TN 29 (05-01)

A. Policy — presumption of validity of last marriage — general

1. Marriage presumption

Most States follow a presumption in favor of the validity of the last of two or more conflicting marriages. If the State of the worker's domicile when he/she died or when the claimant filed in a life case has such a presumption, apply it where all the information and evidence supplied still leaves doubt whether a former marriage was terminated.

Reminder: Remember to consider the effect of the presumption where information shows that the NH had a subsequent marriage and the claimant is the spouse from an earlier marriage. If the results of all development leave doubt about whether the former marriage ended and the domiciliary State's presumption is in favor of the latest marriage, benefits may not be payable to the former spouse claimant.

2. Divorce presumption

When a divorce is presumed on the basis of applying the presumption of validity of the last marriage, also presume that the divorce took place on the first day on which the prior spouse's whereabouts are unknown. In those claims in which the duration of marriage is material, the burden of proof is on the claimant to establish that the marriage lasted at least 10 years.

3. Exceptions to marriage presumption

a. Louisiana

Louisiana does not apply a presumption of validity of the last marriage with respect to a party who was in bad faith; in such cases, the burden is upon such party to show the dissolution of a prior marriage.

With respect to a party who was in good faith, does apply a presumption of validity of the last marriage.

b. Nebraska

In Nebraska, the presumption in favor of each of two successive marriages is equal.

c. Ohio

Ohio applies a presumption that the first marriage continues in the absence of conclusive proof that it has terminated.

d. South Carolina

In South Carolina, the presumption in favor of each of two successive marriages is equal.

e. Wisconsin

In Wisconsin, the validity of a marriage is determined by reasonable inferences drawn from all facts and circumstances in a particular case with the burden on the spouse of the last marriage to prove the dissolution of the earlier marriage.

B. Procedure — presumption of validity of last marriage —general

Follow the instructions below to determine the presumption of validity of the last marriage.

1. General Procedure

a. One Claimant

The spouse must submit information which will enable SSA to provide assistance in getting evidence concerning continuation or dissolution of a former marriage.

b. More than one claimant

Each spouse must submit as much information as possible; generally neither spouse has a greater burden than another to prove his/her case.

c. Development

• Exhaust all leads.

• Consult legal precedent opinions in POMS Part 15 (PR) for the involved State.

• If, after complete development, sufficient evidence cannot be obtained to determine if the prior marriage was or was not terminated, apply the presumption applicable in the particular State.

2. Legal opinion

If no precedent opinion exists, follow the procedures in GN 01010.815 for possible submittal to the RCC.

C. References — presumption of validity of last marriage

For examples of how the presumption of the validity of the last marriage applies, see

• SSR 72-61, C.B. 1971-1975, p. 142; and

• SSR 68-63, C.B. 1966-1970, p. 157.