Common Law Marriage before 2005 for Same-Sex Couples?

Posted on by May 7, 2015

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.

Tenancy by Entireties in Proceeds of Sale of Stock

The proceeds of the sale of stock that had been held by a husband and wife continued to be entireties property in the absence of any contrary provisions of the stock purchase agreement, and so the remaining proceeds were payable to the wife after the death of the husband even though separate payments had been made to the agents for husband and wife during husband’ s lifetime.  In re: Estate of Navarra, 113 A.3d 829, 2015 PA Super 65, No. 571 WDA 2014, (Pa. Super. 4/6/2015).

Will Forgery

In an appeal from probate, the court found “without hesitation” that a May 2009 will admitted to probate was forged, because the timeline of the proponent of the will got the weekend of a family gathering wrong, meaning three witnesses (including a notary), perjured themselves.  Pendergrass Estate, 5 Fid. Rep. 3d 159 (OC Mont. 2014) (Opinion by Ott, J.)

Exercise of Power of Appointment Does Not Create a New Trust

Testator died leaving a trust under her will for her children, creating powers of appointments for each child, and an administrative power, allowing the removal of the corporate trustee with the consent of all income beneficiaries. After the death of one of the children and his exercise of the power of appointment under his will, the new income beneficiaries removed the corporate trustee and appointed a new trustee. The removed corporate trustee refused, and the beneficiaries sought declaratory judgment. Court held that the exercise of a power of appointment incorporates the new beneficiaries (and any other provisions allowed) into the original trust under the original will, meaning the corporate trustee was effectively removed. Jurisdiction in Montgomery County was not proper, but Court acted so as to resolve the issue, but all further litigation must be in Delaware County. Cassatt Trust, 5 Fid. Rep. 3d 151 (OC Mont. 2015) (Opinion by Murphy, J.)

Extrinsic Evidence in Will Interpretation

Brother of decedent was bequeathed the “Maujer rifle”, which is a typographical error for Mauser rifle of which the decedent owned 10.  The Court held that the brother was entitled to all 10 Mauser rifles because of the wills ambiguity and the extrinsic evidence presented.  The extrinsic evidence (mostly the brother testifying to what the decedent had told him) was challenged as inadmissible hearsay or irrelevant under the Dead Man Act.  The Court allowed the testimony, because it was the decedents intent or plan (hearsay exception Pa.R.E. 803(3)) and the devisavit vel non exception to the Dead Man Act applied (all witnesses competent to testify to testamentary distributions).  Estate of Wilson Fox v. Glenn Fox, Jr., 5 Fid. Rep. 3d 181 (OC Somer. 2014) (Opinion by Klementik, J.)

Default Judgment against Agent Upheld

In affirming the denial of a petition to strike a default judgment, the Superior Court held that the civil division of the Court of Common Pleas had jurisdiction to enter a default judgment against an agent for the debts of the principal, and that a petition to strike a judgment was not a proper remedy when it was alleged that the default judgment had been entered after the principal had died.  Green Acres Rehabilitation and Nursing Center v. Henry Sullivan and Henrietta Sullivan, 2015 PA Super 73, No. 2084 EDA 2014 (4/13/2015).

Executor Recovers Estate Tax on Life Insurance

Under I.R.C. § 2206, an executor was entitled to recover a pro-rata portion of the federal estate tax attributable to life insurance paid to the decedent’s ex-wife, as well as interest paid on the tax, when the will directed that death taxes be apportioned, and so the decedent had not “directed otherwise” for purposes of § 2206.  However, the ex-wife was not responsible for the estate tax on deferred compensation, IRAs, and other benefits because they are outside the scope of § 2206 and the provisions of the decedent’s will directing apportionment of taxes did not apply to the ex-wife because she was divorced from the decedent after the will was written.  Thomas H. Smoot III, Executor v. Dianne M. Smoot, 2015 TNT 69-13, No. 2:13-cv00040 (U.S.D.C. S.D. Ga. 3/31/2015) (applying Georgia law).

[Note:  It was alleged that Georgia has no law requiring the apportionment of estate tax, but the court found that it did not have to reach that issue.  That seems wrong considering the court’s holding that the provisions of the will were inapplicable.]

Equal Distribution Despite “Forwarding of Inheritance”

Court-approved settlement between guardian of the estate of the decedent and one of the decedent’s children precluded claim against the child for funds of the decedent that had benefited the child during decedent’s incapacity.  The court also found that the child’s share of the estate should not be reduced by a lifetime gift of an interest in the decedent’s home, despite a letter stating that the gift was intended as a “forwarding of inheritance as well as an investment in the property,” because the property had been sold by the guardian and the child had received none of the proceeds of sale.  The court therefore exercised its equitable discretion to order the estate divided among all of the children in equal shares.  Tarquini Estate, 5 Fid. Rep. 3d 132 (O.C. Montgomery 2015) (Opinion by Ott, J.)