J-A05040-17

                                  2017 PA Super 104



IN RE: ESTATE OF STEPHEN CARTER                   IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF: MICHAEL HUNTER

                                                      No. 1126 WDA 2016


                  Appeal from the Order Entered July 8, 2016
                In the Court of Common Pleas of Beaver County
                     Orphans’ Court at No(s): 04-13-00540

BEFORE: BENDER, P.J.E., SHOGAN, J., and MOULTON, J.

OPINION BY MOULTON, J.:                               FILED APRIL 17, 2017

       Michael Hunter appeals from the July 8, 2016 order of the Beaver

County Court of Common Pleas denying Hunter’s petition for a declaration

that he and his late partner, Stephen Carter, had entered into a common law

marriage prior to January 1, 2005.1 Because the United States Constitution

mandates that same-sex couples have the same right to prove a common

law marriage as do opposite-sex couples, and because we conclude that




____________________________________________


       1
         The Pennsylvania General Assembly abolished the doctrine of
common law marriage effective January 24, 2005, but also provided that
“[n]othing in this part shall be deemed or taken to render any common-law
marriage otherwise lawful and contracted on or before January 1, 2005,
invalid.” 23 Pa.C.S. § 1103; cf. PNC Bank Corp. v. Workers’ Comp.
Appeal Bd. (Stamos), 831 A.2d 1269, 1281-83 (Pa.Cmwlth. 2003)
(prospectively abolishing doctrine of common law marriage in Pennsylvania).
J-A05040-17



Hunter met his burden of proving a common law marriage, we reverse and

remand.

     Hunter and Carter met in February 1996 at a social event in

Philadelphia and began dating a few days later. N.T., 7/5/16, at 8. During

the course of their ensuing 17-year relationship, they shared a mutual

enjoyment of rock climbing, canoeing, kayaking, and hiking. Id. at 9. In

July 1996, Hunter and Carter began living together in Carter’s home in

Philadelphia. Id. at 9-10.

     On Christmas Day 1996, Hunter proposed to Carter and gave him a

diamond ring. Id. at 12. Hunter bent down on one knee and asked, “Will

you marry me?” to which Carter replied, “Yes.” Id. Two months later, on

February 18, 1997, Carter gave Hunter a ring in return; the ring was

engraved, “February 18, 1997.” Id. at 12-13, 41. One year later, Hunter

and Carter celebrated their first wedding anniversary, a ritual they repeated

on February 18 of each year for the next 16 years. See id. at 41-42.

     In March 1999, Hunter and Carter purchased a home together in

Philadelphia with a joint mortgage in both of their names.     Id. at 13-15.

They prepared and executed mutual wills, in which each named the other as

executor. Id. at 19-20, 29. They executed mutual financial and health care

powers of attorney, in which each designated the other as his agent-in-fact.

Id. at 19-21, 28-29 & Exs. H-K. They also supported each other financially

and held joint banking and investment accounts. Id. at 26-28. At various

points in their relationship, each served as the sole wage earner while the

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other advanced his education. Id. at 16-17, 25-26. The couple later moved

to the Pittsburgh area and jointly purchased a home there. Id. at 17-18.

       Both of their families treated Hunter and Carter as spouses, with

Carter’s nieces referring to Hunter as “Uncle Mike.”      Id. at 23, 38-39.

Hunter and Carter considered themselves married as of February 18, 1997

and referred to each other as spouses from that day forward. Id. at 41.

       In April 2013, Carter died from injuries sustained in a motorcycle

accident. Id. at 18, 29. His death occurred less than two months before the

United States Supreme Court’s landmark decision in United States v.

Windsor, 133 S.Ct. 2675 (2013), which struck down the provision of the

federal Defense of Marriage Act (“DOMA”) defining “marriage” as only

between one man and one woman.

       On May 17, 2016, Hunter filed a petition seeking a declaration that he

and Carter had entered into a common law marriage prior to January 1,

2005, the date after which common law marriages were no longer

recognized in Pennsylvania. See supra n.1. On July 5, 2016, the trial court

held an evidentiary hearing, at which Hunter, Carter’s sister, and a friend of

the couple testified in support of the petition.2   Notably, the petition was

unopposed. Neither any member of Carter’s family nor any government


____________________________________________


       2
       The trial court also considered several affidavits filed in support of
Hunter’s petition. See N.T., 7/5/16, at 34; Decl. Judg. Compl. & Pet. for
Declaration, Exs. A-F.



