave her divorce papers that she signed. However, the evidence also shows that the court dismissed the NH’s divorce petition for want of prosecution and therefore, did not render a final judgment of divorce. Because there was no timely challenge to this dismissal of the divorce action, the order of dismissal became final. See Pollard v. Pollard, 316 S.W.3d 246, 251 (Tex. App. – Dallas 2010, no pet.) (the court properly dismissed the divorce action after the spouse had died and with no timely challenge to the dismissal, the order of dismissal became final). R~ stated that she did not learn that the divorce petition was dismissed until she bought a house in 2013 and after she married M~ in March 2004 in a ceremonial marriage. Under Texas law, evidence that divorce proceedings were instituted during a first marriage, but then dismissed for want of prosecution has been held “sufficient to overcome the presumption of validity of the subsequent marriage.” Bailey-Mason v. Mason, 122 S.W.3d 894, 898 (Tex. App. Dallas 2003, pet. denied); see Dodd v. Dodd, 17 S.W.3d 714, 716 (Tex. App. —Houston [1st Dist.] 2000, no pet.), disapproved on other grounds, 124 S.W.3d 163 (Tex. 2003). Thus, the evidence provided is sufficient to establish that R~ and the NH were validly married and never divorced, and as a result, her March 2004 ceremonial marriage to M~ was void.

Therefore, under Texas law, R~ was validly married to the NH at the time of his death in July 2004 and their marriage lasted at least nine months before the NH’s death. As such, R~ is the NH’s widow under the Act for purposes of her application for widow’s benefits on the NH’s record. See 42 U.S.C. §§ 402(e)(1), 416(c)(1), (h)(1)(A)(i); 20 C.F.R. §§ 404.335(a), 404.345. However, as explained below, R~ does not meet the requirement for widow’s benefits that she was unmarried because there is legal support for the agency to reasonably conclude that she is currently in a valid common-law marriage to M~ under Texas law.

2. R~ Has a Valid Common-Law Marriage to M~

The information provided shows that while R~ and M~s 2004 ceremonial marriage was void, she entered into a subsequent common-law marriage to M~. Under Texas law, an otherwise void marriage becomes valid if, after the prior marriage has been dissolved, the parties live together as husband and wife and represent themselves to others as being married. Tex. Fam. Code Ann. § 6.202(b). Here, R~’s marriage to the NH terminated upon his death in July 2004, and she continued to live with M~ after this time as a married couple. To establish a valid marriage to M~ under Texas law, R~ must prove that she and M~ lived together as husband and wife and represented themselves to others as being married during the time following the NH’s death in July 2004 (and dissolution of his marriage to R~). Id. at § 6.202(b); see also Omodele v. Adams, 2003 WL 133602, at *3-4 (Tex. App – Houston [114th Dist.] 2003, no pet.) (“when a woman continues to live with a man as his wife after his divorce from a previous wife, a common-law marriage exists that may be the subject of a divorce”). In other words, they can establish a valid common-law marriage under Texas law upon dissolution of R~s marriage to the NH with his death in July 2004.

a. Overview of the Elements of a Common-Law Marriage

The elements of a valid common-law marriage under Texas law are:

(1) an agreement to be married,

(2) cohabitation in Texas as spouses, and

(3) representation, or holding out to others that they are married.

See Tex. Fam. Code Ann. § 2.401(a); Estate of Claveria v. Claveria, 615 S.W.2d 164, 166 (Tex. 1981); Ex parte Threet, 333 S.W.2d 361, 364 (Tex. 1960); see also Van Hooff v. Anderson, 2016 WL 193172, at *3 (Tex. App. – Amarillo Jan. 14, 2016, no pet.) (“Other than terminology used, the common law marriage requirements and the statutory requirements for an informal marriage are the same.”). A common-law marriage does not exist until a party meets all three elements, which courts determine on a case-by-case basis and on the specific facts presented. Estate of Claveria, 615 S.W.2d at 166; Nguyen v. Nguyen, 355 S.W.3d 82, 88-89 (Tex. App. – Houston [1st Dist.] 2011, pet. denied).

b. Burden of Proof: Preponderance of the Evidence

Unlike some other States, which impose a higher burden of proof on claimants who seek to prove the existence of a common-law marriage, in Texas the party seeking to prove the existence of a common-law marriage holds the burden of proof by a preponderance of the evidence. See Tompkins v. State, 774 S.W.2d 195, 208 (Tex. Crim. App. 1987); Farrell v. Farrell, 459 S.W.3d 114, 117 (Tex. App. – El Paso 2015, no pet.); Nguyen, 355 S.W.3d at 88-89. Texas law defines that standard as the greater weight and degree of credible evidence that would create a reasonable belief in the truth of the claim. See Herrera v. Stahl, 441 S.W.3d 739, 741 (Tex. App. – San Antonio 2014, no pet.); Upjohn Co. v. Freeman, 847 S.W.2d 589, 591 (Tex. App. – Dallas 1992, no writ) (“Preponderance of the evidence means the greater weight and degree of credible evidence” and the court of appeals considers whether the “trier of fact could reasonably conclude that the existence of a fact is more probable than not”). Therefore, we must determine if R~ has shown by a preponderance of the evidence that during the time she and M~ lived together in Texas beginning in 2005 (and after the NH’s death), she and M~ agreed to be married, lived together in Texas as husband and wife, and represented to others that they were married.

R~ and M~ provided their statements regarding their common-law marriage. Although R~ did not submit any documentary evidence, under Texas law, statements alone can be sufficient to meet the preponderance of the evidence burden. See Small v. McMaster, 352 S.W.3d 280, 283-284 (Tex. App. – Houston [14th Dist.] 2011, pet. denied) (the wife’s testimony and the testimony of other witnesses was sufficient evidence of an agreement to be married). Indeed, a claimant’s statements can constitute direct evidence of the elements of a common-law marriage. See Omodele, 2003 WL 133602, at *2 (the wife’s uncontroverted testimony that she and the husband had an agreement to be married was alone sufficient to show an agreement to be married; testimony established that the parties lived together for almost 2 years and that they purchased a home and insurance together as husband and wife); Martinez v. Lopez, 2011 WL 2112806, at *5-6 (Tex. App. – Houston [14th Dist.] 2011, no pet.) (the wife’s uncontroverted testimony that they represented themselves as married to others supported the element of holding out to others); Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex. App. – Houston [1st Dist.] 1991, writ denied) (the wife’s testimony was direct evidence of their agreement to be married).

In addition, circumstantial evidence can prove the requisite elements of common-law marriage. Russell, 865 S.W.2d at 933. “A fact is established by circumstantial evidence when the fact may be fairly and reasonably inferred from other facts proved in the case.” Id. (quoting Dallas Co. Flood Control v. Cross, 815 S.W.2d 271, 279-80 (Tex. App. – Dallas 1991, writ denied)). The Texas Supreme Court has stated that, “proof of common-law marriage may be shown by the conduct of the parties, or by such circumstances as their addressing each other as husband and wife, acknowledging their children as legitimate, joining in conveyances as spouses, and occupying the same dwelling place.” Estate of Claveria, 615 S.W.2d at 166. “[T]he circumstances of each case [as to the elements of a common-law marriage] must be determined based upon its own facts.” Id. We consider whether the greater weight and degree of credible evidence supports a common-law marriage between R~ and M~.

c. Application of the Elements of a Common-Law Marriage

i. Elements

a. Agreement to Marry

The first element for a valid common-law marriage requires an agreement to marry. See Tex. Fam. Code Ann. § 2.401(a)(2). The parties must prove by a preponderance of the evidence that they had a “present, immediate, and permanent marital relationship and that they did in fact agree to be husband and wife.” Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App. – Houston [1st Dist.] 2001, pet. denied). The parties show an agreement to be married with proof that they intended to create an immediate and permanent marital relationship, not merely a cohabitation or temporary association that either party may end at any time and not an agreement to marry in the future. See Van Hooff, 2016 WL 193172, at *3; Gary v. Gary, 490 S.W.2d 929, 932 (Tex. Civ. App. – Tyler 1973, writ ref’d n.r.e.); Perales v. Flores, 147 S.W.2d 974, 976 (Tex. Civ. App – San Antonio 1941, writ ref’d). As explained above, direct or circumstantial evidence may establish an agreement to be married. Russell, 865 S.W.2d at 931. Testimony of one of the parties to the marriage as to their agreement to be married constitutes some direct evidence of the parties’ agreement to be married. Small, 352 S.W.3d at 283-284. Evidence of cohabitation and representations to others that the parties are married may show circumstantial evidence of an agreement to be married. See Lee v. Lee, 981 S.W.2d 903, 906 (Tex. App. – Houston [1st Dist.] 1998, pet. denied).

Here, R~ and M~ clearly had an agreement to marry as they were married in a ceremonial marriage in Nevada in March 2004 and did not know that such ceremonial marriage was void until 2013. They each submitted a Statement of Marital Relationship in which they both stated that they began living together in a husband and wife relationship in March 2004 after this ceremonial marriage and continued to live together and represent to others that they were married after they moved to Texas in 2005. As such, we believe that Texas courts would find an agreement to marry and that the agency could reasonably conclude that R~ and M~ have established the first element for a valid common-law marriage under Texas law.

