Common-Law Marriage: A Postscript for the LGBTQ+ Community | Weber Gallagher Simpson Stapleton Fires & Newby LLP

Not so long ago, I wrote a blog and recorded a podcast about common-law marriage. I recently came across a Pennsylvania Superior Court decision that has significance for the LGBTQIA+ community.

One of the factors in divorce is the date of the parties’ marriage. Economic claims related to a divorce, such as who gets what from the divorce, called equitable distribution, and alimony are based largely on the length of the marriage. The duration of the marriage depends on when the parties were married. So what is your wedding date if you weren’t legally allowed to get married before June 26, 2015, the date of the landmark U.S. Supreme Court case, Oberfell v. Hodges? This case declares unconstitutional all state laws restricting marriage to heterosexual couples only.

With one major exception, until January 1, 2005, Pennsylvania recognized common law marriages. A common law marriage is a marriage where there is no official marriage ceremony or license filed with the local orphans court. To be common law spouses, the parties must have exchanged words, in the present tense, for the specific purpose of establishing the relationship of a married couple. To learn more, I refer you to my previous blog post of May 28, 2020, specifically on common law marriage, what must be proven and what the courts look for to find or deny the existence of a claim for common law marriage.

The exception is that a common-law marriage entered into before the new law came into effect, January 1, 2005, continues to be recognized. A valid common law marriage that existed before January 1, 2005 continues to be recognized. So what if the same-sex couple enters into a common-law marriage before Oberefell in 2015 and before January 1, 2005? This question is answered in In re: Estate of Carter159 A.3d 970 (Pa. Superior 2017)

Although not a divorce case, in this case on Christmas Day 1996, Michael proposed to Stephen to ask if Stephen would marry him. Michael gave Stephen an engagement ring after Stephen said yes. Two months later, on February 18, 1997, Stephen gave Michael a wedding ring, engraved with the date. Every February 18, the parties celebrated their wedding anniversary. In 1999, they bought a house with a joint mortgage. They had mutual wills prepared to name the other as executor. They had mutual financial and health proxies. They supported each other financially during periods when only one of them was working. They held joint bank and investment accounts. Their respective families considered them married and Stephen’s nieces called Michael “Uncle Mike”. Stephen and Michael considered themselves married in all respects.

Sadly, in 2013, Stephen passed away in a motorcycle accident. Michael asked the Orphans’ Court in Beaver County, Pennsylvania to issue a declaration that he and Stephen were married and therefore certain inheritance taxes were not applicable. Despite no objection from a member of Stephen’s family, or any government agency or taxing authority, the Beaver County court denied the motion.

On appeal, the Pennsylvania Superior Court reversed, finding that the parties entered into a common-law marriage on February 18, 1997. The reasoning was that the state law limiting marriage to heterosexual couples had been declared unconstitutional in the Oberefell decision. The right that Michael was seeking to pursue was therefore not a new right created in 2015, but a right that had always existed and had always been guaranteed to Michael and Stephen by the United States Constitution.

While the Carter the case is not a divorce case, it has huge implications in the world of divorce. Marriage equality also means divorce equality, so the date of marriage is of major importance in a divorce case. An earlier marriage date means a larger marital estate to be distributed fairly and, in appropriate cases, a longer maintenance period.

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