SSR 83-40: SECTION 216(h)(1) (42 U.S.C. 416(h)(1)) WIDOW'S INSURANCE BENEFITS -- VALIDITY OF MARRIAGE AFTER REMOVAL OF IMPEDIMENT -- ILLINOIS
20 CFR 404.335, 404.345, and 404.346
SSR 83-40
- When R married the worker in Illinois in June 1944, she believed that her prior husband, from whom she had separated in 1938, had divorced her. Upon learning that he had not secured a divorce, R divorced him in Illinois in October 1945. The worker and R separated in 1965. When the worker died in Illinois in August 1980, R applied for widow's insurance benefits (WIB) on his earnings record. The evidence of record showed that the worker had married S in Illinois in March 1977. He later applied for old-age insurance benefits (OAIB), and S and her child by the worker have been entitled to Social Security benefits on his earnings record since 1978. Although the worker had indicated, when he applied for OAIB, that he and R had divorced in Illinois in 1952, no evidence of their divorce was located despite a thorough search of Illinois divorce records for the years 1944 through 1980. Paragraph 212(b) of the Illinois Marriage and Dissolution of Marriage Act of 1977 provides that a marriage prohibited because it was entered into before the dissolution of an earlier marriage of one of the parties becomes valid when the impediment is removed and the parties continue to cohabit after removal of the impediment. The worker and R, however, did not cohabit at any time after the October 1, 1977, effective date of that act. Consequently, their marriage was not validated under the provisions in paragraph 212(b). Paragraph 305 of the Marriage and Dissolution of Marriage Act of 1977 provides that a person who goes through a marriage ceremony and cohabits with another person in the good faith belief that he or she is validly married to that person is a putative spouse and acquires all the rights of a legal spouse until knowledge of the fact that he or she is not legally married terminates such status and prevents the acquisition of further rights. In this case, R's belief in the validity of her marriage to the worker was terminated in 1945 when she discovered that her earlier marriage had not be dissolved. Consequently, R was not the worker's putative spouse under the provisions in paragraph 305. In addition, R and the worker could not have been deemed to be married under section 216(h)(1)(B) of the Social Security Act (the Act) because she and the worker were not living in the same household at the time of his death. Held, R was not entitled to WIB on the worker's earnings record because she was not his widow under either Federal or State law. Further held, since the worker and R wee not validly married, S is entitled to WIB on the worker's earnings record as his legal widow.
A question has been raised as to whether R or S is entitled to WIB on the worker's earnings record as either a legal widow or a putative spouse.
R and the worker were married on June 10, 1944, in Cook County, Illinois. They separated in 1965, and the worker died in Cook County on August 10, 1980. When R applied for WIB on the worker's earnings record on August 26, 1980, she asserted that from the time of their marriage until his death, both she and the worker had lived only in Cook County. R also indicated that her prior marriage, which had occurred in 1936, had ended in divorce in 1938. She later stated that, before her marriage to the worker, her prior husband had told her that he had divorced her, although R's statements are in conflict as to the year (in one case 1938, in another case 1941) he indicated he had obtained the divorce. Upon learning from her prior husband's mother that he had not obtained a divorce, R divorced him in Cook County, Illinois, on October 29, 1945. R later learned from her prior husband's sister that he had finally divorced her in 1950. A limited search of Cook County records for the years 1938 to 1944 indicated no divorce between R and her prior husband, although his exact whereabouts during that period are not clear. R further stated that she had married the worker in good faith and was aware of no divorce or annulment between them.
The evidence of record showed that the worker and S had a ceremonial marriage in Chicago, Illinois, on March 26, 1977. Although the worker had indicated, when he applied for OAIB on July 9, 1979, that he had divorced R in Chicago, Illinois, in 1952, no evidence of their divorce or annulment was located despite a through search of Illinois divorce records for the years 1944 through 1980. S indicated that when she married the worker she believed his prior marriage to R had been terminated by divorce, although she did not know where or when the divorce had occurred. S and her child by the worker have been entitled to Social Security benefits on the worker's earnings record since 1978.
