Domicile Requirement for Ripening Out-of-State Common Law Marriages under Montana Law

Introduction

This commentary examines the Supreme Court of Montana’s decision in Estate of Estel Neven Zugg (2025 MT 78), which clarifies the circumstances under which an out-of-state relationship may mature into a valid common law marriage under Montana law. In January 2021 Estel Neven Zugg (“Neven”) died intestate. Donna Katherine Finley (“Katherine”) petitioned the Fifteenth Judicial District Court to open intestacy proceedings and to appoint her as personal representative, claiming she and Neven were common law spouses. Neven’s sons, Austin and Kolby Zugg, opposed. The District Court found that although Neven maintained Montana ties, he and Katherine never cohabited in Montana, so no Montana common law marriage existed. Katherine appealed, and the Supreme Court affirmed.

Summary of the Judgment

The Supreme Court unanimously affirmed the District Court’s order. It held that:

Montana presumes that a couple “deporting themselves as husband and wife” has entered a lawful common law marriage, but this presumption is rebuttable.
A valid Montana common law marriage requires mutual consent, cohabitation, and public reputation within Montana.
Relationships formed in jurisdictions that do not recognize common law marriage (North Dakota, Arizona, Nevada) must “ripen” into marriage by domicile and public repute in Montana.
Katherine and Neven never lived together in Montana, so their out-of-state relationship could not ripen into a valid Montana common law marriage.

Analysis

Precedents Cited

Section 26-1-602(30), MCA: Establishes the strong presumption that a couple living as husband and wife have a valid common law marriage.
In re Estate of Murnion (212 Mont. 107, 686 P.2d 893 (1984)): Held that a relationship invalid where contracted may become valid under Montana law if parties domicile and cohabit in Montana, acquiring public repute as spouses.
In re Marriage of Swanner-Renner (2009 MT 186): Applied Murnion to conclude that a couple’s common law marriage began upon relocation to Montana, removing the impediment of Washington law.
Barnett v. Jedynak (219 Ariz. 550, 200 P.3d 1047 (Ct. App. 2009)) and Pearson v. Pearson (2000 ND 20, 606 N.W.2d 128): Confirm that states not recognizing common law marriage will only give effect to one validly entered in another jurisdiction.

Legal Reasoning

The Court applied Montana’s four-part test for common law marriage:
(1) Competence to marry;
(2) Mutual consent to a marital relationship;
(3) Cohabitation;
(4) Public reputation as husband and wife.

It acknowledged that Neven retained Montana residency indicia (driver’s license, plates), but Katherine failed to prove cohabitation and public repute in Montana. All credible testimony established the couple lived primarily in North Dakota and Arizona—states that do not recognize common law marriage. Under Estate of Murnion and Swanner-Renner, relationships formed where common law marriage is prohibited only “ripen” into marriage upon domicile and public repute in Montana. Because Katherine and Neven never domiciled or cohabited here, the Court held no valid common law marriage arose.

Impact

This decision confirms that Montana will not retroactively recognize a common law marriage formed entirely outside its borders unless the parties subsequently establish domicile, cohabit, and publicly hold themselves as spouses in Montana. Practitioners should advise clients with out-of-state common law relationships to establish clear Montana residency and public reputation elements if they wish to obtain marital status and its attendant rights in this State. Estate, probate, family law, and estate-planning practices will be directly affected by this ruling.

Complex Concepts Simplified

Common Law Marriage: A non-ceremonial marriage recognized when partners agree to be married, live together, and present themselves publicly as spouses.
Rebuttable Presumption: A legal assumption that is taken as true unless someone comes forward to contest it with evidence.
Cohabitation vs. Domicile: Cohabitation means living together; domicile adds a legal element of intent to remain in a jurisdiction.
Ripening Principle: When a relationship begins in a jurisdiction that does not allow common law marriage, it “ripens” into a valid marriage only after the couple meets Montana’s requirements on Montana soil.

Conclusion

The Supreme Court of Montana’s decision in Estate of Zugg reaffirms that Montana will only recognize out-of-state common law relationships as valid marriages if the parties subsequently domicile, cohabit, and hold themselves out as spouses within this State. By emphasizing the domicile requirement for “ripening” such relationships, the Court provides clarity and predictability for individuals and estates dealing with intestacy, probate, and family law issues. This precedent underscores the importance of establishing concrete Montana residency and reputation elements for those seeking recognition of a common law marriage here.