The number holder (NH) was domiciled in Georgia when he died; therefore, we first look to Georgia law to determine whether Claimant was validly married to NH at the time of his death. At the time the Claimant married the NH, the NH still had living spouse and an undissolved marriage, making the marriage to Claimant invalid under Georgia law. The marriage should not be deemed a marriage under 42 U.S.C. § 416(h)(1)(B) because the Claimant provided information about having knowledge of the NH’s previous, undissolved marriage. Thus, the agency could not deem her validly married to NH. For the foregoing reasons, Claimant’s marriage to NH was not valid and she was not entitled to widow’s benefits on NH’s account.

QUESTION

Whether a claimant is entitled to widow’s benefits based on her invalid marriage to the number holder.

ANSWER

The claimant’s marriage to the number holder is invalid under Georgia law and it should not be deemed a marriage under 42 U.S.C. § 416(h)(1)(B) because it appears claimant had knowledge of the previous, undissolved marriage.

BACKGROUND

According to the information provided, D~ (Claimant) purported to marry G~ (NH) in December 2002. NH previously married and divorced two other women. NH also married a third woman in 2001 and remained married to her until his death. Claimant provided a timeline of NH’s marriages with her application. She also reported that she lived with NH until his death in 2010.

DISCUSSION

An individual may be entitled to WIB if she is the widow of an individual who died fully insured. See Social Security Act (Act) § 202(e)(1); 20 C.F.R. § 404.335(a) (2021). An individual may qualify as the widow of an insured individual if the courts of the State in which the insured individual was domiciled at the time of death would find they were validly married when the insured individual died. See Act § 216(h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345. NH’s death certificate indicates he was a resident of Georgia when he died. Therefore, we first look to Georgia law to determine whether Claimant was validly married to NH at the time of his death.

The Act also provides that if a claimant is not the widow under state law, the agency can deem the marriage valid if it is established that “such applicant in good faith went through a marriage ceremony with such individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage. However, the agency will not deem it a valid marriage if information presented to the agency shows the applicant entered into such purported marriage with the insured individual with knowledge that it would not be a valid marriage. See Act § 216(h)(1)(B)(ii).

Georgia Law

Under Georgia law, the essentials of a valid marriage are: (1) parties able to contract; (2) an actual contract; and (3) consummation according to law. See Ga. Code Ann. § 19-3-1 (West 2021). With respect to the parties’ ability to contract, Georgia law states that a person must “[h]ave no living spouse of a previous undissolved marriage. The dissolution of a previous marriage in divorce proceedings must be affirmatively established and will not be presumed.” Ga. Code Ann. § 19-3-2(a)(3) (West 2021). Any previous undissolved marriage renders void an attempted second marriage. See Lovette v. Zeigler, 160 S.E. 2d 360, 361-62 (Ga. 1968).

The NH was married four times. NH married and divorced the first wife, with the dates of the divorce unknown to the agency. NH then married the second wife on an unknown date and before divorcing the second wife, and married the third wife in December 2000. NH then divorced his second wife in July 2001 and subsequently married Claimant, his fourth wife, in December 2002. At the time that Claimant married NH, NH still had living spouse and an undissolved marriage, making the marriage to Claimant invalid under Georgia law.^[1]

Georgia would not deem Claimant the widow of NH under Georgia law because she would not, under the Georgia laws for the devolution of intestate personal property, have the same status with respect to the taking of such property as a widow. See 42 U.S.C. § 416(h)(1)(A)(ii). The prior undissolved marriage made Claimant’s marriage to NH invalid, even for purposes of intestate devolution of personal property. See Clarke v. Clarke, 188 Ga. App. 198 (Ga. Ct. App. 1998) (where decedent’s first marriage was not dissolved, decedent’s second wife was not permitted to administer his estate even though she believed herself to be married to him and bore his children).

Federal Law

When an individual is not the wife of the insured individual under state law, the Act provides an alternative means for finding the individuals married. Under 42 U.S.C. § 416(h)(1)(B)(i), if it is established to the satisfaction of the Commissioner that an applicant “in good faith went through a marriage ceremony with such individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage” then the agency may deem such purported marriage a valid marriage. The agency cannot deem a marriage valid unless the applicant and insured were living in the same household at the time of death of the insured individual. The agency cannot deem a marriage valid if the agency determines, on the basis of information brought to the Commissioner’s attention, that such applicant entered into such purported marriage with the insured with knowledge that it would not be a valid marriage. 42 U.S.C. § 416(h)(1)(B)(ii).

