Love isn't all you need: an argument for statutory recognition of committed heterosexual relationships under intestacy laws in South Dakota in response to In Re Estate of Duval.

• Author: Hatting, Brittany H.

In In Re Estate of Duval, the South Dakota Supreme Court reversed the circuit court and ruled that Karen Hargrave was not, as she believed, the common law wife of her deceased intestate male partner. The court determined that Hargrave was not Duval's common law wife under Mexico's or Oklahoma's common law. As a result, Hargrave was denied the ability to inherit under intestacy laws as a surviving spouse. Under South Dakota's intestacy laws, unmarried committedheterosexual partners are unable to inherit intestate from a deceased partner, regardless of the relationship's duration, the purpose of the relationship, the pooling of resources, the intentions of the parties, the daily reliance upon one another, and the reputation of the relationship in the community. South Dakota should address this issue by adding a committed partner status for unmarried, heterosexual couples that would create a category similar to a surviving spouse for purposes of inheriting intestate. Alternatively, South Dakota should allow probate courts to place more emphasis on donative intent when adjudicating intestate estates in order to properly execute the intent of the decedent. This action would provide more protection and stability to the lives of the 20,970 South Dakotans currently living in unmarried committed partnerships and prevent undue hardship for surviving partners.

1. INTRODUCTION

   In recent years, the traditional idea of what constitutes a 'family' has undergone drastic changes. (1) The United States Census Bureau reported that nearly 7.5 million households in the United States are comprised of heterosexual unmarried couples, a thirteen percent increase from 2009. (2) The 2010 United States Census indicated that 20,970 South Dakotans are living together in unmarried households. (3) One such family type is the committed heterosexual partnership. (4) While the number of committed heterosexual couples has increased, the number of Americans who obtain estate planning documents is decreasing. (5) In 2004, approximately forty-two percent of Americans had obtained a will. (6) By 2009, only thirty-five percent of Americans had written a will. (7) With the number of non-traditional families increasing and the number of individuals with estate planning documents decreasing, new laws and statutes need to be created to protect new types of family relationships. (8)

   In the 2010 South Dakota Supreme Court decision, In Re Estate of Duval, it was determined that an explicit agreement to be married must exist in order for South Dakota to recognize a common law marriage created in another jurisdiction. (9) The appellee, Karen Hargrave, claimed that she and the decedent, Paul Duval, had a valid common law marriage under the laws of Mexico and Oklahoma. (10) The circuit court, however, held that there was not an explicit agreement to be married under Oklahoma's common law and, as a result, Hargrave could not inherit as a surviving spouse. (11) Although Hargrave and Duval had been in a committed, marriage-like relationship for almost fifteen years, Hargrave was denied the opportunity to inherit. (12) In short, the holding refused to acknowledge the merits of the longstanding relationship between Hargrave and Duval. (13) Due to the growing number of unmarried, committed partnerships in South Dakota, a need exists to create statutory protections to prevent other couples from Karen Hargrave's fate. (14) This note urges that the South Dakota Legislature create a "committed partner" status for the purposes of inheriting intestate between committed heterosexual partners who meet the criteria set forth in "totality of the relationship" test. (15) Alternatively, this note proposes that the South Dakota Legislature should adopt a law that would place increased emphasis on the intentions of the deceased for the purposes of intestate succession between unmarried partners. (16)

2. FACTS AND PROCEDURE

   1. FACTS OF IN RE ESTATE OF DUVAL

      In 1986, Paul Duval separated from his wife and the mother of his two daughters while he was living in Massachusetts. (17) Duval and his wife later divorced and, in 1994, Duval and Karen Hargrave began living together in Massachusetts. (18) The following year, Duval acquired a home in Custer, South Dakota (19) Hargrave moved from Massachusetts and joined Duval in the Custer home in 1996, which was held solely in Duval s name. (20) Beginning in 1997, Duval and Hargrave began spending the winter months in Nuevo Leon, Mexico while enjoying the summer months in Custer, South Dakota. (21) While traveling between South Dakota and Mexico, Duval and Hargrave spent time in Oklahoma, visiting Hargrave's family. (22) Hargrave and Duval never had a formal marriage ceremony. (23) Hargrave stated that she and Duval "mutually decided against" an official wedding because they acted as man and wife and felt married. (24)

