The Agency must determine if number holder (NH) and the Claimant had a valid domestic partnership in New York, and if so, whether Nevada would recognize such relationship for intestate inheritance purposes. In this case, the domestic partnership occurred in New York, but the NH died while domiciled in Nevada.

The NH and the Claimant’s opposite-sex domestic partnership was valid under New York City’s Domestic Partnership Law (DPL). Under the Nevada Domestic Partnership Act (NDPA), Nevada recognizes domestic partnerships and gives domestic partners the same rights, protections, and benefits as granted to spouses and surviving spouses. This would include intestate inheritance rights. Nevada recognizes domestic partnerships formed in other jurisdictions, but only if the partners register their domestic partnership with the Nevada Secretary of State. The Claimant reported that she and the NH did not register their New York City domestic partnership with the Nevada Secretary of State. Since the NH and the Claimant did not register their New York City domestic partnership with the Nevada Secretary of State, and they are no longer capable of doing so, Nevada would not recognize their domestic partnership as valid. Therefore, the Claimant does not qualify as NH’s widow under section 216(h)(1)(A) of the Act.

QUESTION

You asked whether the claimant, L~ (Claimant), had a valid domestic partnership with J~ (NH), for purposes of determining Claimant’s entitlement to widow’s benefits and the lump-sum death payment (LSDP), where the couple entered into an opposite-sex domestic partnership in New York, but NH died while domiciled in Nevada.

SHORT ANSWER

No. Claimant and NH did not register their New York domestic partnership in Nevada, and Nevada would therefore not recognize their domestic partnership. Accordingly, Claimant is not entitled to widow’s benefits or the LSDP.

SUMMARY OF EVIDENCE

On November XX, 2002, NH and Claimant entered into an opposite-sex domestic partnership in New York City as documented in a certificate of domestic partnership issued by the Office of the City Clerk for the City of New York. At some point thereafter, the couple moved to Nevada.

On August XX, 2014, NH passed away at his residence in L~, Nevada. On September XX, 2014, Claimant filed for widow’s benefits and the lump-sum death payment.

On February XX, 2015, the C~ County District Court in Nevada issued an order with respect to Claimant’s petition to set aside NH’s estate without administration pursuant to Nevada Revised Statute § 146.070(2). That provision allows estates not exceeding $100,000 to be assigned without administration. The Court determined that the value of NH’s estate did not exceed $100,000 and that NH executed a valid will naming Claimant as his personal representative and sole legatee of his estate. The Court ordered that NH’s entire estate be set aside, transferred, and conveyed to Claimant as NH’s legatee under his will.

On May XX, 2015, Claimant moved to New Jersey, where she currently resides.

APPLICABLE LAW

Federal Law

To be entitled to widow’s insurance benefits under Title II of the Social Security Act (Act), a claimant must establish that he or she is the widow or widower of an individual who died fully insured. See Social Security Act §§ 202(e), 216(c); 20 C.F.R. § 404.335. Under Section 216(h) of the Act, the agency will find a claimant to be the widow or widower of an insured individual if the courts of the State in which the insured individual resided at the time of his death would find that the claimant was validly married to the insured individual when the death occurred. Social Security Act § 216(h)(1)(A)(i). However, even if the claimant was not married to the insured individual, the agency will deem the claimant to be the insured individual’s widow or widower if, under the laws of the State where the insured individual was domiciled at the time of his death, the claimant would inherit the surviving spouse’s share of the insured individual’s personal property if he or she died intestate (without leaving a will). Social Security Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345 (“The relationship requirement will also be met if under State law you would be able to inherit a wife’s, husband’s, widow’s, or widower’s share of the insured’s personal property if he or she were to die without leaving a will.”).

Upon the death of an insured individual, the agency may also pay a lump-sum death payment to the widow or widower of the deceased individual if the widow or widower was living in the same household as the deceased at the time the death occurred. Social Security Act § 202(i)(1); 20 C.F.R. § 404.390; Program Operations Manual System (POMS) RS 00210.001.

In this case, the domestic partnership occurred in New York, but NH died while domiciled in Nevada. Thus, we must determine if NH and Claimant had a valid domestic partnership in New York, and if so, whether Nevada would recognize such relationship for intestate inheritance purposes.

New York Law

Under New York City’s Domestic Partnership Law (DPL), two people may register a domestic partnership in New York City if 1) both individuals are New York City residents or at least one partner is employed by New York City on the date of registration; 2) both individuals are at least 18 years old; 3) neither person is married; 4) neither person is in another domestic partnership or had been a party to another domestic partnership within the six months prior to registration; 5) the parties are not related to each other by blood in a way that would prevent them from being married in New York; and, 6) the individuals have a close and committed personal relationship, live together, and have been living together on a continuous basis. N.Y.C. Code § 3-241(a). To register the domestic partnership, the parties must submit an affidavit of domestic partnership to the city clerk and be present when they submit the affidavit. N.Y.C. Code § 3-241(b).

A New York City registered domestic partnership confers a series of rights and benefits, including, for example, tenancy rights, health benefits coverage, and hospital or correctional visitation rights. Furthermore, the State of New York also confers a couple of limited benefits on New York City domestic partners, including visitation rights at a health care facility and death benefits for New York City employees killed in the September 11, 2001 attacks. See id. However, the State of New York does not confer any inheritance rights to a New York City surviving domestic partner. See id.

Nevada Law

The Nevada legislature enacted the Nevada Domestic Partnership Act (NDPA) in 2009. Nev. Rev. Stat. § 122A.010. Under the NDPA, Nevada recognizes domestic partnerships and gives domestic partners the same rights, protections, and benefits as granted to spouses. Nev. Rev. Stat. § 122A.200(1)(a). Surviving domestic partners also have the same rights, protections, and benefits, and are subject to the same responsibilities, obligations, and duties as the State grants and imposes on widows and widowers. Nev. Rev. Stat. § 122A.200(1)(c). This would include intestate inheritance rights. To be eligible to register for a domestic partnership in Nevada, two persons must furnish proof that 1) they have a common residence; 2) neither person is married or a member of another domestic partnership unless they have a similar legal union from another jurisdiction; 3) they are not related by blood in a way that would prevent them from being married in Nevada; 4) they are at least 18 years old; and, 5) they are competent to consent to the domestic partnership. Nev. Rev. Stat. § 122A.100(2). In addition to meeting the foregoing requirements, the parties must file a signed and notarized declaration with the Secretary of State with the filing fee to register their domestic partnership. Nev. Rev. Stat. § 122A.100(1).

Nevada also recognizes non-marital legal unions validly formed in other jurisdictions that are substantially equivalent to a Nevada domestic partnership. Nev. Rev. Stat. § 122A.500. However, Nevada requires that the parties register their legal union with the Nevada Secretary of State in order for Nevada to recognize it as a valid domestic partnership. Id.; Nev. Rev. Stat. § 122A.100(1)(b) (parties must pay a reasonable filing fee to the office of the Secretary of State which estimates the cost incurred to issue the Certificate of Registered Domestic Partnership and the associated administrative costs).

ANALYSIS

The evidence suggests that the NH and Claimant’s opposite-sex domestic partnership in New York City was valid. We therefore must determine whether Nevada would recognize their relationship for intestate succession purposes.

Nevada recognizes domestic partnerships formed in other jurisdictions, but only if the partners register their domestic partnership with the Nevada Secretary of State. Nev. Rev. Stat. §§ 122A.100(1)(b), 122A.500. Nevada further requires that the out-of-state legal union be “substantially equivalent” to a Nevada domestic partnership. Id. Claimant and NH had a New York City domestic partnership that conferred fewer rights than a Nevada domestic partnership. Significantly, the New York City domestic partnership did not grant a surviving domestic partner the right to inherit intestate. Thus, there is a question as to whether the New York City domestic partnership was “substantially equivalent” to a Nevada domestic partnership.

An exhaustive legal search of Nevada law did not reveal any statutes or cases that define the term “substantially equivalent” for purposes of Nevada Revised Statute § 122A.500. However, in response to our question, the Nevada Secretary of State’s Office clarified that Nevada recognizes any governmental domestic partnership, including municipally registered domestic partnerships, as “substantially equivalent” to a Nevada domestic partnership for purposes of Nevada Revised Statute section 122A.500. See Email from F~, Program Officer, Office of the Secretary of State, Nevada (February 25, 2015, 10:08 PST) (“F~ Email”). Nevertheless, the partners must still complete a declaration of domestic partnership in order to register their domestic partnership in Nevada, and Nevada only recognizes an out-of-state domestic partnership as of the date it is registered with the Nevada Secretary of State. Id.