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agency objected to the requested declaration.           Both the Pennsylvania

Department of Revenue and the United States Social Security Administration

expressly declined to participate in the proceedings, despite the possible

financial consequences arising from the legal determination of Hunter and

Carter’s marital status. Despite the lack of opposition, on July 8, 2016, the

trial court entered an order denying the petition.

      In its opinion, the trial court offered two grounds for its decision. First,

the trial court held:
         [S]ame-sex couples did not have the right to marry in
         Pennsylvania until May of 2014. See Whitewood v.
         Wolf, 992 F. Supp. 2d 410, 424 (M.D. Pa. 2014), appeal
         dismissed sub nom. Whitewood v. Sec. Pa. Dept. of
         Health, 621 Fed. Appx. 141 (3d Cir. 2015)(unpublished).
         Because of this, it was never legal for same-sex couples to
         enter into a common law marriage, even if they met the
         requirements of Staudenmayer [v. Staudenmayer, 714
         A.2d 1016 (Pa. 1998),] and established a relationship prior
         to abolishment [of common law marriage] on January 1,
         2005. This Court must follow the established precedent,
         and as such, this Court cannot find that [Hunter] and
         [Carter] had a common law marriage as it was legally
         impossible for them to enter into a common law marriage
         before common law marriages were abolished in
         Pennsylvania.

Rule 1925(a) Opinion, 9/16/16, at 5 (“1925(a) Op.”). Second, the trial court

concluded that “[e]ven if the case law recognized same-sex common law

marriages, [Hunter] did not establish that he and [Carter] had a common

law marriage.”    Id.   In particular, the court found that Hunter had only

“established that he had a future intention of marrying” Carter “when it was




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legal in Pennsylvania,” rather than a present intent to establish a marital

relationship. Id.

       Hunter filed a motion for reconsideration, which the trial court denied.

On August 2, 2016, Hunter timely appealed to this Court, challenging both

bases for the trial court’s denial of his petition.3

       Our standard of review in a declaratory judgment action is
            limited to determining whether the trial court clearly
            abused its discretion or committed an error of law. If the
            trial court’s determination is supported by the record, we
            may not substitute our own judgment for that of the trial
            court. The application of the law, however, is always
            subject to our review.

Vignola v. Vignola, 39 A.3d 390, 393 (Pa.Super. 2012) (quoting Bianchi

v. Bianchi, 859 A.2d 511, 515 (Pa.Super. 2004)).             With this standard in

mind, we review the merits of Hunter’s appeal.

       The Right of Same-Sex Couples to Common Law Marriage

       First, Hunter asserts that the trial court erred in concluding that it was

“legally impossible” for him and Carter to enter into a pre-2005 common law

marriage because, at that time, the Pennsylvania Marriage Law defined

marriage as a union “between one man and one woman.”                  23 Pa.C.S. §

1102; see id. § 1704.         Hunter contends that because these provisions so

defining marriage have been declared unconstitutional, they cannot preclude

the recognition of his pre-2005 common law marriage to Carter. We agree.

____________________________________________


       3
           Hunter’s appeal, like his petition in the trial court, is unopposed.



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      Historically, Pennsylvania defined marriage as “a civil contract made

between parties with the capacity to so contract.” In re Estate of Garges,

378 A.2d 307, 308 (Pa. 1977).      Pennsylvania has recognized two types of

marriage:   ceremonial and common law.        In re Estate of Manfredi, 159

A.2d 697, 700 (Pa. 1960). “A ceremonial marriage is a wedding or marriage

performed by a religious or civil authority with the usual or customary

ceremony or formalities.” Id. “[A] common law marriage is a marriage by

the express agreement of the parties without ceremony, and almost

invariably without a witness, by words – not in futuro or in postea, but – in

praesenti, uttered with a view and for the purpose of establishing the

relationship of husband and wife.” Id. (italics in original).

      As noted above, the Pennsylvania legislature abolished the doctrine of

common law marriage effective January 1, 2005. See 23 Pa.C.S. § 1103.

However, section 1103 of the Marriage Law permits the legal recognition of

common law marriages contracted before January 1, 2005. See id.

      The proper procedure for obtaining legal recognition of a common law

marriage is the filing of a declaratory judgment action.        See Vignola, 39

A.3d at 392-93. Section 3306 of the Domestic Relations Code provides:
         When the validity of a marriage is denied or doubted,
         either or both of the parties to the marriage may bring an
         action for a declaratory judgment seeking a declaration of
         the validity or invalidity of the marriage and, upon proof of
         the validity or invalidity of the marriage, the marriage shall
         be declared valid or invalid by decree of the court and,
         unless reversed upon appeal, the declaration shall be
         conclusive upon all persons concerned.


