IN RE: ESTATE OF STEPHEN CARTER APPEAL OF: MICHAEL HUNTER
from the Order Entered July 8, 2016 In the Court of Common
Pleas of Beaver County Orphans' Court at No(s):
BEFORE: BENDER, P.J.E., SHOGAN, J., and MOULTON, J.
Hunter appeals from the July 8, 2016 order of the Beaver
County Court of Common Pleas denying Hunter's petition
for a declaration that he and his late partner, Stephen
Carter, had entered into a common law marriage prior to
January 1, 2005. Because the United States Constitution
mandates that same-sex couples have the same right to prove a
common law marriage as do opposite-sex couples, and because
we conclude that Hunter met his burden of proving a common
law marriage, we reverse and remand.
and Carter met in February 1996 at a social event in
Philadelphia and began dating a few days later. N.T., 7/5/16,
at 8. During the course of their ensuing 17-year
relationship, they shared a mutual enjoyment of rock
climbing, canoeing, kayaking, and hiking. Id. at 9.
In July 1996, Hunter and Carter began living together in
Carter's home in Philadelphia. Id. at 9-10.
Christmas Day 1996, Hunter proposed to Carter and gave him a
diamond ring. Id. at 12. Hunter bent down on one
knee and asked, "Will you marry me?" to which
Carter replied, "Yes." Id. Two months
later, on February 18, 1997, Carter gave Hunter a ring in
return; the ring was engraved, "February 18, 1997."
Id. at 12-13, 41. One year later, Hunter and Carter
celebrated their first wedding anniversary, a ritual they
repeated on February 18 of each year for the next 16 years.
See id. at 41-42.
March 1999, Hunter and Carter purchased a home together in
Philadelphia with a joint mortgage in both of their names.
Id. at 13-15. They prepared and executed mutual
wills, in which each named the other as executor.
Id. at 19-20, 29. They executed mutual financial and
health care powers of attorney, in which each designated the
other as his agent-in-fact. Id. at 19-21, 28-29
& Exs. H-K. They also supported each other financially
and held joint banking and investment accounts. Id.
at 26-28. At various points in their relationship, each
served as the sole wage earner while the other advanced his
education. Id. at 16-17, 25-26. The couple later
moved to the Pittsburgh area and jointly purchased a home
there. Id. at 17-18.
their families treated Hunter and Carter as spouses, with
Carter's nieces referring to Hunter as "Uncle
Mike." Id. at 23, 38-39. Hunter and Carter
considered themselves married as of February 18, 1997 and
referred to each other as spouses from that day forward.
Id. at 41.
April 2013, Carter died from injuries sustained in a
motorcycle accident. Id. at 18, 29. His death
occurred less than two months before the United States
Supreme Court's landmark decision in United States v.
Windsor, 133 S.Ct. 2675 (2013), which struck down the
provision of the federal Defense of Marriage Act
("DOMA") defining "marriage" as only
between one man and one woman.
17, 2016, Hunter filed a petition seeking a declaration that
he and Carter had entered into a common law marriage prior to
January 1, 2005, the date after which common law marriages
were no longer recognized in Pennsylvania. See supra
n.1. On July 5, 2016, the trial court held an evidentiary
hearing, at which Hunter, Carter's sister, and a friend
of the couple testified in support of the
petition. Notably, the petition was unopposed.
Neither any member of Carter's family nor any government
agency objected to the requested declaration. Both the
Pennsylvania Department of Revenue and the United States
Social Security Administration expressly declined to
participate in the proceedings, despite the possible
financial consequences arising from the legal determination
of Hunter and Carter's marital status. Despite the lack
of opposition, on July 8, 2016, the trial court entered an
order denying the petition.
opinion, the trial court offered two grounds for its
decision. First, the trial court held:
[S]ame-sex couples did not have the right to marry in
Pennsylvania until May of 2014. See Whitewood v.
Wolf, 992 F.Supp.2d 410, 424 (M.D. Pa. 2014), appeal
dismissed sub nom. Whitewood v. Sec. Pa. Dept. of
Health, 621 Fed.Appx. 141 (3d Cir. 2015)(unpublished).
