“Public Repute” Means Community, Not Bureaucracy: Montana Supreme Court Reaffirms Common‑Law Marriage Even Where Partners Marked “Single” on Official Forms

Introduction

In Estate of Hudson, 2025 MT 226, the Supreme Court of Montana affirmed a district court’s determination that the decedent, Carol A. Hudson (also known as Carol Ann Keller), and her long-term partner, Douglas J. Nail, were common-law spouses. The ruling allows Nail to pursue an elective share of Hudson’s augmented estate despite the decedent’s will and revocable trust leaving nearly all assets to her sons. The decision offers a pointed clarification of the “public repute” element of common-law marriage and reiterates the powerful presumption favoring marriage in Montana.

The appeal, brought by Carol’s son, Alan “AJ” Johnson, challenged two core findings: that Carol and Doug mutually consented to marry and that their relationship was confirmed by public repute. The Court, applying deferential review to the trial court’s factual findings, rejected those challenges. The opinion is significant for its clear statement that, in assessing “public repute,” the relevant “public” means the couple’s community—friends, family, neighbors—rather than institutions such as financial entities, medical providers, or government agencies.

Summary of the Opinion

Justice Beth Baker, writing for a unanimous Court, affirmed the district court’s conclusion that Carol and Doug entered into a valid common-law marriage after Doug’s prior marriage dissolved in May 2010. The Court held:

• Montana recognizes common-law marriage when the party asserting marriage proves: (1) competence to marry, (2) mutual consent to a marital relationship, and (3) confirmation by cohabitation and public repute.
• The district court’s findings that Carol and Doug mutually consented to marry and confirmed their relationship by public repute were supported by substantial credible evidence and thus not clearly erroneous.
• Evidence that parties identified themselves as “single” on tax, medical, and financial documents does not, by itself, defeat common-law marriage.
• For the public-repute inquiry, the “public” means the couple’s community—and the Court expressly stated that financial institutions, medical providers, or government entities do not constitute the “public” whose knowledge establishes reputation.
• The strong statutory presumption favoring marriage when parties deport themselves as husband and wife, one of the “strongest known to the law,” supported the trial court’s assessment of the record.

Factual and Procedural Background

Carol Hudson died unexpectedly in October 2018. Her estate plan left nearly everything to her sons, AJ and Jeff Johnson. Doug Nail, her partner of more than a decade, asserted a right to an elective spousal share on the basis that he and Carol were common-law spouses. AJ filed for declaratory relief to establish that no marriage existed, and Doug counterclaimed. The district court consolidated the probate and civil actions and, after a four-day bench trial in June 2024, ruled for Doug.

Key facts the district court credited included:

• Carol and Doug began cohabiting in Bozeman around 2008–2009, after a relationship begun in California; Doug’s prior marriage ended in May 2010, removing any legal impediment.
• They jointly embarked on building a home that was featured in a local magazine referring to Doug as “the husband.”
• They discussed Montana’s recognition of common-law marriage and agreed to be spouses without a ceremony; Doug gave Carol two Cartier love bracelets and a ring as symbols of commitment.
• Carol, in a 2014 air ambulance membership application, listed Doug as her “common law husband,” and she made Doug the primary beneficiary on certain policies and accounts.
• Friends and family in their Bozeman community viewed them as married; testimony included references to Carol as a “stepmom” and to Doug as “Grandpa D.”

AJ countered with evidence that Carol often checked “single” on various forms; that she kept her last name; that she told some people she did not wish to remarry; and that she sought advice about protecting assets or ending the relationship. The district court found the testimony of Carol’s friend and attorney, Shelley Patton, “particularly persuasive,” including Carol’s statement that she considered herself married to Doug under Montana law.