Furthermore, section 6.202 indicates that the critical elements for proving a valid common-law marriage upon dissolution of a prior marriage under circumstances such as the one involved here are the elements of cohabitation and representation of marriage to others, which we address next. See Tex. Fam. Code Ann. § 6.202(b) (“The later marriage that is void under this section becomes valid when the prior marriage is dissolved, if, after the date of the dissolution, the parties have lived together as [spouses] and represented themselves to others as being married.”).

b. Cohabitation in Texas as Spouses

The second element for a valid common-law marriage requires that the couple live together in Texas as spouses. See Tex. Fam. Code Ann. § 2.401(a)(2). R~ and M~ both stated that they have lived together as spouses in Texas from 2005 to the present. They continue today to live at the same address in E~, Texas. R~ and M~ stated that they did not live together continuously during that time, and that they had a period of separation from September 2015 to November 2015. However, courts have not required the living arrangement to be continuous. See Small v. McMaster, 352 S.W.3d 280, 284 (Tex. App. –Houston [14th Dist.] 2011 pet. denied). (‘[c]ohabitation need not be continuous for a couple to enter into a common law marriage.”). Considering their statements, we believe that there would be legal support for the agency to conclude that the greater weight and degree of credible evidence supports a reasonable belief that R~ and the NH lived together in Texas as spouses since 2005 or for the past 12 years. See Van Hooff, 2016 WL 193172, at *5 (the court found sufficient evidence to support the cohabitation element where no one disputed that they couple began living together in 1999 and continued to live together until 2011 when they separated); Romano v. Newell Recycling of San Antonio, LP, 2008 WL 227974, at *5 (Tex. App. – San Antonio 2008, no pet.) (finding “extensive evidence of cohabitation” where witnesses testified that the couple lived together for around nine years and it did not appear that the husband left the wife for more than a month or two at a time and that he left only during times the couple was fighting). As such, we believe that Texas courts would find cohabitation as spouses in Texas and that the agency could reasonably conclude that R~ and M~ have established the second element for a valid common-law marriage under Texas law.

c. Representation to Others as Married

The third element for a valid common-law marriage requires that the couple held out to the public, or represented to others while living in Texas, that they were married. See Tex. Fam. Code Ann. § 2.401(a)(2). Representation of the marriage to others, or holding out to the public as being married, can be shown through the “conduct and actions of the parties.” Eris, 39 S.W.3d at 715. Spoken words are not necessary to prove this element; rather, the focus is upon whether the couple had a reputation for being married. Id. Occasional introductions as husband and wife are not enough to satisfy the holding out requirement, and there is no such thing as a secret common-law marriage. Threet, 333 S.W.2d at 364; Winfield, 821 S.W.2d at 648-51. Instead, Texas law requires that the couple “consistently [conduct] themselves as husband and wife in the public eye or that the community [view] them as married.” Van Hooff, 2016 WL 193172, at *5. “[T]he jurisprudence in Texas strictly construes the holding out element and has held that marriage is more than a contract; it is a ‘status’ in the community, a general reputation, a public and open holding out that the parties are man and wife.” Id. at *6.

Here, the evidence shows that R~ changed her name to M~’s last name after she and M~ married. R~ and M~ also both stated that they had designated themselves as spouses and married in joint tax returns, a joint bank account for at least ten years, and a life insurance policy since 2015. R~ and M~ also stated that they introduced each other as husband and wife, and that their relatives and friends knew of their relationship. This evidence is sufficient to establish their status in the community as a married couple. See In re Estate of Giessel, 734 S.W.2d 27, 30-31 (Tex. App. – Houston [1st Dist.] 1987, writ ref’d n.r.e.) (the couple had lived together as husband and wife for 20 years, the husband represented to many people in the community that the woman was his wife, and the couple had a reputation in the community for being married); Tatum, 476 S.W.2d at 630 (filing joint tax returns, opening a joint checking account, designating a spouse on life insurance policy, and holding themselves out to their community as being married all constituted sufficient evidence of a common-law marriage). We believe that Texas courts would find that they represented to others that they were married in Texas and that the agency could reasonably conclude that R~ and M~ have established the third element for a valid common-law marriage under Texas law.

ii. The Totality of the Evidence

In sum, we believe a court would find under Texas law that R~ and M~ proved a subsequent valid common-law marriage. Thus, we believe there is legal support for the agency to conclude that the greater weight and degree of credible evidence in their statements establishes that R~ and M~ had a common-law marriage that began after the dissolution of R~’s marriage to the NH at the time of the NH’s death in July 2004 and upon continuing their relationship in Texas in 2005. Although they also stated later in their 2017 statements to the agency that they believed they were not legally married once they learned in 2013 that R~ had not been divorced from the NH at the time of their March 2004 ceremonial marriage, this subsequent belief based on a misunderstanding of the law does not disprove or invalidate an otherwise valid common-law marriage under Texas law. In re Estate of Giessel, 734 S.W.2d at 31 (the wife’s representations in documents that she was single went “to the weight of the evidence” and did not “negate a marriage, as a matter of law”). They were living as a married couple in Texas and under the belief that they were married for eight years from 2005 until 2013. And they continued to live together after that time and currently live together in 2017. There is no such thing as a common-law divorce. Estate of Claveria, 615 S.W.2d at 167.

Here, since R~ had a subsequent valid common-law marriage to M~, she was not unmarried at the time she applied for widow’s benefits. As such, R~ does not meet this requirement for entitlement to widow’s benefits on the NH’s account. See 42 U.S.C. §§ 402(e)(1), 416(c); 20 C.F.R. § 404.335(e) (requirement that a claimant under age 60 applying for widow’s benefits must be unmarried).

3. R~’s Common-Law Marriage to M~ Began in 2005

Because we believe that R~ has proven a subsequent valid common-law marriage to M~, we now address the effective date of their common-law marriage. A common-law marriage exists when the three elements (an agreement to be married, marital cohabitation in Texas, and representation of the marital relationship) are present. See Farrell v. Farrell, 459 S.W.3d at 117. In addition, all elements must exist at the same time. See Bolash v. Heid, 733 S.W.2d. 698, 699 (Tex. App-San Antonio 1987, no writ). In this case, R~ and the NH’s marriage was dissolved at the time of the NH’s death in July 2004. However, the information provided shows that R~ and M~ were living in Arizona and California in 2004 and 2005 and did not live together as husband and wife in Texas until they moved to E~, Texas sometime later in 2005. The three elements necessary for a valid informal marriage did not exist until sometime in 2005 when R~ and M~ began living in Texas. See Williams v. Home Indem. Co,, 722 S.W.2d 786, 788 (Tex. App. – Houston [14th Dist.] 1987, no writ) (living together and holding out in another state does not satisfy the requirements for common-law in Texas); Tex. Fam. Code Ann. § 2.401(a)(2) (“they lived together in this state as husband and wife and there represented to others that they were married”) (emphasis added). Therefore, the effective date of R~ and M~’s informal marriage would be sometime in 2005 when they began living as husband and wife in Texas.

CONCLUSION

We conclude that under Texas law, R~ and the NH had a valid ceremonial marriage until the time of the NH’s death in July 2004. R~’s March 2004 ceremonial marriage to M~ was void because R~ was still married to the NH at that time. However, after the NH’s death and upon moving to Texas in 2005, R~ and M~ subsequently validated their marriage because they agreed to be married, lived as husband and wife in Texas, and represented to others that they were married. Because R~ had a valid, subsequent common-law marriage to M~ that began in 2005 when they moved to Texas, R~ was not unmarried at the time she applied for widow’s benefits in 2016. Therefore, R~ does not meet this requirement for entitlement to widow’s benefits on the NH’s account.

The NH was domiciled in Texas at the time of his death. In order to determine whether the Claimant is entitled to benefits as the NH’s widow, we next analyze whether her marriage to the NH terminated before her subsequent marriage to her second spouse. The claimant and the NH had a valid Texas common-law marriage beginning in 1981. Texas recognizes common-law marriages. When two or more marriages of a person to different spouses are alleged, Texas law presumes the validity of the most recent marriage until the validity of the prior marriage is proven. Based on the evidence submitted, although Texas law presumes the validity of the Claimant’s last marriage to the second spouse, evidence that the Claimant and the NH never divorced rebuts this presumption. As a result, the marriage between the Claimant and the second spouse was void under Texas law and the Claimant’s marriage to the NH remained valid at the time of his death. Since the Claimant and the NH never legally divorced, the Claimant remains the NH’s widow under Texas law and for purposes of determining her entitlement to widow’s benefits under the Act.

QUESTION PRESENTED

The purpose of this memorandum is to respond to your request for our opinion regarding the possible entitlement of K~ (K~) to widow’s insurance benefits as the widow of B~, the deceased number holder (NH). See 42 U.S.C. § 402(e)(1) (entitlement to widow’s insurance benefits). For determining whether K~ is the NH’s widow as section 216(c) of the Social Security Act (Act) defines, you asked whether under Texas law, K~ and the NH were validly married at the time of the NH’s death. See 42 U.S.C. § 416(c), (h)(1)(A)(i). In making this determination, you asked whether Texas law would apply a presumption of validity of the last marriage to establish that K~ is not the NH’s legal widow and whether there is sufficient evidence to rebut that presumption. You also asked us to determine the status of K~’s marriage to her second alleged spouse, J~ (J~).

ANSWER

Based on the evidence submitted, although Texas law presumes the validity of K~’s last marriage to J~, evidence that K~ and the NH never divorced rebuts this presumption. As a result, the marriage between K~ and J~ was void under Texas law and her marriage to the NH remained valid at the time of his death. Since K~ and the NH never legally divorced, she remains the NH’s widow under Texas law and for purposes of determining her entitlement to widow’s benefits under the Act.

BACKGROUND

The NH passed away on March XX, 2008, while domiciled in Texas. Following the NH’s death on March XX, 2008, K~ learned that she and the NH were never legally divorced. On April XX, 2016 , K~ filed an application for benefits on the NH’s record as his widow, and it is this claim that is the subject of this present legal opinion. In order to determine whether K~ is entitled to benefits as the NH’s widow, we next analyze whether her marriage to the NH terminated before her subsequent marriage to J~.

A. K~’s First Purported Common-Law Marriage to the NH and Lack of Divorce

K~ provided a Texas Declaration and Registration of Informal Marriage signed August XX, 1983 as proof that she and the NH entered into a common-law marriage on January XX, 1981 in B~, Jefferson County, Texas. The evidence contains a certified copy of a Final Decree of Divorce showing that the NH had a previous marriage that ended in March 1980 before his marriage to K~ began in 1981. K~ also submitted a SSA-754 Statement of Marital Relationship stating that beginning in 1981, she and the NH lived together as husband and wife, considered themselves to be married, and referred to each other as husband and wife. K~ indicated that at some point, she lived with another person as husband and wife, but she did not provide dates or any other details concerning the relationship. Between 1976 and 1991, K~ and the NH had four children.

