When I Did Becomes I Do
Common Law Marriage in One State Can Affect a Will in Another STATE
At one time or another, you may have been part of a conversation that went something along the lines of, "My partner and I have been living together for five years now. We never got married, but both our names are on the deed to the house, we share a bank account and split all of the bills. Do you think we have a common law marriage?" While the answer to this question may not have much significance for the couple at the time, later in life the existence of a common law marriage can become the turning point for the distribution of an estate, the granting of spousal benefits and worker's compensation awards and the division of property in a divorce. Common law marriage is often misunderstood because of unclear and varying standards applied by courts in states where it may exist. However, it is important to recognize the circumstances under which a common law marriage may arise, because of the significant implications being married, or unmarried, has on a person's rights in a number of legal contexts.
In all states, statutes regulate the entry into marriage and usually require the obtaining of a marriage license and the solemnization of the marriage by an authorized public official or clergyman. Common law marriage, on the other hand, is an alternative approach in which state courts will recognize a relationship as a marriage despite the statutory requirements having not been met. Today, only fifteen states and the District of Columbia allow common law marriage. The fifteen states are Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, New Hampshire, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas and Utah. Some of these limit the extent to which recognition will be given, for instance, New Hampshire only recognizes common law marriages for inheritance purposes. Others will only recognize common law marriages that came into existence before a specific date. However, while only permitted in these states, most other states, including Massachusetts, will treat a common law marriage contracted elsewhere as valid within its own borders. This means that if a man and woman are found to have entered into a common law marriage in Rhode Island, a Massachusetts court will recognize the couple as being married, despite the couple having never had a wedding ceremony or received a marriage license in either of the two states.
American common law marriage traces it roots to a practice permitted in English courts up until the mid-18th century, in which an exchange of words between two people in the present tense, spoken with the intent to become husband and wife, was considered sufficient to form a marriage. While England abandoned this practice when America was still in its infancy, many American states continued to recognize common law marriage as a necessary solution on the new frontier. People living in rural areas and moving west could not easily access either justices of the peace or clergyman, and common law marriage provided an alternative method to wed. Over the course of time, most states eventually abandoned common law marriage, as an increased population and improved transportation diminished the need for the informal mechanism. In addition, many states found that common law marriage had led to a great deal of uncertainty and abuse. Meanwhile, other states that kept the approach developed their own individualized standards for finding a common law marriage.
Rhode Island did not first officially recognize common law marriage until 1926 in Holgate v. United Electric Railways Co. (47 R.I. 337, 1926). In that case, the Rhode Island Supreme Court held that, since the state's statutes did not expressly prohibit common law marriage, such marriages were valid so long as at least one of the two parties believed a marriage existed. The court determined that a finding of a common law marriage requires a showing of clear and convincing evidence of marriage. In Holgate, a couple had a marriage ceremony conducted by a Massachusetts justice of the peace before the man's divorce decree from his previous marriage was finalized (still legally married to his first wife, the second marriage was void). Afterward, the couple lived together in Rhode Island, told friends and family they were husband and wife and the man took out a life insurance policy on his life payable to the woman. The court found that these facts, combined with the couple's original intent to enter into marriage, were sufficient evidence of a common law marriage.
Following Holgate, Rhode Island courts further developed the standard to be used to determine whether a relationship should be considered a common law marriage. Most recently, in 2004, the Rhode Island Supreme Court was asked to make a common law marriage decision in DeMelo v. Zompa, in which the current test was outlined. (844 A.2d 174, 2004). The court reiterated the original standard laid out in Holgate, that the existence of a common law marriage must be supported by clear and convincing evidence that the parties intended to enter into a marital relationship. In addition, this intent must be supported by conduct that would lead others to believe that the two are married, which can be inferred from "cohabitation, declarations, reputation among kindred and friends, and other competent circumstantial evidence". The court went on to emphasize that a deciding court is to presume a relationship is not a common law marriage, and the asserting party must overcome that presumption by clear proof otherwise.
The Rhode Island common law marriage test differs somewhat from those used in other states. However, the general type of evidence considered is consistent with the approaches taken elsewhere (primary factors in all states include the parties' intent, whether there was an exchange of words, cohabitation and a holding out to the community as being married). If a common law marriage is found to have existed in a state which allows such marriages, other states will in turn recognize the union as valid so long as the marriage is not deemed to run contrary to the public policy of the given state (in most states common law marriage has not been found to be against public policy). For example, Massachusetts will recognize a common law marriage from another state, and has been faced with such determinations on several occasions.
One noteworthy Massachusetts case involved a contested estate, in which a woman argued that she was the decedent's wife, having entered into a Rhode Island common law marriage. (Panneton v. Panneton, 323 Mass. 477 (1948)). In Panneton, a Canadian woman and American man met in 1916 while the man was studying in Montreal. A romantic relationship blossomed. The man eventually returned to Rhode Island and, in 1925, while the woman was visiting him in Providence, he proposed and gave her a wedding ring. The two went to a church to solemnize their union, however, the priest refused to give a wedding ceremony because they could not produce documents verifying that they had not previously been married.
The couple decided to forego a ceremonial marriage, and instead the woman took the man's last name and they lived together as husband and wife in Rhode Island. In 1928 they moved to Chicago for a year, and then lived in Montreal for two more years. They returned to Rhode Island in 1931 where they stayed for two years, before finally settling in Somerset, Massachusetts where they lived together for the next decade. In 1939, after a quarrel, the woman returned to Montreal and did not see the man again before his death in 1948.
The case reached the Massachusetts Supreme Judicial Court on appeal from the Bristol County Probate Court. The lower court applied Rhode Island law and held that the woman had failed to show clear and convincing evidence of a Rhode Island common law marriage. The Supreme Judicial Court affirmed the Probate Court decision, finding that although the parties had lived together in Rhode Island before moving to Massachusetts, had told other people they were husband and wife, had owned real estate together and were each beneficiaries of a life insurance policy on the life of the other, the Probate Court, as the finder of fact, could have found that these facts did not reach the level of clear and convincing evidence. As a result, the Supreme Judicial Court refused to reverse the Probate Court decision. The Panneton case provides an example of the steps a Massachusetts court will take in determining the validity of a Rhode Island common law marriage by directly applying the Rhode Island test (the same is true in determining a common law marriage from any other state).
Turning back to the hypothetical conversation about two people living together and believing there may be a marriage, it is clear that, despite common misconception, those facts alone will not amount to a common law marriage in any state. However, applying the Rhode Island standard, if there is sufficient proof that at least one of two people in a relationship in Rhode Island believe they are married, then, combined with other supporting evidence, a court may find that a common law marriage exists.
As noted in the cases discussed above, the ultimate decision of whether the totality of the evidence is clear and convincing remains with the trier of fact. Essentially, the more a relationship looks like a marriage in Rhode Island, the more likely that it will be treated as a common law marriage in a judicial proceeding in Rhode Island, or in most other states including Massachusetts. However, the final outcome will be largely dependent on the individual facts of a given case.
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