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Homosexual Seeks Inheritance through Common Law Marriage

Most Americans do not have a will and those who do typically don’t take the trouble to update it regularly. The tragic story of James Spellman and Michael Kelly underscores why it is so important to keep a will consistent with your present wishes.

Michael Kelly first met James Spellman at a Halloween party in 1994. The two men shared a close relationship thereafter. Although the gay rights movement in the mid-nineties did not command the political capital it does today, Spellman alleges he and Kelly agreed to live together as spouses. The couple maintained their agreement and their relationship until 2012, when Kelly was diagnosed with bile duct cancer. Spellman devoted himself to Kelly’s care, but Kelly passed away shortly thereafter. Kelly left behind $819,000 in his estate, including a beach house worth $574,000.

Kelly and SpellmanUnfortunately for Spellman, Kelly left behind a will naming his four siblings as his beneficiaries. The will, written in 1990, does not mention Spellman. Although the District of Columbia legalized same-sex marriage in 2010, Kelly’s illness distracted him from thoughts about marriage or updating his will.

Kelly’s estate refuses to give Spellman any part of the inheritance. Spellman claims he is entitled to a portion of the estate as Kelly’s common law spouse. Common law marriage is a marriage “by fact,” whereby the state recognizes two persons as married, even in the absence of a marriage certificate. Two persons are married in common law if, for a certain period of time determined by the state, the two individuals live together and present themselves as spouses to the world. Spellman claims he has lived with Kelly for the last eighteen years and that Kelly’s family knew about their relationship.

The estate claims that Spellman would not be entitled to the inheritance even if Spellman were a woman. The defendant says that Kelly lived in Delaware, where common law marriage is not recognized. The estate also denies that Kelly and Spellman were living together for as long as Spellman claims they had.

Spellman’s attorney argues for an extension of common-law marriage to same-sex marriage and to declare Kelly and Spellman married. Ideally, a favorable verdict will allow Spellman to collect inheritance under intestacy law.

Intestacy law is the “default” law if the deceased did not have a will or only had a partial will. Although I don’t know the full contents of Kelly’s will, Spellman might still be denied inheritance if he is not in the will. Under intestacy law, the spouse can receive most of the inheritance, but intestacy law assumes that a complete will does not exist. If Kelly’s will divides all of his estate among his siblings, there might not be anything left for Spellman to collect, even if he is recognized as a spouse. The estate can always argue that Kelly intentionally refused to update his will and that Kelly intended to deny Spellman any inheritance, even if Kelly considered Spellman his spouse.

Spellman’s claim has a long way to go if he continues forward. Still, the case is very noteworthy because of how the parties are treating homosexuality. Not only is the plaintiff asserting a homosexual relationship as a reason for inheriting from the deceased, the estate’s attorney is treating the homosexual nature of the relationship as a non-issue.

In the not too distant past, homosexuality was considered a reason to disinherit someone, even if the beneficiary was named in the will. Estates could argue that homosexuality was an undue influence on a dying person, thereby negating the deceased’s ability to freely express his or her intentions in the will. This case might not be a victory for James Spellman, but it is remarkable as evidence for how far the homosexual rights movement has come.


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