Divorce — In General — Indiana

Indiana would not apply Mississippi estoppel law to bar a claimant from asserting the validity of her first marriage even though she had separated from her first spouse and married another. Rather, Indiana would apply its own rule that as long as a spouse who remarried without benefit of divorce and thus could technically have been considered living in adultery, was not doing so at the time of her first spouse's death, she would not be estopped from asserting the continued validity of her marriage to the first spouse. (B~, Robert, DWE, ~ - RA V(B~)to ARC 8/10/82)

This is with reference to your inquiry as to whether Lovie O~ is the surviving divorced wife of Robert B~ , the number holder, who died on April 24, 1981 in Indiana. The facts, based on the development that has been done, are as follow.

Lovie W~ l_/ (now Lovie O~) and Robert B~ were married in Tate County, Mississippi in 1917. Although there is no marriage certificate, you have secondary evidence of the marriage. Your inquiry indicates that they separated in 1929. Lovie B~ subsequently married Eugene O~ on July 25, 1961 in Memphis, Tennessee. 2_/ Although you indicate that she had not obtained a divorce from the number holder, Robert B~, the claims folder states that no search of the divorce records of all known residences of Lovie W. B~ was made and it indicated that further development may be needed. Eugene O~ died on May 17, 1973 in Memphis, Tennessee.

On June 4, 1962 Robert B~ obtained a divorce from Lovie B~ in Memphis, Tennessee. A determination of award of benefits in the claims folder indicates that Robert B~ married Ellen B~ on July 9, 1962. 3_/ Documents in the claims folder indicate that Ellen B~ died on September 23, 1979. It appears that Robert B~ lived in Memphis until October, 1979 when he moved to Indiana. 4_/ He died on April 24, 1981 in South Bend, Indiana.

Lovie O~ has filed an application for surviving divorced wife's benefits on the account of Robert B~. In addition to asking whether Lovie O~ meets the definition as surviving divorced wife of Robert B~ , you have also asked whether the state of Indiana would look to Mississippi law to determine the validity of the marriage of Lovie W~ to Robert B~ and would apply Mississippi estoppel law and find that Lovie O~ is not the surviving divorced wife of Robert B~ because of her marriage to Eugene O~ while she was still married to Robert B~.

Claimant's entitlement to benefits is dependent upon whether she is the surviving divorced wife of Robert B~ within the meaning of section 216(d)(2) of the Social Security Act and 20 C.F.R. Section 404.336. Section 216(d)(2) defines "surviving divorced wife" as a woman divorced from an individual who has died, but only if she had been married to the individual for a period of 10 years immediately before the date the divorce become final.

20 C.F.R. Section 404.336 indicates that the woman must have been validly married to the insured as determined by the law of the state in which the insured was domiciled at his death (in this case Indiana).

Indiana follows the rule that the validity of a marriage depends upon the law of the place where it occurs. Bolkovac v. State, 98 N.E.2d 250, 254 (Ind. 1951). Thus, Indiana would recognize a marriage validly entered into in Mississippi. However, Indiana also applies the presumption, where there are conflicting marriages, that the second marriage is the valid marriage. Rainier v. Snider, 369 N.E.2d 666 (Ind. Ct. App. 1977). The law presumes that the prior marriage was terminated by death or divorce. Id. However, this resumption "is not conclusive and it may be rebutted by competent evidence that at the time of the subsequent marriage the former spouse is still alive and had not obtained a divorce." Id. at 669. Competent evidence that there was no divorce would require only an investigation as to whether there were divorce proceedings in forums where the former spouse might reasonably be expected to pursue them. Id. in this case Mr. B~ was alive at the time of claimant's marriage to Eugene O~ , but there appears to have been no search of the appropriate records for a divorce by Mr. B~ prior to the marriage to Eugene 0~, so as to rebut the presumption that the marriage of Robert B~ and Lovie B~ had been legally dissolved by divorce. Also, as noted, there has been no search of records to determine whether Lovie B~ had obtained a divorce from Robert B~. It appears that in Indiana evidence of a divorce proceeding brought by the former spouse after the second marriage would not, by itself, rebut the presumption. Boulden v. McIntire, 119 Ind. 574 (1889); Compton v. Benham, 44 Ind. App. 51, 85 N.E. 365 (1908).

However, POMS, GN 00305.110, states that regardless of the presumption applied by a state, full development is necessary before the presumption can be applied. Therefore, without full development in accordance with POMS, the presumption cannot be applied in this case.

