20 CFR 404.345
A and L were married in New York State on September 30, 1942. Shortly thereafter L gave birth to a son who was placed in a foster home and L herself was institutionalized, both actions being taken due to her severe mental retardation. L has remained institutionalized, save for one short period, to date. On May 24, 1944, A instituted divorce proceedings. However, it does not appear that such proceedings were ever concluded or that a divorce was ever finalized. He died in January 1970 and on May 31, 1978 the institution held an application on L's behalf for widow's insurance benefits.
A question has been raised as to whether under New York law a marriage entered into by a severely retarded individual incapable of understanding the nature of her action, as herein, is void ab initio, or, on the facts as stated, was voided at any time prior to the death of the wage earner, A.
A marriage entered into by a severely retarded individual, incapable of understanding, is voidable by a court of competent jurisdiction only and not void ab initio under New York State law. New York Dom. Rel. Law § 7 (McKinney 1977). Remlein v. Remlein, 54 N.Y.S.2d 323 (1945); Weinberg v. Weinberg, 255 App. Div. 366, 8 N.Y.S.2d 341 (1938). Thus, L remains the lawful widow of A unless the marriage was dissolved by a court of competent jurisdiction. It appears from the facts herein that while proceedings to terminate the marriage were commended by A, such proceedings were never concluded and, therefore, no order of a court of competent jurisdiction dissolving this marriage is existent. Assuming this to be the fact, L must be considered A's legal widow for benefit purposes.
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