No Common Law Marriage In SD

In a decision regarding a will-contest case decided on January 6th, 2010, the South Dakota Supreme Court held that while South Dakota will recognize valid common-law marriages in other jurisdictions, the state of South Dakota does not recognize common-law marriages in the state itself.  

In this case, the trial court held that Karen Hargrave was the common-law wife of Paul Duval.  Therefore, upon Duval’s death, the court held that Hargrave should be treated as Duval’s surviving spouse for inheritance purposes in South Dakota.  Duval’s daughters appealed this judgment, arguing that since Duval was never formally married to Hargrave, Hargrave should not be treated as his wife for inheritance purposes.  

South Dakota eliminated common-law marriages in 1959.  However, South Dakota continues to recognize any marriage contracted outside of the state, providing the marriage is valid in the state where it took place.  Hargrave argued that since she and Duval lived together in Oklahoma, which recognizes common-law marriages, the court should hold the marriage as valid.  Common-law marriage is more than simply living together.  In fact, as in the case for Oklahoma, the couple must agree or declare their intent to be married, live together, and hold themselves out as husband and wife.  Since Hargrave and Duval did not proclaim themselves to be married, Oklahoma law would not recognize their alleged common-law marriage.  

The South Dakota Supreme Court therefore held that Hargrave and Duval were not in a common-law marriage, and Hargrave should not be treated as Duval’s wife for inheritance purposes.  So what is there to learn from this from a will-contest perspective?  I would argue that this is an important case for both sides.  First, if your loved-one dies, and his or her partner claims a common-law marriage, you will know that South Dakota will not honor such a claim.  Conversely, if you are currently residing with someone you consider your husband or wife, but have not been officially married by the State, you might want to consider that your inheritance may not go to him or her, absent such a declaration in your Will.