This case has been referred for an opinion as to whether Inez B. L~~ meets the definition
of legal widow of John T. L~ who died on July 21, 1978, domiciled in Florida.
John T. L~ married Lillie I~ B~ on February 11, 1938, in Hinds County, Mississippi.
They separated in 1948. Mrs. L~ filed for a divorce in 1948, but court records for
Hinds County, Mississippi, show that the divorce was not finalized. In 1960, Inez
L~ married Pete W~ in Jackson, Mississippi. They separated three weeks later. Then,
in 1964, Inez married W.B. M~ in Long Beach, California. Their marriage ended in divorce
in 1967 in Biloxi, Mississippi. No evidence of Mr. L~ marital history after his separation
could be determined; however, his application for retirement benefits filed on July
8, 1975, shows his marital status as divorced. All known places of residence for both
John and Inez L~ were searched but no evidence of divorce could be found.
One of the strongest presumptions of law exists in favor of validity of the last marriage.
In order to rebut the presumption that the last marriage is valid, all public records
available should be exhausted in an effort to establish the fact of the absence of
a divorce. See In re L~'s Estate, 360 So.2d 1111 (Fla. 1964). See also Dale P01k Construction Company v. White, 287 So.2d 278 (Miss. 1973); Sikes v. Guest, 170 So.2d 322 (Flaú 1964). (Showing of marriage and uncompleted divorce proceedings
alone was not sufficient to overcome strong presumption of validity of subsequent
marriage.) Cf. Smith v. Heckler, 707 F.2d 1284 (11th Cir. 1983).
Apparently, this is a situation where two individuals thought they had complied with
the legal requirements for a divorce but, in fact, were never actually divorced. While
Mrs. L~ entered into subsequent marriages, there is no evidence to show that Mr. L~
ever remarried although his notation of a divorce on an application indicates that
he felt he was divorced at some time. The search for evidence of a divorce produced
no evidence of a legal divorce, however, there was a substantial period of time during
which the residency of Mr. L~ could not be ascertained.
We stated the following in G~ , Marvin C. — ~ RAIV (C~) to HE, Birmingham, 7/8/60:
The Florida courts do not require that every remote possibility that the first spouse
obtained a divorce be negated in order to rebut the presumption. The courts have held
that evidence which, when weighed collectively, establishes that there could be no
reasonable probability that the first spouse obtained a divorce is sufficient to rebut
the presumption. Teel v. Nolen Brown Motors, Inc., 93 so.2d 874 (Fla. 1957); Perkins v. Richards Constructors, Inc., 111 So.2d 494 (Fla. 1959); Hillyer & Lovan v. Fla. Industrial Commission, 155 Fla. 144, 19 So.2d 838. It is clear from the foregoing cases that the Florida
courts require the person attacking the second marriage to establish with reasonable
certainty the states of residence of the first spouse after the separation, and to
show that the State Bureau of Vital Statistics of such states have been searched,
and no record of a divorce found.
We have found no case in which a Florida court has held the presumption of validity
of the second or subsequent marriage rebutted in the absence of evidence which established
with reasonable, although not absolute, certainty the places of residence of the parties
between the date of their separation and the date of the subsequent marriage. In the
absence of such evidence and proof that no divorce was obtained in such places, it
would appear unlikely that a Florida court would find that there would be no reasonable
probability that a divorce was obtained.
There has been no change in Florida law in this area and later cases follow the law
set down in the earlier case cited above. The extended period of time during which
the residency of Mr. L~ was unknown is probably fatal to an attempt to rebut the presumption
of the validity of Mr. L~ last marriage under Florida law. Ms. L~ would need to ascertain
the places of residence of Mr. L~ during their separation and search the court records
for those jurisdictions to affirmatively show that there is little probability that
he obtained a divorce from her.
We also note that under the law of Mississippi, even though there is a valid marriage,
Mrs. L~ might be estopped from asserting the validity of the marriage and her inheritance
rights under the State's law of descent and distribution as the widow of Mr. L~ because
of her subsequent ceremonial marriages. (See prior opinions on Mississippi estoppel.)
Nonetheless, we could find no Florida cases which followed Mississippi in similar
cases. Apparently, under Florida law, it would only be necessary to rebut the presumption
of the validity of the subsequent marriages in order for Mrs. L~ to be declared the
widow of Mr. L~ for inheritance purposes and there was insufficient evidence to rebut
the presumption. We feel that Florida probably would not recognize the validity of
the marriage at the time of Mr. L~ death and thereby find that Mrs. L~ was not his
"widow." Furthermore, since Mr. L~ died domiciled in Florida, it is our opinion that
Florida would use its own laws to determine the validity of the marriage between Mr.
L~ and Mrs. L~ and whether Mrs. L~ would be entitled to inherit the intestate personal
property of Mr. L~ as his widow. See Tsilidis v. Pedakis, 132 So.2d 9 (1961). Therefore, we feel that Mrs. L~ can not be found to be a widow
as defined in Section 216(c) and 216(h)(1)(A) of the Social Security Act.