      In 1998, Duval and Hargrave purchased a home together in Nuevo Leon, identifying themselves as husband and wife on the contract. (25) While in Mexico, they presented themselves as husband and wife. (26) Although both Duval and Hargrave stated that they were single on a quitclaim deed in South Dakota in 2001, Hargrave explained that the common law marriage was entered into after the quitclaim deed's execution. (27) During a stay in Mexico in 2005, Duval was assaulted and entered an intensive care unit for the treatment of his injuries. (28) Hargrave stayed at the hospital during Duval's treatment. (29) Hargrave moved Duval to a rehabilitation center in Oklahoma and eventually to the Mayo Clinic in Rochester, Minnesota for continuing treatment. (30) Records at the Mayo Clinic stated that Hargrave was Duval's wife. (31) Following Duval's rehabilitation, Hargrave and Duval returned to Oklahoma in 2005. (32) While in Oklahoma, Duval purchased personal property and registered it under his name. (33) Duval and Hargrave resumed their custom of spending the winter months in Mexico and the summer months at the Custer, South Dakota residence. (34) Duval's (2006) income tax return listed Hargrave as his wife and had listed her as a dependent family member in prior years. (35)

      In the summer of (2008), Duval died in a rock climbing accident in Custer County, South Dakota. (36) Duval's obituary named Hargrave as his wife. (37) Duval, however, died intestate. (38) Throughout their relationship, Duval and Hargrave "co-mingled" their personal property and were both financially supported by Duval's pension fund. (39) Some of Duval's pension money was used to purchase stocks in both of their names, to which Hargrave had complete access. (40) Hargrave was listed as the beneficiary of Duval s VA health benefits and had power of attorney over Duval. (41) Hargrave and Duval also represented themselves as married when registering for tax consultation services. (42)

   2. PROCEDURE OF IN RE ESTATE OF DUVAL

      Following Duval's death, one of his daughters submitted a petition and was named as personal representative of his estate. (43) Subsequently, Hargrave also filed a petition to be named the personal representative of Duval's estate as his surviving spouse. (44) In a probate proceeding in Custer County, the circuit court determined that Hargrave and Duval were married under the laws of Nuevo Leon, Mexico and Oklahoma, making Hargave a surviving spouse and personal representative of Duval's estate. (45) Duval's daughters appealed to the South Dakota Supreme Court, arguing that a South Dakota domicile prevented Duval and Hargrave from creating a common law marriage in either Mexico or Oklahoma, that Mexican concubinage is not recognized as a valid marriage in South Dakota, and that Hargrave and Duval did not have a common law marriage in Oklahoma. (46) The Supreme Court concluded that South Dakota does not "require parties to establish domicile in the state where the common-law marriage occurred." (47) The court also concluded that Duval and Hargrave did not have a valid marriage under either Mexico or Oklahoma law, preventing Hargrave from being treated as the surviving spouse for Duval's estate. (48)

   3. RATIONALE FOR THE SOUTH DAKOTA SUPREME COURT'S DECISION IN DUVAL

      The first argument presented by Duval's daughters was that Duval and Hargrave were required to be domiciled in a jurisdiction for a common law marriage to have taken place. (49) The appellants' posit that because Hargrave and Duval maintained a South Dakota domicile throughout their relationship, the couple could not have entered into a common law marriage in Mexico or Oklahoma. (50) The court, however, held that a marriage "valid in the state where it was contracted, is to be regarded as valid" in South Dakota. (51) The South Dakota Supreme Court succinctly dispatched the daughters' arguments, finding that South Dakota does not have a domicile requirement within S.D.C.L. section 25-1-38. (52)

      The appellants' second argument was that Duval and Hargrave did not enter into a valid common law marriage via a legal concubinage under Mexican law. (53) Both Duval and Hargrave were free to enter into such a union, Duval having been divorced from the mother of his children since the early nineties. (54) At the time of Duval's death, Hargrave and Duval had been together for approximately fourteen years. (55) During that time, the couple had spent winters in Mexico from 1997 to 2005, and an unknown amount of time following Duval's recovery from his assault related injuries in 2005 and before his death in 2008. (56) The amount of time they spent in Mexico satisfied the five year minimum requirement under Mexican law. (57) It was never disputed that Duval and Hargrave were never formally married. (58) Hargrave argued that she and Duval were engaged in a concubine relationship and that Mexican concubinage was the equivalent of a common law marriage. (59)

      The Supreme Court of South Dakota found that a Mexican concubinage was not the legal equivalent of a common law marriage because it does not...