In 1994, K~ filed for divorce. She stated that all the divorce documents were signed and filed with an attorney. To the best of her knowledge, she received a copy of the final divorce decree, but the documents were either lost or destroyed. However, when she attempted to find proof of the divorce, she learned that their divorce action had been dismissed. The evidence contains a certified copy of a September 1995 Dismissal for Lack of Prosecution from the 279th District Court of Jefferson County, Texas showing that the divorce action between K~ and the NH was dismissed after neither party nor their attorneys appeared for trial. In November 2016, the agency contacted the Jefferson County, Texas district clerk’s office and found no record of a divorce between K~ and the NH from 1981-1998.

According to your request, the NH’s prior disability application alleged that his marriage to K~ ended on March XX, 1994. However, K~ is listed as the NH’s surviving spouse on his 2008 Texas Certificate of Death.

B. K~’s Second Purported Ceremonial Marriage to J~

On June XX, 1994, K~ entered into a ceremonial marriage with J~ under the belief that she and the NH were divorced. She provided a copy of a Texas marriage license showing that she and J~ married in a solemnized marriage ceremony in Beaumont, Jefferson County, Texas on June XX, 1994. K~ and J~ had one child, who was born on February XX, 1997. They divorced on March XX, 2004. K~ provided the agency with a certified copy of their Final Decree of Divorce.

ANALYSIS

A. Entitlement to Widow’s Insurance Benefits Under the Act

A claimant is entitled to widow’s insurance benefits under Title II of the Act if, among other things, she shows that she is the widow of a person who died a fully insured individual and that her marital relationship to the insured individual lasted for at least 9 months immediately before the insured died. See 42 U.S.C. §§ 402(e)(1), 416(c); 20 C.F.R. §§ 404.335(a)(1) (relationship must have lasted for at least 9 months), 404.345 (your relationship as a surviving spouse under state law), 404.704 (your responsibility for giving evidence), 404.709 (preferred evidence), 404.723 (when evidence of marriage is required), 404.726 (preferred evidence of common-law marriage). Thus, K~ must establish the requisite marital relationship with the NH by showing that she is the NH’s surviving spouse, or widow, and that they were married for at least 9 months immediately before the NH died in March 2008. See 42 U.S.C. § 416(c)(1); 20 C.F.R. §§ 404.335(a), 404.344-404.346.

The agency will determine whether an applicant is an insured individual’s surviving spouse, or widow, by determining if the courts of the state in which the insured individual had a permanent home at the time of death “would find that such applicant and such insured individual were validly married” at the time such insured individual died, or if, under application of that state’s intestate succession laws, the applicant would be able to inherit a spouse’s share of the insured’s personal property. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. Permanent home means the true and fixed home or legal domicile of the insured individual. 20 C.F.R. § 404.303. Because the NH was domiciled in Texas at the time he died, we look to Texas law to determine whether the NH and K~ were validly married, and if not, whether she would be able to inherit a spouse’s share of the NH’s property under Texas intestate succession laws.

B. Under Texas Law, K~ has Proven that She had a Valid Marriage to the NH at the Time of the NH’s Death in 2008, under 42 U.S.C. § 416(h)(1)(A)(i)

1. Texas State Law on Common-Law Marriage and Marriage Presumptions

The basis for K~’s claim is that she and the NH had a valid Texas common-law marriage beginning in 1981. Texas recognizes common-law marriages. See Russell v. Russell, 865 S.W.2d 929, 931-33 (Tex. 1993) (“[c]ommon law marriages have been recognized in Texas since 1847”); Tex. Fam. Code Ann. § 2.401(a) (statutory recognition of common-law marriage and proof required to show such marriage). A Texas common-law marriage produces the same legal consequences as a ceremonial marriage. Whaley v. Peat, 377 S.W.2d 855, 857 (Tex. Civ. App.--Houston 1964, writ ref’d n.r.e).

A man and woman may prove a valid common-law marriage by showing (1) an agreement to be married, (2) cohabitation in Texas as husband and wife, and (3) proof of representation to others that they are married. Tex. Fam. Code Ann. § 2.401(a)(2); see also Russell, 865 S.W.2d at 931-33. The party seeking to prove the existence of a common-law marriage holds the burden of proof by a preponderance of the evidence, which is defined as “the greater weight and degree of credible evidence.” See Tompkins v. StatE, 774 S.W.2d 195, 207 (Tex. Crim. App. 1987); Farrell v. Farrell, 459 S.W.3d 114, 117 (Tex. App. – El Paso 2015, no pet.); Nguyen v. Nguyen, 355 S.W.3d 82, 88-89 (Tex. App. – Houston [1st Dist.] 2011, pet. denied). The elements of common-law marriage—an agreement to be married, marital cohabitation in Texas, and representation of the marital relationship to others—are determined on a case-by-case basis. Estate of Claveria v. Claveria, 615 S.W.2d 164, 166 (Tex. 1981). Section 2.402 of the Texas Family Code provides that the parties to a common-law marriage may execute a Declaration of Informal Marriage on a form prescribed by the bureau of vital statistics and provided by the county clerk. Tex. Fam. Code Ann. § 2.402. This declaration affirms the elements, described above, of a common-law marriage. Id. A Declaration of Informal Marriage recorded by the county clerk is prima facie evidence of the marriage of the parties. Tex. Fam. Code Ann. § 2.404(d).

Here, two purported marriages are at issue -- K~’s 1981 common-law marriage to the NH and her 1994 ceremonial marriage with J~. Under Texas law, a marriage is void if entered into when either party has an existing, undissolved marriage. See Tex. Fam. Code Ann. § 6.202(a); Phillips v. The Dow Chemical Company, 186 S.W.3d 121, 127 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (“Thus, a marriage entered into while one party is married to another person is void from the outset as a matter of law.”). “This rule rendering the subsequent marriage void applies whether the marriage is ceremonial or common law.” Romano v. Newell Recycling of San Antonio, L.P., 2008 WL 227974 at *3 (Tex. App.-San Antonio January 30, 2008, no pet.) (mem. op.). When two or more marriages of a person to different spouses are alleged, Texas law presumes the validity of the most recent marriage until the validity of the prior marriage is proven. Tex. Fam. Code Ann. § 1.102. The presumption of the validity of the most recent marriage is one of the strongest presumptions under Texas law. See Texas Employer’s Ins. Ass’n. v. Elder, 282 S.W.2d 371, 373 (Tex. 1955). The burden is on the party attacking the validity of the most recent marriage, who must establish both the existence of the prior marriage and its continuing validity at the time of the later alleged marriage and must introduce sufficient evidence, standing alone, to negate the dissolution of the prior marriage. See In re Estate of Loveless, 64 S.W.3d 564, 574 (Tex. App. – Texarkana 2001, no pet.); Estate of Claveria, 615 S.W.2d at 165.

Because K~’s 1994 ceremonial marriage to J~, evidenced by a recorded Texas marriage license, is more recent than her 1981 common-law marriage to the NH, her marriage to J~ is presumed valid under Texas law. K~ bears the burden of proving that she was married to the NH at the time she married J~ and that her marriage to the NH was not dissolved. As explained below, it is our opinion that a Texas court would find that K~ has met her burden of both establishing her prior common-law marriage to the NH and its continuing validity at the time of her later ceremonial marriage to J~, rendering her marriage to J~ void.

2. K~ Has Provided Sufficient Evidence to Prove a Valid Common-Law Marriage to the NH Beginning in 1981

When an applicant applies for spousal benefits, the agency requires evidence of a marriage. See 20 C.F.R. §§ 404.723, 404.726; see also Program Operations Manual System (POMS) GN 00305.065 (development of common-law marriages). Here, K~ provided a Texas Declaration and Registration of Informal Marriage signed August 12, 1983 as proof that she and the NH entered into a common-law marriage on January XX, 1981 in B~, Jefferson County, Texas.

As noted above, under Texas law, Declarations of Informal Marriage recorded by the county clerk constitute prima facie evidence of the marriage of the parties. Tex. Fam. Code Ann. § 2.404(d). The Declaration K~ submitted appears valid, as all of the conditions of sections 2.402 and 2.404 of the Texas Family Code are met. See Tex. Fam. Code Ann. §§ 2.402 (requirements for what the Declaration of Informal Marriage must contain), 2.404 (requirements for recording of Certificate or Declaration of Informal Marriage). Thus, the Declaration provides sufficient evidence that K~ and the NH entered into a valid common-law marriage in 1981. See POMS GN 00305.075 (once a signed and certified Texas Declaration and Registration of Informal Marriage is submitted, further development of the common-law relationship is unnecessary unless other facts indicate that the declaration may not be valid). We have no evidence contradicting the validity of the common-law marriage as the Declaration presents. See Colburn v. State, 966 S.W.2d 511, 514-515 (Tex. Crim. App. 1998) (as a “properly recorded declaration of informal marriage constitutes prima facia proof of the informal marriage . . . the trial court may find the common law marriage proven based upon the declaration alone, but evidence may be offered rebutting the existence of the marriage as sworn to or stated in the declaration.”). Given this unchallenged prima facie evidence of a valid common-law marriage, the more critical issue under these facts in addressing the presumption of the validity of K~’s most recent marriage to J~ is whether K~’s marriage to the NH terminated before her subsequent ceremonial marriage to J~.

