Your memorandum of November 17, 1980, requested our opinion as to whether Leonia E~
was estopped from denying the validity of her marriage to Ernest C. E~ thereby rendering
her ineligible for surviving mother's benefits on the account of her prior husband,
Sammy A~. While the facts need to be developed further, if the facts show Leonia and
Ernest E~ considered themselves married at the time she filed for the benefits in
question, she would be estopped from denying the validity of her marriage to Ernest
E~.
While the facts furnished this office are somewhat sparse, the relevant facts or factual
assumptions are listed below. Sammy A~ and Leonia E~ (the claimant) were married prior
to November 1965. It is assumed that Sammy A~ and the claimant had a child prior to
November 1965. Sammy A~ and the claimant were divorced prior to 1965. Ruby P~ E~ and
Ernest E~ were married in 1955. Leonia E~ and Ernest E~ were married in 1965. Ernest
and Ruby E~ were divorced in 1970. Sammy A~, the wage earner, died in 1976. It is
assumed that Sammy A~ died a resident of Tennessee. Leonia E~ applied for surviving
divorced mother's benefits on the account of Sammy A~ in 1977. At the time Leonia
E~ married Ernest E~ in 1965 she believed her marriage to him was valid since she
had no knowledge of Ernest prior undissolved marriage to Ruby. Since the divorce of
Ruby E~ and Ernest E~ , Leonia has continued to reside with Ernest E~ as husband and
wife.
The claimant would not be eligible for surviving divorced mother's benefits on Sammy
A~ account if she was married to any other individual during the period for which
she sought benefits. Section 202(g)(1)(A) of the Social Security Act, 42 U.S.C. §402(g)
(1) (A). Social Security Regulation 4 Section 404.335(a)(3) (42 C.F.R. §404.335(a)
(3)).
The claimant divorced Sammy A~ prior to November 1965. The claimant married Ernest
E~ on November 6, 1965 in a ceremonial marriage. If the claimant's marriage to Mr.
E~ was valid or if she was estopped from asserting its invalidity, the claimant would
not be entitled to mother's insurance benefits on Sammy A~ account.
Tennessee does not recognize common law marriage, therefore, unless Leonia and Ernest
E~ held themselves out as married in a state which recognizes common law marriage
after his impediment to marriage was removed, Leonia and Ernest would not be validly
married. However, if Leonia and Ernest continued to rely upon their marriage ceremony
as constituting a marriage after the defect in their marriage surfaced Leonia would
be estopped from denying that she was validly married to Ernest. (J~ , Willert T.,
— ~ — RA IV (K~) 9/7/71.) There should be further development of the file to determine
whether Leonia and Ernest E~ continued to treat themselves as a married couple after
his divorce. Also, as the information furnished with the request for an opinion was
sketchy the factual assumptions stated in this opinion should of course be verified.