Claimant reported that she and NH did not register their New York City domestic partnership with the Nevada Secretary of State. Since NH is deceased, Claimant can no longer register their domestic partnership with the Nevada Secretary of State because the Domestic Partnership Declaration form necessary for the registration must have notarized signatures from both parties. See Nev. Rev. Stat. §§ 122A.100(1)(b), 122A.500; F~ Email; Nevada Secretary of State, Information on Domestic Partnership Filings, available at http://nvsos.gov/index.aspx?page=269; Declaration of Domestic Partnership, available at http://nvsos.gov/Modules/ShowDocument.aspx?documentid=1192. Therefore, Claimant’s New York City domestic partnership cannot be the basis of spousal intestacy rights in the NH’s estate.

While the C~ County District Court issued an order transferring NH’s estate to Claimant as his legatee, the Court’s order is immaterial in determining whether Nevada recognized Claimant as NH’s domestic partner. Pursuant to Nevada Revised Statute §146.070(2), if a decedent has no surviving spouse or minor child, and the gross value of the decedent’s estate does not exceed $100,000, the estate may be assigned without administration. Nev. Rev. Stat. § 146.070(2). The Court’s order states that NH’s estate did not exceed $100,000 and that NH executed a valid will naming Claimant as his personal representative and the sole legatee of his estate. Accordingly, the Court ordered that NH’s estate be conveyed to Claimant as NH’s legatee under his will. Id. Although the Court’s order also notes that NH and Claimant were registered domestic partners in New York, the Court’s decision to transfer NH’s estate to Claimant was based on NH’s will and Claimant’s status as legatee of NH’s estate rather than Claimant’s status as NH’s domestic partner. Thus, the Court’s order does not suggest that Nevada recognized the validity of Claimant and NH’s New York City domestic partnership in any way related to intestate inheritance rights.

In sum, since NH and Claimant did not register their New York City domestic partnership with the Nevada Secretary of State, and they are no longer capable of doing so, Nevada would not recognize their domestic partnership as valid.

Based on the foregoing, Claimant would not be able to inherit intestate as NH’s surviving domestic partner under Nevada law. See Nev. Rev. Stat. § 122A.200(1)(c). Therefore, Claimant does not qualify as NH’s widow under section 216(h)(1)(A) of the Act.

CONCLUSION

Claimant and NH did not register their New York City domestic partnership in Nevada. Therefore, Nevada would not recognize their domestic partnership as valid. Claimant does not qualify as NH’s surviving domestic partner with inheritance rights under the laws of NH’s domicile state, and thus, she is not entitled to widow’s insurance benefits or the LSDP.

To determine which state’s law governs the validity of a given marriage, the agency uses the laws of the state where the number holder (NH) had a permanent home when the NH died. In this case, the NH resided in New York at the time of his death, so we look to New York law to determine the validity of the marriage in the state where the marriage ceremony took place.

Based on the evidence presented, it appears that the claimant married the NH in good faith, believing that she was divorced from her first husband at the time she married the NH. However, before determining whether the claimant married in good faith and thus, a deemed valid marriage exists, we recommend that the agency obtain a statement from the claimant’s first husband regarding their marriage. If the agency cannot obtain a statement from the claimant’s first husband or, if an adjudicator concludes that the first husband’s statement supports a conclusion that the claimant acted in good faith, we believe the adjudicator could find that the claimant and the NH’s marriage was a deemed valid marriage under the Social Security Act. If the claimant meets all the other eligibility requirements, she would be entitled to benefits on the NH’s account as a surviving divorced spouse.

QUESTION PRESENTED

Whether J~ (J~), whose divorce from her first husband, L~ (L~), was not yet finalized at the time of her wedding to Number Holder D~ (D~), would be considered validly married or in a deemed valid marriage to D~ and whether J~ would be entitled to benefits as D~’s surviving divorced spouse?

OPINION

Based on the evidence presented, it appears that J~ married D~ in good faith, believing that she was divorced from L~ at the time she married D~. The only legal impediment to the validity of the marriage between J~ and D~ was J~’s marriage to L~, which was dissolved roughly two months after she married D~. However, before determining whether the claimant married in good faith and thus, a deemed valid marriage exists, the Programs Operations Manual System (POMS) directs the agency to contact the claimant’s prior spouse; apparently, the agency did not do so here. We recommend that the agency obtain a statement from L~ regarding whether J~ knew she was still married to him at the time she married D~ and if so, how L~ became aware of this.

If the agency cannot obtain L~’s statement or, if an adjudicator concludes that L~’s statement supports a conclusion that J~ acted in good faith, we believe the adjudicator could find that J~ and D~’s marriage was a deemed valid marriage under the Social Security Act. If J~ meets all the other eligibility requirements, she would be entitled to benefits on D~’s account as D~’s surviving divorced spouse.

If, however, the adjudicator concludes there is no deemed valid marriage, we note that J~ and D~’s marriage likely would not be considered valid under New York law.

BACKGROUND

J~ married L~ in Trinidad and Tobago on August XX, 1971. At the time of marriage, L~ and J~ were residents of Trinidad. The marriage certificate lists J~ as being 20 years old and L~ as being 25 years old. The Certificate identified them respectively as “spinster” and “bachelor.” L~ and J~ separated in May 1978 and did not have any children during the marriage.

While still legally married to L~, J~ married D~ on July XX, 1985 in New York City. The marriage certificate lists J~ as a resident of Bronx, New York and D~ as a resident of Kings County, New York.

J~ and L~ subsequently divorced in New York. A Certificate of Dissolution of Marriage (NY) was rendered on September XX, 1985 and entered on September XX, 1985. The divorce certificate listed L~ as living in Baltimore, Maryland, and J~ as living in New York, New York (Kings County). There is no indication that J~ and D~ had another marriage ceremony after J~’s divorce from L~ was finalized in September 1985.

J~ and D~ separated in July 1990 and did not have any children during the marriage. A Certificate of Dissolution of Marriage (NY) was rendered on January XX, 2010 and entered on March XX, 2010. The divorce certificate listed D~ as a resident of K~ County, New York and J~ as residing in L~, Florida. D~ died on June XX, 2010 in B~, New York.

When asked about the validity of her marriage to D~, J~ stated, “I was not married to L~ when I married D~. L~ and I were divorced.” She also stated, “I believe these dates are wrong because I did file for divorce before I married D~.” (See Statement of Claimant or Other Person, Signed by J~ on April XX, 2015).

You asked for an opinion as to whether J~’s marriage to D~ was valid, and whether she could be entitled to benefits as D~’s surviving divorced spouse.

ANALYSIS

A person is entitled to benefits as a surviving divorced spouse of a person who died fully insured if she was validly married to the insured under state law or in a deemed valid marriage to the number holder. Social Security Act (Act) § 216(d), 42 U.S.C. § 416(d); 20 C.F.R. § 404.336(a)(1); see also 20 C.F.R. §§ 404.345-346. Additionally, the marriage must have had a duration of at least 10 years immediately before the divorce became final. Id. at 404.336(a)(2). The surviving divorced spouse also must apply for benefits, be at least 60 years of age (or at least 50 years of age and meet certain other criteria), not be entitled to an old-age benefit that is equal to or larger than the insured person’s primary insurance amount, and have not remarried (except under certain conditions). 20 C.F.R. § 404.336.

A claimant may establish a deemed valid marriage if: (1) the worker and claimant went through a marriage ceremony, (2) the claimant went through the ceremony in good faith with no knowledge of any legal impediment that would invalidate the marriage, and (3) the legal impediment that would make the marriage invalid results from the lack of dissolution of a previous marriage. Act § 216(h)(1)(B), 42 U.S.C. § 416(h)(1)(B); 20 C.F.R. § 404.346(a); POMS GN 00305.055(A)(1).

In this case, it is clear that J~ and D~ went through a marriage ceremony, and the lack of dissolution of J~’s marriage to L~ appears to be the only legal impediment to the validity of her marriage to D~. The primary question in considering whether J~ can be considered to have a deemed valid marriage to D~, therefore, is whether she went through the ceremony in good faith. See POMS GN 00305.055(A)(1).