Claimant provided a handwritten list of all NH’s marriages and divorces, indicating that NH had not divorced his third wife. Because Claimant provided the information, she had knowledge of the legal impediment to her marriage to NH. Thus, the agency could not deem her validly married to NH. She provided no other statement or evidence that she was unaware of NH’s prior undissolved marriage to the agency.

CONCLUSION

For the foregoing reasons, Claimant’s marriage to NH was not valid and she was not entitled to widow’s benefits on NH’s account.

The number holder (NH) was domiciled in Georgia when he died. Therefore, we look to Georgia law to determine if Claimant and NH were validly married. We do not believe the Georgia courts would find Claimant’s purported marriage to NH valid for purposes of protecting any spousal rights because it was void at its inception and remained void for the duration of the marriage. Accordingly, the agency may find that Claimant is not eligible for Widow’s Insurance Benefits (WIB) as a surviving divorced wife of NH.

Question

Whether the 1992 purported marriage between L~ and number holder W~(NH) was valid when both Claimant and NH were still married to other individuals at the time of the purported marriage, but a Georgia Court issued a divorce decree in 2003 after becoming aware of the other marriages.

Answer

We do not believe the Georgia courts would find Claimant’s purported marriage to NH valid for purposes of protecting any spousal rights because it was void at its inception and remained void for the duration of the marriage. Accordingly, the agency may find that Claimant is not eligible for Widow’s Insurance Benefits (WIB) as a surviving divorced wife of NH.

Background

According to the information provided, NH married A~ on January xx, 1965, in Atlanta, Georgia. Claimant married A~ on September xx, 1975, in Milledgeville, Georgia. While Claimant was still married to Mr. P~and NH was still married to Ms. W~, NH and Claimant participated in a marriage ceremony on September xx, 1992, in Decatur, Georgia. Claimant and NH filed a marriage license of their 1992 purported marriage with Georgia’s Department of Human Resources.

In August 1992, NH initiated a divorce action against Ms. W~ in Georgia’s Superior Court of DeKalb County. An August XX, 1992, publication gave Ms. W notice that she had sixty days from August XX, 1992, to answer NH’s divorce complaint, but the final Judgment was not issued until February XX, 1993. At some point, Claimant apparently sought a divorce from Mr. P~ in Georgia’s Superior Court of DeKalb County, but the Court issued a final order of dismissal on March XX 1993, because neither party responded to a calendar call scheduled on March xx,1993.

In September 2002, Claimant initiated divorce actions in Georgia’s Superior Court of DeKalb County against both NH and Mr. P. In her Complaint for Divorce from NH, she explained that following her separation from NH, on or about June 1998, she learned that her divorce to Mr. P~ had never been finalized, and thus, she was unable to contract marriage at the time of her marriage ceremony to NH in 1992. She also stated she had an adult child born prior to her ceremonial marriage with NH, but the child was legitimized by the marriage. On March xx, 2003, the Court issued divorce decrees for both of Claimant’s marriages.

Mr. P~ died on March xx, 2008. On July xx, 2015, Claimant filed for divorced WIB benefits on Mr. P~ record and stated in her application that her marriage to Mr. P~ began in September 1975 and ended in divorce in March 2003. Claimant did not mention a marriage to NH in her application and she has since been in receipt of WIB benefits under Mr. P~ record.[1^[2] ]

On February xx, 2019, NH died while domiciled in Georgia. His Georgia Death Certificate states he was married to Ms. W~ at the time of his death and she is listed as the informant. On February xx, 2019, Ms. W~ filed for survivor’s benefits and the Lump Sum Death Payment (LSDP) on NH’s record. On June xx, 2019, Claimant filed for divorced WIB on NH’s record.[2^[3] ]

Discussion

A. Federal Law

A claimant may be eligible for WIB if she is a surviving divorced wife of an individual who died fully insured. See Social Security Act (Act) § 202(e)(1); 20 C.F.R. § 404.336(a) (2019).[3^[4] ] A “surviving divorced wife” means a woman that is divorced from an individual who has died, but only if she had been married to the individual for a period of ten years immediately before the effective date of the divorce. See Act § 216(d)(2); 20 C.F.R. § 404.336(a)(2). A claimant may qualify as a “surviving divorced wife” of an insured individual if her marriage to the insured individual was valid under the laws of the sate where he died. See Act § 216(d)(2), (h)(1)(A)(i); 20 C.F.R. §§ 404.336(a)(1), 404.345[4^[5] ].

