SSR 72-52: SECTIONS 202(e) and 216(c)(5) (42 U.S.C. 402(e) and 416(c)(5). -- WIDOW'S INSURANCE BENEFITS -- "DURATION OF MARRIAGE" REQUIREMENT

20 CFR 404.1104(e)

SSR 72-52

Where claimant for widow's insurance benefits alleged that in 1941 she entered into a valid common-law marriage with worker under Ohio law but evidence established: (1) that their intent was to marry in the future and did not constitute an agreement of marriage per verba praesenti; (2) that their ceremonial marriage occurred twenty-five days before his death in 1958 with no children born of their relationship and; (3) that worker's prior marriage of 1939 was not terminated until 1966, held, under Ohio law claimant was not married to worker until 1968, and since this ceremonial marriage existed less than 9 months immediately prior to worker's death and there were no children of the relationship, nor were other statutory alternatives met, claimant is not his "widow" and is not entitled to benefits as his widow.

W, the claimant, filed application for widow's insurance benefits on May 6, 1968, as the widow of R, who died April 27, 1968, domiciled in Ohio. The application for benefits was disallowed for lack of proof of age and of marriage. On October 25, 1968, W filed a second application for widow's benefits but was found entitled to the lump-sum death payment only, as she had met neither the "duration of marriage" requirement nor qualified as the parent of R's child. W appealed this determination on July 14, 1969.

From the evidence submitted, it appears that W had lived with X, another worker, in a relationship which she considered to be a common-law marriage from about 1926 until their separation in February 1941. One child was born of this relationship. X died in Pennsylvania on October 30, 1959. Prior to 1926, W had borne two children by another worker, Z, with whom she lived. W and the children of Z used X's name.

W alleged that a common-law marriage with R commenced April 3, 1941, in Ohio, and continued during R's Army service from May 1941 to 1946. However, W received no service allotment and was not shown as R's wife in Army records. They resumed living together in 1946 and continued together until R's death in 1968 in Ohio. There were no children born of this relationship.

W further alleged that during R's hospitalization in April 1966, she discovered his prior marriage to B which had occurred February 24, 1939, in Ohio. R had promised to marry W as soon as he recovered, and thereafter on several occasions they discussed their future expectations of marriage. Subsequently, R was divorced from B in Ohio on September 16, 1966, but did not ceremonially marry W until April 2, 1968, while again a hospital patient. He died 25 days later.

The issue in this case is whether W is entitled to widow's insurance benefits on the account of R, the deceased worker. This depends on whether W is the "widow" of R, as defined in section 216(c) of the Social Security Act.

Section 202(e)(1) of the Act (42 U.S.C. 402(e)(1)) provides, in pertinent part, for payment of widow's insurance benefits to:

The widow (as defined in section 216(c)) . . . of an individual who died a fully insured individual, if such widow . . . is not married, . . . has attained age 60, . . . has filed application for widow's insurance benefits, or was entitled, after attainment of age 62 to wife's insurance benefits, on the basis of the wages and self-employment income of such individual . . . .

Section 216(c) of the Act (42 U.S.C. 416(c)) states, in pertinent part, that:

The term "widow" . . . means the surviving wife of an individual, but only if . . . [among other requirements not here pertinent] she was married to him for a period of not less than nine months immediately prior to the day on which he died . . . .

Section 216(h)(1)(A) of the Act (42 U.S.C. 416(h)(1)(A)) provides, in pertinent part, that:

An applicant is the . . . widow . . . of a fully or currently insured individual for purposes of this title if the courts of the State in which such insured individual . . . if . . . dead . . . was domiciled at the time of death . . . would find that such applicant and such insured individual were validly married . . . at the time he died.

Under the laws of Ohio, the State in which W's various marital ventures occurred, a common-law marriage is held to contravene public policy and may be established only when each of the following essential elements is proved by clear and convincing evidence, namely: an agreement of marriage per verba de praesenti made by parties competent to marry; accompanied and followed by cohabitation; a holding out of one another as husband and wife; and a reputation in the community as being husband and wife. In Re Estate of Soeder, 7 Ohio App. 2nd 271, 220 N.E.2d 547 (1966).

In this case, although R and W had a relationship resembling that of marriage since 1941 (except for his military service), from February 24, 1939, until his divorce from B on September 16, 1966, R was not competent to contract a marriage, as there was already in force a marriage between himself and B.

Thereafter, although the impediment to any future marriage which R might have wished to enter into was removed, no agreement in praesenti of marriage was ever made until April 2, 1968, when the parties finally formalized their relationship. The evidence, including the testimony of W, establishes that W and R's only conversations with respect to marriage concerned their future expectations. The fact that they held themselves out as husband and wife cannot be considered here as constituting a common law marriage in the absence of an agreement of marriage per verba de praesenti. Furthermore, the evidence establishes that W had entered into substantially the same relationship with two other men, prior to R's appearance. If the mere holding out and living together as husband and wife, absent a present agreement of marriage, constitutes a marriage, then the competency of W to marry is open to question in view of her previous relationships. The cumulative evidence, therefore, establishes that W, at no time, can be said to have been married to R until their ceremonial marriage to each other on April 2, 1968.

Accordingly, since W was not married to R for not less than 9 months immediately prior to the day on which he died, held, she is not his "widow" within the meaning of section 216(c) of the Act, and is not entitled to widow's insurance benefits on the basis of her application.

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