Analysis

Precedents Cited and Their Influence

• In re Marriage of Swanner-Renner, 2009 MT 186:
  The Court reaffirmed Montana’s policy favoring the validity of marriages and the strong presumption that parties deporting themselves as husband and wife have entered a lawful marriage. This presumption supported the district court’s acceptance of the couple’s community-facing conduct as marital.
• Section 26-1-602(30), MCA (presumption of marriage):
  Describes the disputable presumption that a man and woman comporting as spouses entered a marriage. The Court again characterized it as “one of the strongest known to the law,” heavily weighting the analysis toward upholding marital status when the couple’s conduct aligns with marriage.
• Section 40-1-403, MCA (recognition of common-law marriage):
  The statutory basis for recognizing common-law marriages in Montana, confirming the doctrine’s ongoing vitality.
• Snetsinger v. Montana University System, 2004 MT 390:
  Describes common-law marriage as an equitable doctrine ensuring fair treatment when relationships end, framing the policy rationale that undergirds the analysis in probate/elective-share contexts.
• In re J.K.N.A., 2019 MT 286; In re Estate of Hunsaker, 1998 MT 279; In re Estate of Ober, 2003 MT 7; In re Estate of Alcorn, 263 Mont. 353 (1994):
  These cases articulate and apply the three-part test for common-law marriage—competency, mutual consent, and confirmation by cohabitation and public repute—and provide examples of evidence that suffices for mutual consent (rings or other symbolic tokens, joint household life) and public repute (how the couple is regarded by their community, not by official records).
• Miller v. Sutherland, 131 Mont. 175 (1957):
  Defines the “public” for public repute purposes as the couple’s community whose knowledge establishes reputation. Estate of Hudson quotes and sharpens this point, expressly excluding institutional actors from the “public.”
• State v. Newman, 66 Mont. 180 (1923):
  Cited to explain that mutual consent prevents marriage from “catch[ing] the parties by surprise,” reinforcing that consent can be implied from conduct.
• Standards of review line: In re Estate of Zugg, 2025 MT 78; Kulstad v. Maniaci, 2009 MT 326; In re Marriage of Hansen, 2019 MT 284; Murray v. Whitcraft, 2012 MT 298; State v. Barrus, 2025 MT 183:
  These cases frame the appellate posture: findings upheld if supported by substantial credible evidence; “clearly erroneous” standard governs; appellate courts do not reweigh credibility or consider whether the record could support different findings. Barrus underscores the deference owed to the trial judge’s in-person credibility determinations.

Legal Reasoning

The Court proceeded element-by-element under Montana’s common-law marriage test, filtered through deferential standards of appellate review.

• Competence to marry:
  Undisputed; Doug’s divorce was finalized in May 2010, removing any impediment.
• Mutual consent:
  The district court relied on direct and circumstantial evidence: testimony that the couple agreed to be spouses without a ceremony; symbolic tokens (Cartier bracelets and a ring); beneficiary designations; and Carol’s specific designation of Doug as her “common law husband” on a 2014 medical transport membership form. The Court emphasized that consent can be implied from conduct and need not follow any formal expression, and that choices such as keeping a surname or filing taxes as “single” do not preclude a finding of consent (citing Ober and Alcorn).
• Public repute:
  The Court affirmed that “public” means the couple’s community and held that “we do not view financial institutions, medical providers, or government entities as the ‘public.’” Evidence from friends, family, a ski community, and a magazine’s reference to Doug as “the husband” supported the finding that Carol and Doug held themselves out as married. The couple’s communal conduct—cohabitation, home-building, social integration with family and friends—was “complete and sincere,” satisfying this element. The Court clarified that while allowing people to assume a marital relationship is not alone determinative, it is probative of public repute (citing Hunsaker).
• Standards of review as decisive:
  Confronted with conflicting narratives, the Court reiterated that it does not reweigh evidence or reassess credibility on appeal. Given substantial credible evidence supporting the district court’s findings, no clear error was shown. The strong presumption favoring marriage further counseled against disturbing the trial court’s conclusions.

What’s Most Notable or New Here?

Though grounded in well-settled doctrine, the opinion offers a particularly clear and quotable clarification about the public-repute element:

• The “public” for public-repute analysis is the couple’s community—friends, family, and others whose knowledge shapes reputation—not institutional actors. Official paperwork reflecting “single” status does not substitute for or outweigh community perception.
• Reaffirmation that filing taxes as “single,” keeping separate surnames or accounts, or omitting each other on certain forms does not defeat mutual consent or public repute—consistent with Ober and Alcorn, but applied to a modern evidentiary mix (e.g., medical forms, financial statements, and an air ambulance form).

