Whether a couple is married, in distinction from merely living together, provides certain benefits under the law of estates and trusts. For state and federal estate taxes, for example, assets passing to one’s spouse are exempt from tax. Subject to important exceptions, the various states define what constitutes a “valid” marriage. Thus, the Supreme Court held that a same-sex marriage recognized by the State of New York would qualify for the federal marital deduction. U.S. v. Windsor, 570 U.S. 744, 769 (2013).

Other special treatment available to married couples include: the right to inherit from a deceased spouse if there is no Will; the elective share amount a surviving spouse may be able to claim if the spouse is not adequately provided for in the deceased spouse’s Will; and, the ability to hold property as tenants by the entirety which has much higher protection from creditor claims than other forms of joint property. Whether a couple is “lawfully” married may be an important issue. The definition of marriage is derived primarily from both statutory provisions and the common law.

An opinion by Judge Vitale of the Anne Arundel County, Maryland Circuit Court, and subsequently upheld by the Court of Special Appeals, proves the resiliency of the common law. In its pure form, the common law evolves by the process of judges applying societal standards of fairness and justice based on precedent to actual disputes before the court. As Lord Mansfield observed in the late 1700s, this process has a resiliency baked-in: “As the usages of society alter, the law must adapt itself to the various situations of mankind.” Because it arises from human experience, however, sometimes the common law in its ancient form is directly applicable to cases today.

The case required the Circuit Court of Anne Arundel County to determine whether a marriage license is required for a valid marriage in Maryland. Maryland does not recognize common law marriages formed in-state. Judge Vitale upheld the validity of the marriage based on the efficacy of ceremonial marriage – an old common law concept.

The Court of Special Appeals upheld Judge Vitale’s decision. This case sets out the formalities required for a valid Maryland marriage. It clarifies that a marriage license is not what lifts a marriage out of its status as a common law marriage. Trapasso v. Lewis, 247 Md. App. 577 (2020). The case is important to estates and trusts lawyers because the validity of the marriage, in turn, determined the validity of tenants by the entirety property and other spousal inheritance rights.

Common law marriages cannot be formed in Maryland: “[N]o amount of holding out as husband and wife, reputation as being husband and wife, number of children, or any other factor will transpose the living together of a man and woman into a legal marriage in this State. Marriage does not take place simply because a man and woman cohabit for a protracted period of time. We do not recognize “marriage by estoppel.” Golden v. Golden, 48 Md. App. 154, 157 (1981); cert. denied 290 Md. 714 (1981).

Maryland, however, will recognize common law marriages formed under the laws of other jurisdictions. Laccetti v. Laccetti, 245 Md. 97, 101 (1967). Historically, each State defined what constitutes a valid marriage entered into in its jurisdiction. U.S. v. Windsor, 570 U.S. 744, 769 (2013) (“The States’ interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits.”) As noted, however, a State’s ability to establish the criteria for marriage is subject to constitutional constraints.  Obergefell v. Hodges, 576 U.S. 644 (2015) (The right to marry is a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment and therefore available to same-sex couples as a matter of right in every state).

MD Code, Family Law, § 2-401 (License required) states: “An individual may not marry in this State without a license issued by the clerk for the county in which the marriage is performed.” The couple in Trapasso had a religious marriage ceremony and entered into a written “Marriage Agreement” but never applied for, or received, a marriage license.

Thereupon they purchased a home and took title as tenants by the entirety. While both were living, the “wife” transferred a one-half interest in the property to her separate revocable trust. Her “husband” survived her. Her trustee argued that the marriage was invalid for lack of a marriage license. As a consequence, the property could not be tenants by the entirety. Instead, it was held jointly which is severable by either co-tenant.

The Trapasso Court upheld Judge Vitale’s decision in the Circuit Court that the marriage was valid, as a common law ceremonial marriage, despite the Family Law licensure statute. Although imposing a fine, the statute did not clearly demonstrate an intent to generally change the settled common law which always recognized “ceremonial marriages.”  “The common law of England recognized another type of marriage: a ceremonial marriage, that is, one solemnized by a religious ceremony. Ceremonial marriages were the only type of marriage ever recognized under Maryland’s common law, either as a colony or as a state.” Trapasso, 588.

Although in Trapasso the couple executed a formal “Marriage Agreement,” the early case law does not require a formal document memorializing the contract – merely a civil contract supported by some sort of religious ceremony. Denison v. Denison, 35 Md. 361,  (1872). The civil contract appears to be able to be part of the ceremony: a ceremony ” including the usual questions and answers as to the mutual consent of the parties, and concluded with a blessing and the declaration that they were now husband and wife” established the marriage.  Feehley v. Feehley, 129 Md.  565 (1916).  Also, the ceremony no longer requires to be religious in nature. Trapasso at footnote 4; Md. FL § 2-406 (a)(2).