QUESTION PRESENTED
You asked whether claimant J~’s marriage to H~ in 1994 is valid, where H~ was not
divorced from his previous wife at the time of the marriage, thereby precluding J~’s
entitlement to Divorced Spouse’s benefits on the account of wage earner J2~.
SHORT ANSWER
Yes. Under Kentucky law, J~’s marriage to H~ was voidable, rather than void from its
inception. Accordingly, J~ should be considered married, as her marriage to H~ has
not been legally terminated. As such, she is not entitled to Divorced Spouse’s benefits
on J2~’s account.
FACTS
J~ divorced the wage earner, J2~, in December 1982. In December 1994, J~ married H~
in Kentucky. J~ reports that after her marriage to H~, she discovered that H~ was
still married to I~, who he married in 1991. There is no evidence that the marriage
between H~ and I~ was ever dissolved or otherwise legally terminated. J~ advises that
she and H~ no longer live together, but they have not obtained a divorce or sought
any other legal nullification of their marriage.
J~ has filed for divorced spouse benefits on J2~’s record. She currently lives in
Ohio.
DISCUSSION
1. J~’s marriage to H~ is voidable, rather than void ab initio, and thus she should be considered married.
We look to state law to determine whether an individual is married or remarried. Social
Security Act § 216(h)(1)(A), 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.345. However,
neither the Act nor our regulations address which law governs the validity of a divorced
spouse’s remarriage to a third party. See Social Security Act § 216(h)(1)(A); 20 C.F.R. § 404.345. Although the regulations
do not specify which state law we should apply, we believe that the law of Kentucky
should be applied because the marriage of J~ and H~ occurred in that state. Even if
we looked to the law of Ohio, where J~ and H~ now live, under Ohio law, the validity
of a marriage is determined based on the state where it was solemnized. See Mazzolini v. Mazzolini, 168 Ohio St. 357, 358, 155 N.E.2d 206, 208 (1958).
Kentucky law favors marriage, and the presumption of a legally valid marriage is one
of the strongest known in law. See Pinkhasov v. Petocz, 331 S.W.3d 285, 293-94 (Ky. Ct. App. 2011). However, marriage is prohibited and
void[1] “[w]here there is a husband or wife living, from whom the person marrying has not
been divorced.” Ky. Rev. Stat. Ann. § 402.020(1)(b) (West 2016). And, a court may
declare a marriage invalid if the marriage is prohibited. See Ky. Rev. Stat. Ann. § 403.120(1)(c) (West 2016). But, significantly, a declaration
of invalidity based on the marriage being prohibited may only be sought by one of
the parties to the marriage and no later than one year after the petitioner obtained
knowledge of the prohibited condition. See Ky. Rev. Stat. Ann. § 403.120(2)(b) (West 2016).
J~ and H~ entered into a legal marriage in Kentucky on December XX, 1994. Therefore,
the strong presumption in favor of marriage would apply to their marriage. Significantly,
the evidence supports that H~ was still married to I~ at the time of his marriage
to J~. However, although the marriage of H~ and J~ was prohibited under Kentucky law
because H~ was already married, we believe that Kentucky would find that the marriage
was merely voidable, rather than void ab initio (from the start) because neither party
acted within one year to obtain a court declaration that the marriage was void.
Kentucky previously treated bigamous marriages as void ab initio, but in 1980, the Kentucky Court of Appeals upheld a bigamous marriage from challenges
from the son of the deceased and his first wife. Ferguson v. Ferguson, 610 S.W.2d 925 (Ky. Ct. App. 1980) (citing Ky. Rev. Stat. § 403.120). The son challenged
the second wife’s ability to act as the administratrix of the deceased’s estate arguing
the second wife’s marriage was void ab initio because it occurred prior to the deceased’s divorce from his first wife. Id. at 926. The court held that although a bigamous marriage was described as “prohibited
and void” under Ky. Rev. Stat. § 402.020(1)(b), a third party could not collaterally
attack the marriage. Id. Instead, the court found that a declaration of invalidity of marriage could only
be obtained by one of the parties to the marriage, and only within one year after
obtaining knowledge of the prohibitive condition. Id. The court found that the son could not maintain a collateral attack on the marriage
because the enactment of Ky. Rev. Stat. § 403.120 “represented a conscious recognition
on the part of the legislature that a previous policy of allowing a collateral attack
on marriages created unfair, economic penalties for the surviving spouse.” Id. at 927 (citation omitted).
In 1993, the Comptroller General issued an opinion that under Ferguson, a bigamous
marriage was not void ab initio, but merely voidable. Matter of: Myrtle O. Morris, B-251520, 1993 WL 284903, at *2 (Comp. Gen. 1993). The Comptroller General found
that a Federal Survivor Benefit Plan annuity could be paid to the member’s second
wife, whom the member married more than two years before obtaining a divorce from
his first wife, because under Kentucky law the second marriage was not challenged
within one year and therefore was valid. Id. Because no action was taken to void the marriage, the Comptroller General found
that the marriage was valid and that the second wife qualified as an eligible widow
entitled to an annuity.
In the instant case, J~ reports that she separated from H~ after discovering that
he was still married to I~, but there is no evidence that either party took action
to have a court declare their marriage invalid. Under the reasoning in Ferguson and the Comptroller General’s 1993 opinion, J~’s marriage to H~ was not void ab initio, but merely voidable and subject to challenge under Ky. Stat. Rev. §403.120 (West
2016) [2] . Because neither J~ nor H~ took any action to void their marriage, and because there
has been no divorce proceeding, the marriage stands as valid, despite being “prohibited
and void.”
Of note, we considered that this case differs from the subject marriages in Ferguson and Matter of: Myrtle O. Morris, as well as the recently examined marriage analyzed in POMS PR 05005.020 (PR 16-137), in that the parties to those bigamous marriages believed that they were
validly married, and held themselves out as such. Here, J~ reports that she believed
that her marriage to H~ was not legal, and that she and H~ no longer live together
or hold themselves out as a married couple. We do not find such distinctions material
to the analysis of bigamous marriages in Kentucky. Instead, we believe that consideration
of an individual’s belief about the validity of the marriage, or whether the parties
hold themselves out as a married couple, is immaterial to Kentucky’s established view
of bigamous marriages as voidable, and not void ab initio.
2. The marriage of J~ and H~ precludes J~’s entitlement to benefits on J2~’s record.
Under the Social Security Act, 42 U.S.C. § 402, a divorced wife may be entitled to
benefits if she meets certain requirements, including that she is not married. 42
U.S.C. 402(b)(1)(A)-(D); see also 20 C.F.R. §§ 404.331(c), 404.336(e). Therefore, a divorced wife's right to benefits
depends on whether she is married at the time of the claim.
As discussed above, J~’s marriage to H~ was merely voidable, rather than void ab initio, under Kentucky law. Because neither J~ nor H~ has sought to have the marriage invalidated
or annulled and there has been no divorce, J~ should be considered married, and thus,
she is not eligible for benefits as the divorced wife of J2~.
CONCLUSION
For the above reasons, we conclude that J~ is married and she may not obtain Divorced
Spouse’s benefits on J2~’s account.
Kathryn Caldwell
Regional Chief Counsel, Region V
By: Tiffani Jake
Assistant Regional Counsel