B. State Law

NH’s death certificate indicates he was a resident of Georgia when he died. Therefore, we look to Georgia law to determine if Claimant and NH were validly married.

To constitute a valid marriage in Georgia, the parties must be able to contract. See Ga. Code Ann. § 19-3-1 (West 2019). To be able to contract marriage, the individual must have no living spouse of a previous undissolved marriage. See Ga. Code Ann. § 19-3-2(a)(3) (West 2019). “The dissolution of a previous marriage in divorce proceedings must be affirmatively established and will not be presumed.”[5^[6] ] Id. Marriages of persons that are unable to contract are void. See Ga. Code Ann. § 19-3-5(a) (West 2019); see also Lovett v. Zeigler, 160 S.E.2d 360, 361 (Ga. 1968) (“A previous undissolved marriage renders void an attempted second marriage”); Clarke v. Clarke, 372 S.E.2d 475, 476 (Ga. Ct. App. 1988) (holding the undisputed evidence was that purported husband’s first marriage was never dissolved thereby making his subsequent marriage void).

The evidence reflects that at the time Claimant and NH married in September 1992, they both had living spouses from previous undissolved marriages. NH’s marriage to Ms. W~ was not dissolved until February 1993 and Claimant remained married to Mr. P~ until March 2003. Claimant also acknowledged in her Complaint of Divorce from NH that she was unable to contract marriage at the time of their marriage ceremony due to her previous undissolved marriage to Mr. P~. Thus, her purported marriage to NH was void at its inception. See Ga. Code Ann. § 19-3-5(a); Lovett, 160 S.E.2d at 361. Although a void marriage on these grounds can become valid after removal of the legal impediment, ratification of the marriage, and cohabitation, see Ga. Code Ann. § 19-3-5(b), Claimant’s prior marriage to Mr. P~ remained a legal impediment throughout Claimant’s entire purported marriage to NH. A Georgia court granted her request for divorce from both NH and Mr. P~ on the same day in March 2003. Claimant also represented in her Complaint of Divorce from NH that she had been separated from NH since 1998, several years before her March 2003 divorce from Mr. P~.

Although a Georgia court issued Final Judgments and Decrees granting Claimant divorces from both NH and Mr. P~ on the same day, this may have been a mistake. Claimant’s asserted reason for her divorce from NH in her Complaint for Divorce was that she was unable to contract her marriage to NH due to her previous marriage to Mr. P~. However, a previous undissolved marriage of one of the parties is generally not grounds for a divorce. SeeLovett, 160 S.E.2d at 361-62. When pleadings affirmatively show, as here, that a ceremonial marriage was void at its inception because one party had a previous undissolved marriage and the marriage continued to remain void, the judgment should be set aside. Seeid. at 362. Such a judgment is itself void. Seeid. It is possible the court granted a divorce rather than an annulment because Claimant represented that she had an adult child that was born prior to the ceremonial marriage, but was legitimized by the marriage. See Ga. Code Ann. § 19-4-1 (West 2019) (providing that annulments of void marriages may not be granted in instances where children were born because of the marriage). However, even if the court’s grant of a divorce rather than annulment was proper for this purpose, such void marriages are only valid for purposes of protecting the rights of the children, and not for purposes of protecting any spousal interests that would otherwise generate from a legitimate marriage. SeeWright v. Hall, 738 S.E.2d 594, 596-97 (Ga. 2013) (holding annulment exception did not entitle spouse of otherwise void marriage to alimony); see alsoBurnett v. Schweiker, 643 F.2d 1168, 1171 (5th Cir. 1981) (holding Georgia’s annulment exception did not render marriage legitimate for purposes of WIB entitlement). Given Claimant’s purported marriage to NH was void and remained void and the divorce decree at most was likely only for the purpose of protecting the legitimacy of a child and not to protect Claimant’s interests, the agency could conclude Claimant is not NH’s surviving divorced wife for determining her eligibility for WIB on NH’s earnings record.