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23 Pa.C.S. § 3306.      This procedure is necessarily retrospective and often

difficult, given the absence of a formal ceremony marking the occasion of

the marriage. See Garges, 378 A.2d at 309 (“Proving the existence of a

marriage contract, except where it is entered into ceremonially, is difficult,

because it is likely to arise in an informal setting, where records are not

kept.”).

      In order to assess the trial court’s “legal impossibility” reasoning, we

will briefly review the relevant developments in Pennsylvania and federal

law. In September 1996, the United States Congress enacted DOMA, which

defined “marriage” as “only a legal union between one man and one woman

as husband and wife,” 1 U.S.C. § 7, and which provided that states are not

required to recognize a same-sex marriage or civil union established in

another state, 28 U.S.C. § 1738C. One month later, Pennsylvania amended

its Marriage Law “to add anti-ceremony and anti-recognition provisions

applicable to same-sex couples.” Whitewood, 992 F.Supp.2d at 415. As a

result of those amendments, section 1102 of the Marriage Law defined

“marriage” as “[a] civil contract by which one man and one woman take

each other for husband and wife.” 23 Pa.C.S. § 1102. Section 1704 of the

Marriage Law provided:
           It is hereby declared to be the strong and longstanding
           public policy of this Commonwealth that marriage shall be
           between one man and one woman. A marriage between
           persons of the same sex which was entered into in another
           state or foreign jurisdiction, even if valid where entered
           into, shall be void in this Commonwealth.



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23 Pa.C.S. § 1704. Read together, sections 1102 and 1704 of the Marriage

Law prevented same-sex couples from marrying in Pennsylvania and barred

recognition in Pennsylvania of the marriages of same-sex couples legally

married elsewhere.4

       In 2013, however, just two months after Carter’s untimely death,

there began a “tectonic shift in the law regarding same-sex marriage.”

Neyman v. Buckley, 153 A.3d 1010, 1018 (Pa.Super. 2016).            This shift

started with Windsor, in which the United States Supreme Court struck

down as unconstitutional the provision of DOMA defining “marriage” as “a

legal union between one man and one woman as husband and wife” and

defining “spouse” as “a person of the opposite sex who is a husband or a

wife.” 133 S.Ct. at 2683, 2695 (quoting 1 U.S.C. § 7). 5 The Supreme Court
____________________________________________


       4
         In 1984, a panel of this Court held that a same-sex couple cannot
contract a common law marriage because “under our Marriage Law it is
impossible for two persons of the same sex to obtain a marriage license.”
DeSanto v. Barnsley, 476 A.2d 952, 955-56 (Pa.Super. 1984); see id. at
954 (noting that relevant provision of then-existing Marriage Law “refer[red]
to the ‘male and female applicant’”) (quoting statute). Notably, this Court
declined to consider the claim that the failure to recognize a common law
marriage between same-sex partners violated the Equal Rights Amendment
to the Pennsylvania Constitution, finding that the appellant had waived the
issue. Id. at 956. In any event, DeSanto was decided under the pre-1996
version of the Marriage Law, which did not define “marriage” and which was
replaced by the 1996 Marriage Law. Although DeSanto has not been
explicitly overruled, its conclusion that a same-sex couple may not enter into
common law marriage has been invalidated by the subsequent decisional law
discussed in this opinion.
       5
      The Windsor Court did not address the constitutionality of 28 U.S.C.
§ 1738C, which permitted states to refuse to recognize a same-sex marriage
(Footnote Continued Next Page)


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observed that “DOMA’s unusual deviation from the usual tradition of

recognizing and accepting state definitions of marriage . . . operates to

deprive same-sex couples of the benefits and responsibilities that come with

the federal recognition of their marriages.”      Id. at 2693.6   The Windsor

Court therefore concluded that this provision of DOMA unconstitutionally

deprived same-sex couples of the liberty protected by the Fifth Amendment

to the United States Constitution. Id. at 2695.

      Following Windsor, the United States District Court for the Middle

District of Pennsylvania, addressing a challenge to Pennsylvania’s Marriage

Law, held “that the fundamental right to marry as protected by the Due

Process Clause of the Fourteenth Amendment to the United States

Constitution encompasses the right to marry a person of one’s own sex.”

