Married Religiously; Maybe Legally as Well!

James Sawyer
Attorney at Law
390 North Broadway | Suite 200 | Jericho, NY 11753 | 516-222-4567

Barbara and John were both 68, widowed and had children from prior marriages.  They lived together in the home John shared with his deceased wife, but did not want to lose their separate social security checks, benefits from their first marriages, and the right to file tax returns as “single” individuals.  Wanting to acknowledge their relationship, they decided to seek a Rabbi’s blessing and with friends present declared themselves husband and wife.  They never applied for a marriage license, intending their marriage be a religious one and not legally binding.  One year later John died with a Will that did not mention Barbara.  He left his entire $900,000 estate to his children. Barbara, whose first husband left her nothing, found herself penniless without a home.  Was Barbara out in the cold?  Maybe not!

Contrary to popular thought, although there is a provision in New York law that does require a marriage license, a marriage is valid even without a license if the parties solemnly declare in the presence of a clergyman to take each other as husband and wife. No particular form of ceremony is required.

 As they did solemnize their commitment before a Rabbi, Barbara may be entitled to at least $300,000 (representing one-third of John’s estate) by exercising what is known as a “right of election.”  In addition, Barbara may be entitled to additional assets, which are not considered part of John’s estate. Examples are furniture, appliances and electronic devices up to a total value of $20,000, pets, and a motor vehicle not exceeding $25,000 in value

But when is a ceremony performed by a clergyman actually considered a marriage?  The test is fluid - it depends on the facts.  In one case the parties’ relationship was “solemnized in accordance with the uses and practices of orthodox Judaism.” Although no license was ever issued, the wife was allowed survivor spousal rights. In another case, after the wedding the parties continued to sign tax returns as single filers and claimed single status on an automobile insurance policy. A court ruled the couple married, and rejected a claim that the ceremony was only a custom prior to living together and that there was no intent to be married until a formal civil ceremony was performed. The court held that at best the parties were under the mistaken believe that the religious ceremony was not going to be effective.  However, as the court said: “If it walks like a duck and quacks like a duck, and looks like a duck, it’s a duck.”  

You must carefully consider the possible ultimate legal effects of a religious ceremony which is not “intended” to be a full legal marriage. Law imposes a presumption in favor of finding validity to a marriage, which must be overcome by the person objecting to the claim that the marriage actually occurred.  If you are the surviving partner of a relationship where a clergyman officiated at a commitment, religious or “wedding” type ceremony, but never thought you were legally married, you should consult an attorney to ascertain your rights.

James Sawyer is an attorney in Jericho, New York, and specializes in litigation.

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Attorney James Sawyer assists clients in Jericho New York as well as Mineola, Hempstead, West Hempstead, Williston Park, Carle Place, New Hyde Park, Franklin Square, Albertson, Uniondale, Floral Park, Elmont, Roslyn Heights, Rockville Centre, Westbury, Garden City, Valley Stream, Great Neck, Little Neck, Hicksville, Jericho, Wantagh, Bethpage and Port Washington in Nassau County.

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