3. K~ Has Demonstrated that Her Marriage to the NH Did Not Terminate Before Her Subsequent 1994 Marriage to J~

We find no evidence that K~ and the NH’s 1981 marriage terminated before her 1994 marriage to J~. Though the law recognizes common-law marriage, Texas law does not recognize common-law divorce. Estate of Claveria, 615 S.W.2d at 167. A subsequent ceremonial marriage does not set aside, dissolve, or annul the prior common-law marriage. Aldana v. Aldana, 42 S.W.2d 661, 665 (Tex. Civ. App. 1931), writ dismissed w.o.j. (Feb. 24, 1932). Rather, a common-law marriage, like any other marriage, only terminates at the death of one of the spouses or a court order dissolving the marriage. Estate of Claveria, 615 S.W.2d at 167. As to a dissolution of marriage, a Texas court renders a judgment of divorce when a court makes an official announcement, either in writing or orally in open court, of its decision on the matter. See In re Marriage of Joyner, 196 S.W.3d 883, 886 (Tex. App.—Texarkana 2006, pet. denied); Bailey-Mason v. Mason, 122 S.W.3d 894, 897 (Tex. App. —Dallas 2003, pet. denied). Thus, we consider whether there is evidence that K~’s marriage to the NH dissolved by divorce.

Although K~ filed for divorce from the NH in 1994, there is no evidence showing that it resulted in a final court judgment dissolving the marriage. Rather, the divorce action between K~ and the NH was dismissed for lack of prosecution in September 1995 after neither party appeared for trial. See Tex. R. Civ. P. 165a(1) (“A case may be dismissed for want of prosecution on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice.”). As noted, the evidence contains a certified copy of a September 1995 Dismissal for Lack of Prosecution from the 279th District Court of Jefferson County, Texas showing that the divorce action between K~ and the NH was dismissed for want of prosecution. There is no indication that either party filed a Motion to Reinstate within the time limits prescribed by the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 165a(3) (Motions to Reinstate cases dismissed for want of prosecution must be filed within 30 days after the order of dismissal is signed). Under Texas law, evidence that divorce proceedings were instituted during a first marriage, but then dismissed for want of prosecution has been held “sufficient to overcome the presumption of validity of the subsequent marriage.” Bailey-Mason, 122 S.W.3d at 898; see Dodd v. Dodd, 17 S.W.3d 714, 716 (Tex. App. —Houston [1st Dist.] 2000, no pet.), disapproved on other grounds, 124 S.W.3d 163 (Tex. 2003).

Additionally, the agency has been unable to locate any divorce records as to K~’s marriage to the NH. We have no information indicating that K~ or the NH resided anywhere other than Jefferson County, Texas. The agency conducted a search of divorce records in Jefferson County and found no record of divorce between 1981 and 1998. Evidence of the absence of official divorce or annulment records will rebut the presumption that the prior marriage was dissolved and that the most recent marriage is valid. See Davis v. Davis, 521 S.W.2d 603, 605 (Tex. 1975) (in order to rebut the presumption of validity of the most recent marriage, it is not necessary to prove the nonexistence of divorce in every jurisdiction where proceedings could have been possible; it is only necessary to rule out those proceedings where the parties might have been expected to pursue them). We also note that although the NH alleged his marriage to K~ ended in 1994 in a previous disability application, K~ is listed as his surviving spouse on his 2008 Texas Certificate of Death. Thus, for purposes of rebutting the validity of K~’s subsequent marriage to J~, the evidence provided is sufficient to establish that K~ and the NH never divorced.

Based on the foregoing evidence, we conclude a Texas court would find that the common-law marriage between K~ and the NH did not end until the NH’s death in March 2008. See Estate of Claveria, 615 S.W.2d at 167. As a result, K~’s subsequent 1994 ceremonial marriage to J~ was void. See Tex. Fam. Code Ann. § 6.202(a). Under Texas law, K~ and the NH had a valid common-law marriage that began in 1981 and continued until the time of the NH’s death in 2008. Therefore, K~ is the NH’s legal widow for purposes of her application for widow’s benefits on the NH’s record. See 42 U.S.C. §§ 402(e)(1), 416(c)(1), (h)(1)(A)(i); 20 C.F.R. §§ 404.335(a), 404.345.

CONCLUSION

We conclude that K~ has successfully rebutted the presumption under Texas law that her later ceremonial marriage to J~ was valid by proving a valid common-law marriage to the NH that was never dissolved by divorce. As such, K~’s marriage to J~ was void and she was validly married to the NH at the time of his death in 2008. K~ is the NH’s legal widow under Texas law for purposes of determining her entitlement to widow’s insurance benefits on the NH’s record.

Traci B. Davis

Acting Regional Chief Counsel

By: Tracey Wirmani

Assistant Regional Counsel

Texas law presumes the validity of the most recent marriage until a party to the marriage proves the impediment of a previous marriage and its continuing validity. The evidence presented does not establish the continuing validity of the marriage between the NH and his second wife during his subsequent marriage to the claimant and, therefore, Texas law does not presume the validity of the ceremonial marriage between the NH and his second wife. Neither does Texas law consider the marriage between the NH and his second wife a valid common-law marriage. For these reasons, Texas law would recognize the validity of the marriage between the NH and the claimant.

The claimant also filed for disabled widow’s benefits on the account of her deceased former husband. Because the claimant married before age 50 after the death of her former husband, she cannot obtain disabled widow’s benefits on his account.

QUESTION

This memorandum is in response to your request for an opinion regarding whether the 1999 marriage of William (NH) to his third and most recent spouse, Linda (Linda), was valid under Texas law. If so, Linda would be entitled to Title II wife’s benefits on the NH’s account. If the NH’s marriage to Linda is not valid under Texas law, you asked whether Linda would be entitled to disabled widow’s benefits on the account of her deceased former husband, Patrick (Patrick), who died in 1982, while domiciled in Texas?

OPINION

As the evidence we received did not establish the continuing validity of the marriage between the NH and his second wife, Cynthia (Cynthia), we believe the NH’s third and most recent marriage to Linda is valid under Texas law. Also, because the NH’s marriage to Linda is valid under Texas law, Linda is not entitled to disabled widow’s benefits on her deceased former husband’s account.

BACKGROUND

According to the information provided, the NH currently resides in Texas and receives Title II retirement benefits. The NH married Louella in July 1957. His marriage ended with her death in June 1994. The NH married Cynthia in Mount Vernon, Texas in August 1994. Although there were witnesses to the marriage ceremony, the NH and Cynthia never recorded the marriage license after the ceremony in August 1994. A search of county records did not locate the marriage license. The NH and Cynthia separated shortly after their August 1994 marriage ceremony, but neither party secured a divorce. The NH married Linda in September 1999.

On August 2, 2011, Linda filed a claim for Title II wife’s benefits on the NH’s account. On September XX, 2011, the agency granted Linda’s claim based on 42 U.S.C. 416(h)(1)(B)(i). See 20 C.F.R. § 404.346 (your relationship as wife, husband, widow, widower based upon a deemed valid marriage); see also SSA Program Operations Manual System (POMS) GN 00305.055(A)(1) (Deemed Marriages). In addition, on August 17, 2011, Linda filed a claim for disabled widow’s benefits on the account of her deceased former husband, Patrick. Therefore, you asked for a legal opinion on the issue of whether Linda’s 1999 marriage to the NH is valid under Texas law and, if not, whether Linda would be entitled to disabled widow’s benefits on her deceased former husband’s account.

DISCUSSION

A. Entitlement to Social Security benefits

When determining who is a wife, husband, widow, or widower for purposes of entitlement to Social Security benefits, the Agency will look to the laws of the state where the insured had a permanent home at the time the application was filed, or at the time of the insured’s death. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345. The NH is still living and his permanent home at the time Linda filed the application was Texas. Therefore, we will look to Texas law.

B. Texas Law applied to this claim

Texas law dictates that every marriage entered into in Texas is presumed to be valid unless expressly made void by Chapter 6 of the Texas Family Code or expressly made voidable by Chapter 6 of the Texas Family Code and annulled by that chapter. Tex. Fam. Code Ann. § 1.101; see Tex. Fam. Code Ann. § 6.201-6.206. A marriage is void if it is entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the other spouse’s death. In re Estate of L~, 64 S.W. 3d 564, 573 (Tex. App. 2001) (citing Tex. Fam. Code Ann. § 6.202). The presumption of the validity of the most recent marriage continues until a party proves the impediment of a previous marriage and its continuing validity. Id. at 574 (citing Estate of Claveria v. Claveria, 615 S.W. 2d 164, 165 (Tex. 1981)). The presumption of the validity of the most recent marriage increases with time, acknowledgements by the parties to the marriage, and the birth of children. Id. at 574 (citing Texas Employers’ Ins. Ass’n. v. Elder, 282 S.W.2d 371, 373 (Tex. 1955)). The burden of proof is on the individual challenging the validity of the most recent marriage on the basis of a prior marriage to establish the continuing validity of the prior marriage. Id.; see also C~, 615 S.W. 2d at 165; Tex. Fam. Code Ann. § 1.101.

Typically, these types of cases arise when a party to a previous marriage is trying to prove the continuing validity of their former marriage in order to obtain Social Security benefits. However, that is not the case here because Cynthia has neither applied for benefits on the NH’s account nor asserted the continuing validity of her marriage to the NH. Rather, Linda sought benefits on the NH’s account. She is trying to prove the validity of their most recent marriage and establish that the NH’s previous marriage to Cynthia was invalid. We first examine the validity of the NH’s marriage to Cynthia. If the NH’s marriage to Cynthia continues to be valid, Linda cannot receive benefits on the NH’s account.

C. The Validity of the NH and Cynthia’s Marriage

Cynthia and the NH stated that they obtained a marriage license and went through a ceremonial marriage before a judge in M~, Texas in August 1994. Texas law provides that, “a man and a woman desiring to enter into a ceremonial marriage must obtain a marriage license from the county clerk of any county of this state.” Tex Fam. Code Ann. § 2.001(a). Cynthia’s daughters, who were 15 and 7 years old at the time, were the only witnesses to the ceremony. Following the ceremony, the judge advised them to have the marriage license recorded within 30 days of the ceremony and gave them the marriage license to record. Texas law provides that, “the person who conducts a marriage ceremony shall return the license to the county clerk who issued it no later than the 30th day after the date of the ceremony is conducted.” Tex. Fam. Code Ann. § 2.206(a). While, it was the judge’s responsibility to record the marriage license, it appears he did not fulfill his duty and that no one recorded the marriage license.

