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MCEVERS v. SULLIVAN

February 28, 1992

CATHERINE MCEVERS, PLAINTIFF-APPELLANT,
v.
LOUIS M. SULLIVAN, M.D., SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Richard Mills, District Judge:

OPINION

Social Security Widow's Benefits.

When is a dead man's wife not his widow?

For social security purposes, it is when she is married to her third husband when her first husband, from whom she was never divorced, dies and she applies for benefits as the widow of her first husband while concealing her marriage to the third husband.

Cross-motions for summary judgment.

The "widow" loses.

Judgment for Defendant.

Facts

This case is fact-intensive. The background of this rather unusual case is lengthy, interesting and — fortunately — largely undisputed. Many of these facts are drawn from the written decisions of the Administrative Law Judge (ALJ) and the Appeals Council. The rest are drawn from elsewhere in the certified record of the proceedings below.

A. Facts from the ALJ's Decision

Appellant was born December 3, 1920.

On July 15, 1947, she married Virgil McEvers (Husband 1). In August of 1954, she filed for a divorce.

On January 7, 1955, Plaintiff married John Root (Husband 2). Plaintiff divorced Root on September 19, 1959.

On March 14, 1967, Plaintiff married Evan Parsaghian (Husband 3) "in a formal, licensed and solemnized marriage."

Virgil McEvers, Husband 1, died fully insured on March 7, 1979. Plaintiff reached age 60 on December 3, 1980 and filed for social security benefits as McEvers' widow on October 8, 1981. She was awarded benefits commencing October, 1981.

Plaintiff and Parsaghian, Husband 3, were separated in October, 1986. He died in March, 1988.

On March 5, 1988, the Social Security Administration (hereafter Administration) determined that Plaintiff had received an overpayment of $39,220.10. This determination was based on the fact that Plaintiff was married to someone else, Evan Parsaghian, when she applied for benefits as the widow of McEvers. The Administration further determined that the first possible month Plaintiff was entitled to widow's benefits was March, 1988, when Parsaghian died.

The ALJ's decision stated that Plaintiff had sought an annulment of her marriage to Parsaghian on January 25, 1988. In March, 1988, Parsaghian passed away. Plaintiff was granted an annulment of her marriage to Parsaghian on October 5, 1988, in an order that declared the marriage invalid as of March 14, 1967.

On March 16, 1988, Plaintiff claimed supplemental security benefits as the spouse of Parsaghian, from whom she was separated.

The Administration was of the opinion that, under the Illinois Marriage and Dissolution of Marriages Act, the marriage to Parsaghian, although initially invalid as a prohibited marriage, became valid in March, 1979, when Plaintiff and Parsaghian continued to cohabit after McEvers died and the impediment to Plaintiff's marriage to Parsaghian was removed.

The ALJ noted that Ill.Rev.Stat. ch. 40 ¶ 212 provides as follows:

212 Prohibited marriages

(a) The following marriages are ...


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