J-S48029-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF DENNIS SMITH, 

DECEASED

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

APPEAL OF: JEANETTE SHIRES

No. 280 MDA 2017

Appeal from the Order Entered January 10, 2017

In the Court of Common Pleas of Lycoming County

Orphans' Court at No: 41-16-0105

BEFORE: OTT, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.: FILED NOVEMBER 09, 2017

Appellant, Jeanette Shires, appeals from the January 10, 2017 

orphans’ court order denying her request for letters of administration of the 

estate of Dennis Smith (“Decedent”). We affirm. 

Decedent died intestate on January 31, 2016. The orphans’ court 

appointed an administrator, subsequent to which Appellant, on March 23, 

2016, filed a caveat in which she requested letters of administration as the 

Decedent’s surviving spouse. The orphans’ court conducted two days of 

hearings, on July 15, 2016 and August 19, 2016. The orphans’ court denied 

relief by order of January 10, 2017. Appellant filed this timely appeal on 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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February 9, 2017.1 Appellant raises one issue: “Whether the [orphans’] 

court erred as a matter of law in failing to find [Appellant] to be the common 

law wife of [Decedent], when evidence of verba in praesenti was presented 

and not contested by the Estate?” Appellant’s Brief at 4. 

The applicable standard of review requires this court to be 

“deferential” to an orphans’ court’s findings. In re Fielder, 132 A.3d 1010, 

1018 (Pa. Super. 2016), appeal denied, 145 A.3d 66 (Pa. 2016). 

[T]this Court must determine whether the record is free 

from legal error and the court’s factual findings are supported by 

the evidence. Because the [o]rphans’ [c]ourt sits as the factfinder, it determines the credibility of the witnesses and, on 

review, we will not reverse its credibility determinations absent 

an abuse of that discretion.

Id. “The [o]rphans’ [c]ourt decision will not be reversed unless there has 

been an abuse of discretion or a fundamental error in applying the correct 

principles of law.” Id. 

Our Supreme Court addressed the doctrine of common law marriage in 

Staudenmayer v. Staudenmayer, 714 A.2d 1016 (Pa. 1998) (plurality).2 

____________________________________________

1

 We exercise jurisdiction pursuant to Pa.R.A.P. 342(a)(5) (“An appeal may 

be taken as of right from the following orders of the [o]rphans’ [c]ourt 

Division: [...] An order determining the status of fiduciaries, beneficiaries, 

or creditors in an estate[.]”) 

2

 Six justices participated in Staudenmayer. Justice Newman authored the 

majority opinion, joined by Chief Justice Flaherty and then-Justice Cappy. 

Justice Nigro, joined by then-Justice Castille, authored a concurring opinion. 

Justice Nigro wrote: “I concur in the Majority Opinion. However, I would go 

one step further and advocate the abolition of common law marriage in this 

(Footnote Continued Next Page)
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Marriage in Pennsylvania is a civil contract by which a man 

and a woman take each other for husband and wife. There are 

two kinds of marriage: (1) ceremonial; and (2) common law. A 

ceremonial marriage is a wedding or marriage 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. While we do not today abolish 

common law marriages in Pennsylvania, we reaffirm that claims 

for this type of marriage are disfavored.

Id. at 1019–20 (internal citations and quotation marks omitted). 

Common law marriages must be created by verba in praesenti, that is, 

“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.” 

Id. at 1020. No specific form of words is required. Id. Absent evidence of 

verba in praesenti, the proponent of the common law marriage may enjoy a 

rebuttable presumption upon proof of “(1) constant cohabitation; and, (2) a 

reputation of marriage which is not partial or divided but is broad and 

general.” Id. Proofs concerning the rebuttable presumption become 

necessary where one party to the marriage is deceased. In that case, direct 

(Footnote Continued) _______________________

Commonwealth[.]” Staudenmayer, 714 A.2d at 1022 (Nigro, J. 

concurring). Then-Justice Zappala concurred in the result only. Thus, it 

appears that five Justices supported the rationale of Justice Newman’s 

majority opinion. We observe that our General Assembly abolished common 

law marriages contracted after January 1, 2005. 23 Pa.C.S.A. § 1103. 
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testimony of verba in praesenti is unavailable because the Dead Man’s Act3

prohibits the surviving spouse from putting words in the mouth of the 

deceased. Id. at 1021. 

Instantly, Appellant testified as to the verba in praesenti between she 

and Decedent without objection from the Appellee Estate (the “Estate”). In 

Appellant’s view, the Estate’s failure to object under the Dead Man’s Act 

renders her testimony of verba in praesenti uncontested. She therefore 

argues that the orphans’ court erred in denying her request for letters of 

administration as the surviving spouse. Appellant’s Brief at 11-12. 

The orphans’ court summarized Appellant’s testimony as follows: 

[Appellant] testified that Decedent was her husband. They 

began dating in 1974 and Decedent moved in with her in 1987 

(i.e. twenty-nine years ago). She testified that shortly 

thereafter, he paid for a ring for her and she bought him a ring 

and when they exchanged rings, he said ‘forever.’ She also 

testified that Decedent told her that they were just as married as 

any other couple but did not have the paper that said it. 