Conclusion

We do not believe the Georgia courts would find Claimant’s purported marriage to NH valid for purposes of protecting any spousal rights because it was void at its inception and remained void for the duration of the marriage. Accordingly, the agency may find that Claimant is not eligible for WIB as a surviving divorced wife of NH.

The number holder (NH) and the Claimant were in a common-law marriage in Idaho which later converted to a formal marriage, but the couple divorced in March of 1999. The NH passed away while residing in Georgia; therefore, we apply the Georgia law. The testimonial and circumstantial evidence shows the existence of a common-law marriage between the NH and the claimant which later converted to a formal marriage and lasted from at least 1986 through 1999. Accordingly, under Idaho law, and by extension Georgia law, the NH and the claimant were validly married for over ten consecutive years immediately preceding the divorce. It is in our opinion that the claimant has satisfied the marriage duration requirement relating to her application for divorced widow’s benefits.

QUESTION PRESENTED

Whether F~, the deceased number holder (NH), and M~, the applicant divorced widow (the claimant), were validly married for at least ten years immediately preceding the date of dissolution under Idaho law.

BRIEF ANSWER

Yes. The NH and the claimant were in a common-law marriage that later converted to a formal marriage, with a total duration of over ten years. Thus, the claimant has established the marriage duration requirement for entitlement to divorced widow’s benefits.

SUMMARY OF EVIDENCE

According to the claimant, she and the NH began living together in a husband and wife relationship in Idaho in July 1983. On August XX, 1983, the NH and the claimant jointly purchased residential property. They filed joint state and Federal tax returns in tax year 1984.

In addition, the parties’ siblings submitted “Statement[s] Regarding Marriage.” The claimant’s sister stated the couple had maintained a home and lived together as husband and wife since 1982. The NH’s sister indicated the couple had been together since 1986.

On November XX, 1989, the NH and the claimant participated in a ceremonial marriage in Idaho. On March XX, 1999, however, the couple got divorced.

On January XX, 2010, the NH passed away while residing in Georgia. On May XX, 2016, the claimant applied for widow’s benefits on the NH’s record.

ANALYSIS

Relevant Federal Law

An applicant may be entitled to widow’s benefits as the surviving divorced wife of a person who died fully insured if the applicant had a valid marriage with the fully insured individual that lasted at least ten years immediately before the divorce became final. 42 U.S.C. § 402(e); 20 C.F.R. §§ 404.331, 404.336. In order to determine whether the applicant and insured individual were validly married, the Agency looks to the State law where the NH was domiciled at the time of his death. 20 C.F.R. §§ 404.344, 404.345.

Here, the NH resided in Georgia when he died. Absent evidence to the contrary, we take this as his permanent home and apply Georgia law. District of Columbia v. Murphy, 314 U.S. 441, 455 (1941).

Relevant State Law

When determining the validity of out-of-state marriages, Georgia views the marriage as a civil contract and applies the law of the forum in which it was made. Norman v. Ault, 695 S.E.2d 633, 636 (Ga. 2010). Since both the ceremonial marriage and the purported common-law marriage at issue here occurred in Idaho, Georgia law directs us to Idaho law.

Idaho recognizes two forms of marriage: one is a marriage that is solemnized by a person authorized to do so, with issuance of a license, as provided by statute; the other is a common-law marriage. Idaho Code §§ 32-201, 32-301 (2016); Freiburghaus v. Freiburghaus, 651 P.2d 944, 946 (Idaho 1982). While common-law marriage is no longer legal in the state, this does not apply to any marriages in effect prior to January 1, 1996, which is the period at issue here. Idaho Code § 32-301(2). In contrast with other jurisdictions, Idaho has never viewed common law marriage with disfavor. Freiburghaus, 651 P.2d at 946

To establish a common-law marriage in Idaho, the evidence must show the parties consented, as well as assumed the rights, duties, and obligations of marriage. Wilkins v. Wilkins, 48 P.3d 644, 649 (Idaho 2002). Consent may be either express or implied by conduct. Id. If consent is implied, the best and most common, although not exclusive, method of proof is to show cohabitation, general reputation in the community as husband and wife, and holding oneself out as married; from such evidence, a court may infer that, at the outset, mutual consent was present. Id. Testimony from one surviving party is sufficient to prove a common-law marriage. Id.

