TN 19 (12-17)

A. PR 18-013 Validity of Purported Second Marriage and its Effect on Claimant’s Eligibility for WIB as a Surviving Divorced Wife

Date: October 27, 2017

1. Syllabus

The number holder (NH) was a resident of South Carolina when he died; therefore, we look to the South Carolina law to determine if the Claimant is the NH’s widow. The Claimant provided a South Carolina Marriage License and Report of Divorce showing that she was married to NH from July 1966 to January 1981. This evidence shows that the Claimant and the NH were validly married for more than ten years before their divorce became final. The Claimant also provided evidence that she was married in New York in August 1979, but she stated that she believed the marriage was not legal because she was still married to NH at the time. South Carolina and New York deems marriages contracted while either of the parties has a former husband or wife still living and the first marriage with the former spouse had not been annulled or dissolved at the time of remarriage absolutely void. The Claimant’s purported marriage was void under the South Carolina and New York law and would not affect the Claimant’s eligibility for Widow’s Insurance Benefits (WIB) on NH’s earnings record as his surviving divorced spouse.

2. Opinion

QUESTION

You asked whether the claimant’s purported marriage to a third party is valid for determining the claimant’s eligibility for widow’s insurance benefits (WIB) as the surviving divorced wife on the number holder’s earnings record.

OPINION

The claimant’s marriage to the third party is void and would not preclude her eligibility for WIB as the number holder’s surviving divorced wife.

BACKGROUND

According to the information provided, in May 2017, G~ (Claimant) applied for WIB on the earnings record of O~, the number holder (NH), alleging that she was his surviving divorced wife. Claimant presented a marriage license and certificate showing she married NH in July 1966 in G2~, South Carolina. A Report of Divorce or Annulment of Marriage (Report of Divorce) from the South Carolina Department of Health and Environmental Control provides that a divorce decree was granted to NH in January 1981. NH died on April XX, 2003, in South Carolina.

On her application, Claimant also stated that she married L~ in August 1979, but that she believes the marriage was not legal because she was still married to NH at the time. She presented a State of New York Marriage license or certificate stating that she married L~ in N~, New York, on August XX, 1979. Claimant presented no evidence showing that she divorced L~.

DISCUSSION

A claimant may be eligible for WIB if the claimant is the surviving divorced wife of an individual who died fully insured and she was validly married to the insured individual for at least ten (10) years before the divorce became final. See Social Security Act (Act) §§ 202(e)(1), 216(d)(2); 20 C.F.R. § 404.336(a) (2017);¹ Program Operations Manual System (POMS) RS 00207.001A.2.a. A claimant may qualify as the surviving divorced wife of an insured individual if the courts of the state in which the insured individual was domiciled at the time of death would find the claimant and insured individual were validly married when the insured individual died. See Act § 216(h)(1)(A)(i); 20 C.F.R. §§ 404.336(a)(1), 404.345; POMS RS 00207.001A.1.a, A.2.a.; POMS GN 00305.001A.2.a.

NH was a resident of South Carolina when he died. Claimant presented a South Carolina Marriage License and Report of Divorce showing that she was married to NH from July 1966 to January 1981. See POMS RS 00207.006D.1 (providing that while a divorce decree, a certified copy, or an abstract certification is always required, generally the validity of a divorce will not be questioned). Thus, the evidence shows that Claimant and NH were validly married for more than ten years before their divorce became final.

