Common Law Wife Failed to Establish Status as Wife and Heir

The decedent died a resident of Monroe County, Tennessee, in 2014.  In 2015, Ms. Burns sought to establish herself as the common law wife of the decedent under South Carolina law. The South Carolina Probate Court held that Ms. Burns was “the common law spouse of the Decedent,” and “entitled to all spousal rights as an heir.”  While common law marriage cannot be entered into in Tennessee, Tennessee courts will recognize a marriage contracted in a state that permits common law marriages.  The Court held that the South Carolina declaratory judgment that Ms. Burns was the decedent’s common law wife was entitled to full faith and credit.  However, Ms. Burns failed to qualify as a surviving spouse under Section 62-2-802 of the South Carolina Code, which provides that a surviving spouse does not include, “an individual claiming to be a common law spouse who has not been established to be a common law spouse by an adjudication commenced before the death of the decedent or within the later of eight months after the death of the decedent or six months after the initial appointment of the personal representative.”  Because Ms. Burns did not meet those time requirements, South Carolina statutory law mandates that Ms. Burns is not the surviving spouse of the decedent. In Re the Estate of Jimmy L. Smith, No. 2014-149 (Tenn. Ct. App. Oct. 4, 2017).