Application of Idaho Law to Current Case

The NH and the claimant were formally married from November 1989 to March 1999, a period lasting nine years and five months. Thus, the relevant question is whether a common-law marriage existed for at least seven months immediately preceding the date of formal marriage.

There is no evidence of express consent to a common-law marriage between the NH and the claimant. Nevertheless, under Idaho law, the claimant’s testimony, as well as other circumstantial evidence, sufficiently establishes implied consent.

The claimant stated she and the NH began cohabitating in a “husband and wife relationship” in July 1983 and continued to do so until March 1999, the date of divorce. In addition, the couple jointly purchased real estate in August 1983 and jointly filed taxes the following year, indicating a general reputation in the community as husband and wife. Moreover, both the claimant’s sister and the NH’s sister agreed the parties presented as a couple since at least 1986, well before the relevant date of March 1989.

Thus, the testimonial and circumstantial evidence shows the existence of a common-law marriage between the NH and the claimant, which later converted to a formal marriage and lasted from at least 1986 through 1999. Accordingly, under Idaho law, and by extension Georgia law, the NH and the claimant were validly married for over ten consecutive years immediately preceding the divorce.

CONCLUSION

It is our opinion that the NH and the claimant were validly married under Idaho law, and therefore under Georgia law, for at least ten consecutive years immediately preceding their divorce. Thus, the claimant has satisfied the marriage duration requirement relating to her application for divorced widow’s benefits.

Georgia law states that a person must not be related to the prospective spouse by blood or marriage within the prohibited degrees. Thus, the marriage would not be valid. This is not a legal impediment as defined by the regulations. In addition, claimant does not meet the good faith element required to establish a deemed marriage.

QUESTION

You asked whether the state of Georgia would recognize as valid a marriage between the number holder and his niece.

OPINION

For the reasons stated below, a marriage between the number holder and his niece would not be valid in Georgia.

BACKGROUND

According to the file, Harvey G~, the number holder (NH), married Doris G~ (Claimant) on February XX, 2005. Claimant's father and NH were brothers. Claimant admitted that she married NH for the purpose of collecting survivor's benefits when he died. She further stated she married NH fully aware that he is her uncle. NH died on February XX, 2008, while domiciled in Georgia.

DISCUSSION

A claimant may be entitled to widow's benefits if she is the "widow" of an individual who died fully insured. See Social Security Act (Act) § 202(e)(1), 42 U.S.C. § 402(e)(1); 20 C.F.R. § 404.335 (2007). A claimant also may be entitled to a lump sum death payment if the claimant is the "widow" of an individual who died fully or currently insured. See Act § 202(i); 20 C.F.R. §§ 404.390, 404.391 (2007). An applicant is the widow of an insured individual if the courts of the State in which the insured individual was domiciled at the time of death would find they had a valid marriage. See Act § 216(h)(1)(A)(i), 42 U.S.C. § 416(h)(1)(A)(i); see 20 C.F.R. §§ 404.344, 404.345 (2007). The Act also allows a finding that the applicant is the widow if the courts of that state would determine the applicant could inherit a widow's share of the insured's personal property if he were to die without a will. See Act § 216(h)(1)(A)(ii); 20 C.F.R. §§ 404.344, 404.345. Finally, the Act permits the Commissioner to deem that a marriage is valid if he is satisfied that an applicant in good faith went through a marriage ceremony with the insured individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage. See Act § 216(h)(1)(B)(i); 20 C.F.R. § 404.346 (2007). Claimant cannot establish that she was married to NH and thus his widow under any of the three methods.