Whitewood, 992 F.Supp.2d at 423-24. The district court explained:
          [T]his Court is not only moved by the logic that the
          fundamental right to marry is a personal right to be
                       _______________________
(Footnote Continued)

established in another state, as that provision was not challenged on appeal.
133 S.Ct. at 2682-83.
      6
        The Windsor Court noted that DOMA’s “comprehensive definition of
marriage for purposes of all federal statutes and other regulations or
directives covered by its terms . . . control[led] over 1,000 federal laws in
which marital or spousal status is addressed.” 133 S.Ct. at 2683; accord In
re Adoption of R.A.B., 153 A.3d 332, 335-36 (Pa.Super. 2016)
(recognizing “the many rights, benefits, and responsibilities [that] states
confer on married couples[,]” including taxation, inheritance rights, spousal
privilege, hospital access, workers’ compensation benefits, health insurance,
and child custody) (quoting Obergefell v. Hodges, 135 S.Ct. 2584, 2601
(2015)).



                                            -9-
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           exercised by the individual, but also rejects Defendants’
           contention that concepts of history and tradition dictate
           that same-sex marriage is excluded from the fundamental
           right to marry. The right Plaintiffs seek to exercise is not a
           new right, but is rather a right that these individuals have
           always been guaranteed by the United States Constitution.
           As aptly explained by the Supreme Court in Lawrence [v.
           Texas, 539 U.S. 558, 578-79 (2003)]:

              Had those who drew and ratified the Due Process
              Clauses of the Fifth Amendment or the Fourteenth
              Amendment known the components of liberty in its
              manifold possibilities, they might have been more
              specific. They did not presume to have this insight.
              They knew times can blind us to certain truths and
              later generations can see that laws once thought
              necessary and proper in fact serve only to oppress.
              As the Constitution endures, persons in every
              generation can invoke its principles in their own
              search for greater freedom.

Id. at 423.      The district court held that “same-sex couples who seek to

marry in Pennsylvania may do so, and already married same-sex couples will

be recognized as such in the Commonwealth.” Id. at 431. Therefore, the

court declared both sections 1102 and 1704 of the Marriage Law

unconstitutional     and     issued    an      order   permanently   enjoining   their

enforcement.7 Id. at 431-32.

       Subsequently, in Obergefell v. Hodges, 135 S.Ct. 2584 (2015), the

United States Supreme Court declared that all state laws prohibiting

marriage between same-sex partners are unconstitutional violations of the


____________________________________________


       7
       The Secretary of the Pennsylvania Department of Health, the
defendant in Whitewood, did not appeal the district court’s decision.



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Due Process and Equal Protection Clauses of the Fourteenth Amendment.

The Supreme Court held:
        It is now clear that the challenged laws burden the liberty
        of same-sex couples, and it must be further acknowledged
        that they abridge central precepts of equality. Here the
        marriage laws enforced by the respondents are in essence
        unequal: same-sex couples are denied all the benefits
        afforded to opposite-sex couples and are barred from
        exercising a fundamental right. . . .

        . . . [T]he right to marry is a fundamental right inherent in
        the liberty of the person, and under the Due Process and
        Equal Protection Clauses of the Fourteenth Amendment
        couples of the same[]sex may not be deprived of that right
        and that liberty. The Court now holds that same-sex
        couples may exercise the fundamental right to marry. No
        longer may this liberty be denied to them. . . . [T]he State
        laws challenged by Petitioners in these cases are now held
        invalid to the extent they exclude same-sex couples from
        civil marriage on the same terms and conditions as
        opposite-sex couples.

Id. at 2604-05.

     Accordingly, following Whitewood and Obergefell, same-sex couples

in Pennsylvania can legally marry and must be afforded the same rights and

protections as opposite-sex married couples, including inheritance rights and

survivor benefits. See Neyman, 153 A.3d at 1018 (noting that “Obergefell

cemented the fundamental right of same-sex couples to marry and

prohibited any lack of recognition of such marriages based upon the

relationships[’] ‘same-sex character’”) (quoting Obergefell, 135 S.Ct. at

2607-08)).

     Despite these clear pronouncements by the United States Supreme

Court and the federal district court in Pennsylvania, the trial court in this

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case concluded that it was bound by the unconstitutional provisions of the

Marriage Law, finding that because “same-sex couples did not have the right

to marry in Pennsylvania until May of 2014 . . . it was never legal for same-

sex couples to enter into a common law marriage.”         1925(a) Op. at 5

(emphasis added).    Thus, the trial court concluded that “it was legally

impossible for [Hunter and Carter] to enter into a common law marriage

before common law marriages were abolished in Pennsylvania [in 2005].”

Id. (emphasis added). We conclude that the trial court erred.

