SECTION 5(1) (1) OF THE RAILROAD RETIREMENT ACT-STATUS AS WIDOW-PUTATIVE MARRIAGE (CALIFORNIA)

20 CFR 237.303

L-61-294

Where claimant believed in good faith that a ceremony effected a valid marriage with employee, but at the time of the ceremony he had not been divorced, claimant can qualify as his widow on the basis of a "putative marriage" under California law.

The employee, K, died on November 20, 1960, while domiciled in the State of California. An application for widow's and children's benefits has been filed by W, as widow, and on behalf of C, S and R, as surviving minor children of the deceased. W has furnished evidence to establish that she and the employee went through a ceremonial marriage in New Mexico on April 1, 1946. She states that she was living with K as his wife at the time of his death.

On her application, W stated that she had been previously married to one M and was divorced from him in Yuma, Ariz., on March 5, 1946. She stated that the employee had a prior marriage to P and that this marriage had been dissolved by divorce, date and place "unknown." Investigation revealed, however, that in September 1945, the employee had been served in Yuma, Ariz., with summons for divorce by P; had waived appearance and consented to a default decree of divorce. An interlocutory decree of divorce was entered by the Superior Court of Tehama County, California, on December 16, 1946, and a final decree of divorce terminating the employee's marriage to P was awarded on January 5, 1948. In view of this, it is obvious that the employee's marriage to the claimant was bigamous and void because of his undissolved prior marriage to P. Annuities have been awarded, however, to each of the employee's minor children named above, since they may be recognized as legitimate children of the employee under the California void marriage statute (Associate General Counsel's opinion L-58-318).

Since the employee was domiciled in the State of California at the time of his death, the laws and court decisions of that jurisdiction will determine the status of the claimant, W, as his widow. (Section 5(1)(1) of the Railroad Retirement Act, which incorporates by reference section 216(h) (1) of the Social Security Act, as in effect before 1957.) Section 216(h) (1) of the Social Security Act as in effect before 1957 provides:

widow

of a

In determining whether an applicant is the * fully insured or currently insured individual for purposes of this title, the Secretary shall apply such law as would be applied in determining the devolu. tion of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or if such insured individual is or was not so domiciled in any State by the courts of the District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal property as a * ** widow *** shall be deemed such. Under New Mexico law, where the claimant and the employee went through the marriage ceremony, their attempted marriage would be null and void

690-471-64

because of the employee's undissolved prior marriage (State v. Lindsey, 194 P. 877 (N.M. 1921)). This would also be true, of course, under the California law (Associate General Counsel's opinion L-51-415). It appears that since W and K resided only in Arizona and California after the removal of the employee's impediment on January 5, 1948, it would not have been possible for them to have established a valid common-law marriage (Associate General Counsel's opinions L-50-442; L-49–370). W states that at the time she went through the marriage ceremony with K, and, in fact, even until the investigation was made after his death relative to the dissolution of his prior marriage to P, she believed that his first marriage had been dissolved by divorce sometime in 1945. From this there is justification in concluding that, regardless of whether or not the employee was aware at the time he went through the marriage ceremony with the claimant in New Mexico on April 1, 1946, that his marriage to P had not been dissolved, the claimant entered into the marriage with the employee in good faith. Such good faith is sufficient to bring the instant claim within the rule enunciated by the California courts relative to a "putative marriage", i.e., those matrimonial unions which have been solemnized in good faith on the part of one or both of the parties, but which by reason of some legal infirmity, are either void or voidable; the essential basis of such a marriage is the belief that it is valid. In such marriages, the California courts have held that where good faith is shown on the part of one or both of the parties, the property thereafter accumulated by the couple belongs to the community estate upon the death of the husband intestate, and the putative widow is entitled to take such estate under section 201 of the California Probate Code (Estate of Krone, 189 P. 2d 741 (D.C.A. Calif. 1948); In re Jackson's Estate, 245 P. 2d 684 (D.C.A. Calif. 1952)). In this connection, the court in Estate of Krone, supra, stated as follows:

From the foregoing review it appears that the preponderant holdings of the appellate courts coincide with the view that upon the dissolution of a putative marriage by decree of annulment or by death the (putative) wife is to take the same share to which she would have been entitled as a legal spouse the logic appears irrefutable that if according to statute (Probate Code, § 201) the survivor of a valid ceremonial marriage shall be entitled to take all of the community estate upon its dissolution, then by parity of reasoning why should not the wife inherit the entire estate of a putative union upon the death of her husband intestate? Clearly she does inherit it all.