The POMS defines good faith as ignorance at the time of the ceremony of any legal impediment to the marriage and the claimant’s belief at the time of the ceremony that the marriage was valid. POMS GN 00305.055(B)(2). J~ appears to have acted in good faith when she married D~ on July XX, 1985. J~ stated, “I was not married to L~ when I married D~. L~ and I were divorced.” She also stated, “I believe these dates are wrong because I did file for divorce before I married D~.” See Statement of Claimant or Other Person, Signed by J~ on April XX, 2015. Furthermore, J~’s subsequent action to formally divorce D~ in 2010 suggests that she believed her marriage to him to be valid.

Because the marriage between J~ and L~ was formally dissolved two months subsequent to J~’s marriage to D~, it is entirely possible that J~ believed that she was divorced from L~ at the time she filed for divorce and did not realize that the divorce from L~ was not yet finalized at the time of her marriage to D~. See Rosenberg v. Richardson, 538 F.2d 487, 489 (2d Cir. 1976) (“Since state family law is often confused, however, many women, whose husbands paid social security taxes for years, found themselves ineligible for the benefits intended for them, because marriages contracted in good faith were subsequently found invalid.”)

Here, J~’s statements and conduct indicate that she did not believe she was married to L~ at the time she married D~ (in that she had “file[d] for divorce” prior to her second marriage) and thus she appears to have acted in good faith.

However, we are unable to conclude whether J~ and D~ were in a deemed valid marriage as we do not have a statement from L~. The POMS directs the agency to get a statement from the claimant, the worker, and the prior spouse if possible. See POMS GN 00305.055(C)(3). While the agency obtained a statement from J~, and D~ is deceased, there is no evidence that the agency attempted to contact L~. SSA records indicate that L~ is alive and resides in Maryland. Before making a final determination as to whether J~ and D~ were in a deemed valid marriage, the agency should try to obtain a statement from L~ to see if J~ knew she was still married to him at the time she married D~ and if so, how L~ became aware of this. POMS GN 00305.055(C)(3)(c). If no statement or other evidence establishes that J~ did not act in good faith, an agency adjudicator could find that J~ and D~’s marriage was a deemed valid marriage under the Social Security Act.

In the event that evidence obtained after contacting L~ results in a conclusion that J~ and D~’s marriage does not meet the criteria for a deemed valid marriage, the agency must consider whether J~ and D~’s marriage is valid under state law. To determine which state’s law governs the validity of a given marriage, the agency uses the laws of the state where the insured had a permanent home when he or she died. 20 C.F.R. § 404.345. In the present case, D~ resided in New York at the time of his death, so we look to New York law. New York determines the validity of a marriage by looking at whether the marriage was valid in the state where the marriage ceremony took place. In re May’s Estate, 114 N.E.2d 4 (N.Y. 1953); see also Ponorovskaya v. Stecklow, 987 N.Y.S.2d 543, 548 (Sup. Ct. 2014) (“New York has long recognized that, barring public policy concerns, the validity of a marriage is determined by the laws of the state or country in which it was performed.”).

Here, the record indicates that J~ and L~ entered into a valid marriage in Trinidad and Tobago. See POMS GN 00305.020 (recognizing foreign documents based on church or civil records issued pursuant to the foreign law which shows the claimant and the worker as husband and wife). The marriage was recorded in the marriage register as valid under the laws of Trinidad and Tobago, and agency records contain what appears to be a certified copy of the register stamped with the seal of the Registrar General. See Marriage Act, Ch. 47, Laws of Trinidad and Tobago, available at http://rgd.legalaffairs.gov.tt/laws2/alphabetical_list/lawspdfs/45.01.pdf ; see also Matrimonial Proceedings and Property Act, Ch. 13, Laws of Trinidad and Tobago, available at http://rgd.legalaffairs.gov.tt/laws2/alphabetical_list/lawspdfs/45.51.pdf. We have no indication that this marriage was void under applicable law. See id.

The certificate of dissolution for the marriage of J~ and L~ is dated September XX, 1985, approximately two months after J~’s marriage to D~. The divorce certificate is signed by the clerk of New York County, and we have no reason to believe that this certificate is in any way fraudulent or invalid.

Therefore, J~ was in a valid marriage to L~ at the time she married D~, and we now look to see, if, despite the existence of this earlier marriage, J~’s marriage to D~ was valid under New York law.

Under New York law, a marriage is “absolutely void” (ab initio) if one or both parties has a living spouse whom he or she has not divorced. See N.Y. Dom. Rel. § 6 (McKinney’s 2016). Ab initio means that the second marriage is void from the moment it would begin. However, “it is also well established New York law” that a court must apply “a strong presumption” in favor of the validity of a second marriage when confronted with a claim that the marriage is invalid due to the existence of an earlier marriage. Grabois v. Jones, 89 F.3d 97, 100 (2d Cir. 1996). The presumption favoring the last marriage is a strong presumption, and is strengthened in cases where there would be a substantial injustice in invalidating the second marriage. Dolan v. Celebrezze, 381 F.2d 231, 237 (2d Cir. 1967). The presumption is so strong that it can be only be rebutted by “‘strong and satisfactory’ proof to the contrary from one who would attack it.” Matter of Brown’s Estate, 358 N.E.2d 883, 884 (N.Y. 1976). The burden has been described as heavy, frequently requiring proof of a negative, i.e. that the earlier marriage was not dissolved by death, divorce or annulment. In re Estate of Perez, 990 N.Y.S.2d 439 (Sur. 2014); see also De George v. Am. Airlines, Inc., 338 F. App’x 15 (2d Cir. 2009).

Despite this, the “presumption is not resorted to unless the actual evidence is inadequate for determining the question,” and even then is given effect in light of the attendant facts and circumstances. Dolan v. Celebrezze, 381 F.2d at 236. Here, there is evidence that J~’s marriage to L~ was dissolved in September 1985, two months after she entered into a marriage with D~. Indeed, the September 1985 divorce certificate logically precludes an earlier dissolution of the marriage. Accordingly, the evidence in this case appears sufficient to rebut or preclude any presumption and it seems likely that a New York court would find the second marriage invalid under New York law. See Matter of Warren, 516 N.Y.S.2d 759, 761 (2d Dep’t 1987) (concluding that a divorce judgment that became final more than a year after a second marriage was sufficient to rebut the presumption of the validity of the later marriage); see also Bobb v. Sec’y, Dep’t of Health, Educ. & Welfare, 312 F. Supp. 225, 226 (S.D.N.Y. 1970) (noting that a subsequent marriage was void where a prior marriage was not finally dissolved until three months after the remarriage). However, given the foregoing analysis regarding a deemed valid marriage under section 216(h)(1)(B) of the Act, no such conclusion may be necessary to determine J~’s eligibility for benefits.

CONCLUSION

Based on the evidence presented, J~ appears to have entered into marriage with D~ in good faith, believing that she was divorced from L~ at the time the second marriage was celebrated. The only legal impediment to the validity of the marriage between J~ and D~ was J~’s marriage to L~, which was dissolved roughly two months after her ceremony with D~. If, after further record development, there is no statement or other evidence from L~ to establish that J~ did not act in good faith, an agency adjudicator could find that J~ and D~’s marriage was a deemed valid marriage under the Social Security Act. Assuming J~ meets all other eligibility requirements, she would be entitled to divorced survivor’s benefits on the record of D~.

Under North Carolina law, underage marriages are at most voidable and are considered valid until declared otherwise by a court of competent jurisdiction. In this case, the Claimant married in North Carolina prior to obtaining the legal age of consent, but a child was born during the marriage, the Claimant lived with her then spouse past the age of majority, and the parties ratified the marriage by living together after Claimant reached the age of consent, therefore, the marriage between Claimant and her then spouse cannot be declared void. Thus, Claimant was lawfully married under North Carolina law. The Claimant’s North Carolina husband was still living and the Claimant and her North Carolina husband were still lawfully married at the time Claimant and the NH married in New York. Accordingly, Claimant’s marriage to the NH is void under New York law on the basis of Claimant’s bigamy. Under the facts of this case, we do not believe New York courts would recognize the presumption of validity that attaches to the ceremonial marriage of Claimant and the NH.

The Claimant’s relationship as a wife of the insured NH can be established under the Social Security Act (Act), provided the requisite factors for a deemed marriage are met. We recommend further development of the record on the issue of whether claimant acted in good faith before you reach this conclusion. If an adjudicator establishes a deemed marriage, then Claimant would be eligible for wife’s benefits on the NH’s account, provided she meets all other eligibility requirements.

