J-A32040-17

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

DONALD W. MCCOLLUM AND 

THERESA A. MCCOLLUM, 

INDIVIDUALLY AND AS COADMINISTRATORS OF THE ESTATE 

OF MICHEAL S. MCCOLLUM,

Appellees

v.

SARAH A. MOSER,

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 

 No. 264 MDA 2017

Appeal from the Order Dated January 11, 2017

in the Court of Common Pleas of Northumberland County

Orphans’ Court at No(s): 4916-0362

BEFORE: OTT, DUBOW, and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 05, 2018

Sarah A. Moser (Moser) appeals from the order dated January 11, 2017, 

which dismissed her objections to letters of administration being granted to 

Donald W. McCollum and Theresa A. McCollum (the McCollums), on behalf of 

the Estate of Micheal

1 S. McCollum (the Estate). We affirm.

Moser and Micheal S. McCollum (Decedent) resided together from 

September 2001 until Decedent’s death on August 6, 2016. Decedent died 

intestate. On August 26, 2016, the McCollums, natural parents of Decedent, 

were appointed as co-administrators of the Estate. On October 7, 2016, Moser 

filed an objection to the grant of letters of administration to the McCollums, 

____________________________________________

1 Theresa McCollum testified that her son’s name “has a slightly unusual 

spelling” with “the A and E being reversed.” N.T., 12/14/2016, at 19.
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and requested to be appointed as co-administrator. According to Moser, she 

was the common law spouse of Decedent. Objection of Moser, 10/7/2016, at 

¶ 2.

The orphans’ court held a hearing on this issue on December 14, 2016. 

On January 11, 2017, the orphans’ court issued an order and opinion 

dismissing Moser’s objections. Moser filed a motion for reconsideration of the 

orphans’ court decision, which was denied on February 3, 2017. Moser timely

filed a notice of appeal,2 and both Moser and the orphans’ court complied with 

Pa.R.A.P. 1925.

On appeal, Moser sets forth one issue for our consideration: “Did the 

orphan[s’] court abuse its discretion and/or commit an error of law in 

dismissing [] Moser’s objection to grant [of] letters of administration to [the 

McCollums], on the basis that Moser had failed to prove she was the common 

law wife of [Decedent]?” Moser’s Brief at 4 (unnecessary capitalization 

omitted).

We review this issue mindful of the following. “The register’s decision 

to issue letters is a judicial act. A party contesting that act may appeal to the 

orphans’ court. In turn, a party challenging a ruling of the orphans’ court may, 

of course, appeal to this Court.” In re Estate of Tigue, 926 A.2d 453, 456 

____________________________________________

2 Both Moser and the McCollums invoke this Court’s jurisdiction pursuant to 

Pa.R.A.P. 341, which governs the appealability of final orders. See Moser’s 

Brief at 1 (unnumbered); the McCollums’ Brief at 1. However, jurisdiction in 

this case is governed by Pa.R.A.P. 342(a)(5), which provides that an appeal 

may be taken as of right from an order of the orphans’ court which determines 

“the status of fiduciaries ... in an estate[.]” 
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(Pa. Super. 2007) (citations omitted). Where, as here, “the orphans’ court has 

held an evidentiary hearing, we will then afford the court’s findings the same 

weight as a jury verdict, and we will disturb the court’s decree only if it is 

unsupported by the evidence or if it includes an error of law.” Id. (citations 

omitted).

Instantly, Moser argues that the facts at the evidentiary hearing 

established that she was the common law spouse of Decedent. Accordingly, 

she contends that the orphans’ court erred in dismissing her objections. See

Moser’s Brief at 18-24.

We first review the principles surrounding common law marriage in 

Pennsylvania. In PNC Bank Corp. v. W.C.A.B. (Stamos), 831 A.2d 1269 

(Pa. Cmwlth. 2003), the Commonwealth Court abolished common law 

marriage prospectively. Subsequently, “[t]he Pennsylvania General Assembly 

abolished the doctrine of common law marriage effective January 24, 2005, 

but also provided that ‘[n]othing in this part shall be deemed or taken to 

render any common-law marriage otherwise lawful and contracted on or 

before January 1, 2005, invalid.’” In re Estate of Carter, 159 A.3d 970, 972 

n.1 (Pa. Super. 2017) (quoting 23 Pa.C.S. § 1103). Thus, in this case, all 

parties agree that Moser had to prove that she and Decedent established a 

common law marriage prior to January 1, 2005. In making this determination, 

an orphans’ court considers the following.

