ESTATE OF SMART v. SMART

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Docket Number

No. 59735.

Attorney(S)

John R. Green, Michael P. Sullivan, Leach, Sullivan, Green Buxton, Duncan, for appellants. Jonathan W. Burch, Burch Burch, Victor C. Wood, Jr., Oklahoma City, for appellee.

Judges

BACON, Presiding Judge.

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Smart Summary

Factual and Procedural Background

This appeal arises from an ancillary probate proceeding in Jefferson County, Oklahoma, involving the estate of Harold D. Smart, a deceased California resident. The decedent was married to Marie in 1950 and subsequently divorced in 1952. After a ceremonial marriage ceremony in Arizona in 1950 with appellee Gwendolyn Smart, decedent and appellee lived together in California until his death in 1981. Decedent died testate, and his will and two codicils were admitted to probate in California. The executor, decedent's son, filed the will for ancillary probate in Oklahoma, where decedent owned property. Appellee, excluded from inheritance under the will, filed an election to take a forced share of the Oklahoma property under Oklahoma statute. The trial court found appellee entitled to elect against the will, a ruling appealed by decedent’s children.

Legal Issues Presented

Whether appellee, Gwendolyn Smart, was the lawful wife and surviving spouse of decedent Harold D. Smart under Oklahoma law.
Whether appellee was entitled to elect to take a forced heir share against the decedent’s will and codicils concerning Oklahoma property.
Whether the common law marriage recognized by Oklahoma law applies to the parties despite their California residency, where common law marriage is not recognized if created within California.

Arguments of the Parties

Appellants' Arguments

Appellants argued the trial court erred in finding appellee was the lawful wife and surviving spouse entitled to elect against the will.
They contended that since decedent and appellee were residents of California, which does not recognize common law marriages created within its borders, appellee could not claim spousal rights under Oklahoma law.

Appellee's Arguments

Appellee argued that although California does not recognize common law marriages created within the state, it does recognize valid marriages created elsewhere, including common law marriages.
She asserted that a common law marriage was validly established in Oklahoma, where the parties frequently stayed and held themselves out as husband and wife.
Appellee claimed entitlement to elect against the will pursuant to Oklahoma statute 84 O.S. 1981 § 44.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Tatum v. Tatum, 241 F.2d 401 (9th Cir. 1957)	California recognizes marriages validly created outside California, including common law marriages.	Supported the court’s conclusion that California would recognize a valid common law marriage created in another state.
Estate of McKanna, 106 Cal.App.2d 126, 234 P.2d 673 (1951)	Reinforces California’s recognition of out-of-state valid marriages.	Used to confirm that California law recognizes valid marriages created elsewhere.
Gilmore, Gardner Kirk Oil Co. v. Harvel, 208 Okla. 664, 258 P.2d 632 (1953)	Defines the elements of a valid common law marriage in Oklahoma.	Applied to determine that decedent and appellee’s relationship met Oklahoma’s criteria for a common law marriage.

Court's Reasoning and Analysis

The court began by acknowledging that the parties’ facts were undisputed. It noted that although California does not recognize common law marriages formed within its borders, it does recognize valid marriages formed elsewhere, including common law marriages recognized by other states. The court then examined whether a common law marriage was established outside California, specifically in Oklahoma. Applying Oklahoma law, which permits common law marriages upon mutual agreement and cohabitation as husband and wife, the court found that the parties held themselves out publicly as married for many years while frequently residing in Oklahoma. The court observed that neither residency nor duration of cohabitation is a prerequisite for a valid Oklahoma common law marriage. The evidence, including decedent’s will referring to appellee as wife and their conduct over 20 years, supported the trial court’s conclusion that appellee was the lawful surviving spouse entitled to elect against the will under Oklahoma statute.

Holding and Implications

Affirmed.

The court upheld the trial court’s ruling that appellee was the lawful wife and surviving spouse of decedent under Oklahoma law and thus entitled to elect to take a forced share of the Oklahoma property against the will. This decision directly affects the parties by affirming appellee’s inheritance rights under Oklahoma law. The opinion does not establish new precedent beyond applying existing principles of interstate recognition of marriages and Oklahoma common law marriage doctrine.

