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The Water Cooler
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Ask the Lawyer: Probate Q&A
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<blockquote data-quote="Dave70968" data-source="post: 3110699" data-attributes="member: 13624"><p>Common-law marriage is treated exactly like ceremonial marriage for probate purposes; the question is whether a common-law marriage existed. As you say, it's kind of muddy, with no bright-line test. The court looks to the totality of the circumstances, using a five-point guideline. The mnenomic is PEACH, each of which is examined in light of actual manifestations (actions):</p><ul> <li data-xf-list-type="ul">Permanency: did the parties intend for the relationship to be permanent?</li> <li data-xf-list-type="ul">Exclusivity: were they exclusive with each other?</li> <li data-xf-list-type="ul">Actual intent: did they intend to be married?</li> <li data-xf-list-type="ul">Cohabitation: did they live together?</li> <li data-xf-list-type="ul">Holding out: did they hold themselves out to the public as married? So, did they introduce themselves as spouses in social situations, did they have joint bills, joint accounts, etc.? Attend each others' medical appointments? Did they act like a married couple? A joint tax return weighs heavily in favor of this factor.</li> </ul><p>No single factor is dispositive either way (though if I were to pick one that I consider the most helpful one way or the other, it'd be the tax return); the court looks to the whole situation to make a decision. If it decides that there was no marriage, then there's no legally-cognizable relationship for the purposes of probate (unless found through other means); if it decides that there <em>was</em> a common-law marriage, then it is exactly as if they had an ordinary, ceremonial marriage.</p><p></p><p>Just as an aside (which may or may not be relevant), there's no such thing as "common-law divorce" in Oklahoma. If the survivor can show that a common-law marriage <em>ever</em> existed, then the marriage survives until a formal divorce is granted; simply moving out and going their separate ways doesn't dissolve the marriage. <em>If</em> the common-law question was <em>ever</em> relevant, it can remain relevant through probate.</p></blockquote><p></p>
[QUOTE="Dave70968, post: 3110699, member: 13624"] Common-law marriage is treated exactly like ceremonial marriage for probate purposes; the question is whether a common-law marriage existed. As you say, it's kind of muddy, with no bright-line test. The court looks to the totality of the circumstances, using a five-point guideline. The mnenomic is PEACH, each of which is examined in light of actual manifestations (actions): [LIST] [*]Permanency: did the parties intend for the relationship to be permanent? [*]Exclusivity: were they exclusive with each other? [*]Actual intent: did they intend to be married? [*]Cohabitation: did they live together? [*]Holding out: did they hold themselves out to the public as married? So, did they introduce themselves as spouses in social situations, did they have joint bills, joint accounts, etc.? Attend each others' medical appointments? Did they act like a married couple? A joint tax return weighs heavily in favor of this factor. [/LIST] No single factor is dispositive either way (though if I were to pick one that I consider the most helpful one way or the other, it'd be the tax return); the court looks to the whole situation to make a decision. If it decides that there was no marriage, then there's no legally-cognizable relationship for the purposes of probate (unless found through other means); if it decides that there [I]was[/I] a common-law marriage, then it is exactly as if they had an ordinary, ceremonial marriage. Just as an aside (which may or may not be relevant), there's no such thing as "common-law divorce" in Oklahoma. If the survivor can show that a common-law marriage [I]ever[/I] existed, then the marriage survives until a formal divorce is granted; simply moving out and going their separate ways doesn't dissolve the marriage. [I]If[/I] the common-law question was [I]ever[/I] relevant, it can remain relevant through probate. [/QUOTE]
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