The NH stated that he conducted a record search in Mount Vernon, and in the nearby towns of Clarksville and Mount Pleasant, but found no record of the marriage license documenting his marriage to Cynthia. Claims Representative Martha called Franklin County Texas Court Records, the county where Mount Vernon is located. An employee told Ms. K~ that she could not locate any record of a marriage license between the NH and Cynthia, but noted that her office destroys a marriage application if the associated license is not returned in two years. The NH and Cynthia both reported that they were under the assumption that they were not legally married, since neither the judge nor they recorded the marriage license. They never attempted to obtain a divorce. However, the failure to comply with a formality, such as recording a marriage license, does not render the marriage invalid, unless a statute declares it so. See L~, 64 S.W.3d at 576 (citing Williams v. White, 263 S.W.2d 666, 668 (Tex. Civ. App. 1954)). No Texas statute states that a failure to file a marriage license renders a marriage invalid. Therefore, the NH and Cynthia’s failure to record their marriage license did not render their marriage invalid under Texas law.

However, even if Texas law considers the NH’s marriage to Cynthia valid, it still requires evidence showing the continuing validity of their marriage during the NH’s subsequent marriage to Linda. See Tex. Fam. Code Ann. § 1.102. Except for participating in the marriage ceremony that was not documented by a recorded marriage license, there is no other evidence showing that they held themselves out as husband and wife. See Nguyen v. Nguyen, 2011 WL 1496746, *8 (Tex. App. 2011) (citing L~, 64 S.W. 3d at 573-74; C~, 615 S.W. 2d at 165). The NH and Cynthia reported that they separated shortly after the marriage ceremony. Neither the judge nor they recorded the marriage license within 30 days of the marriage ceremony. Also, they did not have any children together or own any property together. Furthermore, both the NH and Cynthia reported that they thought they were free to marry because neither the judge nor they recorded the marriage license. Because the evidence presented does not establish the continuing validity of the marriage between the NH and Cynthia during the NH’s subsequent marriage to Linda, the NH and Cynthia’s marriage was not a presumed valid ceremonial marriage under Texas law. See Tex. Fam. Code Ann. § 1.102; see also L~, 64 S.W. 3d at 574 (citing C~, 615 S.W. 2d at 165).

Next, we consider whether Texas law would consider the NH and Cynthia’s marriage to be a valid common-law marriage so as to preclude Linda’s entitlement to benefits on the NH’s account. Rodriguez v. Avalos, 567 S.W.2d 85 (Tex. App. 1978) (common-law wife established the validity of her prior common-law marriage over a later ceremonial marriage to another woman). In Texas, a valid common-law marriage consists of three elements: (1) an agreement to be husband and wife; (2) living together as husband and wife; and (3) holding each other out to the public as such. See C~, 615 S.W.2d at 166 (citations omitted). Marriage, whether ceremonial or common-law, is proved by the same character of evidence necessary to establish any other fact. Id. Thus, proof of common-law marriage may be shown by the conduct of the parties, or by such circumstances as their addressing each other as husband and wife, acknowledging their children as legitimate, joining in conveyances as spouses, and occupying the same dwelling place. Id.

Regarding the first element, the NH and Cynthia’s marriage ceremony established an agreement to be husband and wife. Id. at 167. Regarding the second element, the evidence shows that the NH and Cynthia actually lived together for some period of time as husband and wife. Id. Regarding the third element, however, the evidence does not show that the NH and Cynthia held themselves out to the public as husband and wife, such as documentation acknowledging their marriage, extended time living together, joint property ownership, or children to the marriage. See id. at 167-168 (direct evidence that established the fact of a prior undissolved common-law marriage). Because the evidence does not establish all three elements, Texas would also not consider the NH and Cynthia’s marriage a valid common-law marriage.

D. The Validity of the NH and Linda’s marriage.

As previously stated, Texas law presumes the validity of the most recent marriage against each preceding marriage, unless someone proves the impediment of a previous marriage and its continuing validity. Tex. Fam. Code Ann. § 1.102. The NH and Linda stated that they obtained a marriage license and went through a ceremonial marriage in Mount Vernon, Texas in September 1999 under the belief, as explained above, that they were both free to marry. Tex. Fam. Code Ann. § 2.001(a) (a man and a woman desiring to enter a ceremonial marriage must obtain a marriage license from the county clerk of any county of this state). A ceremonial marriage entered into in Texas in accordance with legal forms will raise the presumption, or inference of its legality. Simpson v. Simpson, 380 S.W.2d 855, 858 (Tex. Civ. App. 1964). Linda provided their recorded marriage license as proof of the validity of her marriage to the NH and indicated that they have remained married and lived together for more than 12 years. L~, 64 S.W. 3d at 574 (citing E~, 282 S.W.2d at 373) (the presumption that the most recent marriage is valid increases with time, acknowledgements by the parties to the marriage, and the birth of children.) Based on the foregoing evidence, we believe that Texas law would recognize the validity of the NH and Linda’s marriage and, therefore, conclude that their marriage is not void or voidable.

E. L~’s Entitlement to Disabled Widow’s Benefits.

Generally, a widow cannot obtain widow’s benefits if the widow remarries before age 60. See 42 U.S.C. 402(e)(1); 20 C.F.R. § 404.335(e)(1). However, remarriage after age 60 (or age 50 if the widow is disabled) will not prevent the widow from obtaining benefit payments on her deceased former spouse’s work record. 42 U.S.C. 402(e)(3); 20 C.F.R. § 404.335(e)(2), (3).

Linda’s date of birth is October 16, 1949. Therefore, Linda married the NH when she was 49 years old. Since her September 1999 marriage to NH is valid under Texas law, her remarriage occurred before she turned 50 years old. As such, she is unable to obtain disabled widow’s benefits on the account of her deceased former husband, Patrick.

CONCLUSION

In conclusion, the 1999 marriage between the NH and Linda is valid under Texas law. Because Linda remarried prior to age 50, she is not entitled to disabled widow’s benefits on the account of her deceased former husband, Patrick.

Very Truly Yours

Michael McGaughran

Regional Chief Counsel

By: Simone P. Cain

Assistant Regional Counsel

The agency received competing claims for surviving spouse's benefits. Once evidence is presented that the previous marriage was not dissolved, determining whether the presumption of validity of the last marriage applies is a factual decision. A spouse's acknowledgment of the marriage and the births of children are factors to consider in determining whether the presumption applies. The fact that the number holder (NH) never divorced his first wife rebuts the presumption of the validity of the later marriage to the claimant. Under Texas law the marriage is considered void if it is entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse. The claimant reported that she was unaware that the NH was previously married. The claimant's status as a putative spouse would not permit her to inherit the NH's intestate property. Thus, she cannot qualify for surviving spouse's benefits.

This memorandum is in response to your request for an opinion regarding whether Jenny can receive surviving spouse's benefits on the Social Security record of Joe. Specifically, you have asked whether the Texas presumption of the validity of the last marriage applies when Jenny was the second of at least four spouses of Joe and there is no evidence of a divorce between Joe and his first alleged spouse, Minnie. If Jenny is not entitled to surviving spouse's benefits, you have asked whether she can receive surviving divorced spouse's benefits on Joe's record. In our opinion, evidence that Minnie and Joe never divorced rebuts the presumption of the validity of the later marriage between Jenny and Joe. As a result, the marriage between Jenny and Joe was void under Texas state law. Since Jenny and Joe were never validly married, she is similarly ineligible for surviving divorced spouse's benefits.

As we understand the facts, Joe was entitled to Disability Insurance Benefits from May 1993 until his death, which occurred in Texas on December XX, 1993. There are competing claims for surviving spouse benefits on Joe's Social Security record. The evidence you provided shows that Joe had at least four marriages.

On November XX, 1965, Joe married Minnie. Minnie reported that she and Joe separated in 1970 or 1971. She stated that to her knowledge there was never a divorce. The Social Security Administration (agency) searches of divorce records indicated that divorce proceedings were initiated on two occasions in Galveston, Texas, but a divorce was never finalized.

On March XX, 1970, Joe married Jenny. According to Jenny , she and Joe separated in 1971. She reported that she never divorced Joe and that Joe never notified her that he divorced her. Agency searches of divorce records produced no evidence of a divorce between Joe and Jenny.

On December XX, 1974, Joe married Annie. A child, Lowanda, was born during the marriage. The agency indicates that it received evidence that Joe and Annie divorced in June 1979 in Many, Louisiana.

On May XX, 1985, Joe married Ora. The marriage ended with Ora's death on July XX, 1993.

The file contains the following documented evidence:

1) Joe's January 28, 1993, Disability Application: At the time of the application, Joe was living in Texas City, Texas. Joe stated that he was currently married to Ora. He reported that he had married Ora on May XX, 1985, in Port Arthur, Texas. Joe also reported one prior marriage to Virginia. He stated that the marriage took place in Port Arthur, Texas in 1969, and that the marriage ended by divorce on an unknown date in Orange, Texas.

2) Joe's Numident: Joe was born in Pleasant Hill, Louisiana.

3) Annie's March 25, 1994, Application for Surviving Child Benefits for Lowanda: Annie stated that she and Joe married in June 1974 in Center, Texas, and divorced about June 1979 in Many, Louisiana. During the marriage, Lowanda was born in October, in Seattle, Washington. The agency reviewed divorce papers listing Lowanda as a child of Joe and Annie.

4) Minnie's January 30, 2002, Application for Widow's Benefits: At the time of her application, Joe was living in Bossier City, Louisiana. Minnie stated that she and Joe married on November XX, 1965, in Orange City, Texas. She reported that Joe had one prior marriage that ended in divorce, but she did not have any further information about the prior marriage. Minnie stated that she and Joe lived together for eight or nine years before separating. She indicated that she never filed for divorce and never received any notice that Joe had filed for a divorce.

5) Jenny's August 8, 2005, Disability Application: At the time of her application, Jenny was living in Franklin, Louisiana. Jenny stated that she married Joe in January 1970 in Orange, Texas. She stated they had separated for 20 years, but had not divorced. She did not know his social security number or have enough information to permit the agency to locate Joe's record at that time.