We would note that if development indicated that Lovie B~ had been divorced from Robert B~ prior to any subsequent marriages by her, there would be no need to determine whether Indiana would apply Mississippi estoppel law in this case for there would be no bigamous marriage. Further, if development did indicate a final divorce prior to the June 4, 1962 divorce, the date of the earlier divorce would be the time from which the ten year period in the statute would be measured.

Absent such development we assume for purposes of this opinion that the presumption does not apply and that June 4, 1962 is the date of the final divorce. Thus, we address the question of whether Indiana would apply Mississippi estoppel law. If further development is done, our opinion should considered in light of the additional facts developed.

For the reasons enumerated below we do not believe that Indiana would apply Mississippi estoppel law in this case. Under Mississippi law, an insured individual's undivorced wife, who enters into a bigamous marriage after separation from the insured, is estopped from the denying the termination of the prior marriage and attacking the validity of the subsequent marriage of the insured. Lee C~, ~, RA IV (S~) to L~, Director, Southeastern Program Service Center, 11/30/78. Lee C~ involved the question of whether the claimant was the wife of the wage earner within the meaning of Section 216(h)(1)A) at the time she applied for benefits. It held that since the claimant had entered into a subsequent bigamous marriage under Mississippi law she was estopped to assert the invalidity of the wage earner's second marriage and could not be considered to be the wife of the wage earner. Lee C~ did not involve the question of whether an individual was a surviving divorced wife and somewhat different considerations apply to that question. As the term "surviving divorced wife" suggests, the question in that case is not whether the claimant was the wife of the insured at the time she applied for benefits or at the insured's death, but whether she had been validly married to the insured under applicable state law and was validly married to the insured for at least ten years immediately before the divorce became final. It does not appear that Lee C~ or Mississippi law would estop a claimant who entered into a bigamous marriage from asserting that she had been validly married to the insured. It only holds that by entering into the bigamous marriage she renounced her marital relationship and can no longer assert that she is the wife of the insured. Thus, if C~ applies in the context of a determination of whether a claimant is the surviving divorced wife of the insured, it would apply only to the extent that an individual who entered into a bigamous marriage, and who was subsequently divorced from the insured, may be estopped from asserting that she was married to the insured for at least 10 years immediately before the divorce became final.

We have found no Indiana cases in which an individual who left or was separated from his or her spouse, and who without obtaining a divorce, entered into a subsequent bigamous marriage, has been estopped from denying the termination of the former marriage. However, in Indiana by statute, Ind. Code Ann., section 29-1-2-14 (Burns), part of Indiana's law of intestate succession, a spouse who has left or abandoned the other spouse and who is living in adultery at the time of the other spouse's death is prohibited from taking any part of the deceased spouse's estate.

The Indiana Supreme Court has intimated, without expressly deciding, that it would hold that entering into and living in a bigamous marriage could, in a strictly legal sense, constitute living in adultery for purposes of the statute. Shaffer v. Richardson's Administrator, 27 Ind. 122 (1866). The basis for this is that since the first spouse was living and there had been no divorce, the second marriage was void. However, in Shaffer the plaintiff was living in a bigamous marriage at the time of the death of her first husband. It is clear, however, that the preclusion applies only to the spouse who is living in adultery at the time of the death of the other spouse, not to a spouse who at some time (other than at the time of death) following the abandonment was living in adultery. As the Court stated in Spade v. Hawkins, 60 Ind. App. 388, 110 N.E. 1010 (1916):

Doubtless the legislative purpose in the enactment of (the statute) was to preclude the surviving unfaithful immoral husband or wife from participating as a distributee in the estate of the deceased spouse, and thus, to some extent, to promote fidelity to the marital vows. The standard respecting the wife is that she must have left her husband and be living in adultery at the time of his decease. 110 N.E. at 1013.

In this case even if Indiana law would find, since Mr. B~ was still living and had not been divorced from Lovie B~ at the time of her marriage to Eugene O~, that her second marriage was void and therefore her living with Mr. O~ could constitute living in adultery, there is no evidence that she was living in adultery at the time of Mr. B~'s death. In fact, Lovie O~'S marriage to Eugene O~ had ended with his death on May 17, 1973, almost eight years prior to Mr. B~ 's death.