See also, Mazzenga v. Rosso, et al., 197 P. 2d 770 (D.C.A. Calif. 1948) and In re Foy's Estate, 240 P. 2d 685 (D.C.A. Calif. 1952).

In view of the foregoing, and since the evidence establishes that W entered into the ceremonial marriage with K in good faith and until after his death believed that the marriage was valid, it is held that she may be recognized as the widow of K, the deceased employee, and receive benefits as such under the provisions of the Railroad Retirement Act (Cf. Associate General Counsel's opinion L-54-–137).

SECTION 5(1) (1) OF THE RAILROAD RETIREMENT ACT-STATUS OF CHILD-ADOPTION

20 CFR 237.306, 237.409

L-61-297

Where evidence demonstrates employee and his wife received custody of child and there was an agreement to adopt child, it qualifies as employee's child through principle of “equitable adoption" under Florida law.

The question has arisen as to whether E may be considered to be the "child" of J, the deceased employee, for the purpose of receiving benefits under the Railroad Retirement Act.

The employee, J, died on October 22, 1960, while domiciled in Hillsborough County, Fla. An application for a widow's and child's benefits was filed by L, as his widow, and on behalf of E, as the adopted son of the employee. L has been unable to produce evidence of her ceremonial marriage to the employee, which she states occurred in the home of her mother in Georgia on June 21, 1925. However, she has furnished satisfactory evidence of the long cohabitation and holding out of herself and the employee as husband and wife in the State of Florida (35 years) and it appears that the evidence justifies a finding that they established a valid common-law marriage under the laws of that jurisdiction (Associate General Counsel's opinion L-51-248).

Evidence in the file indicates that a male child was born out of wedlock to W in Tampa, Fla., on December 23, 1948. The natural mother abandoned the child in a rooming house shortly after its birth, and the child was then taken into the home of its maternal grandparents, F and H, where it remained for a time. The claimant states as follows relative to the conditions under which she and the deceased employee received custody of the child, whom they later gave the name of E:

W's parents, F and H, were friends of mine. I learned that their daughter, W, had deserted her child and that F and H had the baby in their care. They gave me and my husband the baby when he became sick and they could not care for him.

The baby's grandparents and my husband, J, appeared before Judge K in Juvenile Court, Hillsborough county in 1952. He told us to report back before him and he would furnish us necessary papers for adoption. We did not go back because the baby became sick.

The claimant states that the child was surrendered to the employee and herself on January 1, 1952, by the child's maternal grandparents with the understanding that they would legally adopt him and give him inheritance rights as though he was their own natural child. She states further that the employee gave the child his surname; registered him in school as E, his son; held him out to be and treated him as his own child; made financial provision for him through a health insurance policy, and that the child rendered filial obedience to them and always addressed them as "mother" and "father." Although the claimant states that she and the employee never saw the child's natural mother after they took him into their home, she alleges that she believes that he could have been reclaimed by the natural mother or the grandparents who placed him in their custody, for the reason that "we never completed final adoption proceedings."

F, the maternal grandmother of the child, completed "Statement Regarding Alleged Adoption," in which she stated, among other things: that (a) she does not know the name of E's natural father; (b) that the child was surrendered to the claimant and the employee upon condition that they would legally adopt him and give him the inheritance rights of a natural child; (c) that the employee and the claimant agreed to raise the child as their own; (d) that they gave him their name and held him out to be their own child; and (e) that the maternal grandparents or the natural mother have never tried to reclaim the child and that he could not have been reclaimed by them from the claimant and the employee.

Since the employee was domiciled in Florida at the time of his death the statutes and applicable court decisions of that State will determine the status of E as the child of the deceased employee. (Section 5(1)(1) of the Railroad Retirement Act which incorporates by reference section 216 (h) (1) of the Social Security Act as in effect before 1957.)

