Sunday, August 12, 2007
Lisa M. Gunno (Senior Managing Editor, Volume 109 of the West Virginia Law Review; J.D. 2007, West Virginia University College of Law) has recently published her note entitled De Facto Marriage in West Virginia: If the Court Recognizes the Relationship for Alimony, Why Not For Probate?, 109 W. Va. L. Rev. 867 (2007).
Here are excerpts from the article's introduction and conclusion:
Did you ever think that under the law of one state you could be considered both married and not married at the same time? While this may seem illogical, it is exactly how an individual could be viewed under the current law of West Virginia. Consider the following scenario: John and Mary have been living together for quite some time in a committed relationship; they both contribute to the household expenses and support each other in every way. The couple has decided not to pursue a formal marriage ceremony, but feel their relationship is more stable than most married couples in their community. Mary is still receiving alimony from her ex-husband Dave. Dave, who is obviously upset with the relationship, goes to court and requests that his alimony payments be terminated because of the existence of a de facto marriage between John and Mary. The court, after looking at the circumstances of the situation, holds that John and Mary are de facto married and terminates Dave's alimony payments. A few months after this court order, John dies in a tragic accident. Mary realizes the couple had not yet completed their wills, and that John's property will pass through intestate succession. According to the laws of the state, Mary will not receive any portion of the property when it passes by intestate succession because she was not “legally” married to John at the time of his death. * * *
Over the years, the West Virginia Legislature and the West Virginia Supreme Court of Appeals have laid the groundwork that would appear to allow an individual who either meets the criteria listed in the de facto marriage statute or found in Goode v. Goode to inherit from their deceased “spouse.” The West Virginia Legislature has previously enacted a statute which lists the factors to be considered when determining if a de facto marriage exists. This legislation and subsequent case law demonstrates that the Legislature and the Court are willing to recognize this relationship in at least one area of the law. The test presented by the Legislature resembles closely both the test for finding the relationship of equitable adoption and also the test presented by the Court when determining whether or not to divide the property of unmarried cohabitants while both are still alive. The decisions of the West Virginia Supreme Court of Appeals also support the theory that the courts have the ability to distribute the property acquired by unmarried cohabitants. Therefore, the Legislature should broaden the application of the de facto marriage statute to apply in the realm of probate, as well as for alimony purposes. If the Legislature is not willing to take this step, the Court should take the initiative and expand the holding in Goode v. Goode to apply to those individuals who hold themselves out to be married and remain together until the death of one of those individuals.