The Illinois Marriage and Dissolution of Marriage Act of 1977 became effective on October 1, 1977. Paragraph 212(b) of that act provides that a marriage prohibited because it was entered into prior to the dissolution of an earlier marriage of one of the parties becomes valid when the impediment is removed and the parties continue to cohabit after removal of the impediment. Paragraph 801 provides that the act is applicable to all proceedings pending on or commenced after its effective date. In the only published case on the applicability of paragraph 212(b), the Illinois Appellate Court applied that provision to validate a 1974 marriage where the impediment was removed in December 1977 and the parties continued to cohabit until December 1978. Estate of Schisler, 401 N.E.2d 301 (1980). Validation of such marriages is entirely proper, since it would be inappropriate to require the parties to resolemnize their marriages as mandated under prior Illinois law. In the present case, however, it must be determined whether paragraph 212(b) validated a 1944 marriage, where the impediment was removed in 1945 and the parties ceased cohabiting in 1965 at the latest. The commentary accompanying paragraph 212(b) indicates that the provision was not intended to apply retroactively. It states that --
- Former Illinois law contained no provision for establishing a lawful marriage on the basis of a marriage that was void at its inception. The parties were required to resolemnize their marriage after the impediment was removed. For example, if at the time that a marriage was contracted one of the parties continued to be a party to a prior valid marriage, then the second marriage was void from its inception. The subsequent death of the prior spouse or the procurement of a divorce from the prior spouse did not, in itself, serve to legitimate the second marriage. Resolemnization of the second marriage was required. See Schmisseur v. Beatrie, 147 III. 210, 35 N.E. 525 (1892). Under subsection (b), resolemnization is no longer required. Parties to a prohibited marriage need only cohabit after the removal of the impediment to be lawfully married.
In the absence of Illinois case law to the contrary, it is concluded that paragraph 212(b) does not validate marriages contracted prior to October 1, 1977, where the impediment to the marriage was removed prior to that date and the parties no longer cohabited after that date. Accordingly, paragraph 212(b) does not validate R's 1944 marriage to the worker.[1] Since R and the worker did not resolemnize their marriage following removal of the impediment in 1945, as required under former Illinois law, R was not the legal wife of the worker.
There is also a question of whether, for purposes of entitlement, R may be considered a "deemed" or "putative" spouse under Federal or State law. Section 216(h)(1)(B) of the Act provides that an individual who marries a worker in the good faith belief that he or she is validly married to the worker, and who is living with the worker at the time of the latter's death, is deemed to have been validly married to the worker. This provision is inapplicable in the present case since R was not living with the worker at the time of his death.
Paragraph 305 of the Illinois Marriage and Dissolution of Marriage Act of 1977 provides that a person who goes through a marriage ceremony and cohabits with another person in the good faith belief that he or she is validly married to that person is a putative spouse and acquires all the rights of a legal spouse (including the right to inherit) until knowledge of the fact that he or she is not legally married terminates such status and prevents the acquisition of further rights. If R meets the criteria of this provision, then she would be entitled to WIB since section 216(h)(1)(A) of the Act provides that an applicant is the widow of a deceased worker if she was validly married to him under State law or if she has the same rights as a widow to inherit personal property under State law. In the present case, even assuming that R entered into her 1944 marriage to the worker in the good faith belief that he prior marriage had been dissolved (and that is unclear), her discovery in 1945 that her earlier marriage had not been dissolved terminated that belief. As the commentary to paragraph 305 indicated, prior Illinois law conferred no spousal rights upon parties to an invalid marriage. Thus, it is concluded that paragraph 305 is inapplicable to the present case. The possibility that R subsequently, as a result of her 1945 divorce from her prior husband, believed that she was married to the worker (assuming such belief continued until the worker's death in 1980) was not considered to be relevant. R's discovery in 1944 that she was not validly married to the worker prevented the acquisition of any further rights under paragraph 305, even assuming that provision is applicable to the present case.[2]
In any event, it is doubtful whether R had a good faith belief that she was validly married to the worker following her divorce in 1945 from her prior husband. The file indicated that R was represented by an attorney during that proceeding. Accordingly, she would ordinarily be expected to inquire as to what, if any, further steps were necessary to validate her marriage tot he worker. As noted above, Illinois law at the time required resolemnization of the marriage. Especially considering that she obtained a divorce soon after discovering that her prior marriage had not been dissolved, R is not considered to have had a good faith belief that she was validly married to the worker solely by virtue of the 1945 divorce.
It is concluded, that R was not the legal wife of the worker under Illinois law, nor may she qualify for benefits as a "deemed" or "putative" spouse of the worker. Because R was not the legal wife of the worker, it is unnecessary to consider whether S was a putative spouse. It is concluded that S is entitled to WIB on the workers earnings record as his legal widow under Illinois law.
[1] It is not implied that any particular period of cohabitation is required to invoke the provisions of paragraph 212(b). In Estate of Schisler, 401 N.E.2d 301, 303 (1980), the Illinois Appellate Court held that because the statute mentions no length of time, "even one night of cohabitation" is sufficient to invoke its provisions. In the present case, the issue is when the cohabitation took place, not for how long.
[2] Unlike paragraph 212, paragraph 305 does not validate a prohibited marriage, but only confers a status of putative spouse upon an individual so long as the individual maintains a good faith belief in the validity of the marriage. In this case, R discovered in 1945 that her marriage to the worker was not valid. Thus, it is not believed that paragraph 305, unlike paragraph 212, necessarily requires cohabitation subsequent to October 1, 1977, so long as a good faith belief in the validity of the marriage is maintained subsequent to that date.