QUESTION PRESENTED
Number holder (NH) D~ aka D1~ died November XX, 2016, while domiciled in Oregon. On
September XX, 2021, the agency awarded widow(er)’s insurance benefits to M~ (Second
Wife) as the NH’s legal widow(er) effective February 2021 based on her marriage to
the NH in Oregon in July 2008 that ended upon his death in November 2016. On September
XX, 2024, R~ (First Wife Claimant) applied for widow(er)’s insurance benefits on the
NH’s record alleging that she and the NH were married in Oregon in September 1988
and never divorced. Given the overlapping marriages, you asked if the First Wife Claimant
is the NH’s widow(er) under the Social Security Act (Act) to determine her entitlement
to Title II widow(er)’s insurance benefits on the NH’s record.
ANSWER
Applying section 216(h)(1)(A) of the Act and Oregon law to determine marital status,
we believe Oregon courts would find that the First Wife Claimant has not met her “nearly
insurmountable” and “virtually impossible” burden of rebutting the strong presumption
of the validity of the Second Wife’s 2008 marriage to the NH and presumption that
their prior 1988 marriage had terminated by divorce prior to the NH’s second marriage.
See
42 U.S.C. § 416(h)(1)(A); In the Matter of Estate of Kuang, 561 P.3d 160, 164-165 (Or. Ct. App. 2024). Thus, we believe Oregon courts would
find that the NH was validly married to the Second Wife at the time of his death in
2016, not the First Wife Claimant. As such, we believe there is legal support for
the agency to find that the First Wife Claimant is not the NH’s widow(er) under the
Act for Title II benefits.
BACKGROUND
NH’s 1988 Marriage to R~ (First Wife Claimant)
The First Wife Claimant alleges that she and the NH (as D1~) entered into a valid
marriage in Oregon on September XX, 1988 and that they did not divorce. She provided
a “Record of Marriage” from the Oregon State Health Division, Department of Human
Resources showing that she and the NH were married by a district judge in Oregon on
September XX, 1988. The First Wife Claimant acknowledged on the Form SSA-795 that
she has no knowledge of where the NH had been living since 2002 other than Oregon.
She provided a letter from the State of Oregon Center for Health Services dated August
XX, 2024, stating that a search of statewide vital records files for a divorce record
of “R~” and “D1~” for the years 1988 through 2024 showed no record of a divorce in
Oregon.
NH’s 2008 Marriage to M~ (Second Wife)
The Second Wife alleged on her application for benefits that she and the NH were married
on July XX, 2008, and continued to be married until the NH’s death. You advised that
information in the file shows that the Second Wife and the NH were living in the same
household when he died on November XX, 2016. To prove she was the NH’s widow(er),
the Second Wife provided an “Application, License, and Record of Marriage” from the
Oregon Department of Human Services, Center for Health Statistics showing that the
NH (as D~) and the Second Wife were issued a marriage license by a county clerk and
were married on Oregon on July XX, 2008, by a minister. The marriage record was filed
in county records by a county official on July XX, 2008.
ANALYSIS
A. Federal Law: Entitlement to Widow(er)'s Insurance Benefits as a NH's
Widow(er)
Under Title II of the Act, a claimant may be entitled to widow(er)’s insurance benefits
on a deceased insured individual’s record if, among other requirements, the claimant
is the widow(er) of the insured individual and their marriage relationship lasted
at least nine months before the insured individual died.[1] See 42 U.S.C. §§ 402(e), (f), 416(a)(2), (c), (g); 20 C.F.R. § 404.335.
The agency will find a claimant to be an insured individual’s widow(er) if the courts
of the State in which the insured individual was domiciled at the time of death would
find that the claimant and the insured individual were validly married at the time
the insured individual died, or if, under application of that State’s intestate succession
laws, the claimant would be able to inherit a spouse’s share of the insured individual’s
personal property. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. It is our understanding that
the NH was domiciled in Oregon when the NH died in November 2016. Therefore, we look
to Oregon law to determine if the Claimant is the NH’s widow(er).
B. Oregon State Law: The Presumption of the Validity of the Last
Marriage and Rebutting this Presumption
“Marriage is a civil contract” entered into by parties legally capable of marrying.
Or. Rev. Stat. Ann. § 106.010. Parties wanting to marry in Oregon must obtain a marriage
license and participate in a solemnized marriage ceremony performed by an authorized
official. See Or. Rev. Stat. Ann. §§ 106.041, 106.077, 106.120, 160.150. A completed application,
license, and record of marriage is recorded in county records, and the parties to
the marriage are given a commemorative marriage certificate. Or. Rev. Stat. Ann. §§
106.100, 106.160, 106.165, 106.170.
