LEGAL TEAM SPEAKS
Ronald H. Jarashow, Esq., Robert R. Smith, Esq., and Gilda O. Karpouzian, Esq., are practicing lawyers in Maryland with more than 30 years of experience. Their answers below are based on assumptions that Maryland law applies. Mr. Jarashow and Mr. Smith can be contacted at 410-268-5600 or [email protected] and Ms. Karpouzian can be contacted at 410-280-8864
* * * * *
Dear Legal Team:
I’ve lived with my “special friend” for 10 years. We would like to leave everything to each other with just a few sentimental pieces left to our children from former marriages. I recall common law arrangements, but don’t know what the laws are for Maryland. We lived in New York for five of the10 years and we’re now living together in Maryland. I have a difficult time discussing important issues with him and wonder: Do I inherit his estate if he should die if there are no written arrangements?
Common Law Wife
Dear Common Law Wife:
Common law marriage in Maryland is a complex subject. Maryland has a legal rule that says that no common law marriage can be actually created in Maryland. But Maryland also has a legal rule that says that if a common law marriage was created outside of Maryland, then Maryland will, in fact, recognize and honor that common law marriage as being valid and enforceable just like any other marriage in Maryland. This issue came up recently when Maryland did honor a common law marriage created in the District of Columbia. The court said in that case “although adamantly insisting upon the ceremonial niceties for contract in marriage in Maryland, our law will, when the occasion demands, bend over backwards to find a way around the ceremonial breach.” An example of applying this rule occurred in a 1991 case in which a man and woman lived together for 38 years in Maryland, held themselves out as husband and wife and had six children, all of whom all believed that their parents were married. All other friends, relatives, and acquaintances thought the couple was married, the couple celebrated a “wedding anniversary” each year, the “wife” stayed at home to raise the children and to keep the house while the man worked, the woman was known to everyone as Mrs. Morris, the couple filed joint tax returns and the woman was listed as his wife on life insurance policies and other documents. Evidence showed that they had spent two days in Pennsylvania where common law marriage is recognized and their conduct in Pennsylvania satisfied the Pennsylvania criteria for creating a valid common law marriage. The Maryland court did consider them to be husband and wife.
You mentioned that you spent many years living in New York. Based on some quick research, which is by no means exhaustive, it appears that New York has also abolished the concept of creating a common law marriage, but New York will recognize a common law marriage validly created in another state (much like the Maryland rule).
You more specifically inquire about whether you would inherit your special friend’s estate if he dies and there are no written arrangements to distribute his property, such as a will or a trust. If you are not his “wife,” then you would have no testamentary interest in his estate. If you can argue that you are his “common law wife,” then under Maryland’s inheritance laws, a spouse of a deceased can always elect to take a “statutory share” of the estate. You could petition for that distribution. The amount of the statutory share varies, depending upon a number of factors such as whether there are natural children still alive. The statutory share could be one-third of the estate or it could be one-half of the estate, depending upon circumstances. The laws are always subject to change. The best way, however, to deal with planning for what to do with a person’s assets after death is to create either a will or a trust or some other device such as a gift during lifetime. You and your special friend should be willing to discuss what happens to your assets if either or both of you die. He should be motivated to clarify what happens in the event that you die first and your relatives make claims against him for distribution of your property interests which he thinks he should retain.
I have not addressed subjects such as what happens to your jointly titled assets, if there are any. Nor have I addressed whether you would have a claim against his estate for contributions that you made to his assets during his lifetime. You might have rights to sue. But these would have to be evaluated based on the specific facts that apply.
* * * * *
Dear Legal Team:
My son is divorced and has lost custody of his children for reasons I won’t go into. We adore our three grandkids and were very much a part of their lives while their parents were married. It’s been over a year since we last saw them and their mother is making it extremely difficult for us to get together with them by cancelling plans, leaving on trips on our scheduled day to visit, etc. The holidays are coming up, do we have any rights? Grandparent Missing Kids
Grandparent visitation is authorized under a part of the Maryland code. The statute says that a grandparent can petition a court for an award of reasonable visitation if the court finds that it is in the “best interest of the child” to grant visitation rights. Unfortunately, that is not the only criteria, according to court decisions. In late 2007, the highest Maryland court decided that this statute was unconstitutional unless there was also evidence and a court finding that the parents were unfit in some way or that some exceptional circumstances exist. This proof is required to overcome the presumption in favor of the natural rights of custodial parents to decide who gets to visit with their children. It is not enough that there is benefit to grandchildren visiting with their grandparents. In June 2009, the court discussed what factors get considered in deciding the best interests of the child:
The nature and stability of the child’s relationships with its parents, the nature and substantiality of the relationship between the child and the grandparent, taking into account frequency of contact, regularity of contact and amount of time spent together, the potential benefits and detriments to the child and granting the visitation order, the effect, if any, grandparental visitation would have on the child’s attachment to its nuclear family, the physical and emotional health of the adults involved and the stability of the child’s living and schooling arrangements.
There are many other factors that the court is permitted to consider when determining the “best interest of the child.” A judge has great latitude in what to consider. Fitness or unfitness has been discussed by the courts in the context of child custody. Here is summary of some of the considerations that address fitness:
Questions of parental fitness generally fall within the following categories: moral fitness; psychological or emotional fitness; prior conduct affecting the child’s physical, psychological and financial needs; and love and affection for the child including willingness and ability to care for the child. Although historically courts took a moralistic view in examining parental conduct, today such conduct seems to be considered only in light of its effect on the child. If a parent’s conduct is not found to adversely affect the child or diminish the quality of care a child receives, then a parent will, most likely, avoid being declared unfit. 26 U. Balt. L.F. 3, 5 (1995).
The courts have said that they will not predefine “exceptional circumstances.” Instead, “exceptional circumstances” will be decided on a case-by-case basis, after analyzing all the factors before the court in the particular case. Examples of “exceptional circumstances” have been discussed in other custody cases:
The factors which emerge from our prior decisions which may be of probative value in determining the existence of exceptional circumstances include the length of time the child has been away from the biological parent, the age of the child when care was assumed by the third party, the possible emotional effect on the child of a change of custody, the period of time which elapsed before the parent sought to reclaim the child, the nature and strength of the ties between the child and the third-party custodian, the intensity and genuineness of the parent’s desire to have the child, the stability and certainty as to the child’s future in the custody of the parent. From Ross v. Hoffman.
In conclusion, unless the state legislature changes the law, you would have to show either that the parents are unfit or that there are exceptional circumstances that exist. If shown, then the court can evaluate what is in the best interests of the children.
* * * * *
This site provides information about the law. Legal information, however, is not the same as legal advice about your specific circumstances. We try to be accurate and useful. We strongly recommend that you consult a lawyer to find out what is appropriate to your particular situation. We are not giving specific legal advice to you. These answers do not create an attorney-client relationship.
Please support OutLook by the Bay with a subscription.
OutLook by the Bay magazine and this website are made possible through the support of our advertisers and subscribers. We guarantee you’ll learn something new each issue. Please subscribe today.