Section 216(h)(1) of the Social Security Act as in effect before 1957 provides:

In determining whether an applicant is the * child * * of a fully insured or currently insured individual for purposes of this title, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or if such insured individual is or was not so domiciled in any State by the courts of the District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal property as a *** child * * shall be deemed such.

With regard to the giving of consent for the adoption of a child under Florida law, section 72.14 of the Florida Statutes Annotated (1960 Cumulative Annual Pocket Part) provides that a written consent, executed in the presence of two witnesses and acknowledged before a notary public must be filed by the living parent or parents of a child born in wedlock, or the living mother of a child born out of wedlock, and if no parent is living, then such consent must be given by the legal guardian, if any. However, in the case of Wiggins v. Rolls, 100 So. 2d 414 (Fla. 1958), the following statement relative to the giving of consent to adoption by a parent, pronounced by the Florida Supreme Court, appears to be pertinent in the instant case:

We are not here losing sight of the rule that the courts will always consider first and primarily the welfare of the minor. At the same time we are of the view that due regard should be given to the rights of a natural parent. He should not be deprived of the privileges and responsibilities of parenthood against his consent unless in some fashion he has abandoned his offspring or has otherwise demonstrated that he is not a fit subject to continue to enjoy the privilege. In Streets v. Gammarino, 59 S. 2d 520 (Fla. 1952), a case cited by both parties, we held that the conduct of a father in completely ignoring his child, failing to support him and totally disregarding every aspect of parental responsibility was sufficient to establish an abandonment that would justify a decree of adoption favorable to a stepfather. (Emphasis supplied.)

The evidence in the file is undisputed that the natural mother of E abandoned him, and in view of the statement of the Florida court quoted above,

it is clear that he could have been legally adopted without her consent. Since in the recent Florida case of Modacsi v. Taylor, 104 So. 2d 664 (1958), it was held that consent to adopt is not required of a person having the legal custody of a child where the parents grant such consent, it may be concluded that where a natural parent has by his conduct forfeited the necessity of securing his consent to the child's adoption, the child's natural guardians having his custody (in this case, his maternal grandparents) would have the authority to consent to his adoption and enter into a valid adoption contract.

Although the claimant stated that she believed that the grandparents or natural mother of E had the right to reclaim him from the employee and herself, since they had not gone through with the legal proceeding for his adoption, no weight should be given to this statement as it may be attributed to the claimant's erroneous understanding of the law, i.e., that a valid adoption could not be effectuated except through court proceedings (Associate General Counsel's opinion L-55-177). This is justified in view of the statement of E's maternal grandmother, a party to the adoption agreement, that in her opinion no one had the right to take him or reclaim him from the claimant and the employee.

For the reason that the evidence establishes that the claimant and the employee entered into a contract for the adoption of E with his maternal grandparents, who, as his natural guardians and in whose custody he was at the time, and who had the authority, if anyone, to make such a contract, and since the principle of "equitable adoption" is recognized in Florida where there is evidence of a contract to adopt (Associate General Counsel's opinions L-53-581; L-56–385), it is held that E may be recognized as the child of J, the deceased employee (cf. Associate General Counsel's opinion L-54-42).

SECTION 5 (i) (1) (i) OF THE RAILROAD RETIREMENT ACTWIDOW'S INSURANCE ANNUITY-EMPLOYEE SERVICE

20 CFR 237.702

L-61-315

Service rendered by the widow of an employee as caretaker of a cottage owned by a railway company constitutes service to an "employer" within the meaning of the Railroad Retirement Act.

The question was raised as to whether service performed by A, widow of a railroad employee, as caretaker of a cottage owned by a railway company (an "employer" under the Railroad Retirement Act), was that of an "employee" and requires deduction from her widow's annuity, or was as an independent contractor requiring no deduction.

The facts are that A was engaged for a period of approximately 12 years as caretaker or housekeeper of a cottage owned by a railway company and located on the railway's property at Oakdale, Tenn. The facilities of this cottage were used by railroad officials on trips to Oakdale because there was no private hotel in that area. It was the duty of A to keep the cottage clean and to make beds in the building. She performed her service under a verbal contract and received $20.00 per month for this work.