Gay Man Seeks Common-Law Marriage

Inthe first case of its kind, James Spellman has asked a District of Columbiacourt to recognize a common-law same-sex marriage between himself and his latepartner Michael Kelly.

Spellmanand Kelly lived together from 1995 until Kelly’s death in February but neverobtained a marriage license. After the executor of Kelly’s estate deniedSpellman his surviving spouse share, Spellman decided to seek a declaration ofcommon-law marriage, a family law relic only now recognized by the District ofColumbia and a few other jurisdictions.

Common-lawmarriage allow courts to retroactively declare a couple married if they had beenliving together and acting as spouses. Even though this case involves the recognition of a same-sex marriage,it will likely focus on the residence of Mr. Kelly.  The executor’s attorney will argue Kellyactually resided in Delaware, a state recognizing same-sex marriage but notcommon-law marriage, and that the couple did not actually cohabitat.

See Jess Bravin, New Twist on Same-Sex Marriage Front,The Wall Street Journal, Aug. 18, 2013.

Special thanks to MatthewBogin, (Esq., Bogin Law) and Naomi Cahn (JohnTheodore Fey Research Professor of Law, George Washington University School ofLaw) for bringing this article to my attention.