QUESTION PRESENTED

Whether D~ (Claimant), who previously entered into an underage marriage in North Carolina, is validly married in New York to number holder O~ (NH) and therefore entitled to wife’s benefits on the record of the NH.

OPINION

Under North Carolina law, underage marriages are at most voidable and are considered valid until declared otherwise by a court of competent jurisdiction. In this case, where Claimant married in North Carolina prior to obtaining the legal age of consent, a child was born during the marriage, and Claimant lived with her then spouse past the age of majority, the marriage between Claimant and her then spouse cannot be declared void. In addition, the parties ratified the marriage by living together after Claimant reached the age of consent. Thus, Claimant was lawfully married under North Carolina law. Because Claimant’s North Carolina husband was still living, Claimant and her North Carolina husband were still lawfully married at the time Claimant and the NH married in New York. Accordingly, Claimant’s marriage to the NH is void under New York law on the basis of Claimant’s bigamy. Under the facts of this case, we do not believe New York courts would recognize the presumption of validity that attaches to the ceremonial marriage of Claimant and the NH. Regardless, Claimant’s relationship as a wife of the insured NH can be established under the Social Security Act (Act), provided the requisite factors for a deemed marriage are met. However, we recommend further development of the record on the issue of whether claimant acted in good faith before you reach this conclusion. If an adjudicator establishes a deemed marriage, then Claimant would be eligible for wife’s benefits on the NH’s account, provided she meets all other eligibility requirements.

BACKGROUND^[1]

Claimant was born D~ on November XX, XXXX. On November XX, XXXX, a few days before her 18th birthday, Claimant married J~ in N~, North Carolina. Their marriage was conducted by a justice of the peace. Claimant’s father, who was alive at the time, did not sign her marriage certificate. Claimant lived with Mr. P~ on and off in North Carolina from 1963 to 1966, and had a son with him in 1966. Claimant and Mr. P~ separated and never lived together again after 1966.

Claimant married the NH under the name D~^[2] on November XX, XXXX in Brooklyn, New York.^[3] On her marriage license, Claimant indicated that she had never been previously married.

Mr. P~ never remarried, and died on December XX, XXXX in Northampton, North Carolina. Claimant was listed as his surviving spouse on his death certificate.

Claimant, under the name D~, applied for wife’s insurance benefits on the NH’s record on June XX, XXXX.^[4] During the application process, Claimant stated that she never sought a divorce nor had the marriage to Mr. P~ formally voided by a court before marrying the NH because she believed her marriage to Mr. P~ was void. According to Claimant, the North Carolina Bureau of Vital Statistics informed her that her marriage to Mr. P~ was not “legal” because she married Mr. P~ while underage and without her father’s consent or signature.

In June 20, 2013 statements to SSA, Claimant stated that she had separated from Mr. J~ in 1984 and reunited in 2009. They had lived together since 2009. The NH stated that he moved back in with Claimant in 2008 or 2009. Subsequently, in July 2, 2013 statements, Claimant and the NH stated that they had separated from 1988 to 1993, and that the NH had returned to live with her in 1993. Both Claimant and the NH currently live together in New York.

ANALYSIS

Claimant May Be Entitled for Wife’s Benefits on the NH’s Account as the Deemed Wife of the NH

1. Social Security Laws and Regulations Concerning Insured Wife’s Benefits

To qualify for wife’s insurance benefits under section 202(b) of the Act a claimant must apply for such benefits, be the insured’s “wife,” as defined in section 216(b), be 62 years-old, and must not be entitled to an old-age or disability benefit based upon a primary insurance amount that is equal to or larger than the full husband’s benefit. Act §§ 202(b) and 216(b), 42 U.S.C. §§ 402(b) and 416(b); see also 20 C.F.R. §§ 404.330 and 404.344. Additionally, the claimant’s relationship with the insured as a wife must have lasted at least one year. Act § 216(b); 20 C.F.R. § 404.330(a)(1).

To determine whether the claimant qualifies as the insured’s “wife,” we look to the laws of the state where the insured had a permanent home when the claimant applied for wife’s benefits. 20 C.F.R. § 404.345; see also 20 C.F.R. § 404.344. If the claimant and the insured were validly married under state law at the time the claimant applied for wife’s benefits, the relationship requirement will be met. 20 C.F.R. § 404.345. The relationship requirement will also be met if under state law the claimant would be able to inherit a wife’s share of the insured’s personal property if he were to die without leaving a will. 20 C.F.R. § 404.345.

If the relationship as the insured’s wife cannot be established under State law as explained in 20 C.F.R. § 404.345, the claimant may alternatively be eligible for benefits based upon a deemed valid marriage. Act § 216(h)(1)(B)(i); 20 C.F.R. § 404.346(a); see also 20 C.F.R. 404.344. A claimant will be deemed to the wife of the insured if, in good faith, she went through a marriage ceremony with the insured that would have resulted in a valid marriage except for a legal impediment. Act § 216(h)(1)(B)(i); 20 C.F.R. § 404.346(a). A legal impediment includes only an impediment which results because a previous marriage had not ended at the time of the ceremony or because there was a defect in the procedure followed in connection with the intended marriage. Act § 216(h)(1)(B)(iv); 20 C.F.R. § 404.346(a). Good faith means that at the time of the ceremony she did not know that a legal impediment existed, or if she did know, she thought that it would not prevent a valid marriage. 20 C.F.R. § 404.346(a). Further, to be entitled to benefits as a wife as the result of a deemed valid marriage, the claimant and the insured must have been living in the same household at the time she applied for benefits. Act § 216(h)(1)(B)(i); 20 C.F.R. § 404.346(b); Program Operations Manual System (POMS) GN00305.055 B and C provides definitions of marriage ceremony, good faith and legal impediment, as well as the development needed for each of these factors.

2. Claimant’s Marriage To Mr. P~ Was Valid Under North Carolina Law

Under North Carolina law, a valid marriage is created by the consent of a male and female “who may lawfully marry” to take each other as husband and wife expressed in the presence of each other and in the presence of a minister or a magistrate, or in accordance with any mode of solemnization recognized by any religious denomination or Indian Nation or Tribe. ^[5] See N.C. Gen. Stat. Ann. § 51-1 (West 2015); see also N.C. Gen. Stat. Ann. § 51-6 (West 2015) (solemnization without marriage license unlawful; at least two witnesses to marriage ceremony required); POMS PR 05205.036. North Carolina law provides that all marriages “between a male person under 16 years of age and any female, or between a female person under 16 years of age and any male . . . shall be void.” N.C. Gen. Stat. Ann. § 51-3 (West 2015). North Carolina law also provides that persons over 16 years of age and under 18 years of age may marry only with parental consent. See N.C. Gen. Stat. Ann. §51-2(a1) (West 2015); POMS PR 05205.036. Further, all marriages “between persons either of whom is incapable of contracting from want of will or understanding, shall be void.” N.C. Gen. Stat. Ann. § 51-3 (West 2015); POMS PR 05205.036. The statutory language in effect at the time Claimant and Mr. P~ were married is consistent with the current language. POMS PR 05205.036 (citing Ivery v. Ivery, 129 S.E.2d 457, 461 (N.C. 1963) (discussing the statutory language in effect in the 1960s)).

Accordingly, a person under the age of consent lacks capacity to enter into a valid marriage without parental consent. However, “[n]o marriage followed by co-habitation and the birth of issue shall be declared void after the death of either of the parties for any of the causes stated in [N.C. Gen. Stat. Ann. § 51-3]…except for bigamy.” See N.C. Gen. Stat. Ann. § 51-3 (West 2015). Given these exceptions, the Supreme Court of North Carolina has held that “the word ‘void’ used in the statute, will be construed to mean ‘voidable,’ thus rendering the marriage valid until it has been declared void by a court of competent jurisdiction in an action directly attacking the validity of the marriage.” Ivery, 129 S.E.2d at 462 (N.C. 1963); POMS PR 05205.036.

Furthermore, the Supreme Court of North Carolina has held that where a marriage is voidable because one of the parties was underage at the time of the marriage, the “marriage may be ratified by the subsequent conduct of the parties in recognition of the marriage.” Ivery, 129 S.E.2d at 462. The parties may ratify the marriage by living together after the underage participant reached the age of consent. See Sawyer v. Slack, 146 S.E. 864, 865 (N.C. 1929); see also POMS PR 05205.036 (citing N.C. Op. Att’y Gen. Op., 2001 WL 1712684, at *1 (questioning whether underage marriages can be declared invalid when ratified by cohabitation after the underage participant reached the age of consent)).

