August 19, 2013
The Wall Street Journal is reporting on a new case arising in Washington DC, which has allowed same-sex marriage since 2010. One half of the couple involved in the case has passed away, and the other man wants their relationship recognized as a common law marriage, which is a status granted by Washington DC and “a handful of other jurisdictions,” according to the report. The challenge would force Washington DC to recognize the man, James Spellman, as a surviving spouse for purposes of his spouse’s estate:
Although the rules vary from state to state, in general, common-law marriages are formed when couples live together and act as spouses, even though they never held a wedding ceremony or obtained a marriage license.
“It’s an absolutely classic case except for the sexes and sexuality” of the parties, said Catherine Ross, a law professor at George Washington University who specializes in family law.
The story notes that in 2009, Iowa became the first jurisdiction in the United States that recognized both same-sex marriage and common law marriages as legally valid. The dispute was filed in a DC court on Thursday, and the couple’s lawyer explained what is at stake:
“We’re asking the court to do two things: To extend the common-law marriage doctrine to same-sex couples and, under the facts, recognize Jim and Michael as married,” said Ugo Colella, an attorney with Thompson Hine LLP in Washington who represents Mr. Spellman. “The common law evolves over time where new things happen and the law expands to capture new circumstances.”
Mr. Kelly’s 1990 will, filed in Sussex County, Del., divided his assets among his four siblings and named his brother-in-law as executor. According to court documents, Mr. Kelly’s assets totaled $819,000, including the Rehoboth Beach house, valued at $574,000.
According to the National Conference of State Legislatures, less than a dozen states recognize common law marriages:
Currently, only nine states (Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma and Texas) and the District of Columbia recognize common-law marriages. In addition, five states have “grandfathered” common-law marriage (Georgia, Idaho, Ohio, Oklahoma and Pennsylvania) allowing those established before a certain date to be recognized. New Hampshire recognizes common-law marriage for purposes of probate only, and Utah recognizes common-law marriages only if they have been validated by a court or administrative order.
A few others recognize them if performed before a certain date. In at least one area, the federal government will recognize common law same-sex marriages as legal for purposes of federal law. The Department of Labor pointed out in its new post-DOMA regulations that for its purposes a spouse is a husband or wife “as defined or recognized under state law for purposes of marriage in the state where the employee resides, including “common law” marriage and same-sex marriage[.]” Other federal agencies have different rules for recognition of marriages.
The case will be heard at the end of October.