     The premise of the trial court’s analysis was that sections 1102 and

1704 of the Marriage Law, though now declared unconstitutional, were

legally binding during the time that Carter and Hunter might otherwise have

entered into a common law marriage.            This premise misreads the

fundamental import of Windsor, Whitewood, and Obergefell.             As the

Whitewood court observed: “The right Plaintiffs seek to exercise is not a

new right, but is rather a right that these individuals have always been

guaranteed by the United States Constitution.”       992 F.Supp.2d at 423

(emphasis added); accord Obergefell, 135 S.Ct. at 2603 (observing “that

new insights and societal understandings can reveal unjustified inequality

within our most fundamental institutions that once passed unnoticed and

unchallenged”).   Sections 1102 and 1704 of the Marriage Law have been

invalidated “to the extent they exclude same-sex couples from civil marriage

on the same terms and conditions as opposite-sex couples.”      Obergefell,

135 S.Ct. at 2605; see Whitewood, 992 F.Supp.2d at 431 (declaring that

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“it is time to discard [sections 1102 and 1704 of the Marriage Law] into the

ash heap of history” and that “already married same-sex couples will be

recognized as such in the Commonwealth”).

       Together, Windsor, Whitewood, and Obergefell teach that same-

sex couples have precisely the same capacity to enter marriage contracts as

do opposite-sex couples, and a court today may not rely on the now-

invalidated provisions of the Marriage Law to deny that constitutional reality.

Consequently, because opposite-sex couples in Pennsylvania are permitted

to establish, through a declaratory judgment action, the existence of a

common law marriage prior to January 1, 2005, see 23 Pa.C.S. § 1103,

same-sex couples must have that same right.         To deprive Hunter of the

opportunity to establish his rights as Carter’s common law spouse, simply

because he and Carter are a same-sex couple, would violate both the Equal

Protection and Due Process Clauses of the Fourteenth Amendment.8
____________________________________________


       8
        In the two years since Obergefell was decided, several Pennsylvania
courts of common pleas have declared the validity of pre-2005 same-sex
common law marriages. See, e.g., In re Estate of Wilkerson, No. 500 DE
of 2016 (Phila. Cty. C.C.P. filed Sept. 25, 2016); In re Estate of Howey,
No. 1515-2112 (Chester Cty. C.C.P. filed Aug. 23, 2016); In re Estate of
Brim, No. 46-14-X4458 (Montgomery Cty. C.C.P. filed May 24, 2016); In re
R.M.D., No. 2016-000589 (Del. Cty. C.C.P. filed Mar. 21, 2016); In re
Estate of Underwood, No. 2014-E0681-29 (Bucks Cty. C.C.P. filed July 29,
2015). See also Steven A. Young, Note, Retroactive Recognition of Same-
Sex Marriage for the Purposes of the Confidential Marital Communications
Privilege, 58 Wm. & Mary L. Rev. 319, 338-342 (2016) (discussing
Obergefell’s application to the recognition of same-sex common law
marriages). Federal courts have likewise applied Obergefell in determining
the validity of same-sex marriages pre-dating the Obergefell decision.
(Footnote Continued Next Page)


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      Proving the Elements of Same-Sex Common Law Marriage

      Next, Hunter asserts that the trial court erred in concluding that even

if a same-sex couple were permitted to establish the existence of a pre-2005

common law marriage, Hunter failed to prove a common law marriage under

controlling Pennsylvania law. After careful review of the record and the trial

court’s opinion, we conclude that Hunter satisfied his burden of proving that

he and Carter agreed in February 1997 “to enter into the legal relationship

of marriage at the present time.” Staudenmayer, 714 A.2d at 1020.

      Even before it was abolished in 2005, common law marriage was

generally disfavored in Pennsylvania.            As our Supreme Court explained:

“Because claims for the existence of a marriage in the absence of a certified

ceremonial marriage present a ‘fruitful source of perjury and fraud,’

Pennsylvania courts have long viewed such claims with hostility.”         Id. at

1019 (quoting In re Estate of Wagner, 159 A.2d 495, 497 (Pa. 1960)).

The perceived motivation for such perjury and fraud lies in the set of

potential benefits of an after-the-fact recognition of a marriage not

otherwise established by tangible proof such as a marriage certificate or

formal wedding ceremony. See, e.g., In re Estate of Collings, 175 A.2d

62, 63 (Pa. 1961) (“[T]he advocacy of a common law marriage is too often


                       _______________________
(Footnote Continued)

See, e.g., Hard v. Attorney Gen., 648 Fed. Appx. 853 (11th Cir. 2016);
Ranolls v. Dewling, __ F.Supp.3d __, 2016 WL 7726597 (E.D. Tex. filed
Sept. 22, 2016).



