Common Law Marriage, Same-Sex Marriage and Missouri

On behalf of The Marks Law Firm, L.L.C.posted in Divorce and Same Sex Marriage on Wednesday August 21, 2013

A recent article in the Wall Street Journal brought attention to a case out of the District of Columbia involving an inheritance dispute – James Spellman seeks a surviving spouse share of the estate of his partner of nearly twenty years, Michael Kelly.  At the time the two men considered themselves a committed couple, no state recognized same-sex marriage, and the two men never officially married before the death of Mr. Kelly even after numerous states began recognizing same-sex marriage.  So, Mr. Spellman decided to turn to one of the oldest and least-recognized doctrines of domestic relations law – common law marriage.

Back in the days of the old frontier and the Wild West, when finding a justice of the peace or a minister could be next to impossible, men and women who wanted to be together and have a family simply did so by considering themselves married.  A “common law marriage” existed where a man and woman held themselves out to be husband and wife even without the benefit of a marriage license or wedding ceremony; it takes its name from its recognition after the fact by courts of law.  The courts actually preferred recognizing these frontier-style unions because it protected both women and children – the former received the benefit of alimony and survivorship rights, the latter legitimacy and survivorship rights.  As our country became more populated and the law moved more toward statutory (civil) governance of marriage and divorce, and also as polygamy became outlawed, states began to prohibit recognition of common law marriage.  Missouri did so by statute in 1921.  Today, only nine states and the District of Columbia continue to recognize common law marriage.

Returning to the present and the inheritance dispute, Mr. Spellman seeks to take advantage of the fact that the District of Columbia now recognizes same-sex marriage and common law marriage.  Under his theory, since he and Mr. Kelly held themselves out as a committed same-sex couple, the court should recognize that union as a common law same-sex marriage.

Would such a theory work in Missouri?  No.  Missouri continues to consider all common law marriages null and void even if they were legitimated by a state that did recognize common law marriage at the time of the “union.”  Further, Missouri refuses to recognize same-sex marriage as void against public policy, though as discussed in an earlier post, that prohibition may fall under the same Equal Protection challenge that struck down part of the Defense of Marriage Act.  The one caveat looking forward – if a couple have a common law marriage in a state that recognizes common law marriage, the same logic that would require recognition of a same-sex marriage legally entered in another state might also force Missouri courts to recognize common law marriages, whether of different sex or same sex.

If you hear people refer to themselves as a common law spouse, in all likelihood that designation has little to no legal validity in Missouri as of now, but it could have renewed force in the future ironically as a result of the end of DOMA.  The law does indeed have strange and unintended consequences.  Hence, a couple that lived as a common law union in Canada – which recognizes both heterosexual and homosexual common law unions – could move to Missouri and seek to have the state recognize that marriage for a variety of purposes, including divorce and inheritance.  Before the Windsor case striking down DOMA, such a challenge would have had no legal merit in Missouri; after Windsor, it has substantial weight.

If you have questions about common law marriage, contact us – we can help.