In Utah, like many states, marriage-like relationships that were never solemnized can be declared valid by court or administrative order. "A petition for an unsolemnized marriage shall be filed during the relationship... or within one year following the termination of that relationship", which includes termination due to the death of one of the parties. Utah Code 30-1-4.5(2)(a).
A key step in any posthumous common law marriage petition is securing the appointment of a personal reresentative over the decedent's estate because the marriage petition must be served on the personal representative. Gardiner v. Taufer, 2014 UT 56, 342 P.3d 269. A court order of a common-law marriage after death would significantly impact the rights of the natural relatives of the decedent, making a probate proceeding indispensable.
Any petitioner must be prepared to show the court that the petitioner and the decedent (a) were of legal age and capable of giving consent to the marriage, (b) were legally capable of entering a solemnized marriage, (c) cohabited, (d) mutually assumed marital rights, duties, and obligations; and (e) held themselves out as and had acquired a uniform and general reputation as husband and wife. See Utah Code 30-1-4.5(1). Consent to the marriage can be shown by "maintenance of joint banking and credit accounts; purchase and joint ownership of property; the [sharing of a spouse’s] surname by the [other spouse] and/or the children of the union; the filing of joint tax returns; speaking of each other in the presence of third parties as being married; and declaring the relationship in documents executed by them while living together, such as deeds, wills, and other formal instruments." Volk v. Vecchi, 467 P.3d 872, quoting Whyte v. Blair, 885 P.2d 791, 794-795.
There are many reasons to seek a posthumous common law marriage, such as "to claim insurance benefits, retirement benefits, survivor benefits, or public benefits, or to inherit property." The Utah Courts provide a marriage petition form on their website as well as ancillary documents. However, due to the multiple proceedings that may be required and the evidentiary requirements, seeking legal counsel in a marriage petition is strongly advised.
A key step in any posthumous common law marriage petition is securing the appointment of a personal reresentative over the decedent's estate because the marriage petition must be served on the personal representative. Gardiner v. Taufer, 2014 UT 56, 342 P.3d 269. A court order of a common-law marriage after death would significantly impact the rights of the natural relatives of the decedent, making a probate proceeding indispensable.
Any petitioner must be prepared to show the court that the petitioner and the decedent (a) were of legal age and capable of giving consent to the marriage, (b) were legally capable of entering a solemnized marriage, (c) cohabited, (d) mutually assumed marital rights, duties, and obligations; and (e) held themselves out as and had acquired a uniform and general reputation as husband and wife. See Utah Code 30-1-4.5(1). Consent to the marriage can be shown by "maintenance of joint banking and credit accounts; purchase and joint ownership of property; the [sharing of a spouse’s] surname by the [other spouse] and/or the children of the union; the filing of joint tax returns; speaking of each other in the presence of third parties as being married; and declaring the relationship in documents executed by them while living together, such as deeds, wills, and other formal instruments." Volk v. Vecchi, 467 P.3d 872, quoting Whyte v. Blair, 885 P.2d 791, 794-795.
There are many reasons to seek a posthumous common law marriage, such as "to claim insurance benefits, retirement benefits, survivor benefits, or public benefits, or to inherit property." The Utah Courts provide a marriage petition form on their website as well as ancillary documents. However, due to the multiple proceedings that may be required and the evidentiary requirements, seeking legal counsel in a marriage petition is strongly advised.
