QUESTION PRESENTED
Information shows that the deceased number holder J~[1] (NH) was married to: R~ (or R~) B~ in 1968 (First Wife), E~ in 1979 (Second Wife),
M~ (the Claimant/Third Wife) in 1988, I~ (I~) in 1997 (Fourth Wife), and C~ (Fifth
Wife) in 1998. You indicated that there was no evidence of divorce as to any of these
marriages. For purposes of the Claimant/Third Wife’s application for widow’s insurance
benefits on the NH’s record, you asked us to determine whether the NH was validly
married to the Claimant at the time of his death in 2011.
ANSWER
We believe Arkansas courts would find that the Claimant/Third Wife has not provided
“clear and decisive” evidence to rebut the strong presumption of the validity of the
NH’s last marriage to the Fifth Wife (and presumption of divorce as to his marriage
to the Claimant) as required under Arkansas law. As such, there is legal support for
the agency to find that the Claimant is not the NH’s widow under the Social Security
Act (Act) for purposes of entitlement to widow’s insurance benefits on the NH’s record.
BACKGROUND
Summary
You advised that the NH died May XX, 2011, in Arkansas. In May 2011, the agency awarded
the lump sum death payment (LSDP) to the Fifth Wife as the NH’s widow. In 2012, the
Second Wife filed an application for widow’s benefits alleging she was the NH’s widow,
but the agency denied the claim based on information received from Phillips County,
Arkansas that they had divorced. In 2018, the Claimant/Third Wife, filed an application
for widow’s benefits alleging she was the NH’s widow. In light of the information
and evidence of the NH’s multiple marriage, you submitted the request for a legal
opinion to determine whether the Claimant/Third Wife is the NH’s widow for purposes
of her application for widow’s benefits on the NH’s record.
First Marriage: First Wife’s 1968 Marriage to the NH
(R~/R~)
Marriage: An agency report of contact from January X, 2019, reflects that the county clerk
for Phillips County, Arkansas stated that marriage records showed a marriage between
the First Wife and the NH on February X, 1968.
Divorce: Agency emails from October 2019 reflect that in developing the Claimant’s claim,
the agency contacted the First Wife. She advised the agency that it had been over
25 years since she had heard the NH’s name. She stated that she attempted to file
for divorce in the 1990s, but when she heard he had remarried, she assumed he had
filed for divorce from her. She reported that she never received divorce documents
from the NH.
Second Marriage: Second Wife’s 1979 Marriage to the NH
(E~)
Marriage: You advised in your legal opinion request that in March 2012, the Second Wife filed
an application for widow’s benefits with the agency. You provided a marriage record
showing that the NH and First Wife married on March XX, 1979, in Phillips County,
Arkansas. An agency report of contact from January X, 2019, also reflects that the
county clerk for Phillips County, Arkansas stated that marriage records showed a marriage
between the Second Wife and the NH on March XX, 1979.
Divorce: You advised that the agency denied the Second Wife’s claim based on information
received from Phillips County, Arkansas that there was a divorce decree between the
NH (J~ or J~) and the Second Wife. You provided a letter from the Phillips County
Clerk’s Office dated in May 2012 indicating that a divorce record was found; the date
of divorce was January X, 1984; and the case number was E-XX-XX. Agency emails from
October 2019 reflect attempts to search for these same divorce records in developing
the Claimant’s claim, and that there was no response from the county clerk for Phillips
County, Arkansas. You indicated in your legal opinion request, however, that subsequent
contact for the current claim found no divorce decree exists. Agency emails from October
2019 also indicate that when the agency contacted the Second Wife, she advised the
agency that they had separated, and she knew the NH had remarried, but she also stated
that she had not filed for divorce and had not received divorce papers.
Third Marriage: Claimant/Third Wife’s 1988 Marriage to the NH
(M~)
Marriage:You advised in the legal opinion request that on September XX, 2018, the Claimant/Third
Wife filed an application for widow’s benefits on the NH’s account. You stated that
she provided a Phillips, County, Arkansas marriage certificate showing that they married
January X, 1988. We do not have any information as to how long they lived together
after their marriage. We do not know if they had children. We do not know the Claimant’s
living situation since 1988 or if she ever married/divorced anyone else, and we do
not have information on where the NH was living after their marriage and prior to
his subsequent two marriages ten years later in St. Phillips County and St. Francis
County, Arkansas (discussed next).
