Rescinded on 3/20/96; see 61 FR 11462
SSR 82-43: SECTION 216(h)(1)(A) (42 U.S.C. 416(h)(1)(A)) RELATIONSHIP -- PRESUMPTION OF THE VALIDITY OF THE LAST MARRIAGE
20 CFR 404.345
- The claimant and the worker were ceremonially married in Mississippi in 1929. After separating in 1931, they both had two other marriages. The worker was still married to his third wife and living with her in Kansas when he died in 1967. When the claimant applied for widow's insurance benefits (WIB) on the worker's earnings record, she alleged that she and the worker were never divorced. Although a divorce decree was not found in the known residences of either party, the record contains no evidence of the worker's whereabouts between 1931 when he separated from the claimant and 1954 when he married his third wife. Under section 216(h)(1)(A) of the Social Security Act (the Act), the laws of Kansas apply in determining whether the claimant is the worker's widow. Under Kansas law, where the parties prove more than one marriage of an individual, there is a presumption that the prior marriages were dissolved by death or divorce before the last marriage was contracted. The burden of overcoming that presumption is on the party attacking the validity of the last marriage. Held, if more specific information as to where the worker may have lived from 1931 to 1954 is unobtainable, then, under Kansas law, the presumption of the validity of the worker's latest marriage is not rebutted, and the claimant is not his widow. Further held, if the information is obtained and a search of the divorce records of the places the worker lived fails to reveal evidence of divorce, then, under Kansas law, the presumption of the validity of the worker's latest marriage is rebutted, and the claimant is his widow.
The claimant applied for WIB on the worker's earnings record. they were ceremonially married in Mississippi on January 13, 1929, and they separated in 1931. The claimant stayed in Mississippi, where she ceremonially married her second husband on December 2, 1940. In 1948, they separated, and in 1963, she ceremonially married her third husband in Mississippi. They separated in 1965.
The worker also had two other marriages. His second wife died in 1951, and on July 4, 1954, he ceremonially married his third wife in Topeka, Kansas. he was still married to his third wife and living with her when he died in Kansas in april 1967. They had two children.
The claimant stated that she never obtained a divorce from the worker and that she was never served with divorce papers from him. The divorce records were searched in the known residences of both parties, three counties in Mississippi and one county in Kansas, and no evidence of a divorce was found. The worker's third wife stated that her husband had once done construction work and had moved around a lot. She also indicated in her application for benefits that he worker had only one prior marriage, which ended with the wife's death in 1951. The worker's sister stated that she had not kept in close contact with her brother, but that she knew of at least three wives -- the claimant, the wife who died in 1951, and the wife he married in 1954. She stated that he may have had other wives, and that she did not know if he had ever obtained a divorce.
To determine whether the claimant is the worker's legal widow, the following issues must be resolved:
- Would the State of Kansas look to Mississippi law to determine the validity of the claimant's marriage to the worker? If so, does Kansas apply Mississippi rules of evidence, under which the claimant would be estopped to deny the termination of her marriage to the worker, or would the State of Kansas follow its own evidentiary rules?
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 her prior marriage and attacking the validity of a subsequent marriage of the insured. Therefore, she cannot be found to be the wife of the insured individual under section 216(h)(1)(A) of the Act.
Because the claimant was domiciled in Kansas when he died, section 216(h)(1)(A) of the Act directs that the laws of that State govern in determining whether the claimant is his widow for purposes of entitlement to WIB on his earnings record.
The general rule is that a marriage which complies with the formalities imposed in the State of celebration will be held valid elsewhere. See 52 Am. Jr. 2d Marriage § 80. Thus, Kansas would recognize a marriage validly entered into in Mississippi, but that does not mean that Mississippi law will govern the question of the continuation of that marriage, when one of the parties has left the State and established a domicile in another State. The Social Security Administration (SSA) believes that in circumstances such as those present in this case, a Kansas court would apply Kansas law in determining whether the claimant is the worker's widow. The worker resided in Kansas for at least the last thirteen years of his life. His latest marriage was contracted in Kansas in 1954, and two children were born of that marriage. He was still living with his last wife and his children when he die din 1967.
SSA has found no instances where the courts of Kansas have applied the doctrine of estoppel under the described circumstances. Under Kansas law, however, where the parties prove more than one marriage of an individual, there is a presumption that the prior marriages were dissolved by death or divorce before the last marriage was contracted. See Harper v. DuPree, 185 Kan. 483, 345 P.2d 644 (1959). The presumption is not conclusive, but it is one of the strongest known to the law, and the party attacking the marriage has the burden of proof. The presumption may however be rebutted by evidence that divorce records of the places where the parties lived were searched and failed to reveal evidence of a divorce.
In this case, the divorce records of three counties in Mississippi and one county in Kansas were searched, but no evidence of a divorce between the worker and the claimant was found. The file, however, contains no evidence of the worker's whereabouts between 1931 when he separated from the claimant and 1954 when he married his third wife in Topeka, Kansas. The worker's third wife even indicated that her husband had frequently moved when he was doing construction work. He had also contracted another marriage after 1931 and before 1954, but the file contains no evidence as to when or where that marriage occurred.
If more specific information as to where the worker may have lived from 1931 to 1954 is unobtainable, SSA believes it would be justified in concluding that a Kansas court would find that the presumption of the validity of the latest marriage has not been rebutted, and that the claimant is not the worker's widow. If the information is obtained and a search of the divorce records of the places the worker lived fails to reveal evidence of a divorce, SSA believes it would be justified in concluding that the presumption of the validity of the latest marriage has been rebutted, and that the claimant is the worker's widow.
 Kansas courts have applied the doctrine of estoppel where one or both parties to a marriage have obtained an invalid divorce. In those cases, it has been held that the parties are estopped to deny the validity of the divorce decree to challenge a subsequent marriage of one of the spouses. See Perrenoud v. Perrenoud, 480 P.2d 749 (Kan. 1971).