1. Claimant's Marriage to NH Would Not Be Recognized as Valid in Georgia.

The essentials of a valid marriage in Georgia are: (1) parties able to contract; (2) an actual contract; and (3) consummation according to law. See Ga. Code Ann. § 19-3-1 (2007). With respect to parties being able to contract, Georgia law states that a person must not be related to the prospective spouse by blood or marriage within the prohibited degrees. See Ga. Code. Ann. § 19-3-2(a) (2007). Georgia law specifically prohibits a marriage between an uncle and his niece. See Ga. Code Ann. § 19-3-3(a)(6) (2007). Moreover, a marriage between an uncle and his niece is void from inception. See Ga. Code Ann. § 19-3-3(b) (2007); see also Ga. Code Ann. § 19-3-5(a) (2007) (marriages of persons unable to contract are void). Consequently, Georgia would not recognize the marriage between Claimant and NH as valid.

2. Claimant Could Not Inherit a Widow's Share of NH's Personal Property.

If NH died without a will, Georgia law states that a surviving spouse is entitled to a share of a spouse's personal property. See Ga. Code Ann. § 53-2-1 (2007). Because Claimant's marriage to NH is prohibited by law and would not be valid in Georgia, she could not inherit from NH as his spouse under Georgia law.

3. Claimant's Marriage to NH Would Not Meet the Definition of a Deemed Marriage.

As stated above, the Act also permits the Commissioner to find that a marriage is valid if he is satisfied that an applicant in good faith went through a marriage ceremony with the insured individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of the ceremony, would have been a valid marriage. See § 216(h)(1)(B)(i) of the Act. Examples of a legal impediment include a previous marriage that had not ended at the time of the ceremony or a procedural defect in the intended wedding. See 20 C.F.R. § 404.346(a). Moreover, a claimant must have acted in "good faith" when she married the insured individual. See 20 C.F.R. § 404.346; Program Operations Manual System (POMS) GN 00305.055(B)(2). Good faith requires "ignorance at the time of ceremony of any legal impediment and the claimant's belief at the time of the ceremony that the marriage was valid." POMS GN 00305.055(B)(2).

In this case, Claimant's marriage to NH is prohibited by law. This is not a legal impediment as defined by the regulations. Moreover, Claimant would not be able to meet the "good faith" element required to establish a deemed marriage. She fully admits that she knew at the time of her marriage ceremony that she was marrying her uncle. She also stated that marrying NH was the only way to get his benefits. Therefore, Claimant's marriage to NH would not meet the requirements to establish a deemed marriage.

CONCLUSION

Thus, Claimant is not entitled to surviving spouse benefits, because her marriage to NH was not valid under Georgia law.

Mary A. S~

Regional Chief Counsel

By: Jennifer P~

Assistant Regional Counsel

Claimant and NH participated in a spiritual ceremony. Under Georgia law, marriage is a civil contract and its validity is judged by the law of the forum in which it was entered. However, Georgia would not recognize a marriage on this ceremony alone. Prior to January 1, 1997 Georgia recognized common-law marriages if one could establish the three requirements were met. The Georgia courts would find the claimant's common-law marriage valid, thus she could inherit from NH and qualify as the NH's widow.

Georgia recognizes a strong presumption of the validity of the most recent marriage. The presumption of the validity of a more recent marriage continues until evidence is presented that the earlier spouse is living; only then must the party contending that the later marriage is valid affirmatively demonstrate that the earlier marriage was dissolved by divorce.

QUESTION

In considering this claim for spousal benefits, you asked whether a woman, joined with a man in a "spiritual marriage" by a Muslim minister, could qualify as that man's widow under Georgia law.

ANSWER

For the reasons stated below, the woman, here, can qualify as the man's widow under Georgia law.

BACKGROUND

According to the file, number holder, Farouk E~ (NH), and Carrie E~ (Claimant) participated in a ceremony characterized as a "spiritual marriage," and a friend or relative of NH, reportedly a Muslim clergyman, performed the ceremony. There is no legal or religious documentation of this marriage; however, the couple lived together as husband and wife for many years and shared a home and bank accounts and filed joint tax returns. Claimant was previously married and divorced and presented evidence of her marriage and divorce. Claimant and NH's relatives state that NH was previously married and divorced in Egypt. None, however, presented documentation of this marriage or divorce.

