In this judicial settlement proceeding filed by the Public Administrator, an alleged common-law wife of decedent, James L. Reeves ("James"), objects to the proposed distribution of his net estate of $39,000 to the New York State Comptroller.

James died intestate in Buffalo, New York, at the age of 92, on October 19, 2012. His distributees were unknown, and the Public Administrator was awarded letters of administration on March 21, 2013.

During the administration of this estate, Jane E. Singletary ("Jane") filed a right of election, alleging that she was James's common-law spouse. In her objections to the Public Administrator's account, she reiterated this claim which is based on a common-law marriage allegedly entered into in the State of South Carolina.

A hearing to determine Jane's status was set down by me, on consent of all counsel, [*2]before a court attorney-referee. A written referee report was waived by the parties, who consented to me deciding the issues on the hearing record (see SCPA 506[6][c]).

At this hearing, Jane testified that she had met James in Buffalo in 1965. They moved to Columbia, South Carolina in 1966 and lived there together for about two and a half years, and then, for a short time, they lived in North Carolina. They returned to Buffalo in 1974, where they continued to reside until his death in 2012, never having separated.

James was originally from Missouri. In all the years they were together, Jane had met only one member of his family, his mother, with whom James had an ongoing "bitter relationship."

Jane's aunts, uncles, and cousins lived in South Carolina. From the 1960's until 2009, she and James would visit them, usually once or twice a year, for a week to ten day. Most of those relatives are now deceased.

When they visited her relatives in South Carolina, the couple stayed in a hotel or motel. Jane said they held themselves out as husband and wife to the general public.

While living in Buffalo, Jane stated that James "did want to get married, but I never got together to go down to get the license . . . I just never took the time . . . I don't know why. Now I'm beating myself up about that. I don't know why. I really don't."

The couple maintained separate bank accounts and each paid one-half of the household expenses. James had worked for the New York State Department of Labor for over 20 years before he retired in the 1990's. In 2005, he named Jane as the beneficiary of a $3,000 death benefit, where she was listed as his "companion." Jane said she named her son from a prior marriage as the beneficiary of her work-related death benefits.

The couple filed separate tax returns. James did not have a Will or life insurance, "because he was from old school. He did not believe in anything like that whatsoever." They owned no home together, having lived throughout the years in apartments.

To document her trips to South Carolina with James, Jane produced two inn receipts and one car rental receipt from 2009 addressed solely in her name. Any receipts for other trips, she said, had been destroyed long ago. Jane paid cash for the inn bills, which listed only "1" occupant in the room. She paid the car rental bill by money order. The rental agreement listed her as the sole driver, even though James also had a driver's license, because she was the one who would usually drive.

Sandra McIver ("Sandra") also testified at this hearing. She was a close friend of Jane in Buffalo for 37 years, and they socialized at least once a year, "but Mr. Reeves never went with us." For many years, Sandra believed that James and Jane were married, although Sandra never heard James actually refer to Jane as his wife: "[h]e was real quiet. He never really talked." Sandra never went on visits to South Carolina with the couple.

No witnesses, other than Jane herself, testified about James's and her alleged common-law marital relationship in South Carolina.

New York has not recognized common-law marriages entered into in its own state since 1933 (L 1933, ch 606; Domestic Relations Law, § 11). However, as I noted in Matter of Gernold, 9 Misc 3d 427, 428 [2005]:

South Carolina recognizes common-law marriages if two parties have expressed a present intent to enter into a marriage contract (see Matter of Duffy, 392 SC 41, 45 [2011]). While the intent to be married can be inferred from the circumstances (Kirby v. Kirby, 270 SC 137, 140 [1978] and Stiggers-Smith v. Smith, 2009 SC App Unpub LEXIS 111 [dec. March 2, 2009]), a mutual agreement must exist between both parties to assume the husband and wife relationship. "Cohabitation without such an agreement does not constitute marriage" (Johnson v. Johnson, 235 SC 542, 550 [1960]). As the Supreme Court of South Carolina said in Callen v. Callen, 365 SC 618, 626 [2005]:

Under South Carolina law, when one of the two "partners" has died, a party seeking to establish the existence of a common-law marriage, meets his or her burden of proof only by clear and convincing evidence (see Matter of Duffy, supra at 46). In this context, under South Carolina law, the burden of proof to be met is characterized this way:

Here, there is no evidence of James's intention to be married in South Carolina. Even the couple's alleged cohabitation in that state, although insufficient in and of itself to prove intent, is not supported by the documentary evidence or testimony from any witness other than Jane herself, who is interested in the outcome of this case. And, in any event, Jane's testimony itself is equivocal on this point:

Q. Okay.

The guardian ad litem for unknown heirs and the Attorney General of the State of New York both urge the Court to deny Jane's status as a common-law spouse, and dismiss her objections to the account.

Upon the proof presented, I find that Jane has not met her burden of proving that she and James entered into a common-law marriage valid under the laws of South Carolina. Thus, her status as "spouse" and her right of election against his estate in New York cannot be recognized.

Accordingly, the objections to the accounting, must be, and they hereby are dismissed.

The net estate, after payment of commissions, attorney's fee and guardian ad litem fees shall be paid over to the New York State Comptroller for the benefit of decedent's unknown heirs.

Finally, I find that the guardian ad litem's written fee application for $2,777.50, is fair and reasonable under all the circumstances of this case. The fee request has not been objected to by any of the parties, it is hereby approved, and it shall be paid within 30 days of the date of this Order.

This decision shall constitute the Order of this Court and no other or further order shall be required.

Surrogate Judge