The typical scenario for the last-in-time marriage presumption is not as unusual as one might expect: A husband (or wife) has unexpectedly died, and the bereaved surviving spouse is in the process of bringing a legal proceeding that may include a probate action, a wrongful death action, a suit for social security benefits, a workers' compensation action, a life insurance action, or another legal action for related compensatory, probate, or insurance benefits. However, during the pendency of these actions a former wife comes forward, claiming that she has never been divorced from her deceased spouse and that she, rather than the subsequent wife, should recover in any legal proceeding as the legal wife. Which wife should prevail?
To many, the initial conclusion might be that because American family law in the vast majority of states prohibits bigamy and other plural marriages, the first-in-time spouse should recover all the proceeds. But this conclusion would be wrong. The last-in-time marriage presumption is based upon "one of the strongest presumptions known to the law" that an existing marriage, once shown, is valid. A subsequent marriage, therefore, raises the very strong presumption that any former marriage was terminated by death, annulment, or divorce. Once this presumption arises, the former spouse has the burden of proving that no death, annulment, or divorce occurred to terminate the prior marriage. Thus, if the former spouse fails to rebut this last-in-time marriage presumption by searching all divorce records where the deceased resided, or might reasonably have resided, the subsequent spouse will prevail. This marital presumption is based not upon logical arguments, but upon underlying public policy arguments, and the last-in-time marriage presumption therefore continues to be recognized and applied in current judicial decisions as well.
Surprisingly, for a presumption that is often characterized as "one of the strongest known to the law, there has been very little legal analysis regarding this unique marriage presumption. This article, therefore, analyzes and discusses the theoretical and practical aspects of the last-in-time marriage presumption by examining its underlying rationale, and the legal result when the last-in-time presumption conflicts with other legal presumptions. The article then discusses the availability and application of the last-in-time marriage presumption including who can invoke it, when it becomes available, and the various kinds of legal actions where it may properly be utilized. The article further addresses burden of proof issues involving the last-in-time marriage presumption, including the factual elements that must be proven and the standard and quality of proof which must be established to overcome the presumption. Finally, an analysis of the case of Hewitt v. Firestone Tire & Rubber Company will illustrate the underlying principles, application, and defenses involving the last-in-time marriage presumption
Peter Nash Swisher, The Last-in-Time Marriage Presumption, 29 Fam. L.Q. 409 (1995).