Lawsuit Seeking Legal Recognition of a Common Law Same-Sex Marriage, With Judge Eugene Hyman, Santa Clara, California

A gay man is locked in an inheritance dispute and is asking the District of Columbia to declare him a common law husband of his late husband.  While the District of Columbia does recognize the concept of common law marriages, it can vary state by state. 

California, for example, doesn't recognize the concept of common law marriage but does recognize same-sex marriage.  If this case were to arise in California, then technically, the person would have to file a civil suit under the "Marvin Decision," says  retired Superior Court Judge Eugene Hyman of Santa Clara, California.  Hyman explains that Lee Marvin was living with his girlfriend and promised to treat her like a spouse.  Ultimately breaking up, the girlfriend wanted compensation and Marvin said no, due to the fact that they were not married and he felt like he didn't owe her anything.  Since there is no common law marriage in the state of California, she sued him under a theory of contract, which went all the way up to the Supreme Court and was upheld.   This contractual theory is similar but not the same as common law marriage. 

In the D.C. case, the issue is inheritance and Hyman says marriage has more involvement than just inheritance.  By having a recognition of common law marriage, you also have entitlement with healthcare directives and children.  "These issues are potentially huge in terms of making sure you are covered," no matter the type of marriage, says Hyman.  Additionally, the IRS will recognize same-sex marriage in those states that have them.   "There are serious consequences on how you arrange a relationship and couples need to consider that," Hyman adds.

There are actual factual disputes in terms of were they actually living together in the D.C. case.  Common law marriage can't occur in a state between same-sex people if the gay marriage wouldn't be recognized, Hyman explains.  Virginia, where the couple had a place together, doesn't recognize same-sex marriage or common law marriage and the only way the person petitioning is going to prevail is if he can show that they domiciled in D.C., which does recognize same-sex marriage and common law marriage, notes Hyman.

Hyman suspects this case will be settled rather than tried because there is too much risk involved for everyone concerned and when that happens, cases usually settle. 

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network.

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