707 S.E.2d 447
S.C. Ct. App.2011Background
- Robert Davitt claimed to be Helen Duffy's common law spouse and sought an elective share; the probate court found no common law marriage and denied his petition; the circuit court affirmed; evidence for marriage included 12 witnesses, community reputation, cards, photos, and a church directory; Helen's will and trust documents stated she was living with but not married to Davitt and omitted him; Helen's attorney testified he drafted documents based on Helen's input; Robert and Helen kept assets and finances largely separate; the parties filed federal taxes as single; the issue is whether clear and convincing evidence supports a common law marriage under South Carolina law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Davitt proved a common law marriage by clear and convincing evidence | Davitt argues the community’s evidence shows a mutual intent to marry | The probate court weighed evidence and emphasized documents stating non-marriage | Yes: circuit court affirmed, finding insufficient clear and convincing proof of common law marriage |
Key Cases Cited
- Tarnowski v. Lieberman, 348 S.C. 616 (Ct. App. 2002) (common law marriage fact-specific, bound by probate findings)
- Barker v. Baker, 330 S.C. 361 (Ct. App. 1998) (review of probate weighing of evidence limited to sufficiency of support)
- Ex parte Blizzard, 185 S.C. 131 (1937) (burden on party asserting common law marriage)
- Weathers v. Bolt, 293 S.C. 486 (Ct. App. 1987) (evidence-sufficiency standard in probate matters)
- Kirby v. Kirby, 270 S.C. 137 (S.C. 1978) (intent inferred from circumstances; mutual agreement essential)
- Johnson v. Johnson, 235 S.C. 542 (S.C. 1960) (mutual intent to assume husband-wife relationship required)