Impact and Practical Implications

Estate of Hudson will reverberate across probate, family law, and estate planning in Montana:

• Probate and elective share litigation:
  Surviving partners may successfully assert common-law marriage—and claim an elective share—despite a decedent’s will or trust that excludes them. The focus will be on community-facing conduct and credible testimony from those who knew the couple.
• Weight of institutional paperwork:
  Consistent “single” designations on tax returns, loan applications, medical records, or financial statements are not dispositive. Practitioners should warn clients that official forms are, at most, one piece of the public-repute puzzle and may be outweighed by community testimony and conduct.
• Evidence strategy:
  Proponents of common-law marriage should assemble:
  • Community witnesses: friends, family, neighbors, coworkers, social-club/faith community members.
  • Symbols and conduct: rings or other tokens; joint projects (homebuilding), holiday hosting, family integration (e.g., “stepmom,” “Grandpa”), joint travel.
  • Statements by the decedent: admissions to trusted friends or advisors acknowledging common-law marriage.
  Opponents should be prepared to counter community testimony with consistent contrary statements, evidence of secrecy, or proof that the couple systematically avoided holding themselves out as married in their community.
• Estate planning and family governance:
  Clients who wish to avoid marital status must be counseled that living, acting, and being known in their community as spouses can create a marriage in Montana—even if they check “single” on forms. Written cohabitation agreements that expressly disclaim intent to marry, careful communication with family and friends, and consistent conduct may be necessary to avoid unintended marital status.
• Trial practice:
  This decision underscores the centrality of live credibility assessments at bench trials. On appeal, the “clearly erroneous” and “substantial credible evidence” standards, paired with the presumption favoring marriage, make reversals unlikely where the trial court found community testimony and spouse testimony persuasive.

Complex Concepts Simplified

• Common-law marriage:
  A legally recognized marriage formed without a ceremony or license, based on the couple’s consent to be married and their conduct as spouses in their community.
• Elements in Montana:
  (1) Competence to marry (no existing marriage, legal capacity); (2) Mutual consent (the couple agrees—expressly or by conduct—to be married); (3) Confirmation by cohabitation and public repute (they live together and are known in their community as married).
• Public repute:
  Reputation in the couple’s community—friends, family, neighbors—not how they filled out official paperwork or what institutions believe.
• Elective share:
  A statutory right allowing a surviving spouse to claim a percentage of the deceased spouse’s augmented estate, regardless of what the will or trust provides. Establishing a valid marriage is a threshold requirement.
• Presumption favoring marriage:
  Montana law presumes that people who present themselves as husband and wife entered a lawful marriage. This presumption is very strong and can tip close factual questions toward finding a marriage.
• Substantial credible evidence / clearly erroneous:
  On appeal, factual findings are upheld if supported by evidence that reasonable people might accept as adequate. A finding is “clearly erroneous” only if unsupported by substantial evidence, if the court misunderstood the effect of the evidence, or if the appellate court is firmly convinced a mistake was made. Appellate courts do not reweigh credibility.

Key Takeaways

• Public repute hinges on community perception, not government or financial paperwork. A couple can be married in the eyes of the law even if they regularly checked “single” on official forms.
• Mutual consent can be implied from conduct and symbolic acts (rings, bracelets, project partnership, beneficiary designations) and is not defeated by maintaining different surnames or separate finances.
• Montana’s strong presumption favoring marriage, combined with deferential appellate review, makes trial-level credibility determinations decisive in close cases.
• Estate planners and families should understand that long-term cohabitation coupled with community recognition as spouses can create marriage—and with it, spousal rights like the elective share.

Conclusion

Estate of Hudson reinforces Montana’s long-standing approach to common-law marriage while sharpening the “public repute” inquiry: the relevant public is the couple’s community, not institutions. The Supreme Court, applying deferential review and honoring the strong presumption favoring marriage, upheld the district court’s finding that Carol and Doug mutually consented to marry and lived as spouses in their community. For litigants and advisors, the case underscores that how a couple lives—and how their community sees them—can establish marriage, even when official forms say otherwise. The decision will guide probate courts in adjudicating elective share claims and will influence how Montanans, their families, and their counsel structure relationships and estate plans to either reflect or avoid marital status under Montana law.