Because of this, it was never legal for same-sex couples to
enter into a common law marriage, even if they met the
requirements of Staudenmayer [v.
Staudenmayer, 714 A.2d 1016 (Pa. 1998), ] and
established a relationship prior to abolishment [of common
law marriage] on January 1, 2005. This Court must follow the
established precedent, and as such, this Court cannot find
that [Hunter] and [Carter] had a common law marriage as it
was legally impossible for them to enter into a common law
marriage before common law marriages were abolished in
Rule 1925(a) Opinion, 9/16/16, at 5 ("1925(a)
Op."). Second, the trial court concluded that
"[e]ven if the case law recognized same-sex common law
marriages, [Hunter] did not establish that he and [Carter]
had a common law marriage." Id. In particular,
the court found that Hunter had only "established that
he had a future intention of marrying" Carter "when
it was legal in Pennsylvania, " rather than a present
intent to establish a marital relationship. Id.
filed a motion for reconsideration, which the trial court
denied. On August 2, 2016, Hunter timely appealed to this
Court, challenging both bases for the trial court's
denial of his petition.
standard of review in a declaratory judgment action is
limited to determining whether the trial court clearly abused
its discretion or committed an error of law. If the trial
court's determination is supported by the record, we may
not substitute our own judgment for that of the trial court.
The application of the law, however, is always subject to our
Vignola v. Vignola, 39 A.3d 390, 393 (Pa.Super.
2012) (quoting Bianchi v. Bianchi, 859 A.2d 511, 515
(Pa.Super. 2004)). With this standard in mind, we review the
merits of Hunter's appeal.
Right of Same-Sex Couples to Common Law Marriage
Hunter asserts that the trial court erred in concluding that
it was "legally impossible" for him and Carter to
enter into a pre-2005 common law marriage because, at that
time, the Pennsylvania Marriage Law defined marriage as a
union "between one man and one woman." 23 Pa.C.S.
§ 1102; see id. § 1704. Hunter contends
that because these provisions so defining marriage have been
declared unconstitutional, they cannot preclude the
recognition of his pre-2005 common law marriage to Carter. We
Historically, Pennsylvania defined marriage as "a civil
contract made between parties with the capacity to so
contract." In re Estate of Garges, 378 A.2d
307, 308 (Pa. 1977). Pennsylvania has recognized two types of
marriage: ceremonial and common law. In re Estate of
Manfredi, 159 A.2d 697, 700 (Pa. 1960). "A
ceremonial marriage is a wedding or marriage performed by a
religious or civil authority with the usual or customary
ceremony or formalities." Id. "[A] common
law marriage is a marriage by the express agreement of the
parties without ceremony, and almost invariably without a
witness, by words - not in futuro or in postea, but
- in praesenti, uttered with a view and for the
purpose of establishing the relationship of husband and
wife." Id. (italics in original).
noted above, the Pennsylvania legislature abolished the
doctrine of common law marriage effective January 1, 2005.
See 23 Pa.C.S. § 1103. However, section 1103 of
the Marriage Law permits the legal recognition of common law
marriages contracted before January 1, 2005. See id.
proper procedure for obtaining legal recognition of a common
law marriage is the filing of a declaratory judgment action.
See Vignola, 39 A.3d at 392-93. Section 3306 of the
Domestic Relations Code provides:
When the validity of a marriage is denied or doubted, either
or both of the parties to the marriage may bring an action
for a declaratory judgment seeking a declaration of the
validity or invalidity of the marriage and, upon proof of the
validity or invalidity of the marriage, the marriage shall be
declared valid or invalid by decree of the court and, unless
reversed upon appeal, the declaration shall be conclusive
upon all persons concerned.
23 Pa.C.S. § 3306. This procedure is necessarily
retrospective and often difficult, given the absence of a
formal ceremony marking the occasion of the marriage. See
Garges, 378 A.2d at 309 ("Proving the existence of
a marriage contract, except where it is entered into
ceremonially, is difficult, because it is ...