Marriage equality came to Pennsylvania in 2014 through the Whitewood v. Wolf case, and nationally in 2015 through the Obergefell v. Hodges case. But long before those cases, many LGBT couples made commitments and promises to each other to live their lives together as spouses — even without government recognition or a marriage license. Sometimes those commitments were formal through a commitment ceremony and sometimes they were private through an exchange of rings and promises.
Sadly, some LGBT people lost their loved ones before they could have a legal recognition of their relationships through marriages. Now there is a legal process to recover the rights and benefits of marriage retroactively by establishing a common-law marriage. Pennsylvania courts are granting retroactive recognition of those relationships in the form of common-law marriages, which has benefitted many LGBT elders. Probate courts have entered orders to recognize a marriage date as the date that the couple exchanged promises to live their lives as a married couple in a number of cases where a partner died before a marriage license could be issued.
Many people have misconceptions about common-law marriage and what it takes to establish one. Marriage in Pennsylvania is a civil contract. A common-law marriage is a marriage by express agreement of the parties by words uttered in the present tense for the purpose of establishing a marriage, even without any formal marriage license. LGBT couples and surviving spouses have proven common-law marriages by submitting evidence to the court such as affidavits confirming that rings were exchanged, copies of documents such as wills and powers of attorney, financial documents and beneficiary designations, among other ways.
Common-law marriages are marriages. That means that they come with all of the same rights, benefits and responsibilities of legal marriage, including important rights in the event of the death of a spouse such as access to Social Security survivor benefits and access to pensions and other assets. It also means that a zero-percent tax rate on Pennsylvania inheritance tax would be assessed instead of the 15 percent for non-spouses. A refund would also go to the surviving spouse if the inheritance taxes were already paid.
Surviving partners have also been able to amend a death certificate of a deceased partner to include the marital status as “married” and adding the surviving spouse’s name and to inherit through intestate succession (inheritance without a will) from a deceased partner. A declaration of common-law marriage also allows spouses to take advantage of divorce laws, giving them access to alimony determinations and division of marital property through equitable distribution.
This recognition of common-law marriages is possible because a Pennsylvania Superior Court case in 2017 confirmed that same-sex couples have the same right to prove a common-law marriage as opposite-sex couples under the United States constitution, applying the Obergefell v. Hodges and Whitewood v. Wolf cases retroactively.
Recently, a Philadelphia court entered an order recognizing a common-law marriage for a same-sex couple who had been together since 1972. Since all common-law marriages were abolished in Pennsylvania in January 2005, a couple must have entered into the common-law marriage before that date.
Outside of Pennsylvania, laws governing common-law marriages vary widely. The majority of states do not recognize common-law marriages. LGBT elders who have lost a loved one prior to marriage equality should consult with an experienced LGBT family law and estate attorney to determine if they qualify for rights and benefits through establishing a common-law marriage.
Tiffany Palmer is a partner at Jerner & Palmer, P.C. in Philadelphia and is the director of the Family Law Institute of the National LGBT Bar Association. She was awarded the Justice in Action Award by Mazzoni Center in 2018 for her advocacy for LGBT civil rights. Palmer is running for Judge of the Court of Common Pleas in a May 21 primary election.