University of Richmond UR Scholarship Repository Law Faculty Publications School of Law 1995 The Last-in-Time Marriage Presumption Peter N. Swisher University of Richmond, [email protected] Follow this and additional works at: http://scholarship.richmond.edu/law-faculty-publications Part of the Family Law Commons Recommended Citation Peter Nash Swisher, The Last-in-Time Marriage Presumption, 29 Fam. L.Q. 409 (1995). This Article is brought to you for free and open access by the School of Law at UR Scholarship Repository. It has been accepted for inclusion in Law Faculty Publications by an authorized administrator of UR Scholarship Repository. For more information, please contact [email protected]. The Last-in-Time Marriage Presumption PETER NASH SWISHER* and MELANIE DIANA JONES** I. Introduction The typical scenario for the last-in-time marriage presumption is not as unusual as one might expect: A husband (or wife) has unexpectedly died, and the bereaved surviving spouse is in the process of bringing a legal proceed- ing that may include a probate action, a wrongful death action, a suit for social security benefits, a workers' compensation action, a life insurance action, or another legal action for related compensatory, probate, or insurance benefits. However, during the pendency of these actions a former wife comes forward, claiming that she has never been divorced from her deceased spouse and that she, rather than the subsequent wife, should recover in any legal proceeding as the legal wife. Which wife should prevail? To many, the initial conclusion might be that because American family law in the vast majority of states prohibits bigamy and other plural marriages,' the first-in-time spouse should recover all the proceeds. But this conclusion would be wrong. The last-in-time marriage presumption is based upon "one of the strongest presumptions known to the law" that an existing marriage, once shown, is valid. A subsequent marriage, therefore, raises the very strong presumption * Professor of Law, University of Richmond Law School. ** Associate, McGuire, Woods, Battle & Boothe, Tysons Comer, Virginia. 1. See, e.g., Rance v. Rance, 587 N.E.2d 150 (Ind. Ct. App. 1992); Potter v. Murray City, 760 F.2d 1065 (10th Cir. 1985) (applying Utah law). See also THE UNIFORM MARRIAGE AND DIVORCE ACT § 207(a)(1), 9A U.L.A. 147 (1987). See generally HOMER H. CLARK JR., THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES 64-70 (2d ed. 1987) [hereinafter CLARK]; JOHN D. GREGORY, PETER N. SWISHER& SHERYL L. SCHEIBLE, UNDERSTANDING FAMILY LAW 39-40 (1993) [herein- after UNDERSTANDING FAMILY LAW]. HeinOnline -- 29 Fam. L.Q. 409 1995-1996 410 Family Law Quarterly, Volume 29, Number 3, Fall 1995 that any former marriage was terminated by death, annulment, or divorce. Once this presumption arises, the former spouse has the burden of proving that no death, annulment, or divorce occurred to terminate the prior marriage.2 Thus, if the former spouse fails to rebut this last-in-time marriage presumption by searching all divorce records where the deceased resided, or might reason- ably have resided, the subsequent spouse will prevail.' This marital presump- tion is based not upon logical arguments, but upon underlying public policy arguments, and the last-in-time marriage presumption therefore continues to be recognized and applied in current judicial decisions as well. 4 Surprisingly, for a presumption that is often characterized as "one of the strongest known to the law, 5 there has been very little legal analysis regarding this unique marriage presumption. This article, therefore, analyzes and dis- cusses the theoretical and practical aspects of the last-in-time marriage pre- sumption by examining its underlying rationale, and the legal result when the last-in-time presumption conflicts with other legal presumptions. The article then discusses the availability and application of the last-in-time marriage presumption including who can invoke it, when it becomes available, and the various kinds of legal actions where it may properly be utilized. The article further addresses burden of proof issues involving the last-in-time marriage presumption, including the factual elements that must be proven and the stan- 2. See, e.g., Parker v. American Lumber Co., 56 S.E.2d 214, 216 (Va. 1949): The decided weight of authority, and we think the correct view, is that where two marriages of the same person are shown, the second marriage is presumed valid; that such presumption is stronger than and overcomes the presumption of the continuance of the first marriage, so that a person who attacks a second marriage has the burden of producing evidence of its invalidity. When both parties to the first marriage are shown to be living at the time of the second marriage, it is presumed in favor of the second marriage that the first was dissolved by divorce. These presumptions arise, it is said, because the law presumes morality and legitimacy, and not immorality and bastardy. 