SSR 71-55: SECTIONS 216(h)(1)(A) and (B) (42 U.S.C. 416(h)(1)(A) AND (B)). -- RELATIONSHIP -- ENTITLEMENT BY CLAIMANTS AS SPOUSE OF DEEMED MARRIAGE AND AS LEGAL WIDOW

20 CFR 404.1101 and 1104

SSR 71-55

When worker abandoned wife and ceremonially married another woman with whom he resided in Florida until his death and where latter woman, disclaiming all knowledge of worker's prior marriage, became entitled to widow's insurance benefits and received payments until her death; where there is a rebuttable presumption of validity of the latest of a worker's "marriages" under law of worker's domicile, i.e., Florida, and where, later, worker's first spouse applied for benefits as his legal widow and search of divorce records of all places in which worker had resided disclosed no record of divorce from his first wife and evidence indicated she had never obtained divorce from him, held, worker's purported second marriage must be considered "valid marriage" for purposes of entitlement to widow's benefits, pursuant to section 216(h)(1)(B) of Act, until terminated by purported spouse's death or subsequent entitlement of worker's legal widow and further held, spouse of first marriage, having overcome legal presumption of validity of worker's latest "marriage," became entitled to benefits as worker's legal widow under section 216(h)(1)(A) of Act.

In June 1949, the worker, R, and L were ceremonially married and live together until his death in Florida in August 1958. R's application for a marriage license in Florida indicated a prior divorce in 1945 in Savannah, Georgia, but did not identify the wife. L became entitled to widow's insurance benefits beginning December 1965. She indicated on her application for benefits a lack of knowledge of any prior marriage of R but thought he had two children. L died in September 1970.

R was ceremonially married previously to W in May 1942 in Georgia. They separated permanently in 1946, R residing thereafter in Florida. Upon attaining retirement age, W applied for widow's insurance benefits as R's widow. Her application was denied and W thereafter appealed, alleging that her marriage to R had never been dissolved, and she had received no notification of a contemplated divorce. She maintained, therefore, that she was still validly married to him. L died prior to a decision on W's appeal.

Divorce records of all counties in Florida and Georgia in which R had resided, including the place of divorce alleged by R, were checked but no record was found. In addition, evidence was submitted showing that W did not obtain a divorce from R.

The issue to be decided is whether the marriage between R and W was still in effect at the time of R's death.

Section 216(h)(1)(A) and (B) (42 U.S.C. 416(h)(1)(A) and (B)) provides, in pertinent part, that:

(A) An applicant is the . . . widow . . . of a fully or currently insured individual for purposes of this title if the courts of the State in which such insured individual . . . if . . . dead, . . . was domiciled at the time of death . . . would find that such applicant and such individual were validly married at the time . . . such insured individual . . . died.

(B) In any case where under subparagraph (A) an applicant is not . . . the widow . . . of a fully or currently insured individual, . . . but it is established to the satisfaction of the Secretary that such applicant in good faith went through a marriage ceremony with such individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage, and such applicant and the insured individual were living in the same household at the time of the death of such insured individual . . ., then, for purposes of subparagraph (A) . . ., such purported marriage shall be deemed to be a valid marriage. The provisions of the preceding sentence shall not apply (i) if another person is or has been entitled to a benefit under subsection . . . (e) . . .of section 202 on the basis of the wages and self-employment income of such insured individual and such other person is (or is deemed to be) a . . . widow . . . of such insured individual under subparagraph (A) at the time such applicant files the application . . . (Emphasis supplied.)

Under Florida law, a presumption exists in favor of the validity of the last marriage and is referred to as one of the strongest known to the law. However, this presumption of validity can be overcome by evidence that no divorce had in fact been granted. King v. Keller, 117 So. 2d 726 (Fla. 1960), and cases cited therein. In discussing the type and form of evidence required in such a situation, the court stated that it is enough if a search of the court records in the States where the husband had resided reveals no record of a divorce and when weighed collectively, the evidence establishes that there can be no reasonable probability that the husband secured a divorce.

The record contains convincing evidence that the marriage between R and W (the first wife) was not dissolved prior to R's death. W has submitted evidence that she did not divorce him. In addition, the Social Security Administration made an exhaustive search of records in places where R was known to have lived, with negative results. It is this type of evidence which the Florida court states is sufficient to establish the absence of any reasonable probability that R has obtained a divorce. The King v. Keller case, supra, cited with approval language in Johnson v. Johnson, 518 So.2d 421 (Fla. 1951):

* * * The first wife should not be required to account for the movements and whereabouts of her errant husband for every moment of the period of time which elapsed between his desertion of her and his death. It is sufficient if the evidence when weighed collectively establishes that there could be no reasonable probability that the husband secured a divorce.

The evidence shows that W entered into a ceremonial marriage with R in 1942 and that the marriage continued until R's death. Specifically, both W and the Administration made an exhaustive search to determine whether a divorce had been obtained, and no such record was discovered. Hence, W successfully discharged the burden of establishing that her marriage had not terminated. Under these circumstances, her marriage was still in effect at the time of R's marriage to L (the second wife) in 1949. Since R was not free to marry as Florida law requires, his purported marriage to L was invalid. The same evidence which established that R was not free to marry L is sufficient to rebut the presumption of the validity of that marriage under Florida law.

With respect to the status of the second wife, the evidence of record shows an allegation by the worker made in 1949 that he was divorced in 1945; that L stated she did not know of R's prior marriage, nor had she any knowledge that he was previously married. The evidence further showed that R and L went through a ceremonial marriage and that at the time of R's death, R and L were living in the same household. It was determined that L entered into the ceremonial marriage in good faith and without knowledge of any prior legal impediment. L's good faith ceremonial marriage and her sharing the same household with R at the time of his death warranted considering her purported marriage to R a valid marriage pursuant to section 216(h)(1)(B) of the Act. Thus, L was also R's widow for purposes of the Social Security Act and entitled to widow's insurance benefits subject to the termination provisions of section 216(h)(1)(B) upon the subsequent entitlement of W to widow's benefits under section 216(h)(1)(A) of the Act.

Accordingly, in the absence of any termination of the valid ceremonial marriage between R and W prior to R's death, held, W's marriage is valid under Florida law, and as R's legal widow, she is entitled to widow's insurance benefits based on her application. Further held, the purported marriage of R and L is deemed a valid marriage under section 216(h)(1)(B) of the Act for purposes of entitlement under section 202(e) to widow's benefits, and L was properly paid benefits until her death, which occurred prior to W's entitlement.

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