Berman & Asbel, LLP

Man seeks common law marriage to access partner's estate

A man is asking a family court judge to recognize a common law marriage between him and his deceased partner who passed away earlier this year, leaving a will that provided only for his siblings. 

The couple had been living together since 1995 as though they were married. Unfortunately, the only will that the deceased partner left behind was written prior to that in 1990 so it makes no mention of the man who would become his partner of nearly two decades. 

Typically in these cases where someone has written a will that predates a relationship and fails to revise it, the spouse has a right to something called an elective share. The elective share is typically a base sum plus a percentage of the remaining estate. In this case the couple did not legally marry so trying to claim the elective share is more complicated. This is why the man is asking a judge to recognize a common law marriage defined through the actions of the parties rather than through the statutory standard of a contractual marriage.

This case merges complicated issues of both estate planning laws and family law, since few states still recognize the doctrine of common law marriage. The complexity here arises because the men lived in a state where same-sex marriage has recently become legal, so they could have gotten legally married starting in 2010 but did not. At the same time, they resided in one of the few jurisdictions that does still recognize common law marriage but has not yet applied the doctrine for same-sex couples.

The man already attempted to claim his share through a request to the estate's executor, his partner's mother, and she denied the request.


Source: ABA Journal. "Gay man asks DC court to declare him common-law husband of deceased partner," Mark Hansen, Aug. 20, 2013. 

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