3. Under the generally prevailing view in most jurisdictions, a prior spouse will only be able to rebut this last-in-time marriage presumption by searching all of the divorce records where the deceased spouse resided-or could have resided-in order to prove that no divorce decree was ever granted to the deceased spouse. See, e.g., Miller v. Harley-Davidson Motor Co., 328 N.W.2d 348 (Iowa Ct. App. 1982); Hewitt v. Firestone Tire & Rubber Co., 490 F. Supp. 1358 (E.D. Va. 1980). However, if the prior spouse successfully does present evidence that no divorce proceedings were instituted in any jurisdiction where the deceased spouse might reasonably have pursued them, then the presumption would be rebutted. See, e.g., Davis v. Davis, 521 S.W.2d 603 (Tex. 1975). 4. See, e.g., In re Estate of Pope, 517 N.W.2d 281 (Mich. Ct. App. 1994); Munson v. United States, 30 Cl. Ct. 830 (1994) (applying California law); Chandler v. Central Oil Corp., 853 P.2d 649 (Kan. 1993); Leonard v. Leonard, 560 So. 2d 1080 (Ala. Ct. App. 1990). 5. See, e.g., Stewart v. Hampton, 506 So. 2d 70, 71 (Fla. Dist. Ct. App. 1987). See also CLARK, supra note 1, at 71 ("The presumption that the latest of successive marriages is valid is more important than the other presumptions validating marriage"). HeinOnline -- 29 Fam. L.Q. 410 1995-1996 The Last-in-Time Marriage Presumption 411 dard and quality of proof which must be established to overcome the presump- tion. Finally, an analysis of the case of Hewitt v. Firestone Tire & Rubber Company will illustrate the underlying principles, application, and defenses involving the last-in-time marriage presumption. II. Legal Bases and Conflicts The last-in-time marriage presumption6 is a legal theory which allows the courts to presume that a later in time marriage is a valid marriage whenever there is a legal conflict with any previous marriage to the same spouse. This presumption, in reality, is a two-prong presumption. The first prong presumes that the earlier marriage was terminated by the death of the former spouse. If the former spouse is shown to be living at the time of the subsequent marriage, then the second prong presumes that the former marriage was terminated by divorce or annulment. Once a subsequent marriage is shown, therefore, the presumption effectively places the burden of proof on the party attacking the subsequent marriage to prove that the former marriage was not terminated by death, divorce, or annulment. A. Public Policy Rationales The primary reasons supporting the last-in-time marriage presumption his- torically have been based upon three underlying public policy rationales. These include the presumptions of innocence, morality, and the legitimacy of off- spring, all of which favor the parties of the last-in-time marriage since "the law presumes morality, and not immorality; marriage, and not concubinage; legitimacy, and not bastardy."' In other words, the courts will not presume that 6. The courts and commentators have not been uniform in how they have defined this marital presumption. See, e.g., Annotation, Presumption as to Validity of Second Marriage, 14 A.L.R.2d 7 (1950) and Later Case Service (defined as a presumption related to the validity of a second marriage); 52 AM. JUR. 2D Marriage § 140-149 (1970) (defined as a presumption of the validity of a second or subsequent marriage); 55 C.J.S. Marriage § 43(c)(3) (1948) (defined as a presumption affecting the validity of conflicting marriages to the same spouse); CLARK, supra note 1, at 71 (defined as the latest of successive marriages); UNDERSTANDING FAMILY LAW, supra note 1, at 35-36 (defined as the last-in-time marriage presumption). Since this presumption is not limited to a second marriage and may include subsequent or successive marriages, the term "last-in-time marriage presumption" will be utilized throughout this article for purposes of convenience and consistency. 7. See, e.g., In re Rash's Estate, 53 P. 312, 313 (Mont. 1898) (citing with approval Teter v. Teter, 101 Ind. 129 (1885)). See also Pittinger v. Pittinger, 64 P. 195, 197 (Colo. 1901) (stating that the presumption "arises because the law presumes morality and not immorality, and that every intendment is in favor of matrimony."); Parker, 56 S.E.2d at 216 (stating that "the law presumes morality and legitimacy, not immorality and bastardy."). HeinOnline -- 29 Fam. L.Q. 411 1995-1996 412 Family Law Quarterly, Volume 29, Number 3, Fall 1995 the parties would purposefully enter into an existing bigamous or polygamous marriage or that they would intentionally illegitimatize their children.' Although the underlying presumptions of innocence and morality are the most commonly cited rationales for recognizing and enforcing the last-in-time marriage presumption, 9 a number of courts also recognize the legitimacy of offspring as another underlying rationale.