TN 17 (11-17)

A. PR 18-001 Entitlement to Surviving Spouse Benefits – Overlapping Marriages

Date: October 2, 2017

1. Syllabus

The deceased wage earner (DWE) died domiciled in Arizona; therefore, we apply the Arizona law to determine if the claimant is the DWE’s widow. The claimant married the DWE in Mexico in August 1969. Arizona recognizes marriages validly conducted in another place unless strong public policy exceptions require otherwise. The DWE and claimant’s marriage in Mexico appears valid under Mexico Law and thus, Arizona would recognize it as valid.

The claimant subsequently married someone else in Mexico in 1979. Under the Arizona law, absent evidence that claimant divorced the DWE, the claimant’s subsequent marriage was void and the claimant remained validly married to the DWE until the date of his death. The claimant is entitled to widow’s benefits based on the DWE’s record.

2. Opinion

QUESTION

You asked whether Claimant N~ (Claimant) is entitled to widow’s benefits on the record of her first husband, deceased wage earner L~ (DWE), where Claimant never divorced the DWE but married someone else prior to the DWE’s death.

SHORT ANSWER

Yes. Under Arizona law, because Claimant never divorced the DWE, she remained validly married to him until his death. Her second marriage was void. Accordingly, Claimant is entitled to widow’s benefits on the DWE’s account.

SUMMARY OF EVIDENCE

According to a Report of Contact from the agency’s Federal Benefits Unit (FBU) in J~, Mexico, Claimant had a son with M~ (M~) in February 1968.

On August XX, 1969, Claimant married the DWE in C~, Mexico. She and the DWE lived in Arizona for six years. According to the Office of Inspector General’s (OIG) memo, the couple had two sons.¹

In November 1975, the DWE applied for retirement benefits and Claimant applied for wife’s benefits with a child in care. The agency awarded wife’s benefits to Claimant effective January 1975.

Six years into their marriage, Claimant moved to Mexico. She married M~ on March XX, 1979 in C~, Mexico. The couple had two children born in May 1979 and in April 1983.

On December XX, 1997, the DWE passed away in P~, Arizona. On March XX, 2010, Claimant applied for widow’s benefits on the DWE’s earnings record. The agency granted her benefits as of March 2010.

In June 2016, an unknown individual reported that Claimant had concealed her marriage to M~ from the agency. During an OIG interview, Claimant admitted that she married the DWE, lived with him six years, moved to Mexico, and then married M~ about four years later.

The field office confirmed for us that the FBU searched for all vital records (marriages and divorces) for Claimant in Mexico. The field office also searched in Arizona for a divorce record for Claimant and the DWE and found none.

ANALYSIS

Under the Social Security Act (Act), the widow of an insured individual is entitled to widow’s insurance benefits if she applies for such benefits, meets the age and/or disability requirements set forth in the Act, and is not married. Social Security Act § 202(e); 42 U.S.C. § 402(e); see also 20 C.F.R. § 404.335 (requirements for widow’s benefits); Program Operations Manual System (POMS) RS 00207.001 (definitions and requirements for widow’s benefits).²

To determine a claimant’s status as the widow of an insured person under the Act, the agency must consider whether the courts of the State where the insured was domiciled would find that the claimant and the insured were validly married at the time of the insured’s death. See Social Security Act § 216(h)(1)(A), 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. §§ 404.344, 404.345. The marital relationship between a claimant and the insured must have lasted for at least 9 months immediately before the insured died. 20 C.F.R. § 404.335(a)(1).

Since the DWE died domiciled in Arizona, we apply Arizona law.

The threshold question is whether Arizona would recognize Claimant and the DWE’s marriage in Mexico as valid. Arizona recognizes marriages validly conducted in another place unless strong public policy exceptions require otherwise. Arizona Revised Statute (A.R.S.) § 25-112; Donlann v. MacGurn, 203 Ariz. 380, 383, 55 P.3d 74, 77 (Ct. App. 2002). Under Mexico law, parties must go through a civil ceremony to validate a marriage. See POMS PR 05630.238 (Mexico is a civil law marriage country). In August, 1969, Claimant and the DWE had a civil ceremony and obtained a marriage certificate from the Civil Register in C~, Mexico. See POMS GN 00307.673 (Sensitive – Special Instructions for Certain Mexican Civil and Religious Certificates) (C~ documents are not listed as documents that SSA must not accept at face value). As such, their marriage in Mexico appears valid under Mexico Law and thus, Arizona would recognize it as valid.³

The next issues are whether Claimant’s subsequent marriage to M~ was void ab initio (void from its inception) because Claimant never divorced the DWE, or whether Claimant’s subsequent marriage to M~ invalidated her first marriage to the DWE.

