Equitable Distribution

Wife is Prohibited From Offering any Statements Made by Decedent to Establish Common Law Marriage and Letters of Administration Were Granted to Third Party

In the common law marriage case of In Re Viah, PICS Case No. 14-1594 (C.P. Lawrence, Sept. 8, 2014), the Honorable John W. Hodge denied petitioner appeal of grant of letters of administration to a third party by attempting to introduce testimony supporting her contention that she and decedent were common-law husband and wife.

Respondent, Ronald Stickle, filed a petition for letters of administration of the estate of Randall M. Viah. The Lawrence County Register of Wills granted respondent’s request and issued letters of administration. Petitioner Patricia Rosta requested that the court issue a rule to show cause as to why an appeal from probate should not be sustained. Petitioner subsequently filed at motion in limine, requesting that the court permit her to introduce testimony from certain individuals regarding decedent’s relationship to petitioner.

Before a witness is declared incompetent to testify under the Dead Man’s Act, three conditions must exist: (1) the deceased must have had an actual right or interest in the matter at issue, (2) the interest of the witness, not simply the testimony, must be adverse to that of the decedent; and, (3) a right of the deceased must have passed to a party of record who represents the deceased’s interest. Here, petitioner claimed that she was competent to testify based upon the devisavit vel non exception to the Dead Man’s Act. This exception permits testimony as to the intent of a testator to be elicited from those who would otherwise be incompetent to testify under the Act.

An individual who elects to take against the will on the basis that he or she is a common-law spouse of the decedent must overcome the hurdle of establishing his or her status of descent. Once this hurdle is overcome, the individual falls within the exception and becomes competent to testify. However, this burden must first be met without resort to any exception to the act, since at that point she is not yet within the exception.

In this matter, it was clear that petitioner was prohibited from offering any statements made by decedent, either through her own testimony or the testimony of a third party. Petitioner could offer testimony of cohabitation and reputation in the community to establish that a common-law marriage existed between herself and decedent. Specific statements made by decedent had to be excluded until the petitioner could establish her status by some other means.

The court denied petitioner’s motion in limine. Petitioner was precluded from offering any evidence regarding statements made by decedent, in her attempt to establish a common-law marriage.

Reference: Digest of Weekly Opinions, Pennsylvania Law Weekly 37 PLW 989 (October 14, 2014)

Filed Under: Family Law: Common Law Marriage; Estate Litigation

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