Accordingly, under North Carolina law, underage marriages are at most voidable and are considered valid until declared otherwise by a court of competent jurisdiction. In this case, where Claimant married Mr. P~ prior to obtaining the legal age of consent, without parental consent, and a child was born during the marriage, the marriage between Claimant and Mr. P~ cannot be declared void. In addition, the parties ratified the marriage by living together after Claimant reached the age of consent. Therefore, Claimant and Mr. P~ were lawfully married under North Carolina law.

3. Claimant’s Marriage to the NH Is Not Valid Under New York Law

1. Polygamy

The Record indicates that claimant and the NH were married by a city clerk in New York on November XX, XXXX. At that time, Mr. P~ was still alive.

Under New York Domestic Relations Law, a marriage is valid if the parties to the marriage properly obtain and deliver the marriage license prior to the marriage ceremony, see N.Y. Dom. Rel. Law § 13 (McKinney 2015), and the marriage is solemnized by a city clerk. N.Y. Dom. Rel. Law § 11 (McKinney 2015). Because Claimant and the NH apparently properly obtained and delivered their marriage license prior to having their marriage solemnized by a city clerk, New York would normally recognize that Claimant and the NH entered into a valid, ceremonial marriage on November XX, XXXX.

It is well-established New York law that when a court is confronted with the claim that a formal second marriage is invalid because of the existence of a valid first marriage, a strong presumption of validity attaches to the second marriage. See Grabois v. Jones, 89 F.3d 97, 100 (2d Cir. 1996); In re Meehan’s Estate, 150 A.D. 681, 683 (1st Dept. 1912); see also Seidel v. Crown Industries, 132 A.D.2d 729, 730, 517 N.Y.S.2d 310, 311 (3rd Dept. 1987) (stating that “the presumption favoring the validity of the second marriage is stronger than the presumption that the prior marriage continued”); POMS PR 05005.035. Furthermore, the presumption of validity of the second marriage becomes “stronger and stronger where a substantial injustice would be created by invalidating that marriage.” Grabois, 89 F.3d at 100; see Dolan v. Celebrezze, 381 F.2d 231, 237-38 (2d Cir. 1967) (finding that a review of New York case law indicates that the presumption favoring the validity of the second marriage varies in force with the attendant facts and circumstances). The court in Dolan noted that the presumption for validating subsequent ceremonial marriages in New York operates to effectuate “a particular public policy such as upholding legitimacy, favoring the participation in the decedent’s estate of one who lived with him as his spouse, and preserving the validity of a marriage where no strong public policy would be served by doing otherwise.” Dolan, 381 F.2d at 237; see also Boyd v. Heckler, 588 F.Supp. 31, 34-35 (E.D.N.Y 1984)(stating that “[c]hief among the equities to be considered is whether there are children of the second marriage” in holding that testimonial evidence, absence of divorce records, and no children in the second marriage were sufficient to rebut the presumption of validity of the second marriage for purposes of awarding widow’s social security benefits) Accordingly, Claimant’s marriage to the NH is presumptively valid under New York law.

However, it is also well-established that a marriage is void if contracted by a person whose spouse by a former marriage is living and that former marriage has not legally been dissolved. See POMS PR 05005.035, Gonzalez v. Gonzalez, 228 N.Y.S.2d 4, 5 (N.Y. Sup. Ct. 1962). New York Domestic Relations Law states that “a marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living....” N.Y. Dom. Rel. Law § 6 (McKinney 2015). Furthermore, because a void marriage exists as a legal nullity, no judgment or judicial declaration of nullity is required. U.S. v. Diogo, 320 F.2d 898, 907 (2d Cir. 1963); see also McCullen v. McCullen, 162 A.D. 599, 602, 147 N.Y.S. 1069, 1071-72 (1st Dept. 1914). Thus, the presumptive validity of Claimant’s marriage to the NH may be rebutted, where here, Claimant has admitted that she was married to Mr. P~ , never sought a divorce from Mr. P~ , Mr. P~ was alive at the time of her marriage ceremony with the NH, and she was listed as Mr. P~ ’s surviving spouse on Mr. P~ ’s death certificate.

Here, we do not believe a New York court would find that the balance of equities tips in favor of validating Claimant’s marriage to the NH. Plaintiff testified that she never sought a divorce from Mr. P~ . Further, no particular public policy, such as preserving the legitimacy of children, would be served by validating Claimant’s marriage to the NH, where Claimant and the NH have no children together , but Claimant has a child from her first marriage. See Dolan, 381 F.2d at 237. Additionally, the NH is still living, so the policy of favoring the participation of the putative spouse in the decedent’s estate would not yet be relevant. Further, voiding the second marriage will not prevent Claimant from obtaining benefits, as is discussed below.

2. Claimant’s Relationship to the NH as his Wife Cannot Be Established Through a Common-Law Marriage

New York does not recognize common-law marriages entered into in its own state. See Baron v. Suissa, 906 N.Y.S.2d 50, 51 (N.Y.A.D. 2 Dept. 2010) (citing N.Y. Dom. Rel. Law § 11). Accordingly, Claimant cannot alternatively argue that while not validly married to the NH prior to or after Mr. P~ ’s death, she had nonetheless subsequently entered into a common-law marriage with the NH under the laws of New York.

3. Claimant’s Relationship to the NH as his Wife May Be Established Through a Deemed Marriage

Another way under the Act that Claimant’s relationship as a wife of the insured NH can be established is via a deemed marriage. Under section 216(h)(1)(B) of the Act, where a woman and a worker went through a marriage ceremony which resulted in a purported marriage between them, such purported marriage may be considered a valid marriage for purposes of section 216(b) if the woman in good faith went through a marriage ceremony with the worker not knowing of a legal impediment which made the marriage invalid and the legal impediment resulted from the continued existence of a prior marriage of either party, arose out of the dissolution of the prior marriage, or from a procedural defect in the woman's ceremonial marriage to the worker; and she was living in the same household with the worker when her application was filed. 20 C.F.R. § 404.346; POMS GN 00305.055; Social Security Ruling (SSR) 67-58.

POMS GN 00305.055C lays out the steps the Agency must take to determine whether a relationship is a deemed marriage. First, for a ceremonial marriage, the Agency must obtain proof of the marriage. Here, Claimant and the NH have provided proof of a marriage ceremony. Next, to determine good faith, the Agency must obtain signed statements from all involved parties, including the claimant and the NH, and the prior spouse if still living. Claimant’s statement must include why she believed her marriage ceremony was valid at the time of the ceremony, what she knew of the prior marriage’s dissolution, and why she did not believe any restrictions for remarrying applied. The NH’s statement must include information similar in nature to Claimant’s statement. Here, there are signed statements in which Claimant has repeatedly stated that that she did not believe her marriage to Mr. P~ to be valid. There is also evidence that Claimant denied having been married on her marriage license and listed her maiden name D~ as her surname. However, Claimant not only used the last name P~ to adopt her grandchildren, but also used it at the time she applied for wife’s insurance benefits. It is unclear why she would use that name if she thought her previous marriage was invalid. Additionally, none of the statements indicate what NH knew at the time of his marriage ceremony to Claimant about her previous marriage to Mr. P~. In addition to these factors, the agency must consider Claimant’s age, education, and experience when determining good faith. POMS GN 00305.055C.

Accordingly, an adjudicator can establish a deemed marriage, assuming the requisite factors are met. Given the additional development issues required, we defer judgment to you as to whether the required factors for a deemed marriage were met.

CONCLUSION

In sum, it is our opinion that Claimant may be entitled to wife’s benefits on the NH’s account, based on a deemed marriage to the NH, assuming Claimant meets all other eligibility requirements for wife’s benefits. However, before finding a deemed marriage between Claimant and the NH, we recommend further development of the record on the issue of whether Claimant acted in good faith in entering into marriage with the NH.

The record contains evidence of a valid foreign divorce between the NH and his first wife (the claimant) as well as NH's subsequent marriages. Both Florida and New York recognize a strong presumption in favor of holding the last of subsequent ceremonial marriages valid. Thus, NH's marriage to his last wife is presumptively valid under NY law. This presumption may be rebutted if the claimant proves by clear and convincing evidence the fact of the absence of a divorce. The NY Family Court's decision that the Cuban divorce was void should not be binding in a subsequent administrative hearing wherein it will be determined whether the claimant is the legal widow of NH. The Family Court's finding is not determinative and the claimant can rely on it only as evidence. If the claimant is unable to carry her burden of proof, the presumption of validity attaching to NH's marriage with his last wife will continue, and she cannot receive benefits as the NH's widow.