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made . . . after one of the parties to the marriage has died and the survivor

desires to share in the distribution of the deceased party’s estate.”).

      As a result, the party seeking to establish the existence of a common

law marriage has what has been described as “a heavy burden.” Estate of

Gavula, 417 A.2d 168, 171 (Pa. 1980).                  The precise contours of that

burden, however, have not always been clear, in part because the

understandable concern about unchecked perjury has been tempered by the

recognition    of   the   inherent   difficulty   in   proving   a   relationship   not

accompanied by formal ceremony.              Our Supreme Court’s most recent

guidance on this subject came in 1998:
            A common law marriage can only be created by an
         exchange of words in the present tense, spoken with the
         specific purpose that the legal relationship of husband and
         wife is created by that. Regarding this requirement for an
         exchange of words in the present tense, this Court has
         noted:

                 It is too often forgotten that a common law
              marriage is a marriage by the express agreement of
              the parties without ceremony, and almost invariably
              without a witness, by words – not in futuro or in
              postea, but – in praesenti, uttered with a view and
              for the purpose of establishing the relationship of
              husband and wife.        The common law marriage
              contract does not require any specific form of words,
              and all that is essential is proof of an agreement to
              enter into the legal relationship of marriage at the
              present time.

             The burden to prove the marriage is on the party
         alleging a marriage, and we have described this as a
         “heavy” burden where there is an allegation of a common
         law marriage. When an attempt is made to establish a
         marriage without the usual formalities, the claim must be
         viewed with “great scrutiny.”

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            Generally, words in the present tense are required to
         prove common law marriage.        Because common law
         marriage cases arose most frequently because of claims
         for a putative surviving spouse’s share of an estate,
         however, we developed a rebuttable presumption in favor
         of a common law marriage where there is an absence of
         testimony regarding the exchange of verba in praesenti.
         When applicable, the party claiming a common law
         marriage who proves: (1) constant cohabitation; and, (2)
         a reputation of marriage “which is not partial or divided
         but is broad and general,” raises the rebuttable
         presumption of marriage.

Staudenmayer, 714 A.2d at 1020-21 (internal citations and footnotes

omitted).   However, with respect to the presumption, the Supreme Court

went on to state:
         [I]f a putative spouse is able to testify and fails to prove,
         by clear and convincing evidence, the establishment of the
         marriage contract through the exchange of verba in
         praesenti, then that party has not met its “heavy” burden
         to prove a common law marriage, since he or she does not
         enjoy any presumption based on evidence of constant
         cohabitation and reputation of marriage.

Id. at 1021.

      The requirement of “words in the present tense” is designed to ensure

the existence of a present intent to marry, like the present intent established

in a formal wedding ceremony, rather than a plan to marry in the future or a

claim to have wed in the past.        With regard to this requirement, the

Supreme Court explained that a “common law marriage contract does not

require any specific form of words, and all that is essential is proof of an

agreement to enter into the legal relationship of marriage at the

present time.”      Id. at 1020 (emphasis added).          Stated differently,


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“common law marriage will still be recognized without use of verba de

praesenti, where the intention of the parties[,] as expressed by their words,

is that they were married.” Cann v. Cann, 632 A.2d 322, 325 (Pa.Super.

1993). Furthermore, this Court has stated:
           It is unquestioned that our courts will give effect to the
           intention of the parties and find a valid marriage where no
           direct testimony is offered as to the precise words of the
           marriage contract. . . . It is true that the parties did not
           use the formal words of the marriage ceremony, nor was it
           necessary that they should do so, if each so understood
           the relation into which they were about to enter, and their
           words, fairly interpreted, show that they then and there
           mutually consented to it. . . . [M]arriage is a civil contract,
           which may be completed by any words in the present time
           without regard to form, the essential to its validity being
           the consent of parties able to contract. . . . [I]t is not the
           duty of the courts to seek for an interpretation of the
           words used by the parties which would be inconsistent with
           an honorable intention as well as with their subsequent
           conduct and declarations, when an interpretation
           consistent with the formation of an honorable relation is
           possible, and in the light of all the circumstances, more
           probably expresses their intention.

