Rescinded 1981

SSR 68-20: Section 216 (h)(1).—Relationship—Validity of Marriage Within Six Months of Divorce—Montana

20 CFR 404.1101 and 404.1102

SSR 68-20

The claimant began living with the worker in Montana prior to a Nevada divorce from her husband. This cohabitation continued until the worker died in Montana four months after the divorce. Under the laws of Montana, a re-marriage in that State within six months of a divorce, regardless of where obtained, is void if at least one of the parties was a resident of Montana. Held, the claimant is not the widow of the worker since, among other requirements that were not met, she did not have, under Montana law, the legal capacity to contract a ceremonial or nonceremonial marriage with him prior to his death.

R, the worker, and W (a married woman) began living together in Montana in July 1963. W and her husband, X, were granted a divorce in Nevada in October 1963. R and W thereafter considered themselves husband and wife. W, in her application for widow's insurance benefits, established that from October 1963 until R's death on February 26, 1964, they were generally considered as husband and wife and held themselves out to the public as such.

W may become entitled to widow's insurance benefits if (among other requirements) she is R's widow and otherwise satisfies the definition of "widow" in section 216(c) of the Act.

Section 216(h)(1)(A) of the Social Security Act provides, as pertinent to this case, that a claimant's status as the widow of a deceased individual shall be determined by applying the law of the State in which the individual was domiciled at the time of his death. Since R was at the time of death domiciled in Montana, the laws of that State are applicable in determining the relationship of W to R. The specific issue presented in this case is whether W has the status of R's widow under the Montana law based upon a common-law marriage in Montana following her Nevada divorce from X.

Section 48-151, Revised Codes of Montana 1947, provides:

It is unlawful for any person, who is a party to an action for divorce in any court in this state, or for any Montana resident who is a party to an action for divorce elsewhere, to marry again until six months after judgment of divorce is granted, and the marriage of any such person solemnized before the expiration of six months from the date of the granting of judgment of divorce shall be void.

The foregoing provision, enacted by section 11, chapter 232, Laws Montana 1963, became effective July 1, 1963. Therefore, after June 30, 1963 (1) a marriage solemnized in Montana between parties, either of whom have been divorced in Montana within 6 months thereof, is void, and (2) marriage solemnized in Montana between residents of Montana, either of whom have been divorced in Montana or elsewhere within 6 months thereof, is void.

As previously indicated, R and W had entered into a purported common- law marriage.

While as the court stated in Elliott v. Industrial Accident Board, 53 2d 451.454 (Mont. 1936):

[t]he so-called "common-law marriage" is recognized as valid in [Montana], * * * to be effective there must be the mutual consent of parties able to consent and competent to enter into a ceremonial marriage, and the assumption of such relationship, by consent and agreement, as of a time certain, followed by cohabitation and repute * * *. (Emphasis supplied.)

W's first marriage remained in effect until dissolved by divorce in Nevada in October 1963. She and R cohabited as residents of Montana from July 1963 until R's death in February 1964. Under section 48-16 Revised Codes of Montana 1947 supra, W therefore did not have the capacity to contract a valid marriage in that State until 6 months after the decree of divorce granted in October 1963, i.e., not until April 1964. In the meantime R had died in Montana in February 1964, before W was free to contract a marriage under the law of Montana.

Accordingly, it is held that W, not having legal capacity to contract a ceremonial or nonceremonial marriage with R under applicable Montana law prior to his death, may not be found to be R's lawful widow and she is not entitled to widow's insurance benefits.

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