SSR 66-34: SECTION 216(h). -- RELATIONSHIP -- VALIDITY OF UNDERAGE MARRIAGE

20 CFR 404.335, 404.1101, and 404.1104

SSR 66-34

In 1948 the claimant and the worker, then age 17, went through a marriage ceremony in Arkansas. She lived in Arkansas with the worker until his death on March 14, 1964, Arkansas law, which since 1941 had provided that a marriage contracted by a male under age 18 was absolutely void, was amended March 27, 1964, to declare that such marriages (including marriages previously contracted) are valid unless annulled. Held, that claimant's marriage, void under Arkansas law when entered into and as in effect at the time of the worker's death, thus giving her status as the workers' widow under section 216(h)(1)(A) of the Social Security Act.

In March 1948, the worker, R, age 17, and the claimant went through a marriage ceremony in Arkansas where they were both domiciled. Thereafter they lived together in Arkansas as man and wife until the worker's death. Shortly after R died on March 14, 1964, the claimant filed application for mother's insurance benefits for herself, and for child's insurance benefits on behalf of the two children born to her and R after 1950.

The two children met all requirements for, and each was awarded child's insurance benefits. Whether the claimant qualifies for mother's insurance benefits depends upon whether she is R's widow as determined under section 216(h)(1) of the Social Security Act. She meets all other requirements of section 202(g) for entitlement to mother's insurance benefits.

Under section 216(h)(1)(A) of the Act, a woman is the widow of a worker for purposes of entitlement to benefits if the courts of the State in which he was domiciled at the time of his death would find that either (1) the worker and she were validly married at that time, or (2) she would have the same status as his widow for purposes of sharing in the distribution of his intestate personal property.

Since R was domiciled in Arkansas at the time of his death, the law of that State is applicable in determining whether the claimant was validly married to R and, accordingly has status as his widow under section 216(h)(1)(A). Section 55-102, Arkansas Statues (1947), in effect at the time R and the claimant went through the marriage ceremony, provided in pertinent part:

Every male who shall have arrived at the full age of eighteen (18) years and every female who shall have arrived at the full age of sixteen (16) years shall be capable in law of contracting marriage; if under those ages, their marriage shall be absolutely void.

Under this provision, enacted in 1941 (Act 32, Acts of Arkansas 1941), a marriage in which either of the parties was below the specified minimum age was absolutely void; continued cohabitation in Arkansas by the parties after attainment of the marriageable age would not have made the marriage valid. Aside from a minor exception enacted in 1961 which permitted marriage by persons below the specified ages under certain conditions not met in the present case, the quoted provision was still in effect on March 14, 1964, when R died. Accordingly, at that time the claimant was neither validly married to R, nor did she have the status of his widow for purposes of sharing in his intestate personal property. Therefore, she did not meet the requirements of section 216(h)(1)(A).

On March 27, 1964, the provision quoted above was changed by Act 5 of the Extraordinary Session of the Arkansas General Assembly, the last clause being amended to read: "* * * if under those ages, their marriage shall be voidable." Section 2 of Act 5 provides:

All marriages heretofore contracted where one or both of the parties to the contract were under the minimum age prescribed by law for contracting marriage are hereby declared to be voidable only, and shall be valid for all intents and purposes unless voided by a court of competent jurisdiction. (Italics supplied.)

While there have been no reported court decisions in Arkansas interpreting Act 5 of 1964, the Attorney General of the State, in an opinion dated August 27, 1965, concluded as follows:

"As Section 2 of the Act applies to 'all marriages . . .' and makes no distinction between marriages terminated by the death of one of the parties prior to March 27, 1964, and any other marriage, it is the opinion of this office that the Act applies with equal force to all marriages."

Accordingly, it is held that while claimant's marriage to R in 1948 was void when entered into and at time of R's death, it was subsequently validated by legislation having retroactive effect which was enacted after his death; therefore, the claimant is R's widow within the meaning of section 216(h)(1)(A) and is entitled to mother's insurance benefits.

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