TN 29 (05-01)

Citations:

Act-Sec. 216(h)(1)(B), Regulations No.4-Sec.404.346-404.347; 404.727

A. Policy — Deemed marriages

The following guidelines apply to deemed marriages.

1. General Policy

For entitlement to spouse's, divorced spouse's, widow(er)'s, surviving divorced spouse's mother's or father's, surviving divorced mother's or father's benefits, or the lump sum death payment (LSDP), a deemed marriage is created when the claimant's marriage to the worker would have been valid except for a legal impediment (as defined in GN 00305.055B.3.). Before 01/91, a deemed marriage did not satisfy the relationship requirement for entitlement as a divorced spouse, surviving divorced spouse or surviving divorced mother or father.

In either period SSA may establish a deemed marriage, provided:

1. The worker and the claimant went through a marriage ceremony (see GN 00305.055B.1.); and

2. The claimant went through the marriage ceremony in good faith with no knowledge, at the time of the ceremony, of any legal impediment that would invalidate the marriage (see GN 00305.055B.3.); and

3. The claimant, except for a divorced claimant, is living in the same household (LISH) with the worker at the time the claimant's application is filed (if the worker is living) or at the time of the worker's death (see RS 00210.035); and

4. The legal impediment which makes the marriage invalid results from the lack of dissolution of a previous marriage, or otherwise arises out of a previous marriage or its dissolution, or a defect in the procedure followed in connection with the purported marriage (see GN 00305.055B.3.).

5. For benefits payable before 01/91, at the time the deemed spouse files there was no living legal spouse who was or had been entitled to wife's, husband's, widow(er)'s, mother's or father's benefits on the worker's earnings record (E/R) and who still had status as a legal spouse (see GN 00305.055A.3.).

2. Conversion Cases

For benefits payable before 01/91, re-establish LISH before converting spouse's benefits to surviving spouse's benefits. For benefits after 12/90 LISH is not a conversion requirement.

3. Effect of Legal Spouse's Entitlement

a. Benefits Payable 01/91 or Later

A legal spouse does not bar entitlement or reentitlement of a deemed spouse.

b. Benefits Payable 12/90 or Earlier

A deemed spouse cannot establish entitlement to monthly benefits if there was a legal spouse who:

• had been awarded benefits as the spouse of the worker; and

• still had that status.

If the legal spouse lost that status, i.e., died, was divorced from the worker, or their marriage was annulled, the deemed spouse may be entitled to benefits. Termination of the legal spouse's entitlement for any other reason, without the subsequent occurrence of one of these three events, will not permit application of the provision.

If the first month of entitlement (MOET) of the legal spouse is after the first month for which the deemed spouse could be entitled, the deemed spouse may become entitled to benefits for months before the first MOET of the legal spouse.

The last month of the deemed spouse's entitlement is the month before the month the award is authorized to the legal spouse even though the legal spouse may be entitled for earlier months. If the first month of the legal spouse's entitlement is later than the month the award is approved, the deemed spouse's entitlement will end with the month before the legal spouse's first MOET.

B. Definitions — Deemed marriages

1. Marriage Ceremony

1. A marriage ceremony may be:

   • Civil

   • Religious;

   • Tribal; or

   • An observance of certain formalities without an actual ceremony after obtaining a marriage license. The parties believed a ceremony had been performed.

2. The mere act of acquiring a marriage license does not constitute a marriage ceremony.

2. Good Faith

The test for determining whether the claimant acted in good faith is:

1. ignorance at the time of the ceremony of any legal impediment, and

2. the claimant's belief at the time of the ceremony that the marriage was valid.

3. Legal Impediment

1. For purposes of the deemed marriage provision, a legal impediment exists:

   • when a prior marriage has not been dissolved; or

   • when an attempted dissolution of a prior marriage is not valid, e.g., a mail order divorce; or

   • if the prior marriage was dissolved, but there was a restriction against remarriage still in effect at the time of remarriage; or

   • if the marriage is invalid because of a procedural defect in connection with the marriage, e.g., a religious marriage in a country that requires a civil ceremony or failure to comply with State licensing requirements. Submit to the RCC any case in which there is doubt about whether a defect is procedural.

2. When the marriage is invalid for reasons under State law other than those listed in a. above, do not apply the deemed marriage provision.

C. Procedure — Deemed marriages

1. General Procedure

Do not determine the legality of a relationship under State law before developing a deemed marriage. Development may be under State law or under the deemed marriage provision, whichever is easier. However, if two people are claiming benefits as the spouse, develop fully to determine who is the legal spouse. To develop a deemed marriage, get the documentation discussed in GN 00305.055C.2. - GN 00305.055C.4.

2. Ceremonial Marriage

1. For a ceremonial marriage, get proof of marriage in accordance with GN 00305.020 - GN 00305.025.

2. If using secondary proof of marriage to establish a deemed marriage, the evidence and statements of the parties must establish that there was a ceremony and that the couple lived together as husband and wife.

3. Good Faith

In good faith situations, get signed statements from all involved parties, e.g., claimant, worker and prior spouse, if possible. Document efforts made in trying to locate a prior spouse if that spouse is not located.

1. Include in the claimant's statement:

   • why, at the time of the ceremony, he/she believed the marriage ceremony was valid;

   • if a prior marriage is involved, whether the claimant knew of it and its invalid dissolution or lack of dissolution; and

   • if there was a restriction on remarriage, the reasons for believing the restriction did not apply.

2. Include in the worker's statement:

   • information similar in nature to the claimant's statement (see a. above), and

   • if the worker's prior marriage was involved, what information was given the claimant about the prior marriage and its dissolution before they went through the marriage ceremony.

3. Include in the prior spouse's statement:

   • information as to whether the claimant knew of the previous marriage or possible termination thereof; and

   • how the prior spouse became aware of the claimant's knowledge.

Based on the information obtained in GN 00305.055C.3.a. - GN 00305.055C.3.c., prepare an informal special determination in doubtful cases summarizing the rationale used to establish the existence or absence of good faith. Consider the claimant's age, education, and experience when determining good faith. Where good faith is not found, affirm that there is no other basis to award benefits.

4. Living In The Same Household (LISH)

a. Both Parties Alive

Unless there is evidence to the contrary, assume the parties are LISH if they use the same address. If there is evidence to the contrary, use the criteria in RS 00210.035 to determine LISH. If they use different addresses, get statements from both parties covering the information outlined in RS 00210.035C.

b. One Party Deceased

Use the criteria in RS 00210.035 to determine LISH.