Generally, a surviving divorced wife also must be unmarried to be eligible for WIB.² See Act § 202(e)(1)(A); 20 C.F.R. § 404.336(e); POMS RS 00207.001A.2.b.3; POMS RS 00207.003A. A New York marriage license or certificate states that Claimant married L~ in August 1979. However, both New York and South Carolina would deem Claimant’s marriage to L~ void.³ South Carolina deems marriages contracted while either of the parties has a former husband or wife still living void. See S.C. Code Ann. § 20-1-80 (West 2017);⁴ Lukich v. Lukich, 666 S.E.2d 906, 907 (S.C. 2008) (holding bigamous marriage was void at its inception). Likewise, New York deems marriages contracted while either of the parties has a former spouse still living and the first marriage with the former spouse had not been annulled or dissolved at the time of remarriage absolutely void. See N.Y. Domestic Relations Law § 6 (McKinney 2017). Because Claimant was still married to NH at the time of her 1979 marriage to L~, her marriage to L~ was void at the time of its inception. See S.C. Code Ann. § 20-1-80; N.Y. Domestic Relations Law § 6; Lukich, 666 S.E.2d at 907. A remarriage that is void does not preclude entitlement to WIB. See POMS RS 00207.003C; see also POMS GN 00305.125B.1 (stating “[a] void marriage does not preclude initial entitlement to benefits of claimants who must not be married”).

Nor would Claimant’s conduct in marrying L~ estop her from being entitled to WIB on NH’s record as his surviving divorced wife. Estoppel is “a term applied to a situation where, because of something which he/she has done or omitted to do, a party is denied the right to plead or prove an otherwise important fact.” POMS GN ATL00305.175C. Generally, the principal of estoppel could be applied to prevent a party to a divorce from denying its validity if he or she remarried after the purported divorce. See POMS GN 00305.175A.1, 2.c; POMS GN ATL00305.175B. Claimant, however, did not seek or obtain a divorce, valid or not, from NH before she married L~. Rather, her divorce from NH did not occur until 1981 after her marriage to L~.

We also could not find any South Carolina cases applying the principle of estoppel where the parties to a marriage separated without obtaining a divorce or other similar judgment and one spouse remarried. See POMS GN 00305.175A.1 (providing that Mississippi and North Carolina are the only states that recognize the concept of estoppel based on a separation rather than a divorce action); Scheper v. Scheper 118 S.E. 178, 181, 183-85 (S.C. 1923) (declining to consider whether conduct including remarriage after separation was sufficient to create an estoppel, but finding conduct reinforced conclusion that North Carolina judgment granting divorce a mensa et thoro that included termination of property rights effectively estopped husband from asserting any property right on deceased wife’s estate). In any event, even in states that do recognize estoppel based on a separation and subsequent remarriage, the agency’s policy is to recognize the estopped spouse as the legal spouse of the number holder for claims adjudicated on or after May 23, 2000. See POMS GN 00305.175A.1. Moreover, Claimant was married to NH for over ten years before her purported marriage to L and, thus, even if South Carolina were to estop her from claiming certain marital and inheritance rights, this purported estoppel would not invalidate her marriage to NH. See POMS GN 00305.180D.

CONCLUSION

Claimant’s purported marriage to L~ was void under South Carolina and New York law and would not affect Claimant’s eligibility for WIB on NH’s earnings record as his surviving divorced spouse.

Footnotes:

[1]

^. All references to the Code of Federal Regulations are to the 2017 edition.

[2]

^. The Act provides exceptions to the requirement that a surviving divorce spouse not be married to be eligible for WIB, see Act § 202(e)(3); 20 C.F.R. § 404.336(e); POMS RS 00207.001A.2.b.3; POMS RS 00207.003A, but the exceptions are irrelevant in this case because, as discussed below, Claimant’s purported marriage to L~ was void.

[3]

^. The statutory and regulatory law and the agency’s POMS do not provide definitive guidance on whether we would look to the law of the NH’s domicile or the law where the second marriage purportedly occurred to determine if Claimant’s marriage to L~ was valid. In any event, as discussed above, both South Carolina and New York would deem Claimant’s marriage to L~ void. All conclusions in the opinion related to New York law are based on advice from the Office of the Regional Chief Counsel for Region II.

[4]

^. The exceptions in the South Carolina statute are not implicated here. There is no indication that NH had been absent for five years or that Claimant had no knowledge that NH was still living when she married L~. See S.C. Code Ann. § 20-1-80. Claimant was also not divorced from NH when she married L~ and nothing indicates that a court had declared her marriage to NH void. See id.