Thus, the fact that a spouse had entered into a bigamous marriage during the lifetime of the other spouse would not, in and of itself, under Indiana law preclude that spouse from asserting a right in the other spouse's estate, as it would under Mississippi law. (See Minor v. Hidon, 215 Miss. 513, 61So.2d 350 (1952)).

Since, it is living in adultery at the time of the death of the other spouse and not the fact that the spouse may once have lived in a bigamous marriage that is required under the Indiana statute, similarly we do not believe that Indiana would apply Mississippi estoppel law in this case and hold that a bigamous marriage which had ended almost eight years earlier would bar the claimant from asserting that she had been married to Robert B~ up until the time of their divorce. Thus, if Lovie O~ had been married to Robert B~ for a period of 10 years immediately before the date their divorce became final and if the other requirements or 20 C.F.R. Sec. 404.336 are met, she would not be estopped under Indiana law from asserting she is the surviving divorced wife of Robert B~.

1_/ Census records in the claims folder indicate claimant's name is W~ and not "W~."

2_/ The name on the marriage certificate is Lovie S~ and not Lovie B~ or Lovie W~. There is no explanation for this in the claims folder nor is there any indication that Lovie O~ asked about this. The claims folder also contains an application for a Social Security number dated August 8, 1955 in the name of Lovie S~.

3_/ However, an application for lump-sum death payment filed by Bobbie B~ on Robert B~'s number states that Robert B~ married Ellen B~ in 1940.

4_/ Although your inquiry indicates that he stayed in Memphis until June 30, 1980, there is a printout for a change of address action for Robert B~ dated October 5, 1979 showing an Elkhart, Indiana address.

MARRIAGE - Bigamous Marriage — Estoppel

A spouse who has abandoned the other spouse and who is living in adultery at the time of the other spouse's death is prohibited from taking any part of the deceased spouse's estate. However, both conditions, adultery and abandonment, must be present. Absence of showing the abandonment of her husband the fact that a wife subsequently marries without benefit of divorce would not estop her from asserting that she is the legal wife. (L~ Russell, Jr., - ~ - RA V (J~) to ARC - 7/13/82)

This is with reference to your inquiry concerning whether the State of Indiana would apply the principle of estoppel established under Mississippi law which would result in the claimant, Lucille C~, being precluded from entitlement to benefits as spouse of Russell L~, the number holder. The facts are as follows.

Lucille P~ (now Lucille C~)(~M) and Russell L~ ( ~ ) were married in Cameta, Mississippi on December 3, 1928. They separated in 1933. Mrs. C~ alleges that they were never divorced. The claim file indicates that searches of divorce records for all known residences of Lucille C~ and Russell L~ were performed and no record of divorce could be located. Russell L~ moved to South Bend, Indiana in 1950.

Lucille C~ states that she subsequently married James in 1962 in Memphis, Tennessee and that the marriage has not ended. She does not have a marriage certificate and no record of the marriage could be located. However, James C~ has confirmed that they are married stating that they were married at his mother's house in Memphis. Mrs. C~ submitted a warranty deed dated February 9, 1966 in which she is referred to as the wife of James C~ as secondary evidence of the marriage. James C~ and Lucille C~ are living together as husband and wife in Greenville, Mississippi.

Mr. L~ son and nephew stated that after his separation from Lucille C~, Mr. L~ had two subsequent marriages both of which took place in Sharkey County, Mississippi and ended in separations. They were not aware of any divorce proceedings. In 1974 Mr. L~ stated on applications for disability and retirement insurance benefits that his wife was Flora M. B~ and that they had been separated. However, on April 14, 1981 Mr. L~ stated he had only one wife, Ida, and she had died in 1978.

Mrs. C~ has filed an application for wife's benefits on the account of Russell L~. At the time of the application Russell L~ was residing in South Bend, Indiana.

Claimant's entitlement to benefits is dependent upon whether she is the wife of Russell L~ within the meaning of Section 216 (h)(1)(A) of the Social Security Act, at the time she applied for benefits. Section 216(h)(1)(A) provides that the question of whether claimant is the wife of Russell L~ for purposes of entitlement to wife's benefits is determined by the law of the state of the domicile of the insured, in this case Indiana. You have determined that Lucille C~ was married to Russell L~, but ask whether under the facts of this case Indiana would apply the principle of estoppel established under Mississippi law.