DISCUSSION

The Social Security Act (Act) provides, "an applicant is the wife, husband, widow, or widower" of an insured individual if "the courts of the State in which such insured individual is domiciled at the time such applicant files an application . . . would find that such applicant and such insured individual were validly married at the time such applicant files such application . . . ." Act § 216(h)(1)(A)(i), 42 U.S.C. § 416(h)(1)(A)(i); see also 20 C.F.R. §§ 404.330(a), 404.345 (2006). The Act also allows a finding that the applicant is the wife, husband, widow, or widower if the courts of that state would determine the applicant could inherit a wife's, husband's, widow's, or widower's share of the insured's personal property if he or she were to die without leaving a will. See Act § 216(h)(1)(A)(ii). Finally, the Act permits the Commissioner to deem that a marriage is valid if she is satisfied that an applicant in good faith went through a marriage ceremony with the insured individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage. See Act § 216(h)(1)(B)(i), 20 C.F.R. §§ 404.330(a), 404.346 (2006). Claimant can establish entitlement under the first two of the above methods.

1. Georgia Would Recognize Claimant's Marriage To NH As Valid.

Initially, we considered whether Claimant and NH were validly married under Georgia law. According to Georgia law, marriage is a civil contract and its validity is judged by the law of the forum in which it was entered. See Fisher v. Toombs County Nursing Home, 479 S.E.2d 180, 182-83 (Ga. App. 1996). In this case, Claimant and NH participated in a ceremony in Georgia. However, because Claimant presents marriage license or other legal or religious record of the "spiritual marriage," Georgia would not recognize a marriage on this ceremony alone. See Ga. Code Ann. Sec. 19-3-30.OCGA Sec. 19-3-30. However, it appears that Georgia would recognize a common law marriage between Claimant and NH.

In Georgia, before January 1, 1997, one could establish a common law marriage by demonstrating: 1) the parties were able to contract; 2) an actual contract of marriage; and 3) consummation by cohabitation. Ga. Code Ann. Sec. 19-3-1; Brown v. Carr, 402 S.E.2d 296 (1991); Kersey v. Gardner, 264 F. Supp. 887 (M.D. Ga. 1967). Here, the parties began cohabitating in 1976, jointly owned a house and bank accounts, filed joint tax returns, and were regarded by friends and relatives as husband and wife. This evidence would be sufficient under Georgia law to establish a common law marriage. Murray v. Clayton, 261 S.E.2d 455 (1979); Simeonides v. Zervis, 194 S.E. 2d 324 (1972). Where there is proof of continuous cohabitation, along with affirmative proof that a couple held themselves out as husband and wife, the presumption of marriage is one of the strongest known by law, and is to be rebutted only by clear evidence. Id.

There is some evidence that NH was previously married and divorced, although no documentation was presented to establish either the prior marriage or divorce. As other states do, Georgia recognizes a strong presumption of the validity of the most recent marriage. Jones v. Transamerica Ins. Co., 268 S.E.2d 444 (1980). A person attacking the validity of the more recent marriage must overcome the presumption of validity by clear, distinct, positive, and satisfactory proof. Id. The presumption oif the validity of a more recent marriage is continues until evidence is adduced that the earlier spouse is living; only then must the party contending that the later marriage is valid affirmatively demonstrate that the earlier marriage was dissolved by divorce. American Mut. Liab. Ins. Co. v. Copeland, 149 S.E.2d 402 (1966). Here, no one has presented clear evidence that the first spouse is living or asserted that the prior divorce was not valid. Accordingly, there would be a presumption of the validity of the common law marriage between Claimant and NH in Georgia. There is insufficient evidence to rebut the presumption.

2. Claimant Could Inherit a Widow's Share of NH's Personal Property.

Claimant could also establish widow status upon a finding that Georgia courts would determine that she could inherit a widow's share of NH's personal property if he were to die without leaving a will. See Act § 216(h)(1)(A)(ii). Georgia law provides a surviving spouse is entitled to a share of an intestate spouse's personal property. See Ga. Code Ann. Sec. OCGA Sec. 53-2-1. Because Claimant's common law marriage to NH appears valid, she could inherit from NH under Georgia law.

2. Claimant's Marriage To NH Would Not Qualify as A Deemed Marriage.

The Act permits the Commissioner to deem that a marriage is valid if she is satisfied that an applicant in good faith went through a marriage ceremony with the insured individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage. See § 216(h)(1)(B)(i) of the Act; 20 C.F.R. Sec. 404.346. .To qualify, Claimant must have acted in "good faith" when she married NH. See POMS GN 00305.055(B)(2). Good faith requires "ignorance at the time of ceremony of any legal impediment and the claimant's belief at the time of the ceremony that the marriage was valid." Id. The POMS further state that a legal impediment would exist if the marriage was invalid due to a procedural defect such as having a religious ceremony in a country that requires a civil ceremony. See POMS GN 00305.055(b)(3).