6) Jenny's April 2, 2007, Disability Application: Jenny's address had not changed. She stated that she had Joe had married in January 1964 in Erns, Texas, and had not divorced. Jenny supplied no proof of the marriage.

7) Jenny's July 18, 2007, Retirement Application: Jenny's address had not changed. She stated that she and Joe married in May 1970. Jenny had no proof of marriage. She reported that Joe had shot her 25 years before, and she had not seen him since. She stated that to the best of her knowledge she and Joe were still legally married.

8) Jenny's and Joe's Marriage Certificate: On March XX, 1970, Joe and Jenny were married before a Justice of the Peace in Orange, Texas.

9) Jenny's Remarks: Jenny stated that she met Joe in Orange, Texas, around 1968, and he did not state that he had ever been married. She stated that Joe shot her in Franklin, Louisiana, where they were visiting. Jenny reported that afterward she moved to New Orleans, Louisiana, to get away from him. Jenny stated that Joe was caught and brought back to Franklin, Louisiana, for trial. She stated she did not know what happened at trial. Jenny reported that she did not divorce him, and Joe never notified her that he divorced her. The agency noted that Joe died domiciled in Texas City, Texas.

10) Report of Contact with Minnie: Minnie stated that she married Joe in Orange, Texas, on November XX, 1965. She reported that they moved to Galveston, Texas, where their two children were born. Minnie stated that they moved to Starks, Louisiana, around 1969. She reported that she and Joe separated in 1970 or 1971. Minnie reported that she then moved to Homer, Louisiana, and she believed that Joe moved to Orange, Texas. She stated that she saw Joe in the late 1970s or early 1980s in Shreveport, Louisiana, where he was then living and working. Minnie stated that Joe told her they were still married and that he had no intention of ever seeking a divorce from her. Minnie indicated that Joe did not mention any other marriages. She indicated that her sister, who lived in Orange, Texas, told her Joe later moved back to Orange, Texas. Minnie reported that she moved to Bossier City, Louisiana in October 1990. She stated as far as she knew, she and Joe were still married at the time of his death.

11) Divorce Records Searches: The agency requested divorce records searches between Joe and Minnie from 1965 through 1993 and between Joe and Jenny from 1970 through 1993 in the following areas:

a) Homer, Louisiana: Neither the Claiborne Parish nor Webster Parish Clerks of Courts had records of divorce between Joe and Minnie or Jenny.

b) Shreveport, Louisiana: The Parish clerk found no divorce records.

c) Bossier City, Louisiana: The Parish clerk found no divorce records.

d) Starks, Louisiana: No divorce documents were found for either party.

e) Pleasant Hill, Louisiana: The Sabine Parish Clerk of Court verified that there were no records of divorce between Joe and Minnie or Jenny.

f) Galveston, Texas: There were two divorce actions filed between Joe and Minnie, but neither party followed through. Thus, the divorce was never finalized. There was no record of a divorce between Joe and Jenny.

g) Orange County, Texas: There was no record of a divorce for either party.

h) Seattle, Washington: The agency was unable to obtain records from King County. The agency concluded that it was unlikely that Joe would have obtained a divorce with any of the parties in Seattle, Washington, and, thus, did not request further search of these records.

i) Jefferson County, Texas: There was no record of a divorce for either party.

12) Divorce Records Search: The agency requested divorce records searches between only Joe and Minnie from 1965 through 1993 in the following areas:

a) Center, Texas: There was no record of divorce in Shelby County.

b) Franklin, Louisiana: There was no record of divorce in St. Mary Parish.

13) Divorce Records Search: The agency requested divorce record searches between only Joe and Jenny from 1970 through 1993 in the following areas and counties:

a) Franklin, Louisiana: There was no record of divorce in St. Mary Parish.

b) Center, Texas: There was no record of divorce in Shelby County.

c) Rayne, Louisiana: The Lafayette Perish Clerk of Court found no divorce record.

d) Orleans Parish, Louisiana: There were no divorce records located.

14) Marriage Records: The agency requested the following marriage record searches:

a) Shelby County, Texas: Joe and Annie married on December XX, 1974.

b) Orange County, Texas, Online Search: Joe and Jenny married on March XX, 1970.

c) Orange County, Texas, Volume Search: Joe and Minnie married on November XX, 1965.

The Social Security Act provides that a claimant is entitled to surviving spouse's benefits if she is the number holder's widow and meets the other requirements for eligibility. 42 U.S.C. § 402(e)(1) (2009); 20 C.F.R. § 404.335(a) (2009)./ A claimant can meet this relationship requirement if she and the number holder were validly married under state law at the time the number holder died. See 42 U.S.C. § 416(h)(1)(A)(i) (2009); 20 C.F.R. § 404.345 (2009). In addition, a claimant can meet the relationship requirement if she would be able to inherit a wife's share of the number holder's personal property under state law if the number holder were to die without leaving a will. 20 C.F.R. § 404.345 (2009). The controlling law is the law of the state where the number holder had a permanent home at the time of his death. Id.Permanent home means the number holder's true and fixed home or legal domicile. 20 C.F.R. § 404.303 (2009). In this case, Joe died while domiciled in Texas. Thus, Texas law is controlling.

Every marriage entered into in Texas is presumed valid unless expressly void or expressly voidable and the marriage is annulled. Tex. Fam. Code Ann. § 1.101 (Vernon 2009). Under Texas law, a marriage is void if it is "entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse." Tex. Fam. Code Ann. § 6.202 (Vernon 2009). Here, Jenny's marriage to Joe was later than Minnie's marriage to Joe. The evidence shows Jenny married Joe on March XX, 1970, in Orange County, Texas. The agency's search of divorce records uncovered no evidence of a divorce between Jenny and Joe. However, the agency obtained evidence that Minnie married Joe five years before his marriage to Jenny, on November XX, 1965, in Orange County, Texas. The agency found no record of a finalized divorce between Joe and Minnie. Thus, Jenny and Joe entered into their marriage at a time when Joe was married to Minnie. This preexisting marriage between Joe and Minnie, if sufficiently proven, would render the later marriage between Jenny and Joe void.

The presumption of the validity of the most recent marriage is one of the strongest presumptions under Texas law. Texas Employer's Ins. Ass'n. v. Elder, 282 S.W.2d 371, 373 (Tex. 1955). When two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each prior marriage until the validity of a prior marriage is proven. Tex. Fam. Code Ann. § 1.102 (Vernon 2009). The presumption increases over time, by the spouses' acknowledgments of the marriage, and by the births of children. See Texas Employer's Ins. Ass'n, 282 S.W.2d at 373. The burden of proving that the most recent marriage is invalid is on the party seeking to invalidate the marriage. Tex. Fam. Code Ann. § 1.101 (Vernon 2009). Here, we have evidence and allegations that Joe married several different spouses without obtaining a divorce. Because the agency received competing claims for surviving spouse benefits from Minnie and Jenny, we consider the validity of these two marriages./ Because Jenny's marriage to Joe is more recent than Minnie's marriage to Joe, Minnie has the burden of proving that she was married to Joe at the time he married Jenny and that neither she nor Joe obtained a divorce from the other. See Chandler v. Chandler, 991 S.W.2d 367, 393 (Tex. App. El. Paso, 1999). The agency conducted a volume search of the marriage records in Orange County, Texas, and located the marriage license for Minnie and Joe. In addition, the agency conducted searches of the divorce records in each Texas county or Louisiana parish where either Minnie or Joe were known to reside. The agency found no divorce record. Minnie was not required to "prove the non-existence of a divorce or annulment in every jurisdiction where such proceedings could have been possible, but only where the parties might reasonably have been expected to have pursued them." Medrano v. State of Texas, 701 S.W.2d 337, 341 (Tex. App. 1985). Thus, the evidence would suggest that Minnie and Joe were never divorced.

Joe's statements on his disability application suggested that he had resided in the following Texas counties: Galveston, Jefferson, and Orange. He was born in Pleasant Hill, Louisiana, within Sabine Parish. The agency discovered that two divorce actions were filed in Galveston County between Joe and Minnie, but neither divorce was finalized. In Texas, a marriage can only be dissolved by court decree or death; there is no common-law divorce. Estate of Claveria v. Claveria, 615 S.W.2d 164 (Tex. 1981). The divorce action filings in Galveston County did not result in a court decree granting a divorce. Thus, the filings did not dissolve the marriage between Minnie and Joe. The agency's search of the divorce records in Jefferson County, Orange County, and Sabine Parish also established that there had been no divorce between Minnie and Joe.

Annie's application for surviving child benefits on Lowanda's behalf stated that she and Joe married in Center, Texas, within Shelby County, Texas. The agency found no record of divorce between Minnie and Joe in Shelby County. Annie also reported that Lowanda was born in Seattle, Washington, within King County. The agency was unable to search the divorce records in King County, but concluded that it was unlikely that Joe obtained a divorce from Minnie in that county. Minnie was only required to prove the non-existence of a divorce in jurisdictions where the parties might reasonably have been expected to pursue them. M~, 701 S.W.2d at 341. According to statements the agency provided, Joe was a truck driver who traveled across the country, but there is no evidence that he changed his residence outside of Texas or Louisiana. Because there is no evidence indicating that Joe ever resided in Seattle, Washington, it would not be reasonable to expect that he would have obtained a divorce there. Thus, the unavailability of a divorce record search from King County, Washington does not affect this case.

Joe reported that she has lived in following areas: Orange County, Texas; Galveston County, Texas; Starks Parish, Louisiana; Claiborne Parish, Louisiana; Webster Parish, Louisiana; and Bossier City, Louisiana. In addition, she stated that she was aware that Joe lived in Orange County, Texas, and Bossier City/Shreveport, Louisiana, after their separation. The agency's search of these areas showed that neither party obtained a divorce in any of these jurisdictions.

