Peter and Wendy lived together for ten years. Neither had ever been married before they met each other at a college reunion in 1995. They never participated in a formal marriage ceremony but while on a vacation privately made a personal commitment to each other to be married believing that commitment to be the more important acknowledgment of their relationship. They presented themselves as

Question

husband and wife to family, neighbors and friends. They owned a home together and shared all of their expenses. They did not have children but enjoyed their nieces and nephews who called them Uncle Peter and Aunt Wendy. In 2008, Peter died suddenly from a serious heart ailment at the age of 48. Neither Peter nor Wendy had ever executed a will. After his death, Wendy talked to a lawyer to see if she could inherit as Peter's spouse under the state's intestacy law. In order to inherit, Wendy will have to qualify as a spouse.

Is Wendy Peter's common law wife? What evidence could a paralegal help gather to document her claim that she is?

Answer 1

The threshold question is, did the parties live together in a common law jurisdiction or satisfy the requirements at some point in another jurisdiction? Assuming they did, the response should identify the basic requirements for a common law marriage and indicate how they are satisfied by the facts of this case.
a) The parties must have the legal capacity to marry: The parties appear to have capacity (they are of the opposite sex, of legal age, not previously married, etc.)
b) The parties must simultaneously intend to be married: They made a personal commitment while on vacation.
c) The parties must cohabit: They lived together. Although they did not have children, neither consummation nor parenthood is a requirement for a valid common law marriage.
d) They must hold themselves out to the public as married: They "presented" themselves to others as married. The kinds of information paralegals might gather to prove the existence of a common law marriage are identified in Paralegal Application 3.4 on page 85 of the text.