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Gay man asks DC court to declare him common-law husband of deceased partner

Posted Aug 20, 2013 3:47 PM CDT
By Mark Hansen

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A gay Washington, D.C. man has asked a family court judge to recognize him as the common-law husband of his late companion.

The case may be the first seeking legal recognition of a common-law gay marriage, the Wall Street Journal reports.

James Spellman, 55, says he and Michael Kelly, a mortgage banker who died in February at age 68, had lived together as a married couple since 1995. The District of Columbia has been issuing marriage licenses to same-sex couples since 2010, but Spellman says the couple never legally married.

At issue is Spellman's potential share of Kelly's $819,000 estate, which includes a Rehoboth Beach, Del., home valued at $574,000.

Kelly's 1990 will, filed in Delaware, left his entire estate to his four siblings. His brother-in-law, who was named the executor, denied Spellman's claim to a spousal share of the estate in June.

The case mixes a new and expanding area of family law—same-sex marriage—with the dying doctrine of common-law marriage, which once was widespread but is now recognized by only a handful of jurisdictions, including the District of Columbia, experts say.

"It's an absolutely classic case except for the sexes and sexuality" of the parties, George Washington University law professor Catherine Ross, who specializes in family law, told the Journal.

Ugo Colella, a lawyer for Spellman, said his client is asking the court to do two things: extend the common-law marriage doctrine to same-sex couples and recognize the pair as married.

"The common law evolves over time where new things happen and the law expands to capture new circumstances," he said.

But Kevin Baird, a lawyer for the executor, said Spellman wasn't in a close enough relationship with Kelly to qualify as his widower.

He also said that Kelly was a resident of Delaware, which allows same-sex marriage but doesn't recognize common-law marriage.

A hearing in the case is scheduled for Oct. 31.

Hat tip: How Appealing.

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