Jenny indicated that she and Joe had married in Orange County, Texas. As noted above, the agency's search of the divorce records in Orange County, Texas, established that neither Minnie nor Joe obtained a divorce in that county. Jenny stated that after Joe shot her, he was arrested and brought to jail in Franklin, Louisiana. The agency's search of divorce records in St. Mary's Parish, Louisiana, where Franklin, Louisiana, is located, showed no divorce between Minnie and Joe. Jenny had no other information about where Joe might have lived, as she had no further contact with him.

Based on the evidence presented, we conclude that the agency has searched the divorce records in every jurisdiction where Minnie or Joe might reasonably have obtained a divorce. See M~, 701 S.W.2d at 341. The evidence establishes that Joe was married to Minnie at the time that he married Jenny, and that neither Joe nor Minnie ever divorced the other. Once evidence is presented that the previous marriage was not dissolved, determining whether the presumption of validity of the last marriage applies is a factual decision. See Bailey-Mason v. Mason, 122 S.W.3d 894, 898 (Tex. App. 2003). Here, Joe did not acknowledge his marriage to Minnie or Jenny in his disability application. However, Minnie reported that she spoke with Joe in the late 1970s or early 1980s and that he acknowledged that they were still married. Joe also fathered two children with Minnie and no children with Jenny. A spouse's acknowledgments of the marriage and the births of children are factors to consider in determining whether the presumption applies. See Texas Employer's Ins. Ass'n, 282 S.W.2d at 373. We conclude that the evidence that Minnie and Joe did not divorce rebuts the presumption of validity of the marriage between Jenny and Joe. Because the marriage between Jenny and Joe was void, Jenny was not Joe's spouse under Texas law.

Jenny also does not alternatively qualify as Joe's surviving spouse as an individual who could inherit a wife's share of Joe's personal property under Texas intestate succession laws. 20 C.F.R. § 404.345 (2009). Even though a marriage may be void because of the existence of a prior marriage, Texas recognizes a putative marriage as giving certain property rights to a spouse that enters into the marriage in good faith. See Garduno v. Garduno, 760 S.W. 2d 735, 738-39 (Tex. App. - Corpus Christi 1988, no writ); see also Consolidated Underwriters v. Kelly, 15 S.W.2d 229 (Tex. Comm'n. App. 1929, judgm't adopted). Good faith requires that the putative spouse be unaware of the cause that prevents a valid marriage. Dean v. Goldwire, 480 S.W.2d 494, 496 (Tex. App. - Waco 1972, writ denied). Here, Jenny reported that she was unaware that Joe had ever been married prior to their marriage. Thus, she could potentially qualify as a putative spouse.

Her status as a putative spouse, however, would not permit her to inherit Joe's intestate property. Under Texas law, a putative spouse is allowed the same right in property acquired during the marital relationship as if she were a lawful spouse. Davis v. Davis, 521 S.W.2d 603, 606 (Tex. 1975). However, this property right extends only to her own one-half community or joint tenancy interest in property the couple acquired during the putative marriage. It does not entitled the putative spouse to inherit any share of the decedent's one-half property interest. Hammond v. Hammond, 108 S.W. 1024 (Tex. Civ. App. 1908). Even though Jenny may qualify as a putative spouse, she cannot inherit a wife's share of Joe's intestate property under Texas law. Thus, she cannot qualify for surviving spouse benefits under Joe's record.

Finally, we conclude that Jenny cannot qualify for surviving divorced spouse benefits under Joe's record. An individual may be entitled to surviving divorced spouse's benefits if she is the number holder's surviving divorce spouse and meets the other requirements for eligibility. 42 U.S.C. § 402(e)(1) (2009); 20 C.F.R. § 404.336 (2009)./ A claimant can meet this relationship requirement if she and the number holder were validly married under state law or were deemed to be validly married under state law. See 42 U.S.C. § 416(h)(1)(A)(i) (2009); 20 C.F.R. §§ 404.336, 404.345, 404.346 (2009). The standard for the validity of a marriage under state law is the same for surviving spouse benefits and surviving divorced spouse benefits. 20 C.F.R. § 404.345 (2009). Because Jenny's marriage to Joe was void under Texas state law, she cannot establish that she was ever validly married to him. Jenny also cannot satisfy the requirements of a deemed valid marriage because this requires that the number holder and the deemed spouse be living in the same household at the time of the number holder's death. Jenny acknowledged that she had not seen Joe for at least 25 years. Thus, she was never validly married or deemed validly married to Joe and cannot qualify for surviving divorced spouse benefits under his record.

In conclusion, it is our opinion that Jenny cannot qualify for surviving spouse benefits or surviving divorced spouse benefits on Joe's record.

Michael McGaughran

Regional Chief Counsel

By: James D. Sides

Assistant Regional Counsel

Under Texas law, there is a strong statutory presumption of the validity of the last marriage. The claimant for spouse's benefits has not carried her burden of rebutting the presumption because the search of records is incomplete. Also, the length of time that the claimant and NH have been married to their current spouses increases the strength of the presumption of the validity of the most recent marriage. Moreover, the doctrine of laches would be a factor under Texas law, in finding the claimant estopped from asserting that she continues to be married to the NH. Therefore, she is not entitled to spouse's benefits on the NH's record. This analysis is based on Texas law, but the same conclusion would be reached under Oklahoma law.

You have requested an opinion regarding whether Patricia can be considered the wife of wage earner Roy, (wage earner). First, there is an issue as to whether the facts establish that Patricia is the wage earner's spouse. Secondly, there is an issue as to whether Patricia’s subsequent marriages to Donald and Abraham preclude her from establishing that she is the wage earner's spouse. This is a case involving numerous successive marital relationships. Patricia contends that there was never a final divorce between her and the wage earner, and therefore they are still married. Patricia states that although she successively married Donald and Abraham in good faith, she later learned in 1997 that her marriage to the wage earner might not have lawfully ended. Thus, she now contends that she is entitled to wife's insurance benefits under 42 U.S.C. § 402(b), based on the wage earner's Social Security record.

After reviewing the facts and relevant law, it is our opinion that Patricia is not entitled to spouse's benefits based on her two past marriages to the wage earner. This conclusion is based on several factors, including state law presumptions of the validity of the most recent marriage, estoppel, and laches.

Given the complex marital histories of the parties, a chronology is provided, although there is conflicting information in some of the documents:

1. 1. 

   Patricia reported to the Social Security Administration (Agency) that a September XX, 1959, marriage to Donald ended in a November XX, 1966, divorce.

2. 2. 

   Roy, was divorced from Dorothy on March XX, 1967.

3. 3. 

   Patricia and wage earner Roy, were married on April XX, 1967, in South Carolina.

4. 4. 

   On September XX, 1974, Roy., was divorced from Edith (North Carolina).

5. 5. 

   A North Carolina application, license and certificate of marriage indicates that Patricia and Roy were married again on December XX, 1974. Both specified that this was a second marriage. Patricia indicated that this was her second marriage and her first marriage had ended in divorce in November 1966. Roy indicated that this was his second marriage and his last marriage had ended in divorce in July 1974.

6. 6. 

   A 2002 affidavit from an attorney, on behalf of Patricia, states that there was a dissolution of marriage case (No. 78-17892) between Patricia and Roy, in Clayton County, Georgia, and the case never went to final judgment and was dismissed for lack of prosecution. An October 1978 order was dismissed for want of prosecution in May 1980. Although the document is not entirely legible, it appears to relate to a restraining order.

7. 7. 

   A North Carolina application, license and certificate of marriage indicates that Patricia married Donald on September XX, 1979. According to the signed license, this was only Patricia's second marriage, and her first marriage had ended in divorce in November 1966. A July XX, 1980, North Carolina judgment dissolved this marriage. The judgment indicated that the defendant (Patricia) had another living husband (Roy) whom she married on April XX, 1967, and no divorce had been granted.

8. 8. 

   Roy, married Elizabeth, in Texas, on April XX, 1980.

9. 9. 

   There was a July 1980 Rutherford County, North Carolina, Judgment of Dismissal due to the failure of the parties to appear. Patricia was the plaintiff, and Roy was the defendant. The document is not legible.

10. 10. 

    Patricia states that she married Abraham in Charlotte, North Carolina, on July XX, 1985, and she is still married to him. Patricia reported to the Agency in May 2002, that she had been separated from Abraham for two to three years, that she had moved to Florida in December 2001, and that Abraham came to Florida later for medical treatment because he was still covered under her health insurance.

As indicated, this is an application for spouse's benefits under 42 U.S.C. § 402(b). The Social Security Act directs that the Social Security Administration (Agency) look to the law of the insured party's domicile at the time that the applicant applies for benefits. See Social Security Act § 216(h)(1)(A)(i) (42 U.S.C. § 416(h)(1)(A)(i)); 20 C.F.R. § 404.345 (2003). Section 416(h)(1)(A)(i) provides:

An applicant is the wife, husband, widow, or widower of a fully or currently insured individual for purposes of this subchapter if the courts of the State in which such insured individual is domiciled at the time such applicant files an application, or, if such insured individual is dead, the courts of the State in which he was domiciled at the time of death, or, if such insured individual is or was not so domiciled in any State, the courts of the District of Columbia, would find that such applicant and such insured individual were validly married at the time such applicant files such application or, if such insured individual is dead, at the time he died.

Thus, a party's status as the insured party's spouse is decided according to the laws of the state where the insured had a permanent home when the applicant applied for spouse's benefits. See also 20 C.F.R. § 404.345. If the applicant and the insured were validly married under the state's law at the time the applicant applied for spouse's benefits, then the relationship requirement will be met. See id. On November 6, 2001, Patricia applied for spouse's benefits, based on the earnings of the wage earner. The claim was denied based on estoppel because Patricia had remarried. The wage earner was contacted on November 27, 2001. He was still living in Texas at that time. Accordingly, Texas law controls with respect to the November 2001 application. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Patricia applied again on May 10, 2002. Both the wage earner and his current wife (Elizabeth) reported a change of address to Beggs, Oklahoma on July 2, 2002. The wage earner currently resides in Oklahoma. Assuming that the wage earner was domiciled in Texas at the time of Patricia's applications, Texas law would control. If the wage earner's permanent home was in Oklahoma when an application was filed, Oklahoma law would control. We need not resolve this issue because, as will be shown, the outcome will be the same in either event. We will analyze the law of both states.

