[WSBAPT] Here's a New One

Wed Nov 10 11:20:52 PST 2021

>From WSBA Family Law Deskbook Ch. 10.4:

 Annotation, Validity of Marriage As Affected By Lack of Legal Authority of Person Solemnizing It, 13 AL.R. 4th 1323 (1982). In 2012, the Washington legislature amended the statute to authorize "any regularly licensed or ordained minister or any priest, imam, rabbi, or similar official of any religious organization" to solemnize marriages. RCW 26.04.050<https://casemaker4.casemakerlegal.com/states/WA/books/Revised_Code/browse?ci=14&codesec=26.04.050&title=26#26.04.050&fn=Washington%20Family%20Law%20Deskbook>.
A "valid cultural marriage" performed in the Sudan was recognized in In re Marriage of Akon, 160 Wn.App. 48<https://casemaker4.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=160+Wn.App.+48&fn=Washington%20Family%20Law%20Deskbook>, 248 P.3d 94<https://casemaker4.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=248+P.3d+94&fn=Washington%20Family%20Law%20Deskbook> (2011).
Statutory requirements of a valid ceremony are only that the parties assert or declare before a statutorily approved solemnizer and no less than two attending witnesses that they take one another as spouses. RCW 26.04.070<https://casemaker4.casemakerlegal.com/states/WA/books/Revised_Code/browse?ci=14&codesec=26.04.070&title=26#26.04.070&fn=Washington%20Family%20Law%20Deskbook>.
A ceremonial marriage in Washington is valid notwithstanding the lack of a license. State v. Denton, 97 Wn.App. 267<https://casemaker4.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=97+Wn.App.+267&fn=Washington%20Family%20Law%20Deskbook>, 270-71, 983 P.2d 693<https://casemaker4.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=983+P.2d+693&fn=Washington%20Family%20Law%20Deskbook> (1999). Although Washington has a statutory requirement for a marriage license, it does not have a statute plainly making an unlicensed marriage invalid. Id. at 271. "Therefore, the purpose of the license requirement is purely regulatory," and that regulatory purpose cannot be enforced by rendering a marriage void or even voidable. Id.
....
Courts in yet other states have interpreted the mandatory language of the licensing requirement strictly, declaring that failure to comply with the requirement invalidates a marriage. See, e.g., Estate of DePasse, 97 Cal. App. 4th 92<https://casemaker4.casemakerlegal.com/states/CA/books/Case_Law/results?ci=14&search%5bCite%5d=97+Cal.+App.+4th+92&fn=Washington%20Family%20Law%20Deskbook>, 118 Cal. Rptr. 2d 143<https://casemaker4.casemakerlegal.com/states/CA/books/Case_Law/results?ci=14&search%5bCite%5d=118+Cal.Rptr.+2d+143&fn=Washington%20Family%20Law%20Deskbook> (2002), overruled on other grounds in Ceja v. Rudolph & Sletten, Inc., 56 Cal.4th 1113<https://casemaker4.casemakerlegal.com/states/CA/books/Case_Law/results?ci=14&search%5bCite%5d=56+Cal.4th+1113&fn=Washington%20Family%20Law%20Deskbook>, 1126, 302 P.3d 211<https://casemaker4.casemakerlegal.com/states/CA/books/Case_Law/results?ci=14&search%5bCite%5d=302+P.3d+211&fn=Washington%20Family%20Law%20Deskbook>, 219, 158 Cal. Rptr. 3d 21<https://casemaker4.casemakerlegal.com/states/CA/books/Case_Law/results?ci=14&search%5bCite%5d=158+Cal.Rptr.+3d+21&fn=Washington%20Family%20Law%20Deskbook>, 31 (2013) (holding there is no objective reasonableness requirement for a putative spouse); see also English, 61 A.L.R.2d 847, at §2.5. Although Washington's statute contains similarly mandatory language, the Washington courts seem to have embraced the policy that favors sustaining generally conforming marriages. See State v. Denton, 97 Wn.App. 267<https://casemaker4.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=97+Wn.App.+267&fn=Washington%20Family%20Law%20Deskbook>, 271, 983 P.2d 693<https://casemaker4.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=983+P.2d+693&fn=Washington%20Family%20Law%20Deskbook> (1999). Practitioners will do well to note the McLaughlin's Estate court's observation that the question of whether a marriage is a valid one is "so often before the courts, and involved in so many contradictions and shades of distinctions, it is impossible to reconcile them," 4 Wash, at 588, an observation that remains accurate more than 100 years later.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of G. Geoffrey Gibbs
Sent: Wednesday, November 10, 2021 8:19 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Here's a New One

The lack of a marriage license will not defeat the fact they were married.  There is case law on that point (but not at my fingertips).  So they were married on August 28th under the facts you provided.  That does not solve all the issues but might get you started.

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G. Geoffrey Gibbs

Anderson Hunter Law Firm

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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Amy Goertz
Sent: Tuesday, November 9, 2021 4:37 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Here's a New One

Good afternoon,

I have an interesting situation on my hands.

A potential client (PC) called today with the following challenging scenario:

PC (30 years old) was in a relationship since 2018 with a man (28 years old) who had been paralyzed in an accident in 2015. He received a settlement from the accident, which was in a bank account on which his stepmother was a co-signer to help him pay bills.

During their relationship, PC was his primary caretaker, and they purchased vehicles and a house. All titled in his name and likely using his settlement monies.

They planned to be married on his grandparents' anniversary - August 28, 2021. They had a ceremony with a licensed officiant but they did not realize they were supposed to get a marriage license ahead of time so no official paperwork was filed. They decided to go to Idaho on October 11 (her birthday) to get hitched for real, but would continue to consider August 28 as their anniversary.

He died of unknown causes on October 5; she woke up to him unresponsive and could not revive him.

Stepmother has swooped in, says she is the "executor" of the estate (there are no estate planning documents to PC's knowledge) and has taken titles to all of the vehicles and withdrawn the funds from the bank account. She says she is "holding them" for PC.

I would be interested to know how you would approach this situation.

Thanks in advance for your insights.

[cid:image002.gif at 01D7D624.E16A5D50]

Amy

Amy J. Goertz, J.D.
Goertz & Lambrecht PLLC
amyjgoertz at icloud.com<mailto:amyjgoertz at icloud.com>

1.888.926.2607 phone
1.877.684.1627 fax
Address for correspondence:
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Spokane, WA 99203

Additional office locations:
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Goertz & Lambrecht PLLC
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