You have asked for advice on whether a valid marriage still exists between the claimant, T~, and the number holder, A~ ("NH"); whether the New York Family Court had jurisdiction to declare their subsequent Cuban divorce void; and thus whether T~ is the widow of A~. As we understand the facts of this case, T~ contends that she remained the legal wife of A~ until he died because the Cuban divorce was fraudulent. Based on the factual record presented to us, T~ has not provided clear and convincing evidence that the Cuban divorce is invalid.

FACTUAL BACKGROUND

T~, formerly T~, had two children with A~ in Cuba: A~ and R~ (Ex. 5). Both T~ and NH were natives of Cuba, and according to T~ they had an agreement to get married so they could bring their children to the United States. T~ came to Brooklyn some time in 1956 and Amado came shortly after. T~ and NH were married in New York, N.Y. on September XX, 19XX in a ceremony solemnized by clergyman, Reverend Antonio G~ (Ex. 7). T~ and NH listed Brooklyn as the place of their residence (Ex. 7).

T~ and NH separated some time around 1960, and NH returned to Cuba while T~ remained in New York (Ex. 5). The record contains a Cuban Divorce Decree dated May XX, 1960 (Ex. 1). The decree identifies T~ , represented by "Solicitor Francisco Rodriguez," as the plaintiff (Ex. 1). NH's statement to the Social Security Administration ("SSA") explains that T~ was living in Brooklyn at the time of the divorce but sent power of attorney to Cuba (Ex. 3). L~, NH's third wife, similarly told the SSA that T~ signed away power to NH in order for him to obtain the divorce from her (Ex. 13). Yet, in T~ 's request for hearing T~ maintained that she is the legal wife of NH (Ex. 9). T~ denied receiving any divorce papers (Ex. 2). She claims that the divorce was fraudulent and denied any knowledge of the proceeding and signing her name to any consent or acknowledgment of the divorce action (Ex. 5).

On or about December XX, XXX, NH married I~, formerly I~, in Cuba (Ex. 4). They remained married for approximately twenty one years until NH brought a divorce action in Elizabeth, N.J. and the Honorable John P. W~ ordered that the marriage be dissolved on September XX, XXXX (Ex. 4). I~ remarried on March XX, XXXX to J~ and is still legally married to him (Ex. 12). She does not receive, nor is she entitled to, any benefits on NH's record (Ex. 12).

The record indicates that in 1963, subsequent to NH's marriage to Isabel, T~ instituted a proceeding for support against NH under Article 4 of the Family Court Act (Ex. 8). In this proceeding the Family Court of the State of New York issued an Order of Support, finding NH legally chargeable with the support of "Wife, T~ R~." The Order further directed that NH's "Alleged Cuban Divorce is Void" (Ex. 8). According to T~, it was not until she filed for this Order of Support that she became aware of the fraudulent divorce proceedings (Ex. 5).

The State of New Jersey Certificate of Marriage contained in the file demonstrates that NH was then married a third time on December 7, 1984 to L~ (now L~) in Elizabeth, N.J. (Ex. 10). NH died in Miami, Florida on April XX, XXXX (Ex. 11). The Certificate of Death acknowledges that NH was a Florida resident at that time (Ex. 11). In her statement to the SSA, Leonor certified that she and NH were married and living together up until the day NH passed away (Ex. 13).

After NH's death, T~ applied for surviving spouse benefits on NH's record (Ex. 14). On or about November 29, 2002 the SSA notified T~ that she was not entitled as a wife because of NH's subsequent marriages, and she was not entitled as a divorced wife because she did not meet the duration of marriage (Ex. 14). Upon reconsideration, that determination was affirmed, reiterating that the divorce has been proven and that the marriage did not last for the requisite ten years (Ex. 14). Still, T~ maintains that she is the legal wife of NH, entitled to widow's benefits.

ANALYSIS

In examining widow's benefit claims, the SSA must look to the laws of the state where the wage earner was domiciled at the time of his death to determine whether claimant qualifies as the wage earner's widow. Social Security Act, 42 U.S.C. § 416(h)(1)(A) (2004). In this case, NH apparently was domiciled in Florida at the time of his death. As such, we must determine whether Florida would recognize the existence of a valid marriage between T~ and NH.Under Florida law, the validity of a marriage is determined by the law of the state in which the marriage was contracted. See Smith v. Anderson, 821 So.2d 323, 325 (Fla. Dist. Ct. App. 2002). Thus, according to Florida law, the marriage between T~ and NH will be considered valid if it is valid under the law of New York, where the marriage occurred.

1. The Presumption of Validity Attaching to the A~ Marriage

The record indicates that NH had two other marriages subsequent to his marriage to T~. NH married his third wife, L~, in New Jersey in 1984 and remained married to her until he died in 2002. Both Florida and New York recognize a strong presumption in favor of holding the last of subsequent ceremonial marriages valid. See Grabois v. Jones, 89 F.3d 97, 100 (2d Cir. 1996); In re Lee's Estate, 360 So.2d 1111, 1111 (Fla. Dist. Ct. App. 1964). See also Seidel v. Crown Industries, 517 N.Y.S.2d 310, 311 (N.Y. App. Div. 1987) (stating that the presumption in favor of validity of the last marriage is stronger than the presumption that the prior marriage continued); Grace v. Grace, 162 So.2d 314, 317 (Fla. Dist. Ct. App. 1964)(describing the presumption as so great that in the absence of competent proof to the contrary, it is to be assumed that the previous marriage has been dissolved either by death or legal action). This presumption operates to effectuate "a particular public policy such as upholding legitimacy, favoring the participation in the decedent's estate of one who lived with him as his spouse, and preserving the validity of a marriage where no strong public policy would be served by doing otherwise." See Dolan v. Celebrezze, 381 F.2d 231, 237 (2d Cir. 1967). Accordingly, NH's marriage to L~ is presumptively valid under New York law, and she appears to be the legal widow of NH.

However, it is well established that a marriage is void if contracted by a person whose spouse by a former marriage is living and that former marriage has not legally been dissolved. See Gonzalez v. Gonzalez, 228 N.Y.S.2d 4, 5 (N.Y. Sup. Ct. 1962). Thus, the presumptive validity of the A~-L~ marriage may be rebutted if T~ provides evidence which, when weighted collectively, establishes with reasonable certainty the fact of the absence of a divorce. See Teel v. Nolen Brown Motors, Inc., 93 So.2d 874 (Fla. 1957). Since the file contains a Cuban divorce decree, T~ must provide sufficient evidence to prove the Cuban divorce invalid in order to demonstrate that she is the widow of NH.

2. Effect of the New York Family Court's Determination

A judgment in rem is res judicata as to all the world with regard to the res that is determined therein. Presbrey v. Presbrey, 179 N.Y.S.2d 788, 792 (N.Y. App. Div. 1958). In a matrimonial action there is a marital res subject to in rem jurisdiction, therefore a judgment determining marital status subsists as a judicial declaration and is binding on the whole world. Id. at 792. The record indicates that in 1963 the Family Court of the State of New York issued an Order of Support, finding NH legally chargeable with the support of "Wife, T~ ." The Order further directs that NH's "Alleged Cuban Divorce is Void." On its face, the Family Court's decision appears to be a judicial declaration of a subsisting marriage between NH and T~ , which rests upon a foundation of an invalid divorce.

a. Issue of Subject-Matter Jurisdiction

In this case, there is a question as to whether the Family Court had jurisdiction to determine that the divorce is void, and thus whether that court's finding is binding on an Administrative Law Judge deciding T~ 's entitlement to widow's benefits. The Family Court, formerly known as the Domestic Relations Court, was established and the Legislature conferred such jurisdiction upon it as was essential to permit it to oblige the support of a wife by a husband who had neglected to support her. See N.Y. Const. of 1894, art. VI, § 18 (1925, repealed 1962); N.Y. Dom. Rel. Ct. Act. § 91 (L. 1933, c. 482, as amended); N.Y. Const. art. VI, §§ 13 and 32 (1961, amended 2001, effective 2002). In the exercise of its limited jurisdiction the Family Court is authorized to determine whether the parties are husband and wife, but such determination is incidental to the exercise of any jurisdiction. Loomis v. Loomis, 42 N.E.2d 495, 496 (N.Y. 1942). For that limited purpose the court has jurisdiction of the subject matter of the marriage. Consequently, New York law does not recognize a Family Court's pronouncement of marital status as a "decree of a court of competent jurisdiction rendered on the merits," and such a determination is not binding on the parties in a subsequent action outside the Family Court in which there is directly involved the question of whether the same marriage exists or has been terminated. Id. at 496.

