August 2, 2016 at 12:05 pm EDT | by Lou Chibbaro Jr.
Gay man wins first round in common-law marriage dispute
common-law marriage, gay news, Washington Blade

James Spellman, on left, and Michael Kelly (Photo by Murray Archibald)

The D.C. Court of Appeals ruled on July 7 that a D.C. gay man who believes he’s entitled to a share of the estate of his deceased partner can petition the District’s courts for a declaration of common-law marriage between him and the partner, even though the partner was a resident of Rehoboth Beach, Del., at the time of his death.

The appeals court ruling overturned an earlier ruling by the D.C. Superior Court, which granted a motion to dismiss James Spellman’s petition for a common-law marriage declaration between him and Michael Kelly, his partner of 17 years, on grounds that the Superior Court didn’t have personal jurisdiction over Kelly’s estate and relatives in Delaware.

The ruling remands the case back to the D.C. Superior Court, which must now make a determination on the merits of whether a common-law marriage existed between Spellman and Kelly.

Spellman’s attorney, Ugo Colella, has said his client’s relationship with Kelly meets the legal criteria for a common law marriage – the two lived together and acted as married spouses.

Kelly’s relatives, led by his brother-in-law, Joseph Boland, filed a petition in Delaware to probate Kelly’s estate shortly after Kelly died in February 2013 at the age of 68. A Delaware court appointed Boland as personal representative or executor of the estate in accordance with Kelly’s 1990 will, which named Boland as personal representative. The will was filed in Sussex County, Del.

The Wall Street Journal reported in an August 2013 story that Delaware probate court records showed Kelly’s assets totaled $819,000 and included a Rehoboth Beach house assessed at the time with a value of $574,000. The will divided Kelly’s assets among his four siblings, the Wall Street Journal reported the court records as showing.

At stake in Spellman’s common-law marriage petition is whether he would be entitled to some if not all of Kelly’s assets as Kelly’s legal spouse. D.C.-area attorney Michele Zavos, who specializes in LGBT family law, said spousal probate laws differ from state to state but if a person who dies has a will that predates his or her ceremonial or common-law marriage, the surviving spouse is entitled to a “spousal statutory share” of the estate.

When Spellman, now 58, filed a spousal claim before the Delaware probate court in 2013, Boland “rejected Mr. Spellman’s claim on the ground that there was no documentation of a marriage between Mr. Spellman and Mr. Kelly that would be recognized under Delaware law,” according to the D.C. Court of Appeals’ account of the case.

Spellman, through his attorney, then filed his petition with the D.C. Superior Court’s Domestic Relations Division seeking a declaration of common-law marriage between him and Kelly. The petition notes that Spellman and Kelly met Oct. 31, 1994.

“On Oct. 31, 1995, one year after their initial meeting, Mr. Kelly and Mr. Spellman made an agreement that, from that day forward, they would live together and consider themselves to be each other’s spouse,” the petition says.

“Mr. Kelly and Mr. Spellman lived together as spouses from Oct. 31, 1995 until Mr. Kelly’s passing on Feb. 16, 2013,” according to the petition.

The appeals court ruling says Kelly also owned a home in Delaware, where he and Spellman often stayed on weekends and during the summer. Kelly, who worked in D.C., began spending more time at his Delaware home in Rehoboth Beach after he retired in 2006, although he continued to travel to D.C. to spend time there with Spellman.

“Throughout the period from 1998 to 2013, Mr. Kelly and Mr. Spellman co-hosted social events in the District, sent joint holiday cards from Mr. Spellman’s address in the District, and attended book clubs, the opera, and the theater together in the District,” the appeals court ruling says.

In his motion to dismiss Spellman’s common-law marriage petition, Boland argued that Kelly’s true residence was in Delaware and that the D.C. courts could not legally declare a common-law marriage between the two men because Delaware law doesn’t recognize common-law marriages.

Boland also argued in his court filings that D.C. did not legally recognize same-sex marriage until 2010, at which time he said Kelly was living in Delaware rather than D.C., and thus a same-sex common-law marriage could not exist between the two men.

In opposing the motion to dismiss, Colella, Spellman’s attorney, argued that a marital relationship was established in D.C. between Spellman and Kelly and that relationship continued regardless of whether the couple spent time in Kelly’s house in Rehoboth Beach.

Colella argued that the Superior Court should have personal jurisdiction over Kelly’s estate to determine whether a common-law marriage existed as long as that jurisdiction does not violate the due process clause of the U.S. Constitution.

Boland’s court papers claim imposing D.C. jurisdiction would violate the Constitution.

“We conclude to the contrary and therefore rule as a matter of law that the Superior Court has personal jurisdiction in this case,” the appeals court ruling declares.

“The undisputed facts show that Mr. Kelly maintained substantial contacts with the District,” the ruling states. “Mr. Kelly owned a home in the District until 1998, when he moved in with Mr. Spellman at Mr. Spellman’s home in the District,” it says.

“From 1998 to 2006, Mr. Spellman and Mr. Kelly shared a residence in the District and held themselves out as partners,” the ruling says. “Mr. Kelly lived and worked in the District until 2006, when he retired. Although Mr. Kelly began spending more of his time in Delaware after his retirement, Mr. Kelly’s contacts with the District continued up to his death in 2013.”

Boland’s attorney in Delaware, Kevin Baird, didn’t respond to a request from the Washington Blade for comment on the appeals court decision and the return of the case before D.C. Superior Court.

Zavos said the D.C. Superior Court has issued an order declaring at least one other same-sex couple to be a party to a common-law marriage in the District since same-sex marriage became legally recognized in the city in 2010.

Spellman told the Blade that he and Kelly were active members of the Rehoboth LGBT community and that Kelly was a longtime volunteer with CAMP Rehoboth, an LGBT community center and advocacy group in the popular beach resort town.

Lou Chibbaro Jr. has reported on the LGBT civil rights movement and the LGBT community for more than 30 years, beginning as a freelance writer and later as a staff reporter and currently as Senior News Reporter for the Washington Blade. He has chronicled LGBT-related developments as they have touched on a wide range of social, religious, and governmental institutions, including the White House, Congress, the U.S. Supreme Court, the military, local and national law enforcement agencies and the Catholic Church. Chibbaro has reported on LGBT issues and LGBT participation in local and national elections since 1976. He has covered the AIDS epidemic since it first surfaced in the early 1980s. Follow Lou

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