Texas Law

Presumption of Validity of the Last Marriage

As outlined above, this case involves a significant number of marriages. There are five key marriages: the two marriages between the wage earner and Patricia, the wage earner's 1980 marriage in Texas to Elizabeth , Patricia's 1979 marriage to Donald , and Patricia's 1985 marriage to Abraham .

It is the policy of the State of Texas to uphold each marriage against claims of invalidity unless strong reasons exist for holding it void or voidable by annulment. Tex. Fam. Code Ann. § 1.101 (Vernon 2001)._/1 The generally accepted view is that a second marriage will be presumed to be valid, and such presumption is stronger than and overcomes the presumption of continuance of the prior marriage. Simpson v. Simpson, 380 S.W.2d 855, 858 (Tex. App.-Dallas 1964, writ ref. n.r.e). Under Texas law, there is a statutory presumption of the validity of the last marriage. Section 1.102 of the Texas Family Code provides:

When two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each marriage that precedes it until one who asserts the validity of a prior marriage proves its validity.

See also In re Estate of L~, 64 S.W.3d 564, 573 (Tex. App.-Texarkana 2001). The presumption of the validity of the most recent marriage is one of the strongest, if not the strongest, known to law and the strength of the presumption increases with the lapse of time. Id. at 574 (citing Texas Employers' Ins. Ass'n v. Elder, 282 S.W.2d 371, 373 (Tex. 1955)).

The party attacking the validity of the most recent marriage must introduce sufficient evidence, standing alone to negate the dissolution of the previous marriage. L~, 64 S.W.3d at 574 (citing Wood v. Paulus, 524 S.W.2d 749, 758 (Tex. App.-Corpus Christi 1975, writ ref'd n.r.e.)). Thus, Ms. R~ has the burden of proving the continued validity of her marriage to the wage earner. Moreover, in this case there are two current marriages that are presumed to be valid: Patricia's 1985 marriage to Abraham and the wage earner's 1980 marriage in Texas to Elizabeth . Also, the length of both of these marriages, each lasting over seventeen years, increases the strength of the presumption of their validity. See L~, 64 S.W.3d at 574.

Patricia has not carried her burden of proof. A 1978 civil action between the wage earner and Patricia, in Clayton County, Georgia, was dismissed for want of prosecution in May 1980. An affidavit by an attorney, on behalf of Patricia, indicates that this was a dissolution of marriage case that never went to final judgment. There was a July 1980 Rutherford County, North Carolina, Judgment of Dismissal for failure to appear in a case in which it appears that Patricia was the plaintiff and the wage earner was the defendant. These two dismissals, of course, do not establish that there was a final divorce between Patricia and the wage earner. However, the evidence also does not establish that Patricia or the wage earner never obtained a divorce. See W~, 524 S.W.2d at 758 (although a marriage was not terminated in 1926, the presumption of the validity of a later marriage was not rebutted because there was no showing that a divorce had not been obtained in other proceedings in the same county or elsewhere).

Although some evidence of the absence of a divorce has been presented, the search of records is incomplete in several jurisdictions. It appears that the two individuals have lived in a number of states, including North Carolina, Georgia, Texas, Florida, and Oklahoma. The wage earner currently lives in Oklahoma, but there has not been a check of Oklahoma divorce records. North Carolina vital records were checked for the period from 1977 though 1981. Records from Hill County, Texas were searched from 1980 to November 25, 1997. Harris County, Texas records were checked from 1979 to November 7, 1997. A final divorce decree has not been located. Although a number of jurisdictions and time periods have been checked, there are gaps. In order to rebut the presumption of the validity of the most recent marriages, Ms. R~ is not required to "prove the non-existence of a divorce or annulment in every jurisdiction where such proceedings could have been possible, but only where the parties might reasonably have been expected to have pursued them." Medrano v. State of Texas, 701 S.W.2d 337, 341 (Tex. App.-El Paso 1985, petition for discretionary review refused) (citing Davis v. Davis, 521 S.W.2d 603 (Tex. 1975)). At present, the search of records is incomplete in several likely jurisdictions. Therefore, Patricia has not carried her burden of rebutting the presumption of the validity of the two current marriages.

Laches

The length of time that has elapsed is a factor that would be considered by a court. The wage earner has been married to his current wife since April 1980. Patricia has been married to Abraham since 1985. As outlined above, the lapse of time increases the strength of the presumption of the validity of the most recent marriage. See L~, 64 S.W.2d at 574. Moreover, an unreasonable delay in asserting a claim can also result in a court applying laches_/2 against the claimant. Texas courts have indicated that in order to justify the application of the doctrine of laches there must generally be both an unreasonable delay and prejudice or disadvantage to another. See Jernigan v. Scott, 518 S.W.2d 278, 282-283 (Tex. App.-San Antonio 1974, writ ref. n.r.e.); _/3 S~, 380 S.W.2d at 861.

In the instant case, both parties have been remarried for over seventeen years. Thus, it is our opinion that the length of time that has expired and the length of the current marriages being challenged are factors that would be considered under Texas law. Therefore, we believe the doctrine of laches would be an applicable factor, under Texas law, in finding Patricia estopped from asserting that she continues to be married to the wage earner.

You indicated in your request that the wage earner currently lives in Oklahoma. It is not clear that the wage earner had a permanent home in Oklahoma when Ms. R~ applied for spouse's benefits in 2002. See 42 U.S.C. § 416(h)(1)(A)(i)); 20 C.F.R. § 404.345 ("To decide your relationship as the insured's wife or husband we look to the laws of the State where the insured had a permanent home when you applied for wife's or husband's benefits."). Texas law controls with respect to Ms. Patricia’s November 6, 2001, application. The wage earner was living in Texas when he was contacted on November 27, 2001. Patricia apparently filed again on May 10, 2002. Both the wage earner and his current wife reported a change of address to Oklahoma on July 2, 2002. It is not clear from the record that the wage earner was living in Oklahoma when Patricia again applied for benefits. However, even if the wage earner were living in Oklahoma when Patricia applied for benefits, or if she files for benefits again, it is our opinion that the application of Oklahoma law would not result in a different conclusion.

Under Oklahoma law, there is a presumption of the validity of the latest in a series of marriages, such that earlier marriages are presumed to have ended in divorce absent evidence to the contrary. See Marcum v. Zaring, 406 P.2d 970, 973 (Okla. 1965); Norton v. Coffield, 357 P.2d 434, 437-439 (Okla. 1960); Templeton v. Jones, 259 P. 543, 544-545 (Okla. 1927). The presumption of the validity of a second marriage increases with the passage of time. M~, 406 P.2d at 973. The presumption, although strong, can be rebutted. The Supreme Court of Oklahoma has explained:

Whether the person attacking a marriage has introduced sufficient evidence to overcome the presumption of validity of the marriage depends upon the length of time that the attacked marriage has continued, whether a successful attack will in effect being about an adjudication that children of the marriage under attack are illegitimate, and other facts.

N~, 357 P.2d 434, 439. Again, given the length of the current marriages, it is our opinion that Patricia has not carried her burden of rebutting the presumption of the validity of the current marriages.

Moreover, Oklahoma courts have also applied the doctrine of estoppel. In a 1987 case, the Oklahoma Supreme Court held that the doctrine of estoppel precluded an individual from asserting her status as decedent's surviving spouse. Allen v. Allen, 738 P.2d 142 (Okla. 1987). A petition for divorce had been filed, but it was later dismissed, and no decree was entered. Id. at 143. The parties remained separated. Six years after they separated, Wilda entered into a common law marriage that she later acknowledged. She never asserted the existence of her prior marriage. The court held that her conduct precluded the assertion of her right to the estate. Id. Plaintiff had not asserted her relationship with the decedent for thirteen years. Id. at 144. She was estopped from asserting a continual marital relationship with the decedent. Id. In another Oklahoma case, a husband who married another person without obtaining a divorce was estopped from denying the existence of the second marriage and could not share in the estate of his first wife. Darrough v. Davis, 275 P. 309 (Okla. 1928). Thus, even if Oklahoma law were applicable, our analysis would not change and the result would be the same.

CONCLUSION

We do not believe Patricia is entitled to spouse's benefits based on her marriages to the wage earner. Given the length of time that has elapsed and conflicts in the record it is our opinion that Patricia has not rebutted the presumption of the validity of the current last marriages. Moreover, Patricia would be estopped from asserting that she continues to be married to the wage earner, given her subsequent marriages and the time that has elapsed. This analysis is based on Texas law, because the wage earner lived in Texas when Patricia first applied for spouse's benefits. However, the same conclusion would be reached under Oklahoma law.

Tina M. Waddell

Regional Chief Counsel

By: Kendall M. Rees

Assistant Regional Counsel

_/1 With respect to a marriage during the existence of a prior marriage, the Texas Family Code provides that a marriage is void if entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse. Tex. Fam. Code Ann. § 6.202(a). However, the later marriage that is void becomes valid when the prior marriage is dissolved if, after the date of the dissolution, the parties have lived together as husband and wife and represented themselves to others as being married. Tex. Fam. Code Ann. § 6.202(b).

_/2 The equitable doctrine by which a court denies relief to a claimant who has unreasonably delayed or been negligent in asserting the claim, when that delay or negligence has prejudiced the party against whom relief is sought. BLACK'S LAW DICTIONARY 879 (17th ed. 1999). Estoppel by laches is an equitable doctrine by which some courts deny relief to a claimant who has unreasonably delayed or been negligent in asserting a claim. Id. at 571.

_/3The Texas court held that a former wife of the decedent was barred from questioning the validity of a separation agreement. Jernigan v. Scott, 518 S.W.2d 278, 282-283 (Tex. App.-San Antonio 1974, writ ref. n.r.e.). The Court held that it did not need to decide whether the lapse of time alone was sufficient to justify application of the doctrine of laches, because in additional to unreasonable delay, there was also a clear showing of prejudice to others. Id.