The Pennsylvania legislature abolished common law marriages entered into after January 1, 2005, but common law marriages before that date will continue to be valid.  See Act of November 23, 2004, No. 144, amending 23 Pa.C.S. § 1103.

In Whitewood v. Wolf, 992 F. Supp. 2d 410, No. 1:13-cv-1861 (M.D. Pa. 5/20/2014), a federal district court held that Pennsylvania’s statutory prohibition on same-sex marriages was unconstitutional.  (See previous commentary on the decision, and the announcement by the Pennsylvania Department of Revenue in response to the decision.)

Before the Whitewood decision, a same-sex couple would not have been able to obtain a marriage license in Pennsylvania, but they still could have exchanged wedding vows (which is the essence of a common law marriage).  Those wedding vows would not have been considered legally valid before the Whitewood decision, but will the Whitewood decision allow the retroactive recognition of common law marriages which the parties attempted to enter into before 2005?

The Cumberland County Sentinel reported on July 22, 2014, that in one case, the Department of Revenue has allowed that result, applying a 0% spousal inheritance tax rate to the survivor of a long-term same-sex relationship when the survivor was able to present evidence of a pre-2005 contractual marriage.  That’s only an administrative determination in one case, and it’s not a precedent for any other case, but it shows that the Department of Revenue is at least willing to consider the issue.