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Common Law Marriage: Court finds Wife was not a “Wife”

By statute, Georgia law provides that “No common-law marriage shall be entered into in this state on or after January 1, 1997. Otherwise valid common-law marriages entered into prior to January 1, 1997, shall not be affected by this Code section and shall continue to be recognized in this state.” See O.C.G.A. § 19-3-1.1.

Still, in In re Estate of Connell, 354 Ga. App. 333 (2020), Kim Garrett asked a probate court to find that she was the common law wife of decedent Sean T. O’Connell after O’Connell’s children filed a petition for letters of administration. After hearing the evidence, the probate court found there was no common law marriage and the Court of Appeals agreed. The evidence it considered was:

  • O’Connell finalized his divorce from his first wife approximately two years before he met Garrett in 1993.
  • Garrett had already separated from her husband, and she and O’Connell began to date after she finalized her divorce in February 1995.
  • O’Connell was a master electrician, began bringing Garrett to his job sites. She became involved in the business and befriended some of the contractors with whom the Decedent worked on various projects.
  • Garrett testified that by the end of 1995, they were a “100 percent committed couple” and that, in April 1996, they privately exchanged rings at a waterfall in Helen. They promised they would love each other forever and that it was the circle that wouldn’t be broken.
  • Michael Rothman, a friend, testified he saw O’Connell and Garrett wearing wedding rings in 1996 and asked about them. They told Rothman it was a small ceremony, they didn’t tell anyone. [A]fter [Rothman] got over [his] anger[ about not having been invited, he] went out and bought a nice bottle of champagne.
  • Garrett and her children moved in with O’Connell after the school year ended, in June or July 1996. The couple lived together in several different homes between 1996 and 2013.
  • Around 2013, they separated: Garrett purchased a home in Cartersville, and O’Connell stayed with family and later in a mobile home on land he owned.
  • Over the next several years, both O’Connell and Garrett had romantic relationships with other people although they did spend holidays and birthdays together.
  • Janet Pritchard, the Decedent’s sister, testified that, early on in the Decedent’s and the Appellant’s relationship, Pritchard had asked him if the couple was married or if they had plans to get married. The Decedent responded that “he never planned to get married again.”
  • Pritchard and her brother testified that O’Connell never referred to Garrett as his wife, never mentioned the trip to Helen, and on several occasions specifically denied that they were married.
  • O’Connell died August 17, 2017. Garrett testified that the night before O’Connell’s death they discussed O’Connell moving into the house with Garrett in January and starting fresh.

The Probate Court found that this evidence was insufficient to prove a marriage. The parties had both experienced difficult divorces and both agreed that neither one of them wanted to experience that again if their relationship soured. They agreed to live together, but not as husband and wife. On appeal, Pritchard’s testimony that O’Connell never planned to get married again was sufficient, applying the any evidence standard, to affirm the Probate Court’s findings of fact. The testimony of Pritchard and her brother supported the trial court’s finding that O’Connell and Garrett lacked the requisite intent to form a marriage.

What is the lesson here? First, in Georgia, there is no such thing as a common law marriage after January 1, 1997. Second, a life partner who is not a spouse is not an heir-at-law and will not share in your estate unless you name him or her as beneficiary under a valid Will. Tom did not have a Will, so Garrett inherits nothing from his estate. If you intend to leave something for a life partner, you should either get married or execute a valid Will naming your partner as a beneficiary. Better yet, do both. Also, if you expect family members to challenge the relationship, you should consider speaking to a lawyer regarding establishing a trust to protect your life partner. Trusts are not subject to challenge in the probate court.

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