In Loomis, the Court of Appeals of New York held that a determination by the Domestic Relations Court of the marital status of the parties is a preliminary matter to exercising or declining jurisdiction and is not binding on the parties in a subsequent action in the Supreme Court where the existence of a valid marriage is directly involved because there is no identity of jurisdiction or cause of action. Id. at 496 (explaining that one is incidental, the other primary, and that one is for support only, the other for an adjudication of marital status). Similarly, the Family Court's direction that the "Cuban Divorce is Void" should not be binding in a subsequent administrative hearing wherein it will be determined whether T~ is the legal widow of NH. The Family Court's decision was only incident to its finding that NH was responsible for supporting T~ . Thus, the preliminary matter of the marital status in Family Court is not res judicata.

Since the jurisdiction to determine the subject of marriage, where the validity of such marriage is a primary issue, lies exclusively in the Supreme Court, the Family Court's finding is not determinative and T~ can rely on it only as evidence. See Graves v. Graves, 675 N.Y.S.2d 843, 846 (N.Y. Sup. Ct. 1998)(stating the New York Supreme Court has exclusive subject matter jurisdiction over divorce actions).

b. Issue of Failure to Include an Indispensable Party

Assuming arguendo that a court is unconvinced by subsection (a) supra, and avers the Family Court's decision should be res judicata for public policy reasons such as consistency, an additional defect remains in such an assertion. The noncompulsory nature of the court's judgment regarding marital status is evident with an acknowledgment that Isabel, NH's second wife to whom he was married at the time of the proceeding, was not a party to the action.

It is well-known that a court may always consider whether there has been a failure to join a necessary party. See First Nat. Bank v. Shuler, 47 N.E. 262, 264 (N.Y. 1897); Matter of Lezette v. Bd. of Educ., 319 N.E.2d 189, 195 (N.Y. 1974). Necessary parties are those persons who might be "inequitably affected by a judgment in the action." N.Y. C.P.L.R. 1001 (M~ 2005). With regard to necessary parties, the N.Y. C.P.L.R. 3001 provides that an action for a declaration of legal relations serves a legitimate purpose only where all persons who are interested in or might be affected by enforcement of such rights and legal relations are parties to the action and have the opportunity to be heard. N.Y. C.P.L.R. § 3001 (M~ 1991)(derived from N.Y. C.P.A. of 1920 § 473). This insures fairness to third parties who should not be "embarrassed by judgments purporting to bind their rights or interest where they have had no opportunity to be heard." First Nat. Bank, 47 N.E. at 264.

New York Courts have held that, where in an action by one spouse for a judgment declaring that a foreign divorce decree is null and void, it appears that subsequent to the procurement of the divorce the defendant married a third person, such third person must be joined as a party defendant, since that person is an indispensable party without whom no effective judgment can be rendered. See, eg., Cominos v. Cominos, 258 N.Y.S.2d. 545, 545 (N.Y. App. Div.), app. dismissed, 213 N.E.2d 687, 687 (N.Y. 1965); Bard v. Bard, 228 N.Y.S.2d 294, 294 (N.Y. App. Div. 1962); Varrichio v. Varrichio, 53 N.Y.S.2d 326, 326 (N.Y. App. Div.), app. denied, 56 N.Y.S.2d 527, 527 (N.Y. App. Div. 1945).

Here, NH was married to I~ at the time of the Family Court's proceeding. Although the court's declaration of the nullity of the Cuban divorce related primarily to the marital status of NH and T~ , it also necessarily implied that the Amado-Isabel marriage was void, thus affecting the rights and legal relation of Isabel. Consequently, Isabel was a necessary and indispensable party without whom no effective judgment regarding marital status could have been rendered. Accord Bard, 228 N.Y.S.2d at 296; see also First Nat. Bank, 47 N.E. at 264 (stating that the rule requires that without the presence of all persons whose rights may be affected by the judgment there cannot be a final and complete determination of the controversy). The fact that Isabel was not a party to the action confirms that the court's finding of a surviving marriage is not binding in T~ 's administrative hearing concerning her eligibility for widow's benefits. It is, thus, our opinion that the ALJ may form his own conclusion with respect to whether a marriage subsists or whether the Cuban Divorce is valid.

3. Recognition of the Cuban divorce decree

In determining whether T~ is the legal widow of NH, the issue of marital status is complicated by the contradictory evidence regarding the divorce. T~ contends that she was separated from NH for over 39 years, but was never served with divorce papers. However, NH submitted proof of the Cuban divorce when he applied for Social Security benefits. The first question to be determined is the extent to which recognition must be accorded the Cuban divorce decree in a New York court. Secondly, the possibility that the divorce may have been fraudulently obtained must be considered.

a. The Doctrine of Comity

New York courts will generally accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States. See, e.g., Greschler v. Greschler, 414 N.E.2d 694, 697 (N.Y. 1980); see, generally, Restatement (Second) of Conflict of Laws § 98 (1971); Robert A. L~, American Conflicts Law § 84, at 169-171 (3d ed. 1968). A party who properly appeared in a foreign divorce action is precluded from attacking the validity of the foreign judgment in a collateral proceeding brought in the New York courts, absent some showing of fraud in the procurement of the judgment or some showing that recognition of the judgment would violate a strong public policy of the State. See Greschler, 414 N.E.2d at 697-698.

In the case at bar, T~ has failed to adduce evidence demonstrating that the Cuban court did not have personal jurisdiction over her. The record includes the translation of the Cuban Decree which indicates that T~ was the plaintiff and was represented by Solicitor Francisco Rodriguez. Thus, her appearance, through an attorney, in the divorce action gave the Cuban court jurisdiction to grant the divorce unless such appearance was unauthorized. Accordingly, the ALJ would recognize the Cuban divorce decree under the doctrine of comity unless T~ can demonstrate fraud or a violation of public policy. See Bourbon v. Bourbon, 751 N.Y.S.2d 302, 304 (N.Y. App. Div. 2002).

b. Demonstrating Fraud

The Social Security Act authorizes the Commissioner to adopt reasonable and proper rules and regulations regarding the nature and extent of proof and evidence necessary to establish the right to benefits. 42 U.S.C. § 405(a) (2006). SSA regulations clearly identify a claimant's responsibilities for proffering convincing evidence to fulfill eligibility requirements for benefits. 20 C.F.R. §§ 404.704, 404.708 (2006). In deciding whether evidence is convincing, the SSA will look to whether "information contained in the evidence agrees with other available evidence, including our records." 20 C.F.R. § 404.708(f) (2006).

Here, the record contains evidence of a valid divorce between NH and T~ as well as NH's subsequent marriages. This evidence conflicts with T~ 's claim that she is the widow of NH as well as the determination of the Family Court that the Cuban divorce is void. Since T~ bears the ultimate burden of proving that she is entitled to benefits as NH's widow, it is her obligation to provide clear and convincing evidence that the divorce is invalid on the ground of fraud. Here, the evidence is inconclusive. T~ has not produced any records which tend to show that she did not bring the divorce suit or that her power of attorney was unauthorized. T~ , therefore, has not carried her burden of proof. Consequently, if no further evidence is submitted, the presumption of validity attaching to NH's marriage with Leonor will continue, New York courts will give recognition to the divorce decree, and T~ cannot receive benefits as NH's widow.

4. Divorced Wife's Benefits

Section 202(e) of the Social Security Act provides that widow's insurance benefits may be paid to a divorced wife. Social Security Act, 42 U.S.C. § 402e (2006). An applicant for a surviving divorced spouse's insurance benefit must meet several requirements: she must have been validly married to a fully insured worker for a period of at least ten years immediately preceding a final divorce; must have attained age 60, or have attained age 50 and be under a disability; and must also be unmarried. 42 U.S.C. §§ 402(e), 402(b)(1), 416(d)(1) (2006).

It is evident that T~ R~ is ineligible for divorced wife's benefits. Although she meets the second two requirements - she is 85 years of age and has never been remarried - the duration requirement has not been met. The divorce occurred in 1960, less than three years after T~ and NH married. Since the marriage subsisted for less than ten years, T~ cannot receive divorced wife's benefits on NH's account.