Under Mississippi law, an insured individual's undivorced wife, who enters into a bigamous marriage after separation from the insured, is estopped from denying the termination of the prior marriage and attacking the validity of a subsequent marriage of the insured. Lee C~ , ~~', RA IV (S~) to L~, Director, Southeastern Program Service Center, 11/30/78.

Indiana follows the rule that the validity of a marriage depends upon the law of the place where it occurs. Bolkovac v. State, 98 N.E.2d 250, 254 (Ind. 1951). Thus, Indiana would recognize a marriage validly entered into in Mississippi. However, Indiana also applies the presumption, where there are conflicting marriages, that the second marriage is the valid marriage. Rainier v. Snider, 369 N.E.2d 666 (Ct. App. of Ind. 1977). The law presumes that the prior marriage was terminated by death or divorce. Id. However, this presumption "is not conclusive and it may be rebutted by competent evidence that at the time of the subsequent marriage the former spouse was still alive and had not obtained a divorce." Id. at 669. In this case there is such competent evidence as Mr. L~ is still alive and a search of the appropriate records has not disclosed any divorce.

We have found no Indiana cases in which an individual who was separated from his or her spouse, but who was not divorced, and who has entered. into a subsequent bigamous marriage, has been estopped from denying the termination of the former marriage. However, in Indiana by statute, Ann. Ind. Code, section 29-1-2-14, a spouse who has abandoned the other spouse and who is living in adultery at the time of the other spouse's death is prohibited from taking any part of the deceased spouse's estate. The case law in Indiana is clear that before being deprived of an interest in the estate, the spouse must have both abandoned the other spouse and be living in adultery at the time of the death. In Shaffer v. Richardson's Administrator, 27 Ind. 122 (1866), Theron R~ left the plaintiff who was his wife. She subsequently heard that he had died and she married S~ She later learned that R~ was alive, but continued to live with S~ . Plaintiff and R~ had never been divorced and R~ had also married another woman. At R~ death, plaintiff claimed to be his widow. The Court intimated that it would hold, but did not expressly decide, that because plaintiff continued to live with S~ after she learned that R~ was still alive, she was strictly, in a legal sense, living in adultery. The basis for this was that because R~ was still living and they had not been divorced, her second marriage was void. Id. at 128; see also Rice v. State, 370 N.E.2d 902 (Ind. 1977). However, the fact that she had entered into a bigamous marriage which was void, and thereby was technically living in adultery, was not sufficient to deprive her of her share in her husband's estate, because she had not abandoned him. Unless both of those conditions are met, the spouse is not prohibited from taking a portion of the estate. See also Amann v. Tankersley, 273 N.E.2d 772 (App. Ct. of Ind. 1971). As the Court stated in Wiseman v. Wiseman, 73 Ind. 112 (1880), absent the presence of the two statutory conditions,

Unless there has been a judicial decree, dissolving the marital relation, the wife who outlives her husband, is the surviving wife, no matter how bad her conduct may have been. Id. at 114.

In this case even if Indiana law would find, since Mr. L~ was still living and had not been divorced from Lucille C~, that Mrs. C~ second marriage was void and that therefore her living with Mr. C~ could constitute living in adultery, the claims file does not indicate that she abandoned Mr. L~ The only evidence is that she and Mr. L~ separated. Separation by mutual consent is not an "abandonment" so as to cause forfeiture of one spouse's interest in the other spouse's estate. Morehouse v. Koble, 80 Ind. App. 418, 141N.E. 254 (1923). Thus, absent evidence of abandonment on her part, Lucille C~ would not be precluded under Indiana law from sharing in Mr. L~ estate at his death.

Thus, a bigamous marriage alone would not be enough in Indiana, as it would be in Mississippi (see Minor v. Higdon, 215 Miss. 513, 61 So.2d 350 (1952)), to bar a spouse from asserting a right in the other spouse's estate..

If Indiana law would not prevent Lucille C~ from taking her share of Russell L~ estate at his death, similarly we do not believe that Indiana would apply Mississippi estoppel law to bar Lucille C~ from asserting that she is the wife of Russell L~ for the purpose of applying for wife's insurance benefits. This would especially be so given that Russell L~ had lived in Indiana about 30 years at the time of the application for benefits and that Lucille C~ marriage to James C~ took place in Tennessee after Russell L~ was already living in Indiana. Thus, if Lucille C~ and Russell L~ were validly married and never divorced, the fact that she subsequently married James C~ would not under Indiana law estop her from asserting that she is Russell L~ wife.