20 CFR 404.328(a), 404.1101, and 404.1104
W, a claimant for widow's insurance benefits, had previously engaged in the following sequence of relationships which culminated in her application for benefits. In 1923 she entered a valid marriage in Colorado with H which continued until 1937 when, at W's request, H purportedly obtained a divorce from her in Nevada. However, no record of this event could be located. H remarried in California in 1950, and his spouse died in 1955. H is currently domiciled in California.
W, while subsequently domiciled in Texas, was granted a Mexican divorce from H in July 1942. H alleges he was unaware of the action until about December 1970. Following her divorce, W married R in Mexico and was, in turn, divorced by R in april 1950 in Texas. For the following 9 years W lived with S in Colorado until his death in December 1959 in a relationship which did not constitute a common-law marriage under Colorado law.
The marital venture upon which W's present request for benefits is based commenced about 1960. She alleges that she entered a common-law marital relationship in Colorado with C, and that such relationship continued until C's death in 1970. Two prior nonceremonial marriages of C had terminated in death of the spouses in 1949 and 1967, respectively.
The question thus presented is whether the claimant, W, may be found to have the status of wife or widow of the decreased worker, C, under the applicable law of Colorado (domicile of the decedent), for social security purposes.
Under section 216(h)(1)(A) of the Social Security Act, marital status is determinable for the purpose of entitlement to wife's or widow's benefits:
Since no valid ceremonial marriage was entered into between W and C, other provisions of Colorado law must be examined to determine whether there existed a marital relationship cognizable under the laws of that State. Common law marriages contracted between persons legally capable of contracting marriage are recognized as valid in Colorado. Klipfel's Estate v. Klipfel, 92 P. 26 (Colo. 1907); In re Morrow's Estate 68 P.2d 36 (Colo. 1937); and Graham v. Graham, 274 P.2d 605 (Colo. 1954).
Under the law of California, the domicile of W's first husband, W would be estoppel to deny the validity of her Mexican divorce from him, which she had sought and obtained, thereby precluding her entitlement to wife's insurance benefits on his earnings record. Roberts v. Roberts, 81 Cal. App. 2d 871, 185 P.2d 381 (Cal. app. 1947); Spellens v. Spellens, 49 Cal. 2d 210, 317 P.2d 613 (Cal. 1957). However, since the claimant, W, had not filed an application for benefits on his earnings record, her entitlement as his wife is not here in issue.
Looking further into the matter of estoppel, social Security Ruling 61-65, Cumulative Bulletin 1960-1961, p.25, discusses a situation in which under applicable Florida law, a worker had procured an invalid divorce in Mexico. His first wife, having acquiesced for some 25 years, was found barred by laches from attacking the decree. His second wife was found entitled to wife's insurance benefits. Although Colorado recognizes the doctrine of estoppel to deny the validity of an invalid divorce in the assertion of private claims arising out of the alleged former marriage, it is doubtful that the courts of colorado would apply the doctrine to protect a claimant who is, in effect, asserting the validity of a Mexican divorce which she had obtained. Klein v. Munz, 286 P.112 (1930): Boyd v. Boyd, 68 Colo. 293 (1920).
Since divorces obtained in Mexico where neither party is resident or domiciled are not recognized in Colorado, W does not have the status of wife or widow of the worker and would not be permitted to participate as a spouse in the devolution of his intestate personal property. Neither would the claimant's Mexican divorce be recognized by Texas, where W was domiciled at the time the divorce was granted to her. Risch v. Risch, 395 S.W.2d 709, error dismissed (Tex.Civ.App. 1965). Thus, the claimant may not be found to have had the capacity to contract her alleged common law marriage with the worker, C. It also appears that C lacked a marital capacity since he had a prior undissolved marriage.
The presumption of validity of a second or last marriage is applicable under appropriate circumstances to ceremonial and common law marriages in Colorado. Shreyer v. Shreyer, 155 P.2d 990 (Colo. 1945); Jones v. Milliken, 42 P.2d 467 (Colo. 1935). Under Colorado law, where one had been married twice, there is no inflexible rule by which to determine in all cases whether the first marriage was dissolved by divorce before the second took place. Each case must be determined upon its own facts and circumstances, including reasonable inferences fairly to be drawn from such facts. Gainey v. Flemming, 279 F.2d 56 (10 Cir. 1960). Such presumption is not applicable here to assist the claimant because the first husband of the claimant is alive; he alleges that he was unaware of W's Mexican divorce until so informed by social security officials; and no record can be found of the divorce which he alleges he had obtained from W in Nevada.
Accordingly, it is held that claimant does not have the status of widow of the decreased worker under the law in Colorado and is not entitled to widow's insurance benefits on his earnings record.
Back to Table of Contents