PA: Native-American Marriage Ceremony Establishes “Widow’s” Common-law Marriage

On Tuesday, a Pennsylvania appellate court held that a claimant, whose purported husband had been killed in a work-related rollover accident at a ski resort, had presented clear and convincing evidence that the couple had joined in a common-law marriage when they exchanged traditional Native-American vows and gifts during an outdoor “ceremony” [see Elk Mountain Ski Resort, Inc. v. Workers’ Comp. Appeal Bd. (Tietz), 2015 Pa. Commw. LEXIS 146 (April 7, 2015)]. Noting that the “ceremony” occurred in June 2004, prior to January 1, 2005, when common-law marriages were prospectively abolished in Pennsylvania by an amendment to 23 Pa. Cons. Stat. § 1103, the appellate court agreed that the couple had created a valid common-law marriage by verba in praesenti, i.e., an exchange of words in the present tense. The claimant was the deceased’s surviving spouse. She was, therefore, entitled to death benefits.

Testimony offered at trial indicated that the deceased and claimant—both Native-Americans who actively practiced their cultural heritage—participated in a ceremony in the woods near a stream behind the claimant’s parents’ house during which:

• a ceremonial blanket was wrapped around the couple;
• the deceased employee asked claimant to be his wife;
• claimant asked the deceased to be her husband;
• the deceased offered a prayer that the Creator watch over them; and
• the couple exchanged traditional gifts.

Additional testimony indicated that the couple clearly lived together thereafter as husband and wife and had two daughters from the marriage. When asked why she had the marriage ceremony in the woods behind her parents’ home, rather than in “a more formal religious setting,” the claimant replied:

That was our religion. We practiced our culture. We were raised in our own culture, so that is how we saw fit. We did not see a reason to go to another church when that was our church“ (referring to ”nature”).

The appellate court noted that the Native-American ceremony occurred in June 2004, prior the prospective abolition of common-law marriages in the state. The appellate court agreed that the claimant had established the common-law marriage by clear and convincing evidence. Judge Colins concurred, noting that he would have the found this to be a ceremonial marriage as well.