Divorce: The Claimant alleged that she was not aware if the NH ever filed for a divorce and
that she had not filed for divorce. She was aware that he was living with another
woman (Fifth Wife) as of his death. A report of contact dated April X, 2019, reflects
that the agency contacted county clerks offices in various counties and that there
was no record of a divorce between the NH and the Claimant in St. Francis, Phillips,
Jefferson, Lee, or Monroe Counties.
Fourth Marriage: Fourth Wife’s 1997 Marriage to the NH
(I~)
Marriage: An agency report of contact from January X, 2019, reflects that the county clerk
for Phillips County, Arkansas stated that marriage records showed a marriage between
the Fourth Wife and the NH on August X, 1997.
Divorce: Agency worksheet remarks state that the NH reported on his 2006 application for benefits
that he had been married to the Fourth Wife in January 1997 and divorced her in October
1998. Agency emails indicate that the Fourth Wife died on July XX, 2019.
Fifth and Recent Marriage: Fifth Wife’s 1998 Marriage to the NH
(C~)
Marriage: You advised that following the NH’s death, in May 2011, the Fifth Wife applied for
the LSDP on the NH’s record as his widow based on this 1998 marriage and the agency
awarded her the LSDP. Based on the award of the LSDP, it is our understanding that
the agency is satisfied with the proof of marriage as to the NH and the Fifth Wife.
See 20 C.F.R. §§ 404.345 (relationship to the insured as a widow(er) under State law),
404.391(a) (widow(er) living in the same household is entitled to the LSDP), 404.725
(evidence of a valid ceremonial marriage). An agency report of contact from October
XX, 2018, reflects that the county clerk for St. Francis County, Arkansas stated that
marriage records showed that the NH and the Fifth Wife were married on November xx
1998, in St. Francis County, Arkansas. You also advised that on the NH’s June 2006
disability benefits application, the NH reported marrying the Fifth Wife on November
xx, 1998 in Forrest City, Arkansas.
We located what appears to be the NH’s online obituary showing the NH’s name as J~
and listing C~ (Fifth Wife) as his surviving wife. See https://www./obituaries/ (last visited July 20, 2021).
Thus, the evidence indicates that the NH reported to the agency that his most recent
and last marriage was to his Fifth Wife. The evidence also indicates that the NH and
the Fifth Wife had been living together as a married couple for approximately 13 years
from their marriage in 1998 until his death in 2011.
ANALYSIS
A. Federal Law: Widow(er) under the Act for Widow(er)’s Insurance
Benefits
Under Title II of the Act, a claimant may be entitled to widow(er)’s insurance benefits
on a deceased insured individual’s account if, among other things,[2] the claimant is the widow(er) of the insured individual and their marriage lasted
nine months before the insured individual died. See 42 U.S.C. §§ 402(e)(1), (f)(1),
416(a)(2), (c), (g); 20 C.F.R. § 404.335.
The agency will find that a claimant is an insured individual’s widow(er) if the courts
of the State in which the insured individual resided 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’s personal
property. See 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. Here, the evidence
shows that the NH resided in Arkansas at the time of his death. We therefore look
to Arkansas law to determine whether the Claimant is the NH’s widow.
B. State Law: Validly Married under Arkansas Law at the Time of the NH’s
Death
1. The NH’s Multiple Marriages and the Strong Presumption of the Validity of the NH’s
Last and Most Recent Marriage to the Fifth Wife
Given that the NH has had multiple marriages, we begin our analysis by recognizing
that under Arkansas law, a marriage to a person who has previously been married and
never divorced is void, but also that Arkansas law presumes the validity of the last
(most recent) marriage and provides that this is one of the strongest presumptions
under the law. See Stokes v. Heckler, 773 F.2d 990, 991-992 (8th Cir. 1985) (under
Arkansas law, the last ceremonial marriage is presumed valid and this is one of the
strongest presumptions under Arkansas law); Blythe v. Blythe, 410 S.W.2d 379 (Ark.
