SSR 71-21c: SECTIONS 202(e) and 216(c)(5). -- WIDOW'S INSURANCE BENEFITS -- "DURATION OF MARRIAGE" REQUIREMENT -- CONSTITUTIONALITY OF STATE'S NONRECOGNITION OF COMMON-LAW MARRIAGES

20 CFR 404.1104(E)

SSR 71-21c

Perez v. Finch , U.S.D.C., E.D. Wash., S. Div. Civ. No. 2574

(7/13/70); (CCH U.I.R. Fed. Par. 16,051)

POWELL, District Judge : The final decision of defendant disallowed

plaintiff's application for widow's insurance benefits under 42 U.S.C.A.

402(e). Plaintiff maintains as the surviving widow of the decedent Jose

Perez she is entitled to social security benefits. They were denied to her

on the ground that she was not married to decedent "for a period of not

less than nine months immediately prior to the day on which he died" as

required by 42 U.S.C.A. 416(c). This action was brought under 42 U.S.C.A.

405(e).

The parties have filed cross motions for summary judgment. Jose and Petra

Perez were from Mexico and could not read or speak English. They lived in

Yakima County. Both had been married previously to others and the

marriages had been dissolved. They applied for and obtained a marriage

license on July 5, 1960. No civil or religious ceremony of marriage was

performed thereafter until January 2, 1968 when Father Jose Ybarra married

them in the Catholic Church. They are represented as sincere in their

belief that they were married by civil authorities when they obtained

their license. Jose Perez died January 21, 1968.

Plaintiff contends that since Washington does not recognize common law

marriages and some states do, the decision herein results in depriving her

of "equal protection" under the fourteenth Amendment. The law in

Washington is clear that common law marriages have no legal standing. In re Gallagher's Estate , 35 Wn. 2d 512, 213 P.2d 621 (1950), In

re Warren , 40 Wn. 2d 342, 243 P.2d 632 (1952).

aintiff contends that since Washington does not recognize common law

marriages and some states do, the decision herein results in depriving her

of "equal protection" under the fourteenth Amendment. The law in

Washington is clear that common law marriages have no legal standing. In re Gallagher's Estate , 35 Wn. 2d 512, 213 P.2d 621 (1950), In

re Warren , 40 Wn. 2d 342, 243 P.2d 632 (1952).

Plaintiff and her deceased husband did not reside outside the State of

Washington after they obtained their marriage license. The law seems

settled that the validity of a marriage is to be determined by the law of

the place where contracted. (See citations above.) The law of Washington

must control. Since plaintiff was not legally married to the decedent

until January 2, 1968 the plaintiff has not been married for the required

nine months at the time of the death of decedent. Plaintiff does not

qualify as a "surviving widow."

The "equal protection" clause of the Fourteenth Amendment in the fact

pattern here would operate to protect citizens of other states from

discriminatory laws in Washington. Here the law of Washington determines

the validity of plaintiff's marriage. Marriages are valid in Washington if

valid where contracted. There is no violation of the equal protection

clause.

The statute requires that the marriage be for not less than nine months

prior to the death of the wage earner in order for the widow to qualify as

a "surviving widow." The Act creates the insurance benefits and Congress

may impose such restrictions as it determines advisable. No question of

the reasonableness of the nine months limitation is raised here.

Defendant's motion for summary judgment will be granted and plaintiff's

be denied. Defendant is asked to submit an appropriate order.