Matter of: Myrtle O. Morris File: B-251520 Date: July 22, 1993

B-251520: Jul 22, 1993

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Second marriage was not challenged within 1 year and therefore was valid. We conclude she is entitled to the annuity. Was not issued until February 20. Sergeant Morris and Myrtle Morris were married again on August 21. An SBP annuity is payable to the "eligible widow" of a member. 10 U.S.C. A "widow" is defined in the SBP law as the surviving spouse who. If she was not married to the member when he retired. Was married to the member for at least 1 year immediately before his death or is the mother of issue of the marriage. 10 U.S.C. Is whether the 1987 marriage between Sergeant Morris and Myrtle Morris is valid for purposes of applying the 1 year of marriage rule. The validity of the l987 marriage in this case is a matter of Kentucky law.

Matter of: Myrtle O. Morris File: B-251520 Date: July 22, 1993

MILITARY PERSONNEL Pay Survivor benefits Eligibility Survivor Benefit Plan (SBP) annuity may be paid to member's second wife whom he married 2-1/2 years prior to obtaining divorce from first wife because under Kentucky law, second marriage was not challenged within 1 year and therefore was valid. While member died 3 months after divorce, prior 2-1/2 years of marriage may be counted to fulfill SBP requirement that "eligible widow" be married to member for at least 1 year.

DECISION Myrtle O. Morris has filed a claim for the Survivor Benefit Plan (SBP) annuity as the widow of Sergeant First Class Richard L. Morris, USA. We conclude she is entitled to the annuity.

Sergeant Morris retired on November 1, 1960. On December 16, 1961, he married Anna M. Morris in Indiana. On August 17, 1973, he established an SBP annuity for his wife and dependent children. At an unspecified later date, the couple separated; Sergeant Morris became a resident of Kentucky and Anna Morris moved to Florida. A decree divorcing the two, obtained in Kentucky by Sergeant Morris without Anna Morris's participation, was not issued until February 20, 1990, 2-1/2 years after Sergeant Morris, on August 3, 1987, had married Myrtle O. Morris in Kentucky. To remove any doubts, Sergeant Morris and Myrtle Morris were married again on August 21, 1990, following the divorce, but Sergeant Morris died 3 months later on November 18, 1990.

Under title 10 of the United States Code, an SBP annuity is payable to the "eligible widow" of a member. 10 U.S.C. Sec. 1450 (a)(1). A "widow" is defined in the SBP law as the surviving spouse who, if she was not married to the member when he retired, was married to the member for at least 1 year immediately before his death or is the mother of issue of the marriage. 10 U.S.C. Sec. 1447(3). The question therefore, is whether the 1987 marriage between Sergeant Morris and Myrtle Morris is valid for purposes of applying the 1 year of marriage rule. In this regard, Anna Morris may not claim an annuity because Sergeant Morris did not execute a "former spouse election" on her behalf following their divorce, as required by 10 U.S.C. Sec. 1448(b) to continue a former spouse as an SBP beneficiary.

The validity of the l987 marriage in this case is a matter of Kentucky law. Under Kentucky law, a marriage is prohibited and void where there is a husband or wife living from whom the person marrying has not been divorced. Ky. Rev. Stat. Sec. 402.020(1)(b). However, under Sec. 403.120(2)(b), a prohibited marriage may be declared invalid by a circuit court only upon the petition of one of the parties to the marriage within 1 year of when the petitioner obtained knowledge of the condition which made the marriage invalid. In other words, under this provision of Kentucky law, only Sergeant Morris or Myrtle Morris, acting within 1 year of their marriage in 1987 (or by Myrtle within a year of learning that Sergeant Morris was still married to Anna Morris, if she learned of this fact following the 1987 marriage), could have sought to have the marriage declared invalid.

Myrtle Morris's attorney argues that under Kentucky law the marriage in 1987 cannot now be challenged. Therefore, he argues, the 1987 marriage is valid for the purpose of calculating the 1 year requirement of the SBP law for Myrtle to be an eligible widow and entitled to the annuity. There is no competing claim for the annuity from Anna Morris.

The attorney cites Ferguson v. Ferguson, 610 S.W.2d 925 (Ky. Ct. App.) (1981) as standing for the proposition that even a bigamous marriage will be honored in Kentucky unless appropriately challenged. In Ferguson, William Ferguson married Eva Ferguson in 1969, 6 days prior to his divorce from his first wife. The son from the first marriage petitioned the court to be appointed the administrator of William's estate after William's death in 1979. The Court of Appeals found that since the marriage had not been challenged in accordance with section 403.210(2)(b), it was valid and the appointment of Eva as administratrix was proper.

Under the holding in Ferguson, the 1987 marriage between Sergeant Morris and Myrtle Morris is not void ab initio, meaning it never had any existence, but merely voidable, meaning that it is subject to challenge under certain circumstances. Since no action was taken to void the marriage, it stands as valid, even though "prohibited and void."

Under these circumstances, we believe Myrtle and Sergeant Morris should be considered as having been married for over 3 years for the purpose of qualifying her as an eligible widow entitled to the SBP annuity.