New Hampshire does not generally recognize the validity of the common law marriage. The exception to this rule is set forth in RSA 457:39. Under that statute “persons cohabitating and acknowledging each other as husband and wife, and generally reputed to be such for the period of three years and until the decease of one of them, shall thereafter been deemed to have been legally married”. This statute allows for persons who fall within this definition to inherit from a deceased partner by claiming that at the time of the partner's death they were common law husband and wife.

The Supreme Court recently had a chance to interpret this statute in the case of In re: Estate of David J. Bourassa (decided June 3, 2008). In Bourassa , Mr. Bourassa and Debra Beck began a romantic relationship in the mid to late 1990s. Ms. Beck moved into Mr. Bourassa's home and lived there until his death in 2006. During those years, they shared domestic responsibilities, worked together on the family farm and had a child. The couple was not married at the time of Mr. Bourassa's death.

Under Mr. Bourassa's will, he left all of his property to his four daughters from a previous relationship. Believing that she was entitled to a spousal share of Mr. Bourassa's estate, Ms. Beck petitioned the Probate Court to be declared Mr. Bourassa's common law wife. After a two day hearing, the Probate Court ruled that, while she and Mr. Bourassa cohabitated together, they never acknowledged each other as husband and wife. Therefore, the Probate Court did not award Ms. Beck a spousal share of Mr. Bourassa's estate.

Ms. Beck appealed the Probate Court decision to the New Hampshire Supreme Court. The New Hampshire Supreme Court affirmed the Probate Court's decision. The Supreme Court held that the Probate Court's finding that Mr. Bourassa and Ms. Beck did not acknowledge each other as husband and wife was both reasonable and based upon the evidence presented at trial. The Supreme Court explained that “acknowledgement of another as one's spouse under RSA 457:39 involves declaration or acknowledgement of the relationship”. Cohabitation is not enough unless the couple acknowledges each other as husband and wife.

In this case, the evidence showed that Mr. Bourassa never acknowledged Ms. Beck to be his wife. To the contrary, Mr. Bourassa, during his life, told his brother that he and Ms. Beck “were not married” and said people who married were “crazy.” Two of Mr. Bourassa's daughters testified that Ms. Beck had “told them that she was not and never would be anybody's common law”. Ms Beck identified herself in her own will as a “single person” and maintained separate bank accounts from Mr. Bourassa. Given this, the Supreme Court concluded that Ms. Beck did not qualify as Mr. Bourassa's common law spouse.

Andrew J. Piela is an associate attorney at Hamblett & Kerrigan, P.A. His legal practice includes civil litigation, family law, land use litigation and probate. You can reach Attorney Piela by e-mail at: apiela@hamker.com

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