In this case, Claimant essentially admits that her ceremonial marriage was not legally or religiously valid, but states instead that the basis for her belief that she was legally married was that "we gave ourself's (sic) to each other as husband and wife." This is not a procedural defect. Moreover, Claimant would not be able to meet the "good faith" element required to establish a deemed marriage. As noted, she essentially admits that the ceremony lacked legal validity. Therefore, Claimant's marriage to NH would not qualify as a deemed marriage. Because Claimant could otherwise establish her marriage to NH, it is immaterial that she could not establish a deemed marriage.

CONCLUSION

Thus, Claimant can qualify as NH's widow under Georgia law.

Mary A. S~

Regional Chief Counsel

By: Laurie G. R~

Assistant Regional Counsel

Although W/e died while domiciled in Georgia, we first look to Michigan law to determine the effects of W/E's adoption of the claimant, because the adoption took place in Michigan, and an adoption legally decreed in another State would be recognized in Georgia. The adoption of the claimant by the W/E and the W/E's second wife establishes a parent-child relationship. A prior spousal relationship would not be severed by adoption.

QUESTION

Can S~ (Claimant) be considered a surviving divorced spouse of G~, (W/E) since she was later adopted by W/E.

ANSWER

For the reasons stated below, we believe Claimant can qualify as W/E's surviving divorced spouse under Georgia law.

BACKGROUND

On June XX, 1965, Claimant and W/E were married in Marquette County, Michigan. They divorced in July 1980. Subsequently, W/E remarried in November 1983 to Malinda J. C~ (W/E's second wife). Claimant gave birth in April 1985. Claimant was then unmarried and never remarried. On November XX, 1985, W/E and his second wife adopted Claimant and her new infant. W/E died a resident of Georgia in February 1996.

DISCUSSION

Under the Social Security Act (Act), a "surviving divorced wife" may be entitled to widow's insurance benefits. See Act § 202(e), 42 U.S.C. § 402(e) (2005); 20 C.F.R. § 404.336 (2005). The Act defines a "surviving divorced wife" as a woman divorced from the individual who has died if she had been married to the individual for a period of 10 years immediately prior to the date of their divorce. See Act § 216(d)(2), 42 U.S.C. § 416(d)(2) (2005); 20 C.F.R. § 404.336 (2005).

In this case, Claimant's marriage to W/E meets the 10 year durational requirement. As such, Claimant is a "surviving divorced spouse." The troubling aspect of this case is the subsequent adoption of Claimant by W/E.

Although W/E died while domiciled in Georgia, we must first look to Michigan law to determine the effects of W/E's adoption of Claimant, because the adoption took place in Michigan, and an adoption legally decreed in another state would be recognized in Georgia. See Ga. Code Ann. § 19-8-22 (2005). In Michigan, the entire subject of adoption is governed entirely by statute. According to Michigan law, an adult may be adopted by another individual. See Mich. Comp. Laws §§ 710.22, 710.24, 710.43, 710.60 (2005). Once an adoption occurs, the legal relationship between the natural parent and child is severed. See Mich. Comp. Laws § 710.60. The adoption established new parent-child relationships between Claimant and W/E and Claimant and W/E's second wife. See Mich. Comp. Law. § 710.60. There, however, is no indication that a prior spousal relationship would be severed by the adoption.

Georgia would, therefore, recognize W/E's adoption of Claimant. In recognizing decrees of adoption, Georgia law specifically states that all legal relationships between the adopted individual and his/her relatives are terminated. See Ga. Code Ann. § 19-8-19. However, spousal relationships are specifically excluded from the effects of adoption. See id. Because the spousal relationship is not terminated by adoption, we believe Claimant would still be recognized as the divorced spouse of W/E.

CONCLUSION

For the foregoing reasons, we believe Claimant qualifies as the surviving divorced spouse of W/E.

Mary A. S~

Regional Chief Counsel

By: Jennifer P~

Assistant Regional Counsel