No. 00040 HBG 83, Appeal from the Order entered January 12, 1983 in the Court of Common Pleas of Dauphin County, Orphans Division, at No. 897 of 1979.
Kiefer N. Gerstley, Philadelphia, for appellant.
David A. Wion, Harrisburg, for appellee.
Wickersham, Olszewski and Hoffman, JJ.
[ 331 Pa. Super. Page 227]
Appellant challenges the lower court's order striking her election to take against decedent's will. Specifically, she argues that the lower court erred in concluding that appellant and decedent were not united in common law marriage. We find no merit in appellant's challenge and, accordingly, affirm.
Following decedent's death on September 24, 1978, appellant filed an election to take against decedent's will, to which appellees, the executors of decedent's estate, objected. After depositions of out-of-state witnesses were taken, and a hearing was held to determine appellant's status vis-a-vis the decedent, the lower court ordered the election stricken. This appeal followed.
Appellant contends that words in praesenti are not necessarily required for the establishment of common law marriage and that the evidence was sufficient to establish such a marriage. Essentially, appellant's argument is
[ 331 Pa. Super. Page 228]
that evidence of her and decedent's cohabitation and reputation in the community sufficed to prove a common law marriage. Upon review, we disagree. Words in praesenti are usually required to establish a common law marriage relationship. See McGrath's Estate, 319 Pa. 309, 179 A. 599 (1935). However,
because it is often difficult to prove a common law marriage by words in praesenti, the law has created or raised a rebuttable presumption of marriage where two absolutely essential elements are conjoined and co-exist -- constant, as distinguished from an irregular or inconstant, cohabitation plus a reputation of marriage, which is not partial or divided but is broad and general.
Manfredi Estate, 399 Pa. 285, 291, 159 A.2d 697, 700 (1960). Cohabitation and reputation, however, "do not create the marriage but rather are circumstances giving rise to a rebuttable presumption of one." Wagner Estate, 398 Pa. 531, 533, 159 A.2d 495, 497 (1960); Manfredi Estate, supra 399 Pa. at 291, 159 A.2d at 700; Nikitka's Estate, 346 Pa. 63, 29 A.2d 521 (1943). Moreover, "the rule which permits a finding of marriage duly entered into based upon reputation and cohabitation alone is one of necessity to be applied only in cases where other proof is not available." Nikitka's Estate, supra, 346 Pa. at 65, 29 A.2d at 522.*fn1
In the instant case, the record reveals the following facts and proof: Appellant and the decedent were not married when they parented a son, Morgan, in 1953. On May 13, 1954, they were married in El Paso, Texas and within a day were divorced in Mexico. Shortly thereafter, appellant moved with Morgan to Florida while decedent remained in Harrisburg, the location ...