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IN THE MATTER OF THE ESTATE OF HAROLD D. SMART, DECEASED, GERALD W. SMART, INDIVIDUALLY, AND AS THE EXECUTOR OF THE ESTATE OF HAROLD D. SMART, DECEASED, AND MRS. DANA LUPFER, APPELLANTS, v. GWENDOLYN S. SMART, APPELLEE.

BACON, Presiding Judge.

This appeal involves an ancillary probate proceeding in Jefferson County, Oklahoma, for a deceased California resident. The trial court ruled that decedent's common law wife could elect to take her forced heir share of decedent's Oklahoma property. Decedent's children appeal from that ruling.

The pertinent facts necessary to resolve this case are undisputed. The record shows that in 1950, decedent, Harold Smart, was married to Marie. On October 21, 1950, decedent, a resident of California, and appellee, Gwendolyn Smart, participated in a ceremonial marriage service in Yuma, Arizona. At that time decedent was still married to Marie. Decedent and Marie were divorced in California on September 29, 1952.

Decedent and appellee lived together in California from the time of their "ceremonial marriage" in Yuma, Arizona, until decedent died on March 12, 1981.

Decedent died testate and a resident of California. His will and two codicils were admitted to probate in California. The executor, decedent's son, filed the will and codicils for ancillary probate in Jefferson County, Oklahoma, where decedent owned real and personal property.

Under the terms of decedent's will and codicils appellee was not to inherit any interest in the Oklahoma property. She therefore filed her election to take against the will pursuant to 84 O.S. 1981 § 44[ 84-44]. The trial court found appellee was entitled to so elect and appellants now appeal.

Appellants argue that the trial court erred in finding appellee was the wife and surviving spouse of decedent and was therefore entitled to take against the will. We agree with the trial court and affirm.

The basis for appellants' argument is that decedent and appellee were, at all times they lived together, residents and domiciliaries of the State of California and that California does not recognize common law marriages. The simple answer to this assertion is that California does not recognize common law marriage created within its own boundaries. However, California does recognize marriages validly created elsewhere, including common law marriages of California domiciliaries. Tatum v. Tatum, 241 F.2d 401 (9th Cir. 1957) (citing Estate of McKanna, 106 Cal.App.2d 126, 234 P.2d 673 (1951)).

Therefore, if decedent and appellee entered into a common law marriage after decedent's divorce from Marie in 1952, appellee would be considered decedent's wife and surviving spouse.

The next logical step is to determine whether decedent and appellee created a common law marriage outside the boundaries of the State of California. We find they did establish a common law marriage while in Oklahoma.

The record in the present case contains an abundance of evidence that decedent and appellee considered themselves married to each other. For example, in his will decedent refers to appellee as his wife. They lived together as man and wife for 20 years and during that time held themselves out as such.

In Gilmore, Gardner Kirk Oil Co. v. Harvel, 208 Okla. 664, 258 P.2d 632 (1953), the supreme court said in its syllabus:

"A common-law marriage may exist in this state, and when parties capable of entering into the marriage relation agree to be and become husband and wife, and in pursuance of such agreement enter into and thereafter maintain the marriage relation, a common-law marriage exists."

It is not required that the parties to a common law marriage created in Oklahoma be residents or domiciliaries of Oklahoma, nor do they have to cohabit or maintain the common law marriage relationship for any magical length of time to make it valid.

In the present case decedent and appellee, for a period of 16 years, traveled to Oklahoma two to three times a year. They would stay two to five weeks at a time in Jefferson County, Oklahoma, where decedent's real property was located, holding themselves out as man and wife, not only to their family, but to the whole world. Under these circumstances we conclude that the trial court correctly held appellee was the wife and surviving spouse of decedent and was therefore entitled to elect to take against the will and codicils.

Affirmed.

BOYDSTON and MEANS, JJ., concur.