In Arizona, there is a strong public policy against bigamous marriage. Ariz. Const. Art. 20, Para. 2; In re Estate of Rodriguez, 215 Ariz. 358, 362, 160 P.3d 679, 683 (Ct. App. 2007); see also State v. Bogan, 183 Ariz. 506, 905 P2d 515 (Ct. App. 1995) (finding that a second marriage was invalid because it was bigamous and “bigamous marriages are void ab initio”) (citing Depper v. Depper, 9 Ariz. App. 245, 247, 451 P.2d 325, 327 (Ct. Ap. 1969) (“[W]here two individuals enter into a marriage, and where one of them, or both, has a spouse then living and from whom no divorce has been obtained, then the subsequent marriage is void, a nullity”).

However, Arizona also recognizes a presumption that a subsequent marriage is valid unless rebutted. In Kolombatovich v. Magma Copper Co., 43 Ariz. 314, 318, 30 P.2d 832, 834 (1934), the Arizona Supreme Court held that “when one contracts a second marriage during the lifetime of the first spouse, the presumption that the first marriage was legally dissolved prevails and the one who asserts that the second marriage is invalid has the burden of showing that there has been no divorce.” Kolombatovich, 43 Ariz. at 318. The court noted that “in the case of conflicting marriages of the same spouse, the presumption of validity operates in favor of the second marriage.” Id. at 319 (internal quotations omitted).

In Re Milliman’s Estate, 101 Ariz. 54, 58-59, 415 P.2d 877 (1966), the Arizona Supreme Court explained that, while the presumption that the first marriage is dissolved is “powerful,” the rebutting evidence need not be conclusive. If the evidence is sufficient to show that the first marriage did not end by divorce, the second marriage was “void ab initio”. See id.

Claimant married M~ and lived with him in Mexico while the DWE continued to live in Arizona. Claimant does not allege that she believed the DWE died prior to her marriage to M~, or that she thought she was divorced from the DWE prior to marrying M~. Furthermore, the field office and FBU searched and found no record of Claimant’s divorce from the DWE in Arizona or in Mexico. Based on the relevant case law and public policy disfavoring bigamous marriages, an Arizona court would likely conclude Claimant’s subsequent marriage to M~ was void ab initio. Any presumption in favor of the validity of the second marriage was rebutted by Claimant’s own reports and reports from the FBU and the field office that no record exists of a divorce between Claimant and the DWE.

Therefore, under Arizona law, absent evidence that Claimant divorced the DWE, Claimant’s marriage to M~ was void, and Claimant remained validly married to the DWE until the date of his death.⁴

CONCLUSION

Claimant is entitled to widow’s benefits based on the DWE’s record because her second marriage to M~ was void from its inception, and she remained validly married to the DWE under Arizona law.

Footnotes:

[1]

^. According to the OIG memo, Claimant married DWE and had two children with him. OIG also reported Claimant married M~ and had two children with him. OIG did not mention that she apparently had a child with M~ before marrying the DWE. While OIG’s memo is not necessarily inconsistent with the FBU’s report of contact, the FBU provided more factual detail in its report.

[2]

^. We are not addressing whether Claimant meets the other requirements for entitlement if her marriage to the DWE was still valid at the time of his death.

[3]

^. Indeed, the agency already recognized the marriage between Claimant and the DWE as valid when it granted her wife’s benefits with a child in care in 1975.

[4]

^. Because Claimant’s 1979 marriage to M~ was void, that marriage does not preclude current entitlement. 20 C.F.R. § 404.335(e). The evidence does not indicate whether she married M~ again after the DWE died in 1997. If she did re-marry that might affect her entitlement, depending on whether she met an exception. See 20 C.F.R. § 404.335(e)(1)-(3).