Commonwealth ex rel. McDermott v. McDermott, 345 A.2d 914, 917

(Pa.Super. 1975) (internal quotations and citations omitted).9
____________________________________________


       9
        We acknowledge that in some cases, existing precedent does not
make entirely clear whether a court determining if a common law marriage
exists should apply the requirement of words of present intent or the
rebuttable presumption based on cohabitation and reputation.          In
Staudenmayer, the Supreme Court stated that the presumption is
inapplicable “where both parties are able to testify” regarding verba in
praesenti. 714 A.2d at 1021 (emphasis added). However, other language in
Staudenmayer suggests that the requirement of words of present intent
also applies where only one party is available to testify. According to
Staudenmayer, courts may rely on the presumption only in the absence of
(Footnote Continued Next Page)


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      Here, Hunter argues that the trial court erred in applying to this case

the ordinary “hostility” directed at claims of common law marriage because

the basis for such hostility – concern about fraudulent claims for pecuniary

gain – are not present here. In support, he cites Wagner, 159 A.2d at 497,

which concluded that in a case where the parties were formally married and

then divorced, a later claim of common law “remarriage” should be favored

rather than disfavored.            Wagner, which was cited with approval in

Staudenmayer, 714 A.2d at 1019, teaches that when assessing claims of

common law marriage, context matters, and general notions of hostility

need not always dictate the outcome.10
                       _______________________
(Footnote Continued)

“direct testimony regarding the exchange of verba in praesenti.” Id.; see
also id. (rebuttable presumption applies “only in cases where other proof is
not available”) (internal quotation omitted); id. at 1022 (“rebuttable
presumption applies only when testimony regarding the exchange of verba
in praesenti is unavailable”).

       In this case, Hunter, the sole surviving putative spouse, was available
to testify and did testify. (The trial court did not address whether the Dead
Man’s Act, 42 Pa.C.S. § 5930, should have precluded Hunter’s testimony.
See infra n.11.)       Therefore, because Hunter offered direct testimony
regarding the exchange of words, we agree with the trial court that the
presumption did not apply. Nevertheless, Hunter’s evidence of cohabitation
and reputation may properly be considered as corroborating his and Carter’s
present intent to marry in 1997. See, e.g., McDermott, 345 A.2d at 919
(finding that parties had expressed present intent to resume their marriage
and that “[t]heir subsequent cohabitation and holding out to others [was]
corroborative of this intent”).
      10
         We do not accept the suggestion that same-sex couples should have
a lesser burden in proving common law marriage than do opposite-sex
couples. The lesson of Windsor, Whitewood, and Obergefell, as applied
in this context, is that same-sex couples not only have the same right to
(Footnote Continued Next Page)


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      At the hearing, Hunter testified that on December 25, 1996, he

proposed to Carter and gave him a diamond ring. N.T., 7/5/16, at 12. He

asked, “Will you marry me?” to which Carter replied, “Yes.”       Id.11 At this

point, any reasonable reading of the facts would lead to the conclusion that

Hunter and Carter were engaged to be married.

      Two months later, on February 18, 1997, Carter completed the ring

exchange by giving Hunter a ring in return.         Id. at 12-13, 41.   The ring

bears the engraving, “February 18, 1997.” Id. at 41. Each year thereafter,

Hunter and Carter celebrated their anniversary on February 18. Id. at 41-

42.   Both of their families treated Hunter and Carter as spouses, with

Carter’s nieces referring to Hunter as “Uncle Mike.”         Id. at 23, 38-39.

Hunter testified that he and Carter considered themselves married as of

February 18, 1997 and referred to each other as spouses from that day

forward.    Id. at 41.       Hunter also submitted affidavits from his brother,

several friends, and Carter’s sisters, each of whom stated that Hunter and

                       _______________________
(Footnote Continued)

prove a common law marriage as do opposite-sex couples, but also the
same burden of proof. As noted above, however, the precise contours of
that burden vary with context.
      11
         The Dead Man’s Act, had it been raised, likely would not have
precluded Hunter’s testimony regarding his exchange of words with Carter
because Hunter’s interest, as the executor of Carter’s estate, was not
adverse to that of Carter, the deceased party to the putative contract. See
Punxsutawney Mun. Airport Auth. v. Lellock, 745 A.2d 666, 670
(Pa.Super. 2000) (for Dead Man’s Act to apply, “the interest of the proposed
witness [must] be adverse to the interest of the decedent’s estate”).



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Carter had considered themselves married and held themselves out as a

married couple. See Decl. Judg. Compl. & Pet. for Declaration, Exs. A-F.