1967) (“the presumption in favor of the validity of a marriage is so strong that the
one who attacks a subsequent marriage . . . has the difficult burden”). With this
presumption of the validity of the most recent marriage, it is presumed that all prior
marriages ended in divorce. See Sims v. Powell’s Estate, 432 S.W.2d 838, 840 (Ark.
1968) (“positive proof” is necessary to rebut the presumption); Bruno v. Bruno, 256
S.W.2d 341, 343-344 (Ark. 1953) (“where a man and woman are married and it is later
discovered that one of them has a living former spouse it will be presumed, in the
absence of proof to the contrary, that the former spouse had been divorce[d] at the
time of said marriage.”). A strong presumption that a valid marriage exists also arises
when a man and woman have lived together for considerable time and held themselves
out to the public as spouses. Stokes, 773 F.2d at 991. “[E]ven if a spouse from an
earlier marriage is still living, Arkansas law presumes that the earlier marriage
ended in divorce, absent evidence to the contrary.” Id.
As noted in the background, based on the award of the LSDP to the Fifth Wife, it is
our understanding that the agency is satisfied with the proof of a ceremonial marriage
as to the NH and the Fifth Wife. See 20 C.F.R. §§ 404.345, 404.391(a), 404.725. An
agency report of contact from October XX, 2018, reflects that the county clerk for
St. Francis County, Arkansas stated that marriage records showed that the NH and the
Fifth Wife were married on November 14, 1998, in St. Francis County, Arkansas. You
also advised that on the NH’s June 2006 disability benefits application, the NH reported
marrying the Fifth Wife in November 1998 in Forrest City, Arkansas. It is our understanding
that they remained married and were living together at the time of the NH’s death
in 2011. We located what appears to be the NH’s online obituary showing the NH’s name
as J~ and listing C~ (Fifth Wife) as his surviving wife. See https://www./obituaries(last visited July 20, 2021).
Arkansas law presumes that the NH’s last and most recent marriage to the Fifth Wife
in 1998 was valid and presumes that the NH’s prior four marriages all ended in divorce,
including the Claimant/Third Wife’s 1988 marriage to the NH.
2. Heavy Burden of Rebutting the Presumption of the Last Marriage with “Clear and
Decisive” Evidence that a Divorce Was Not Obtained Prior to the Last Marriage
Arkansas law provides that this presumption of the validity of the last marriage is
a strong one, and the party attaching the validity of the last marriage has the “heavy
burden” of proving with “clear and decisive” evidence that a divorce was not obtained
prior to the last marriage. See Stokes, 773 F.2d at 991-992 (it is a “heavy burden
of proof imposed under Arkansas law on one who would invalidate an apparently legal
marriage”) (citing Missouri Pacific R.R. Co. v. Harris, 120 S.W.2d 695, 696 (Ark.
1938)); Sims v. Powell’s Estate, 432 S.W.2d 838, 840 (Ark. 1968) (“positive proof”
is necessary to rebut the presumption); Blythe v. Blythe, 410 S.W.2d 379 (Ark. 1967)
(burden of proof on the party attacking the subsequent marriage is difficult to satisfy).
Thus, for the Claimant/Third Wife to prove that she is the NH’s legal widow based
on her valid marriage to the NH, the Claimant has the heavy burden of providing “clear
and decisive” evidence that she and the NH had not divorced in order to rebut the
presumption of validity as to the NH’s last marriage to the Fifth Wife.
Here, you advised that the Claimant/Third Wife provided a Phillips County, Arkansas
marriage certificate showing that she and the NH married January X, 1988. Agency remarks
indicate that the Claimant stated that she had not filed for divorce from the NH and
that she was not aware if the NH had ever filed for divorce from her. We do not have
any information as to how long the Claimant and the NH lived together after their
1988 marriage or when they separated. We do not know if they had children. We do not
know the Claimant’s living situation since 1988 or if she ever married/divorced anyone
else, but we know the NH went on to marry two additional women. The Claimant acknowledged
that she was aware that the NH was living with another woman at the time of his death.
