20 CFR 404.1101 and 404.1104
In March 1936 the claimant, W, married a man who had a son, T, by a former marriage. W's husband died in 1944. In May 1955, W married her stepson, T, in the State of Virginia. At the time, W and T were residents of North Carolina, to which State they returned immediately after the marriage ceremony. W's marriage to T continued until August 1965, when T died domiciled in North Carolina. In September 1965, W filed application for widow's insurance benefits on T's earnings record.
The question is whether W is entitled to such benefits. This depends on whether she qualifies as T's widow under section 216(h)(1) of the Social Security Act, i.e., whether the courts of North Carolina would recognize a marriage celebrated in the State of Virginia between a stepson and his stepmother. All other requirements for entitlement are met.
Since T was domiciled in North Carolina at the time of his death, W's status must be determined under the law of that State. 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 would find that the woman and the worker were validly married at the time he died.
The courts of North Carolina follow the general rule that the legal effect of a marriage is determined by the law of the place where the marriage is celebrated and they would recognize a marriage as valid in North Carolina if valid in the State where contracted, unless such marriage is contrary to a strong public policy of the State of North Carolina. (State v. Ross, 76 N.C. 242, 22 Am. Rep. 678 (1877); see also, Lee, North Carolina Family Law, p. 11 (1955).)
Turning to the laws of Virginia, the place of the marriage, it will be noted that section 20-38, Code of Virginia, provides in pertinent part:
In addition, section 20-45, Code of Virginia, as in effect when the worker married W, provided in pertinent part as follows:
The Supreme Court of Appeals of Virginia has held that where one of the parties to a marriage is insane at the time the marriage is celebrated, it is merely voidable, not void, since the statute from which § 20-45 of the Code of Virginia is derived, provided that such marriages shall be void from the time they are so declared by a court decree. Cornwall v. Cornwall, 160 Va, 183, 168 S .E. 439 (1933). The court noted that such marriages remained valid until declared void by a court decree. The reasoning of the court in the Cornwall case would appear equally applicable to a marriage between an individual and his stepmother, and such a marriage would be valid until declared void by a court decree or until a conviction under the criminal penalties of § 20-40 of the Code of Virginia.
There is no evidence that the marriage between T and W was judicially declared to be a nullity before T died or that either party was ever convicted under the penalties of § 20-40 of the Code of Virginia. Therefore, it may be found that under North Carolina law W was married to T when he died and that the courts of North Carolina would find the marriage in Virginia to have continuing legal effect as a voidable, but unannulled marriage. North Carolina law does not prohibit the marriage of persons who are related only by affinity. Section 51-3 N.C. Gen. Stats.
Accordingly, it is held, that, under section 216(h)(1)(A) of the Act, W is the widow of T and is entitled to widow's insurance benefits on his earnings record.
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