      Thus, the uncontradicted evidence established that Hunter and Carter

had a present intent to marry on February 18, 1997. As prior cases have

recognized, the exchange of rings is particularly strong evidence of such an

intent. See, e.g., Wagner, 159 A.2d at 498 (noting that “[a] wedding ring

signifies that the one who presents and the one who receives are wedded”)

(quoting Caddy v. Johnstown Firemen’s Relief Ass’n, 196 A. 590, 592

(Pa.Super. 1938)); In re Rosenberger’s Estate, 65 A.2d 377, 379 (Pa.

1949) (upholding common law marriage where evidence showed decedent

placed wedding ring on putative spouse’s finger, promised to marry her

before birth of their child, and she assented).    Moreover, unlike the many

cases in which the declaration of common law marriage is sought for use as

a sword against competing claims to an estate, see, e.g., Collings, 175

A.2d at 63, Hunter’s petition not only was uncontested but indeed was

supported by Carter’s family. Nothing about the facts of this case suggests

that it is “a fruitful source for perjury or fraud.” Wagner, 159 A.2d at 497.

      That Hunter and Carter had the present intent to marry is further

corroborated   by   their   conduct     after   February   18,   1997.     See

Staudenmayer, 714 A.2d at 1021 (stating that party attempting to prove

common law marriage “may introduce evidence of constant cohabitation and

reputation of marriage in support of his or her claim”). After their exchange

of rings, both men considered themselves married to each other, held

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themselves out to others as a married couple, and lived together as such for

more than 16 years.       They purchased homes together, prepared and

executed mutual wills, supported each other financially, and held joint

banking and investment accounts. They also celebrated their anniversary on

February 18 every year until Carter’s death.

     In sum, the evidence clearly established that Hunter and Carter, like

countless loving couples before them, expressed “an agreement to enter into

the legal relationship of marriage at the present time.”   Id. at 1020; see

Cann, 632 A.2d at 325.     Therefore, we conclude that Hunter proved, by

clear and convincing evidence, that he and Carter had entered into a

common law marriage on February 18, 1997.

     The trial court’s contrary conclusion – that Hunter had failed to prove a

present intent to marry – was based in part on testimony about the couple’s

future plans to have a formal wedding ceremony. See 1925(a) Op. at 5-7.

For example, when asked about a formal marriage ceremony, Hunter

testified that he and Carter had planned “to throw a big party as soon as

[same-sex marriage became] legal in Pennsylvania.”      N.T., 7/5/16, at 29-

30; see 1925(a) Op. at 5-6. Carter’s sister testified that Hunter and Carter

were “planning a wedding” but that they “hadn’t set a date” before Carter’s

death. N.T., 7/5/16, at 38; see 1925(a) Op. at 6. Similarly, Keith Zatezalo-

Greene, a long-time friend of the couple, testified that when he asked Carter

why he and Hunter had not married in another state where same-sex

marriage was legal, Carter stated that “they didn’t want to go get that piece

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of paper until [same-sex marriage] was recognized in the Commonwealth of

Pennsylvania.” N.T., 7/5/16, at 44-45; see 1925(a) Op. at 6.

     The flaw in the trial court’s reliance on this evidence, however, is that

the couple’s statements about a future “wedding” or “big party” plainly

referred to a ceremonial marriage, which they concededly had not yet

undertaken and which is fully consistent with an existing common law

marriage. Hunter and his witnesses testified without contradiction that the

couple wanted to have a formal marriage ceremony as soon as same-sex

marriage was recognized as legal in Pennsylvania.        For example, after

Zatezalo-Greene testified about the lack of a formal ceremony in a different

state, he explained that “[f]or all rights and purposes, they considered

themselves a married couple, and [they said] that they wanted the formal

aspect of it when it was recognized where we lived.” N.T., 7/5/16, at 45

(emphasis added).

     That Hunter and Carter had discussed having a formal wedding

ceremony at a later time does not undermine, or in any way affect, the clear

and convincing evidence of their present intent to marry in February 1997.

Our Supreme Court reached the same conclusion with respect to an

opposite-sex couple in Blecher’s Estate, 112 A.2d 129 (Pa. 1955). In that

case, the Court rejected an estate’s assertion that a widow claiming a

common law marriage to the decedent had proven only an intent to marry in

the future, where the couple’s “statements relative to [their] intention to




                                   - 22 -
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marry related solely to a ceremonial marriage.” Id. at 130-31 (emphasis in

original).

      Accordingly, because we conclude that Hunter satisfied his burden of

proving that he and Carter had entered into a common law marriage before

January 1, 2005, the trial court erred in denying his petition.

      Order reversed. Case remanded to the trial court for the entry of an

order declaring the existence of a common law marriage between Hunter

and Carter as of February 18, 1997. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2017




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