There are two kinds of marriage: (1) ceremonial; and (2) 

common law. A ceremonial marriage is a wedding or marriage 
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performed by a religious or civil authority with the usual or 

customary ceremony or formalities.

Because claims for the existence of a marriage in the 

absence of a certified ceremonial marriage present a fruitful 

source of perjury and fraud, Pennsylvania courts have long viewed 

such claims with hostility. Common law marriages are tolerated, 

but not encouraged....

A common law marriage can only be created by an exchange 

of words in the present tense, spoken with the specific purpose 

that the legal relationship of husband and wife is created by that. 

Regarding this requirement for an exchange of words in the 

present tense, this Court has noted:

[I]t is too often forgotten that a common law 

marriage is a marriage by the express agreement of 

the parties without ceremony, and almost invariably 

without a witness, by words—not in futuro or in 

postea, but—in praesenti, uttered with a view and for 

the purpose of establishing the relationship of 

husband and wife.

Estate of Manfredi, [], 159 A.2d [697,] 700 [(Pa. 1960)] 

(citations omitted). The common law marriage contract does not 

require any specific form of words, and all that is essential is proof 

of an agreement to enter into the legal relationship of marriage at 

the present time.

The burden to prove the marriage is on the party alleging a 

marriage, and we have described this as a heavy burden where 

there is an allegation of a common law marriage. When an 

attempt is made to establish a marriage without the usual 

formalities, the claim must be reviewed with great scrutiny.

Generally, words in the present tense are required to prove 

common law marriage. Because common law marriage cases 

arose most frequently because of claims for a putative surviving 

spouse’s share of an estate, however, we developed a rebuttable 

presumption in favor of a common law marriage where there is an 

absence of testimony regarding the exchange of verba in 

praesenti. When applicable, the party claiming a common law 

marriage who proves: (1) constant cohabitation; and, (2) a 

reputation of marriage “which is not partial or divided but is broad 
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and general,” raises the rebuttable presumption of marriage. See 

Estate of Manfredi, 159 A.2d at 700. Constant cohabitation, 

however, “even when conjoined with general reputation are [sic]

not marriage, [] merely circumstances which give rise to a 

rebuttable presumption of marriage.” Id.

Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1020-21 (Pa. 1998) 

(some citations and internal quotation marks omitted). 

Instantly, all parties agree that Moser satisfied her burden as to constant 

cohabitation – the couple lived together continuously from 2001 until 

Decedent’s death. The dispute in this case focuses on whether the couple 

established a “reputation of marriage” prior to January 1, 2005.3 Estate of 

Manfredi, 159 A.2d at 700. The orphans’ court made the following findings 

of fact.

The tax returns filed by [Decedent] with the Internal 

Revenue Service for calendar years 2001 through 2004 indicated 

under filing status that he was “single.” On the other hand, in 

procuring an accident insurance policy on October 9, 2004, there 

were references therein that Moser was a “spouse.” However, 

attached thereto was a union card undated that indicated Moser’s 

relationship to [Decedent] as “significant other.”

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3 At the hearing, there was an abundance of testimony regarding events that 

occurred after January 1, 2005. In fact, Moser points to much of this 

testimony in support of her position. See Moser’s Brief at 20-21. However, 

we agree with the orphans’ court that Moser was required to produce evidence 

that prior to January 1, 2005, she and Decedent had established a common 

law marriage. See In re Estate of Tito, 150 A.3d 464, 469 (Pa. Super. 2016) 

(noting that “parties [who] entered into a common-law marriage prior to 

January 1, 2005 may still assert the validity of their union”); Stackhouse v. 