[Appellant] went on to testify regarding Decedent’s 

involvement with her family life, including walking her niece 

down the aisle and dancing the father daughter dance with her 

niece at the wedding. [Appellant] testified that she called 

Decedent ‘sweetie’ and ‘significant other.’ She testified that they 

did not spend time with his family, that in fact he had never 

introduced her to his family. 

[...]

[Appellant] was unable to testify to an exact date that the 

rings were exchanged, however, and she did not produce the 

____________________________________________

3

 See 42 Pa.C.S.A. § 5930. 
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ring or Decedent’s ring at either hearing. [Appellant] submitted 

only one exhibit, an invitation to a wedding in 2006 that was 

addressed to ‘Mr. and Mrs. Denny Smith’ [at the address of the 

couple’s alleged cohabitation]. Further, [Appellant] admitted 

that she and Decedent held no joint bank accounts. She 

testified that Decedent gave her money ‘for the light bill, the fuel 

bill, and if I needed help on something else he would help me 

with that, too.’ Finally, she testified that they both had vehicles 

titled solely in their own names. 

Orphans’ Court Opinion, 1/10/17, at 1-2, 11-12. 

The orphans’ court also noted that the Estate introduced emergency 

clinic records on which the Decedent identified his younger sister as his next 

of kin. Id. at 12. Decedent’s younger sister was listed as the beneficiary on 

his life insurance policy. On other emergency clinic records, the Decedent 

listed Appellant as his next of kin but described her as a friend, and he did 

not list the address of their alleged cohabitation as his home address. Id. 

Decedent’s tax returns identified him as single and did not list the address of 

alleged cohabitation. Id. Appellant does not dispute these facts. 

The parties and the orphans’ court relied heavily on Staudenmayer, 

and we agree that Staudenmayer is on point and controlling. 

Staudenmayer, like the instant matter, involved a claim of verba in 

praesenti rather than the rebuttable presumption of marriage. 

Staudenmayer was an equitable distribution case in which the wife alleged 

that the couple contracted a common law marriage in 1978 prior to their civil 

ceremony in 1984. In dispute were assets that the husband acquired prior 

to the civil marriage but subsequent to the alleged common law marriage. 
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Staudenmayer, 714 A.2d at 1018. The wife testified that the couple had a 

joint checking account in 1978, that they owned a home as tenants by the 

entirety in 1978, and that they began filing joint tax returns in 1978. Id. In 

prior child support paper work, however, the wife identified herself as not 

married as of the birth of the couple’s daughter, and she specified that the 

couple’s marriage occurred in December of 1985, one year after the civil 

ceremony. Wife was unable to recall the exact moment when she and her 

husband said to each other that they were husband and wife, and wife could 

not explain why the civil ceremony in 1984 was necessary if the couple was 

already married. Id. at 1022. 

The Supreme Court noted that the party alleging verba in praesenti

must establish by clear and convincing evidence that the couple exchanged 

words “in the present tense with the purpose of establishing the relationship 

of husband and wife, in other words, a marriage contract.” Id. at 1021. 

The Supreme Court also recognized the orphans’ court’s authority to 

determine the credibility of witnesses. Id. at 1022. Given the contradiction 

between the wife’s testimony and her representations in earlier paper work 

that she and her husband were not married as of the birth of their daughter, 

the Supreme Court concluded that the wife failed to produce clear and 

convincing evidence to meet her heavy burden of establishing a common law 

marriage. Id. at 1022. 
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The Supreme Court’s analysis in Staudenmayer illustrates the flaw in 

Appellant’s argument. The proponent of a common law marriage cannot 

prevail simply by giving his or her own account of the alleged verba in 

praesenti. Rather, the proponent’s account must be clear and convincing, 

and credible in the eyes of the orphans’ court. The proponent failed in 

Staudenmayer because her account of the couple’s marriage contract was 

vague, and because other evidence did not support her testimony. Indeed, 

her claim failed even though, as of the date of the alleged common law 

marriage, the couple owned joint bank accounts, filed joint tax returns, 

owned a home together, and shared a surname. 

Appellant’s case is considerably weaker. She alleged that the couple 

exchanged rings and said “forever,” but she was unable to produce either 

ring. She also could not identify the date of the alleged marriage, other than 

to say it occurred in 1987. The Decedent filed single tax returns, and his tax 

returns and medical records did not identify the address of alleged 

cohabitation. The couple did not own a home or joint bank accounts, nor did 

Appellant take the Decedent’s surname. Various exhibits indicate that 

Decedent consistently identified Appellant as a friend rather than a spouse or 

significant other. Appellant admitted that Decedent never introduced her to 

his family. All of the foregoing undermines Appellant’s claim of common law 

marriage, regardless of the Estate’s failure to lodge an objection under the 

Dead Man’s Act. We therefore conclude the orphans’ court acted within its 
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permissible discretion in finding that Appellant did not produce clear and 

convincing evidence in support of her account of verba in praesenti. 

Because Appellant offered evidence of verba in praesenti, we do not consider 

whether the presumption of marriage applies. Staudenmayer, 714 A.2d at 

1021. Appellant was not entitled to letters of administration as Decedent’s 

surviving spouse. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/9/2017