The NH reported to the agency in 2006 when he applied for benefits that he married
the Fourth Wife in 1997 and divorced her in 1998 and that he then married the Fifth
Wife in 1998. It is our understanding that the NH lived with the Fifth Wife for the
next approximately 13 years until his death. As noted earlier, we located what appears
to be the NH’s online obituary listing the Fifth Wife as his surviving wife. A report
of contacted dated October XX, 2018, reflects that the Fifth Wife stated that the
NH had told her that he had divorced the Claimant. A report of contact dated April
3X, 2019, states that the agency contacted various county clerks in Arkansas and that
there is no record of a divorce between the NH and the Claimant in St. Francis, Phillips,
Jefferson, Lee, or Monroe Counties. The question then is whether given all of this
information, the agency’s finding of an absence of a divorce record in these five
Arkansas counties is clear and decisive evidence to rebut the presumption of a divorce
as to the Claimant’s marriage with the NH and to rebut the presumption of the validity
of the NH’s marriage to his Fifth Wife.
In determining what would constitute such “clear and decisive” evidence to rebut the
presumption of the validity of the last marriage under Arkansas law, we consider the
types of evidence that courts found sufficient or insufficient to rebut the presumption.
The following cases show that evidence of no divorce in counties where the husband
lived may not be enough to rebut the presumption and that the conduct of the first
wife (inaction while the husband was alive) is relevant to rebutting this presumption.
The Arkansas Supreme Court found that a widow was entitled to receive damages for
the negligent death of her second spouse, despite evidence that she divorced her previous
spouse after she married her second spouse. Missouri Pacific R.R. Co., 120 S.W.2d
at 696. Although the widow had not obtained a divorce decree until after entering
into the second marriage, the court stated that no “clear and decisive evidence” existed
that her previous husband had not divorced her before her subsequent remarriage. See
id.
In a case involving a claim with SSA for widow’s benefits, a number holder had married
his first wife in 1937 and a second wife in 1942. He obtained a divorce from his first
wife in 1963. The question was whether the second (most recent) marriage had been
void due to the prior first marriage. SSA denied the claim for benefits after determining
that the 1963 divorce was sufficient evidence to rebut the presumption of the validity
of the second marriage under Arkansas law. The Eighth Circuit Court of Appeals disagreed,
citing, as support, to the Missouri Pacific case and found that SSA “ha[d] failed
to conclusively prove the negative of the proposition that the marriage” to the first
wife did not end before the number holder’s marriage to the second wife. Stokes, 773
F.2d at 991-92. The Court noted that the evidence - which showed that the first wife
lived with the number holder for only 5 years and did not live with the number holder
after 1942 and showed that the second wife lived with the number holder for over 30
years from 1942 until 1972, raised children with him, and paid expenses for him -
was non-conflicting and tended to support, rather than rebut, the strong presumptions
under Arkansas law. Stokes, 773 F.2d at 992.
In another case in which a federal district court vacated SSA’s denial of a claimant’s
application for widow’s benefits on the record of her second husband, the court found
that although the claimant testified that she did not obtain a divorce from her first
husband, there was no clear and decisive evidence that he did not divorce her prior
to her remarriage and stated that it was possible that the claimant’s first husband
had lived somewhere else and obtained a divorce from the claimant. Noble v. Bowen,
No. 87-224, 1989 WL 280358, at *2 (E.D. Ark. 1989). Thus, the court found that the
presumption of the validity of the claimant’s marriage to her second husband was not
rebutted and that the claimant qualified as a widow on the second husband’s record.
Id.
