On November 23, 2004, Governor Rendell of Pennsylvania signed into law a bill abolishing common law marriage. According to the legislation, “[n]o common law marriage, contracted after January 1, 2005 shall be valid.” The legislation also states that “[n]othing in this part shall be deemed to render any common law marriage, otherwise lawful and contracted on or before January 1, 2005, invalid.”
Now all of this is slightly confusing since there was also a Pennsylvania Commonwealth Court decision issued on September 17, 2003 (PNC Bank Corp. v. W.C.A. B., 831 A.2d 1269 (Pa. Cmwlth. 2003) which had purported to abolish common law marriage as well. You can read about that decision here and here. Neither party appealed the decision.
It would seem that it is pretty safe to say that common law marriages validly entered into prior to September 17, 2003 are still valid (since the decision in PNC was only applied prospectively), and that any common law marriages claimed to have been entered into after January 1, 2005 will be invalid. But what about those purportedly entered into between September 17, 2003 and January 2, 2005? The answer depends upon whether or not the Commonwealth Court decision is recognized. A dissent in the PNC case written by Judge Smith-Ribner (Judge Pellegrini joined in the opinion) argued that the Commonwealth Court did not have the power or authority to overturn common law marriage:
I respectfully dissent from the majority opinion because of my strong disagreement with a determination by an intermediate court of this Commonwealth that the right granted at common law to individuals to enter into common law marriage henceforth shall no longer exist. The majority usurps the function of the legislature and casts upon the people of this Commonwealth a change in common law that the majority has no authority or power to impose. When the people desire to abolish common law marriages, they should do so through their elected representatives in the legislature. The Supreme Court thought so in a situation involving the court’s power to change the common law duty of a parent for the support of a minor child. The court felt that a “more prudent course” of action was to await guidance from the legislature rather than to create duties or obligations by judicial fiat. Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992). . . If the Pennsylvania legislature determines in its wisdom, as have the legislatures in New Jersey or in Florida, see N.J.S. §37:1-10, Fla. S. §741.211, and many other jurisdictions, to take up the issue of abolishing common law marriage then at that time it may well consider and debate many of the policy considerations expressed by the majority here for doing what it has no authority or power to do.
Also noteworthy is the fact that there have been two Pennsylvania Superior Court cases in which the Superior Court refused to be bound by the Commonwealth Court decision abolishing common law marriage, citing the fact that the Supreme Court of Pennsylvania in the cases of Staudenmayer v. Staudenmayer, 552 Pa. 253, 714 A.2d 1016 (Pa. 1998 and Interest of Miller, 301 Pa. Super. 511, 448 A.2d 25 (Pa. Super. 1982) had “declined the invitation to abolish common law marriage, deferring such action to the legislature.”
All of this means that employers who have employees in Pennsylvania will have to be on the alert for issues relating to common law marriage, probably for years to come. The issue could have serious repercussions for employers that fail to assess the important implications of the development. For instance, if an employee truly has a “common law spouse” under Pennsylvania law, that spouse could be entitled to certain spousal benefits under ERISA. The issue could arise where a retirement plan pays a participant-employee his or her benefits under a plan, without obtaining the necessary spousal waiver from the common law spouse, so that the plan could end up being liable to the spouse if the spouse later made a claim for such benefits. On the other hand, if a plan incorrectly pays out spousal benefits to a non-spouse beneficiary (an individual who is not considered to be married under Pennsylvania law), the plan could technically face a disqualification issue (if the plan is a “qualified” employee benefit plan under the Internal Revenue Code) and in addition, be liable for paying the benefits again to the correct beneficiary. There are numerous other issues under FMLA, COBRA, flexible spending accounts, health insurance plans, and other benefit plans which provide spousal benefits, which could be impacted as well.
Here are some initial steps for human resource professionals to take in response to this legislation (if they have not already taken action due to the previous PNC court decision):
(1) Alert employees about this development and notify them that they may want to seek the advice of an attorney if they believe they are in a Pennsylvania common law marriage.
(2) Develop plan procedures and processes for verifying the marriage status of employees. Those employers who utilize affidavits should make sure that their Summary Plan Descriptions and Employee Handbooks mention this procedural requirement since a Second Circuit case–Burke v. Kodak Ret. Income Plan–held that a surviving spouse could prevail in a claim for spousal benefits where a Summary Plan Description failed to mention a plan’s procedural requirement that a domestic partnership affidavit be submitted to the plan administrator to qualify for such spousal benefits. Also, there should be language in the affidavit advising participants to seek legal advice before executing the affidavit since it could have far-reaching implications for the participant outside the benefits arena (i.e. as in the PNC case.)
And if the employer is unfortunate enough to receive an affidavit from a participant claiming to have entered into a common law marriage between the dates of September 17, 2003 and January 2, 2005, the employer should seek the advice of a qualified attorney.