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In re Estate of Duval

January 6, 2010



The opinion of the court was delivered by: Meierhenry, Justice


[¶1.] Nathalie Duval-Couetil and Orielle Duval-Georgiades (Daughters) appeal the circuit court's judgment that Karen Hargrave (Hargrave) was the common-law wife of their father, Paul A. Duval (Duval). Daughters contend the circuit court erred when it held that Duval and Hargrave entered into a common-law marriage under the laws of Mexico and Oklahoma. We agree and reverse the circuit court.


[¶2.] Duval and Hargrave began living together in Massachusetts in 1994. In 1995, Duval acquired a home in Custer, South Dakota. Hargrave moved from Massachusetts to Duval's home in South Dakota in 1996. In 1997, Duval and Hargrave began a yearly routine of spending the summer months in Custer and the winter months in Mexico. In 1998, Duval and Hargrave bought a home together in Nuevo Leon, Mexico, as husband and wife.

[¶3.] In 2005, Duval was assaulted while in Mexico and placed in an intensive care unit for his injuries. Hargrave lived with Duval at the hospital while he was being treated. She later took Duval to Oklahoma for rehabilitation at a hospital in the Tulsa area and eventually to Rochester, Minnesota, for medical treatment at Mayo Clinic. Duval and Hargrave subsequently returned to Oklahoma for a period of time; and then, resumed their annual routine of spending winters in Mexico and summers in Custer. Duval was killed as a result of a rock climbing accident on June 24, 2008, in Custer County, South Dakota.

[¶4.] Duval and Hargrave never formally married. Hargrave testified that she and Duval had discussed a formal wedding ceremony, but mutually decided against it. She said they did not think they needed to marry because they held themselves out as husband and wife and felt like they were married. The circuit court specifically found that over the course of Duval and Hargrave's relationship, Duval referred to Hargrave as his wife on an income tax return form, designated her as the beneficiary on his VA health benefits application, and executed a general power of attorney in her favor.

[¶5.] The circuit court ultimately concluded that Hargrave had established that she and Duval met the requirements for a common-law marriage under the laws of both Mexico and Oklahoma. As such, Hargrave was treated as Duval's surviving spouse for inheritance purposes in South Dakota. Daughters appeal. Daughters' main issue on appeal is whether the circuit court erroneously recognized Hargrave as Duval's surviving spouse entitling her to inherit from his estate. They claim (1) that the South Dakota domicile of Duval and Hargrave precluded them from entering into a common-law marriage in either Mexico or Oklahoma, (2) that South Dakota law does not recognize a Mexican concubinage as a marriage, and (3) that Hargrave and Duval had not entered into a common-law marriage under Oklahoma law.


[¶6.] The relevant facts are not in dispute. Because the issues involve questions of law, our review is de novo. Sanford v. Sanford, 2005 SD 34, ¶12, 694 NW2d 283, 287. The first issue centers on whether South Dakota will give effect to a common-law marriage established by South Dakota domiciliaries while living in a jurisdiction that recognizes common-law marriage.

Common-Law Marriage

[¶7.] Common-law marriages were statutorily abrogated in South Dakota in 1959 by an amendment to SDCL 25-1-29. Notwithstanding, Hargrave contends that South Dakota continues to recognize valid common-law marriages entered into in other jurisdictions. Hargrave relies on SDCL 19-8-1, which provides that "[e]very court of this state shall take judicial notice of the common law and statutes of every state, territory, and other jurisdiction of the United States." Id . In addition to taking judicial notice of the common-law of other states, the South Dakota Legislature specifically addressed the validity of marriages entered into in other jurisdictions in SDCL 25-1-38. This statute provides that "[a]ny marriage contracted outside the jurisdiction of this state . . . which is valid by the laws of the jurisdiction in which such marriage was contracted, is valid in this state." Id. In view of these statutes, we conclude that a common-law marriage validly entered into in another jurisdiction will be recognized in South Dakota.*fn1

[¶8.] Daughters argue that the domicile of the couple controls their ability to enter into a common-law marriage. Daughters urge this Court to adopt a rule requiring parties to a common-law marriage to be domiciled in the state in which the marriage occurred. Thus, a couple domiciled in South Dakota could not be considered married merely by traveling to another state that recognizes common-law marriage and meeting that state's common-law marriage requirements. Daughters further allege that at all relevant times, Duval and Hargrave were domiciled in South Dakota, thereby precluding them from entering into a common-law marriage in either Mexico or Oklahoma. Daughters cite Garcia v. Garcia as authority for the domicile requirement. 25 SD 645, 127 NW 586 (1910). In Garcia, we said that a marriage "valid in the state where it was contracted, is to be regarded as valid in [South Dakota]." Id. at 589. We do not interpret Garcia as requiring domicile in the state in which the marriage occurred.

[ΒΆ9.] This is consistent with other jurisdictions that do not require parties to establish domicile in the state where the common-law marriage occurred. Minnesota courts have recognized common-law marriages entered into in other jurisdictions. In Pesina v. Anderson , the court held it would "recognize a common-law marriage if the couple takes up residence (but not necessarily domicile) in another state that allows common-law marriages." 1995 WL 387752 *2 (MinnCtApp 1995) (quoting Laikola v. Eng'r Concrete, 277 NW2d 653, 658 (Minn 1979)) (citations omitted). Similarly, in Vandever v. Indus. Comm'n of Ariz ., the court stated that it "disagree[d] with the legal reasoning of cases which hold that the policy of the domicile disfavoring common-law marriages should govern unless the couple has subsequently established residence in a state recognizing such marriages." 714 P2d 866, 870 (Ariz 1985). The Vandever court went on to state, "[t]hese cases effectively read a requirement of residency into the law of all common-law marriage[] states which may or may not exist." Id. See Grant v. Superior Court in and for County of Pima, 555 P2d 895, 897 (ArizCtApp 1976) ("Although Arizona does not authorize common law marriage, it will accord to such a marriage entered into in another state the same legal significances as if the marriage were effectively contracted in Arizona."). Mississippi has also recognized that "[t]he [domicile requirement] argument ignores the basic right of all persons to choose ...

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