In conclusion, on our understanding of the current factual record, T~ cannot be entitled to widow's benefits on NH's account because she has not proven through clear and convincing evidence that she is the legal wife of NH. See Seidel v. Crown Industries, 517 N.Y.S.2d 310, 311 (N.Y. App. Div. 1987). A further development of the facts may establish that the Cuban divorce is void. However, T~ bears the burden of proof and if no further evidence is provided she has not met her burden.

New York law states a foreign divorce will not be recognized if none of the parties were residents of the foreign country. NH's divorce from his first wife was invalid and his subsequent marriage to claimant is void. Florida looks to the jurisdiction where the marriage took place to determine its validity. Florida courts would decline to recognize the marriage as valid, thus the claimant could not inherit a spouse's share of NH's personal property if he were to die without a will.

QUESTION

When determining entitlement for L~ (Claimant) to benefits as the spouse of Florida resident D~ (NH), should the Social Security Administration (SSA) apply any provisions of New York or California law to determine whether NH's Dominican Republic divorce from G~ (first wife) would be recognized in Florida as a valid divorce?

ANSWER

For the reasons stated below, it is our opinion that the divorce obtained in the Dominican Republic would not be valid for SSA purposes, Claimant's marriage to NH is void, and Claimant has not presented sufficient evidence to qualify for benefits as a deemed spouse.

BACKGROUND

According to the file, NH married his first wife on October XX, XXXX. NH and his first wife separated some time in 1985. On September XX, XXXX, while NH resided in New York and his first wife resided in California, NH obtained a divorce in the Dominican Republic without personally appearing in the Dominican Republic or being domiciled there. NH's first wife states she never divorced NH. On December XX, XXXX, NH married Claimant in New York. NH and Claimant currently reside in Florida. On June XX, XXXX, Claimant filed an application seeking spouse's benefits on NH's account.

DISCUSSION

The Social Security Act (Act) provides that “an applicant is the wife, husband, widow, or widower” of an insured individual if “the courts of the State in which such insured individual is domiciled at the time such applicant files an application . . . would find that such applicant and such insured individual were validly married at the time such applicant files such application . . . .”§ 216(h)(1)(A)(i) of the Act, 42 U.S.C. § 416(h)(1)(A)(i). The Act also allows a finding that the applicant is the wife, husband, widow, or widower if the courts of that state would determine the applicant could inherit a wife's, husband's, widow's, or widower's share of the insured's personal property if he or she were to die without leaving a will. See § 216(h)(1)(A)(ii) of the Act. Finally, the Act permits the Commissioner to deem that a marriage is valid if she is satisfied that an applicant in good faith went through a marriage ceremony with the insured individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage. See § 216(h)(1)(B)(i) of the Act. Claimant cannot establish entitlement under any of these three methods.

a. Claimant and NH Were Not Validly Married.

At the time of Claimant's application, NH was domiciled in Florida. So, we first look to Florida law to determine whether she and NH have a valid marriage. It is well established in Florida that a presumption of validity attaches to one's last marriage, and this presumption is referred to as "one of the strongest known to the law." King v. Keller, 117 So. 2d 726 (Fla. 1960). To overcome the presumption of the validity of the last marriage, there must be some evidence showing that the previous marriage was not dissolved by death or divorce. In this case, NH's first wife states she and NH never divorced.

However, once a marriage is shown to have been ceremonially entered into, it is presumed to be legal and valid. All presumptions necessary to make a marriage valid, including capacity to contract, attach on proof of a ceremonial marriage and cohabitation by the parties under the belief that they were lawfully married. Grace v. Grace, 162 So. 2d 314 (Fla. App. 1964). The presumption in favor of the validity of the subsequent marriage formally entered into is so great that in the absence of competent proof to the contrary, it is to be assumed that the previous marriage has been dissolved either death or legal action. Id., at 317. Here, there is a question regarding the validity of Claimant and NH's marriage. Under Florida law, the validity of a marriage is determined by the law of the jurisdiction where the marriage occurred. See Smith v. Anderson, 821 So.2d 323, 325 (Fla. Dist. Ct. App. 2002). Because NH and Claimant were married in New York, we must look to that state's law.

Under New York law, once a ceremonial marriage has been performed, there is a strong presumption in favor of holding the latest ceremonial marriage valid. See Grabois v. Jones, 89 F.3d 97, 100 (2d Cir. 1996). Furthermore, the presumption of validity of the latter marriage becomes "stronger and stronger where a substantial injustice would be created by invalidating that marriage." See Grabois, 89 F.3d at 100; see also Dolan v. Celebrezze, 381 F.2d 231, 237-38 (2d Cir. 1967) (finding that a review of New York case law indicates that the presumption favoring the validity of the second marriage varies in force with the attendant facts and circumstances). The court in Dolan noted that the presumption for validating subsequent ceremonial marriages in New York operates to effectuate "a particular public policy such as upholding legitimacy, favoring the participation in the decedent's estate of one who lived with him as his spouse, and preserving the validity of a marriage where no strong public policy would be served by doing otherwise." Dolan, 381 F.2d at 237; see also Boyd v. Heckler, 588 F.Supp. 31, 34-35 (E.D.N.Y. 1984) (stating that "[c]hief among the equities to be considered is whether there are children of the second marriage" in holding that testimonial evidence, absence of divorce records, and no children in the second marriage were sufficient to rebut the presumption of validity of the second marriage for purposes of awarding widow's social security benefits).

Here, a question remains regarding the validity of NH's divorce from his first wife, which affects the validity of his subsequent marriage to Claimant. According to New York law, "a marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living and the prior marriage has not been dissolved legally." Gonzalez v. Gonzalez, 34 Misc.2d 193, 194 (N.Y. Sup. Ct. 1962). In this case, NH sought a divorce from his first wife in the Dominican Republic while residing in New York. New York law states that a foreign divorce will not be recognized if none of the parties were residents of the foreign country. See Walsh v. Andorn, 41 A.D.2d 720, 721 (N.Y. App. Div. 1973); Rosenbaum v. Rosenbaum, 130 NE.2d 902, 903-04 (N.Y. 1955). Information contained in the file states neither NH nor his first wife resided in the Dominican Republic at the time of the divorce. Moreover, neither party personally appeared in the Dominican Republic for the divorce proceedings. Consequently, NH's divorce from his first wife was invalid and his subsequent marriage to Claimant is void. Neither Florida nor New York would look to California law to determine the validity of Claimant's marriage.

b. Claimant Could Not Inherit a Widow's Share of NH's Personal Property.

Claimant could also be entitled to spousal benefits upon a finding that Florida courts would determine that she could inherit a widow's share of NH's personal property if he were to die without leaving a will. See § 216(h)(1)(A)(ii) of the Act.

If NH were to die without a will, Florida law states that a surviving spouse is entitled to a share of a spouse's personal property. See FLA. STAT. § 732.102 (2005). However, Florida, as noted above, looks to the jurisdiction where the marriage took place to determine its validity. New York would not recognize the validity of the marriage of NH and Claimant. Because we believe New York would not recognize Claimant's marriage as valid, we believe that Florida courts would also decline to recognize their marriage as valid. Therefore, we further feel Florida would not find Claimant was NH's surviving spouse within the meaning of the statute.

It is our opinion that Claimant could not inherit a spouse's share of NH's personal property if he died intestate, because she was not his lawful wife. Therefore, Claimant is not entitled to spousal benefits on NH's account under subparagraph (ii) of § 216(h)(1)(A) of the Act.

c. The Commissioner Could Not Find A Valid Deemed Marriage.

As stated above, the Act also permits the Commissioner to find that a marriage is valid if she is satisfied that an applicant in good faith went through a marriage ceremony with the insured individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of the ceremony, would have been a valid marriage. See § 216(h)(1)(B)(i) of the Act. Here, there was a clear legal impediment to Claimant's marriage to NH. Moreover, it is clear that Claimant had knowledge of NH's prior marriage and participated in his acquiring the foreign divorce. However, it is unclear from the records provided whether Claimant had knowledge that the foreign divorce would not be recognized as valid. Because there is insufficient evidence in the record, we are unable to determine that Claimant meets the definition of a deemed wife under § 16(h)(1)(B)(i) of the Act. Further development may be appropriate.

CONCLUSION

Thus, Claimant is not entitled to spousal benefits, because her marriage to NH is void, and she has not met her burden of proving she qualifies as a deemed wife.

Mary Ann S~
Regional Chief Counsel

By: Jennifer P~
Assistant Regional Counsel