Vanderbilt Law Review

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In 1985, Gertrude Thomas sought Social Security survivors' benefits as Joseph Thomas's widow. Gertrude had been married to Joseph-or thought herself to have been-for forty-seven years. She bore and raised ten children over the course of their marriage. Gertrude knew Joseph had been married briefly before they wed, but she thought that his first marriage had ended in divorce. When the Department of Health and Human Services asked Gertrude for proof of her marriage to Joseph, she could not produce a marriage certificate or any other record of her marriage. She did have a statement signed by Joseph acknowledging their marriage. She also claimed that she and Joseph were "common law" spouses-that they agreed to be married and held themselves out as a married couple. But when Josie, the first wife, also applied for survivors' benefits as Joseph's widow, the agency found that Josie, not Gertrude, had been Joseph's wife for those many years, and it denied Gertrude's application.' In a 1990 Second Circuit opinion affirming the agency's determination, a concurring judge lamented that "[i]t seems unconscionable to me that this seventy-four year old widow who lived with Joseph Thomas for forty-seven years and bore ten of his children is now to be branded an adulteress."

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