Despite proof that no divorce had been granted in the counties in which the husband
had lived in Florida, Louisiana, and Arkansas, the Arkansas Supreme Court found that
the first wife had failed to rebut the presumption of the validity of the husband’s
last marriage. Spears v. Spears, 12 S.W.2d 875, 876-877 (Ark. 1928). The Court stated
that the first wife failed to show that the husband did not obtain a divorce in some
other county or State in which he lived or in which he established a temporary residence
for the purpose of obtaining a divorce from the first wife. Id. at 877. Further, the
Court found that the presumption of the validity of the later marriage was strengthened
by the conduct of the first wife who knew where the husband was living and that he
was living with another woman as his wife and yet she never called on him for any
assistance or made any claim as his wife over the years. Id. at 877-878.
In finding that the first wife did not rebut the presumption of the validity of the
husband’s last marriage, the Arkansas Supreme Court explained that the first wife
did not meet her burden of showing “the entire absence of any legal divorce.” Miller
v. Miller, 371 S.W.2d 511, 514-515 (Ark. 1963). Although court records in certain
counties showed no divorce proceedings, this did not disprove the possibility of divorce
in some other county. Id. The Arkansas Supreme Court also found it significant that
the first wife knew of where the husband was living and knew of his later marriage,
and yet, the first wife never made any claim on the husband until after his death
and that throughout his years married to his second wife, no one questioned the validity
of such marriage. Id. at 514.
In another case, the Arkansas Supreme Court found that the first wife’s proof that
no divorce decree had been entered in two counties in Arkansas and one county in Tennessee
was not enough to rebut the presumption of the validity of the husband’s last marriage.
Sims v. Powell’s Estate, 432 S.W.2d 838, 842 (Ark. 1968). The Court stated: “We conclude
that appellant’s proof of her marriage to the decedent, together with her proof that
no divorce decree appeared of record in Pulaski or Chicot Counties, Arkansas, or in
Shelby County, Tennessee, falls far short of evidence sufficient to overcome the presumption
of the validity of the decedent’s subsequent marriage.” Id. at 842. The court also
emphasized the conduct of the first wife in that she knew that the husband had married
the second wife and where he was living; she denied making any claim on the husband
for any kind of support during his lifetime; and she herself married another man.
Id. at 841-842.
We believe that an Arkansas court would find the present facts similar to the facts
in these cases – in particular to the Miller, Spears, and Sims cases. As in those
three cases, although court records in certain Arkansas counties showed no divorce
proceedings between the Claimant and the NH, this did not disprove the possibility
of divorce in some other county or State. As noted, we do not have information on
where the NH was living after his 1988 marriage to the Claimant and prior to his subsequent
two marriages ten years later in St. Phillips County to the Fourth Wife and in St.
Francis County to the Fifth Wife. Additionally, the Claimant’s conduct prior to the
NH’s death does not support a marriage. As in the Miller, Spears, and Sims cases,
the Claimant stated that she knew the NH was living with the Fifth Wife in Arkansas
at the time of his death, and yet, we have no information that the Claimant made any
claim as a spouse with regard to the NH until years after his death. Throughout his
13 years of marriage to the Fifth Wife, there is no information indicating that anyone
questioned the validity of such marriage. The NH identified the Fifth Wife as his
wife in 2006 with the agency when he applied for benefits, and his obituary identifies
the Fifth Wife as his surviving wife at the time of his death in 2011. We do not have
information as to the Claimant’s whereabouts following her 1988 marriage to the NH,
and we do not know if she married/divorced anyone else. Thus, following Arkansas case
law applying the law to similar facts, given the information provided with this claim,
we believe an Arkansas court would find that the Claimant has not provided “clear
and decisive” evidence to rebut the strong presumption of the validity of the NH’s
last marriage to the Fifth Wife.[3] As such, there is legal support for the agency to find that the Claimant is not the
NH’s widow under the Act. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345.[4]
CONCLUSION
We believe Arkansas courts would find that the Claimant/Third Wife has not provided
“clear and decisive” evidence to rebut the strong presumption of the validity of the
NH’s last marriage to the Fifth Wife (and presumption of divorce as to his marriage
to the Claimant) as required under Arkansas law.[5] As such, there is legal support for the agency to find that the Claimant is not the
NH’s widow under the Act for purposes of entitlement to widow’s insurance benefits
on the NH’s record.