Stackhouse, 862 A.2d 102, 108 (Pa. Super. 2004) “([T]he date on which the 

evidence establishes the creation of a common law marriage, if it establishes 

one at all, is a critical determination upon which depends the rule of law to be 

applied.”). 
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A spouse of Moser’s brother testified that in 2004 the couple 

were always together, she viewed them as a married couple, but 

she was never shown any engagement or wedding rings by Moser 

until after [Decedent’s] death. Likewise, a friend who knew the 

couple between 2001 and 2008 never saw Moser wear any rings 

until the funeral. There was an engagement ring and two wedding 

bands that were appraised on February 23, 2007, designated at 

that time the property of [Decedent] by the appraiser in a 

certificate. It is unknown whether they were purchased prior to 

January 1, 2005; however, they were not the property of Moser 

by this documentation on the date of expiration of common law 

marriage in Pennsylvania.

While friends, co-workers and relatives readily could state 

what was obvious to them, to wit, they were like a married couple 

in the manner of how they conducted their lives, this testimony 

fell short of establishing that they had truly contracted a common 

law marriage. The descriptions were as follows: “only two in each 

other’s life;” “very close, virtually inseparable;” “more like a 

married couple;” “saw them as husband and wife;” “lived lives as 

husband and wife;” “pretty much married, shared a bedroom;” 

“like two peas in a pod” and so on. But these descriptions fit any 

two people who decide to live together in a romantic relationship. 

They know marriage is available as an option, a final, permanent, 

legal step, yet for whatever reason is not carried out. Perhaps the 

intention to marry someday was present (i.e. the purchase of 

rings), but one did not occur prior to January 1, 2005, or even 

before his untimely death in 2016. Otherwise, the tax status 

would have been changed on the federal tax returns, and Moser 

would have displayed the symbols of such marriage on her fingers 

years ago.

Orphans’ Court Opinion, 1/11/2017, at 2-3.

Based on the foregoing, the orphans’ court concluded “that Moser did 

not establish[] that [she and Decedent] had effected a common law marriage 

prior to January 1, 2005.” Id. at 1-2. On appeal, Moser contends she did 

satisfy her burden. She argues that she presented 18 witnesses who “gave 

competent opinion testimony about [their] general reputation for being 
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married.” Moser’s Brief at 20. In addition, she points to “numerous exhibits, 

which corroborated the conclusion that they were husband and wife.”4 Id. at 

21. Specifically, she points to the fact that she was the beneficiary on 

Decedent’s “pension plan at Corning and on four life insurance policies.” Id. 

In addition, she points to their joint checking account and the fact that the 

funeral bill was sent to her.

 However, as the orphans’ court pointed out, much of this testimony 

and evidence is related to events that occurred after January 1, 2005. 

Furthermore, we agree with the orphans’ court that Moser failed to satisfy her 

burden that their reputation in the community was that of husband and wife. 

Importantly, despite Moser’s presenting 18 witnesses to testify about her 

relationship with Decedent, not a single one testified that Decedent held her 

out as his wife. See In re Dennis’ Estate, 147 A.2d 419, 419-20 (Pa. 1959) 

(“There is not the slightest evidence that decedent ever regarded her, held 

her out as, or referred to claimant as his wife, or that claimant regarded 

herself as his wife.”). Rather, these witnesses testified to what was true –

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4 While these exhibits were all introduced at the hearing and admitted into 

evidence, they are not included in the certified record. It was Moser’s 

responsibility to ensure their inclusion in the certified record. Pa.R.A.P. 1921 

(Note) (“Ultimate responsibility for a complete record rests with the party 

raising an issue that requires appellate court access to record materials.”). 

Because these exhibits are not in the certified record, we cannot consider 

them. Id. (“An appellate court may consider only the facts which have been 

duly certified in the record on appeal.”). However, based on our conclusions 

infra, even if these exhibits were available for our review, the result would not 

be different.
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Moser and Decedent were like husband and wife, but were not married. This 

simply does not satisfy Moser’s heavy burden. Accordingly, we conclude that 

the evidence supports the decision of the orphans’ court, and the orphans’ 

court did not commit an error of law in concluding that Moser did not satisfy 

her burden of establishing a common law marriage.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/05/2018