Monday, August 19, 2013
In the first case of its kind, James Spellman has asked a District of Columbia court to recognize a common-law same-sex marriage between himself and his late partner Michael Kelly.
Spellman and Kelly lived together from 1995 until Kelly’s death in February but never obtained a marriage license. After the executor of Kelly’s estate denied Spellman his surviving spouse share, Spellman decided to seek a declaration of common-law marriage, a family law relic only now recognized by the District of Columbia and a few other jurisdictions.
Common-law marriage allow courts to retroactively declare a couple married if they had been living together and acting as spouses. Even though this case involves the recognition of a same-sex marriage, it will likely focus on the residence of Mr. Kelly. The executor’s attorney will argue Kelly actually resided in Delaware, a state recognizing same-sex marriage but not common-law marriage, and that the couple did not actually cohabitat.
See Jess Bravin, New Twist on Same-Sex Marriage Front, The Wall Street Journal, Aug. 18, 2013.
Special thanks to Matthew Bogin, (Esq., Bogin Law) and Naomi Cahn (John Theodore Fey Research Professor of Law, George Washington University School of Law) for bringing this article to my attention.