TN 29 (05-01)

A. Policy - domicile in california

1. General

If the worker was domiciled in California at the time of death, or when the subsequent spouse's application (in a life case) was filed, the heirs of the worker are estopped if the worker is estopped. The claimant, in this situation, will qualify as a wife, husband, widow, or widower under section 216(h)(1)(A) of the SS Act where:

a. For the worker:

• The prior divorce of the worker is at issue, and

• The worker is estopped, and

• The prior spouse of the worker is estopped, or has been validly divorced, or has died; or

b. For the claimant-spouse:

• The prior divorce of the claimant-spouse is at issue;

• The worker is estopped because he/she knew the circumstances of the prior divorce and married the claimant in reliance on the divorce, or assisted the claimant in securing the divorce; and

• The claimant's prior spouse in the divorce action is not an heir of the worker or, if the prior spouse is an heir, is estopped or has died.

2. Determining the Period the Claimant Was Married to the Worker

Use as the date of marriage that date on or after the actual date of the invalid marriage as of which there was no one in existence who could challenge the validity of the prior divorce.

3. (Surviving) Divorced Spouse's Benefits

See GN 00305.180C.2.

B. Policy - domicile in minnesota, montana, south carolina, virginia or washingtoN

1. General Policy

If the worker was domiciled in one of these States at the time of death or when the spouse's application (in a life case) was filed, and the parties to the divorce are estopped, the second spouse is given the right to inherit the worker's intestate personal property (the alternative to valid marriage under section 216(h)(1)(A) of the SS Act) and may qualify as a wife, husband, widow, or widower.

2. (Surviving) Divorced - Spouse's Benefits

See GN 00305.180C.2.

C. Policy - domicile not in california, minnesota, montana, south carolina, virginia or washington

1. General

Where the worker or claimant remarried after an invalid divorce, the fact that he/she and the first spouse are estopped to deny the validity of the divorce does not make the second marriage (the remarriage) valid. The validity of the subsequent marriage after an invalid divorce is a question of State law. In some States, the spouse of the second marriage may be treated as a wife, husband, widow, or widower for inheritance test purposes only if there are no next of kin of the worker who can contest the status of the spouse. Assume, in the absence of any indication to the contrary, that there are such next of kin.

2. (Surviving ) Divorced Spouse's Benefits

If the claimant is estopped to assert the invalidity of a divorce from the worker and thus is precluded from being considered the worker's spouse, consider such a divorce (for Social Security purposes only) a final divorce and the claimant the worker's divorced spouse or surviving divorced spouse if he/she otherwise qualifies for benefits. This is a change of position effective May 26, 1983.

3. Mississippi and North Carolina

In cases involving estoppel in these two States where it is known that a marriage did not in fact end in divorce, the principle of presumption of validity of the last marriage is rebutted and cannot be used to find that a subsequent marriage is valid. Neither divorced spouse's nor surviving divorced spouse's benefits can be paid based on a separation.

D. Example — state law application of estoppel

The following shows the use of both the principles of estoppel and presumption of validity of the last marriage in a case involving Mississippi law. (It would also apply in North Carolina.):

Maxine filed for benefits on the record of her deceased husband, Paul, on 5/04/01. Her first marriage was to Mel in Mississippi in 1959. They separated in 1964 but no divorce was obtained. Both Maxine and Mel have made statements to this effect. She married Paul in 1970 and they lived together until his death in 2001. Maxine's statement indicates that she knew she was not free to marry when she and Paul were married, so a deemed marriage cannot be established. The presumption of the validity of the last marriage cannot apply because the file clearly shows that the first marriage was not ended by divorce, death or annulment.

However, Maxine is Mel's legal wife. The fact that she is estopped under State law from claiming certain marital or inheritance rights as Mel's wife does not invalidate her marriage to Mel.