dissenting.
The parties, Secretary, and majority all agree that the marital status of the decedent and of the claimant for benefits as his widow must be determined by state law. See 42 U.S.C. § 416(h)(1)(A).1 The parties are also agreed that Ohio is the state whose law governs here. Likewise, it is agreed that under Ohio law, as the majority states, the burden is normally on the second wife to prove that the impediment of a preexisting marriage has been removed by divorce or the death of the first wife. See Evans v. Indus. Comm’n, 166 Ohio St. 413, 143 N.E.2d 705 (1975); Industrial Comm ’n v. Dell, 104 Ohio St. 389, 135 N.E. 669 (1922); see also Domany v. Otis Elevator Co., 369 F.2d 604 (6th Cir.1966).
Next it seems undisputed that Mikolaj was married in Russia before he met Eugenia. Thus, for Mikolaj to have been validly married to Eugenia his prior marriage must have been terminated either by the death of his first wife or by a divorce. Unfortunately the record is unusually muddied concerning these facts. As evidenced by past conduct, both the wage earner and the claimant have shown themselves capable of misrepresenting their marital status and history in order to gain a particular advantage from the presence or absence of that status.2 The AU took considerable testimony and, applying Ohio law, concluded that Eugenia had failed to prove that the impediment of the preexisting marriage had been removed either by divorce or death. In fact, the majority admits the complete uncertainty of the record in this respect. This being the case it would be my interpretation of Ohio law that the AU was not free simply to speculate on the existence of a circumstance which has not been proved merely on account of sympathy to the claimant. See Domany, 369 F.2d at 610 (“Under Ohio law that [preexisting] marriage is presumed to continue until proof of its termination.”).
If substantial evidence is needed to support the AU’s decision beyond the burden cast upon the first wife by Ohio law, it would seem to me to be provided and reinforced by the actual conduct of the parties, including Eugenia herself. The parties were in contact with the wage earner’s family in Russia after the war. From whatever they learned,3 they appear to *301have acted consistently with a belief that Mikolaj’s first wife was not only still living but necessarily had not obtained a divorce. Eugenia’s candor, which as the majority points out is commendable, indicates that she herself believed that Mikolaj was still married and this may indeed have been the principal basis why she felt she had to get a legal divorce because she considered that she was living in adultery. In my judgment, at least, this is fairly potent evidence under the circumstances which I do not believe the ALJ would have been warranted in disregarding, given the posture .of Ohio law.
The majority claims that this' court should defer to the AU’s resolution of factual questions, but not to the AU’s interpretation of state law. While that statement may be correct as a matter of law, it does not allow us to ignore Ohio’s mandate that appellant prove that the impediment of Mr. Smereczynski’s first marriage has been removed by divorce or the death of his first wife. The majority has done here exactly what this court criticized an Ohio district court for doing in Doma-ny:
The district court stated the proposition in reverse when he said, “There was no evidence to show that Andrew Domani was not divorced from his European wife.” The proposition, under Ohio law, should have been that there was no evidence that a divorce was obtained from the European wife either prior to or after the second marriage.
369 F.2d at 611 (emphasis added).4 Appellant has presented no evidence that the wage earner’s first marriage was dissolved through death, divorce, or by any other means. On the contrary, she has admitted that the preexisting marriage was not dissolved at the time she married her ex-husband. Finally, the majority’s attempt to invoke equity in place of well settled Ohio law on the basis that the HHS and the wage earner’s second wife are involved, rather than two spouses, is not consistent with our precedent. See id. (“The attempted distinction on the ground that Ohio would follow a different rule where a third party is the contestant is not valid.”). Accordingly, while I have much sympathy for Eugenia, I must respectfully dissent.
. Under 42 U.S.C. § 416(h)(1)(B), an applicant who is not the wife of the wage earner as determined by state law may nevertheless be "deemed" his wife under federal law if three requirements are met. See Cunningham v. Harris, 658 F.2d 239, 241 (4th Cir.1981). At least one of those requirements, that the applicant was living with the wage earner at the time she filed her application, is clearly not met in this case. Accordingly, as the majority recognizes, appellant can only prevail, if at all, by proving that her marriage is valid under state law.
. For example, aside from the fact that after their marriage in Germany they portrayed themselves as single individuals in order to get into England, Mr. Smereczynski recently claimed he had been married three times while his wife asserted that it was four or five times. Further, after appellant found out that the Department of Health and Human Services obtained a death certificate of the alleged death of her ex-husband’s first wife, which was provided by Mr. Smereczynski, appellant stated: "If my ex-husband gave the information, I don't believe it. He has not been the most honest person.”
.The majority argues that the information appellant received through her family regarding the whereabouts and condition of the wage earner’s first wife is "triple or more hearsay.” While the majority recognizes that the normal rules of evidence do not govern Social Security hearings, Perales, supra, it nonetheless concludes that the common law should bar the aforementioned evidence because of its “completely uncertain origin and reliability.” However, statements of personal or family history of another person are an exception to the hearsay rule if the declarant was “so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.” Fed.R.Evid. 804(b)(4)(B). Here the statements made by appellant’s father and her other relatives, even if not based on personal knowledge, retain certain indicia of reliability because of the declarants’ relationship to appellant and the fact that the statements of family history are against her best interest. In any event, the majority completely ignores Eugenia and the wage earner’s non-assertive conduct which flowed from and is in harmony with the assertions made by the statements at issue.
. The majority does not even cite to, let alone distinguish, Domani.