[W]here a marriage has been consummated in accordance with the forms of the law, the
law indulges a strong presumption in favor of its validity.” In re De Force’s
Estate, 249 P. 632, 634 (Or. 1926); see also Or. Rev. Stat. Ann. § 40.135, Rule 311(1)(u). However, a marriage solemnized in Oregon
is void and invalid from the outset if either party to the marriage has an existing
marriage to another person. Matter of Davis’ Estate, 640 P.2d 692, 693 (Or. Ct. App. 1982); Or. Rev. Stat. Ann. § 106.020(1). “When the
validity of a marriage is attacked by reason of its having been entered into while
one of the parties was still married to another person, there is a presumption that
the second marriage is valid” and a presumption that the prior marriage ended by either
dissolution, annulment, or death prior to the second marriage. Matter of Steinberg’s Estate, 578 P.2d 487, 489 (Or. Ct. App. 1978).
A party challenging the validity of a marriage after the death of one member of the
marriage “has a heavy burden of proof” as “courts have invoked a strong presumption
that marriages are valid.” In the Matter of Estate of Kuang, 561 P.3d 160, 164 (Or. Ct. App. 2024) (citations omitted). “To overcome the strong
presumption of the validity of a marriage on the ground that the marriage is bigamous,
the party seeking to overcome the presumption must: allege and prove that the parties
to the alleged former marriage were eligible to [lawfully marry], and that the spouse
of such former marriage is still living; and that the first marriage has not been
dissolved by divorce or by the death of one of the parties.” Id. (citing In re Estate of De Force, 249 P. 632 (Or. 1926)). “The presumption of validity is so strong that proof of
a former subsisting marriage, in order to be sufficient to overcome the presumption,
must be so cogent and conclusive as to fairly preclude any other result.” Id. The burden of proof is “nearly insurmountable” and “virtually impossible” as it “requires
proof of a negative” – that neither party to the earlier marriage had been previously
married but not divorced. Id. “In many cases, it is a similarly virtually impossible task for the party challenging
a marriage to prove that a decedent did not somewhere at some time divorce a prior
spouse before a later marriage – that also compels the party challenging the marriage
to prove a negative. Id. at fn.4 (citations omitted).
“The net result of the [Oregon Supreme Court’s decision in De Force on the presumption of the validity of marriage] is that the decedent’s wife at the
time of his death is, in practical effect, his spouse for purposes of the probate
code, because of the nearly insurmountable burden of proving that the last marriage
is invalid.” Matter
of Davis’ Estate, 640 P.2d 692, 695 (Or. Ct. App. 1982). “[T]he policy behind imposing this heavy
burden is to further the policy of the probate code…to provide for one who played
the part of spouse in his life, in accordance with the decedent’s presumed intent.”
Id. “Moreover, there is a crucial distinction between invalidating the marriage of a
living couple and invalidating a marriage after the death of one of the parties: in
the second case the parties cannot correct the deficiency.” Id. at 696.
Here, the Second Wife provided an “Application, License, and Record of Marriage” from
the Oregon Department of Human Services, Center for Health Statistics showing that
the NH (as D~) and the Second Wife were issued a marriage license by a county clerk
and were married on Oregon on July XX, 2008, by a minister. The marriage record was
filed in county records by a county official on July XX, 2008. This marriage complies
with the Oregon marriage statutes, as outlined above. As such, the law accords a strong
presumption that this marriage is valid. It is our understanding that the Second Wife
and the NH lived together for the next eight years prior to the NH’s death in November
2016 and that they were living together in the same household when he died.
To rebut the presumption of the validity of this second marriage, the First Wife Claimant
must first allege and prove that she and the NH were eligible to lawfully marry in
1988. Although she has evidence that they obtained a marriage license and participated
in a marriage ceremony, she has not provided any evidence about whether they were
both eligible at the time to marry. On the marriage license, they both indicated that
had been previously married and divorced. There is no evidence of such divorces. Next,
the First Wife Claimant must prove that her marriage to the NH had not been dissolved
by divorce prior to his marriage to the Second Wife in 2008. It appears that the First
Wife Claimant had not had any contact with the NH since at least 2002. She acknowledged
on the Form SSA-795 that she has no knowledge of where the NH had been living since
2002 other than Oregon. It is possible that he lived outside of Oregon and obtained
a divorce in another State. She provided a letter from the State of Oregon Center
for Health Services dated August XX, 2024, stating that a search of statewide vital
records files for a divorce record of “R~” and “D1~” for the years 1988 through 2024
showed no record of a divorce in Oregon. The NH changed his last name from S~ to W~
in 2005. It is possible that he obtained a divorce under his new last name. As outlined
above, Oregon courts describe the burden of proof to rebut the strong presumption
of the validity of the last marriage as “nearly insurmountable” and “virtually impossible”
as it “requires proof of a negative.” The evidence must be “so cogent and conclusive.”
We believe Oregon courts would find that the First Wife Claimant has not provided
such proof. As such, we believe Oregon courts would find that the NH was validly married
to the Second Wife at the time of his death, not the First Wife Claimant.
CONCLUSION
Oregon law presumes the NH’s marriage to the Second Wife is valid and that the NH’s
marriage to the First Wife Claimant ended in divorce. The First Wife Claimant has
failed to rebut this presumption. Therefore, we believe there is legal support for
the agency to find that the First Wife Claimant is not the NH’s widow(er) and as such,
is not entitled to Title II widow(er)’s benefits on the NH’s record.