Posthumous Marriage Reinstated By Utah Court
A year and a half after Janetta Gardiner’s husband died in 2010, their declaration of marriage was voided when relatives claimed the relationship did not constitute a common law marriage.
However, on Tuesday, the Utah Supreme Court reinstated the posthumous declaration of unsolemnized marriage. This decision turned on whether Gardiner’s husband, Kenneth Vanderwerff, estate was properly served notice of Gardiner’s request for the marriage declaration. The Supreme Court ruled Gardiner had waived service in her capacity as the estate’s personal representative and thus, it was an error to void the marriage.
Gardiner and Vanderwerff were in a romantic relationship from 2007 to 2010. A month after Vanderwerff’s death, Gardiner filed a petition for a judicial declaration of common law marriage. Vanderwerff’s step-grandson subsequently filed a separate probate case and was appointed special administrator of the estate. He also filed an objection to the marriage declaration. The district court signed an order that set aside the marriage declaration and then dismissed the cased entirely based on Gardiner’s failure to serve process within 120 days of filing her marriage petition. Gardiner appealed and the Supreme Court unanimously sided with her.
Associate Chief Justice Ronald Nehring wrote, “A petition for the marriage declaration ordinarily must be served on the putative spouse—in this case, Mr. Vanderwerff. Unfortunately, Mr. Vanderwerff was already deceased when Ms. Gardiner petitioned to have their relationship declared a marriage. Courts cannot exercise personal jurisdiction over individuals who have died.” Rather, the decision states, the estate’s personal representative must be served. In this case Gardiner was the personal representative and waived service.
See Pamela Manson, Utah Court Reinstates Posthumous Marriage, The Salt Lake Tribune, Dec. 9, 2014.
Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.