A man and woman were legally married and then separated, and the woman subsequently went through a ceremonial marriage with another man. her first husband died domiciled in Arkansas and the woman filed application for mother's insurance benefits on his earnings record and submitted evidence sufficient to establish that her first marriage had not been terminated. Held, the woman qualifies as the widow of her first husband under section 216(h) of the Social Security Act for purposes of entitlement to mother's insurance benefits.

H died domiciled in Arkansas in February 1961, and W filed application for mother's insurance benefits for herself and child's insurance benefits for their two children on his earnings account. H and W were ceremonially married in X county, Arkansas, in 1945, but they separated in 1948 and did not live together as man and wife after that time. The two children of the marriage, born in 1946 and 1947, continued living with W after the separation. W went through a ceremonial marriage with another man in 1957.

After H and W separated, W continued to live in X County, Arkansas. H moved to Y County, Arkansas, and later to Z County, Arkansas, where he died without marrying again. W established that the above counties are the only places where either H or W lived after they separated, and a search of the court records of those places revealed that no divorce was ever obtained by either H or W.

The two children were awarded child's insurance benefits on H's earnings account, but for W to become entitled to mother's insurance benefits she must, aside from other requirements all of which she met, meet the requirement that she was H's widow. Under section 216(h)(1)(A) of the Act, as pertinent here, a woman is the widow of a worker if the courts of the State in which he was domiciled at the time he died (in this case, Arkansas) would find either (1) that the woman and worker were validly married at the time he died or (2) that the woman would have the same status as his widow for purposes of sharing in his intestate personal property. (A woman who does not meet the requirements of section 216(h)(1)(A) but in good faith went through a marriage ceremony with the worker may, under certain circumstances not present in W's case, qualify as his widow under section 216(h)(1)(B).)

The Arkansas courts could find that H and W were validly married at the time of H's death, notwithstanding W's subsequent marriage, if the first marriage was not terminated before H's death. However, under Arkansas law there is a strong presumption that a subsequent marriage is valid, and the party who questions its validity has the burden of proving its invalidity. See Missouri Pacific Railway Co. v. Harris, 196 Ark. 974, 120 S.W.2d 695. Since W claims to be H's widow, she is in effect attacking the validity of her subsequent marriage. Therefore, in order for W to qualify as H's widow, she must prove the invalidity of her subsequent marriage by clear and decisive evidence.

W was able to show each place where she and H had lived from the time of their separation until H's death and that neither of them had obtained a divorce in any of those places. Such evidence is sufficient to overcome the presumption of the validity of W's subsequent marriage under Arkansas law, and, therefore, establishes that she was still married to H at the time of his death.

Accordingly, it is held that W is entitled to the mother's insurance benefits for which she applied.

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