Does Obergefell apply retroactively to determine the existence of a common law marriage?
Ranolls v. Dewling, 223 F. Supp. 3d 613 (E.D. Tex. 2016)
Facts: This is a wrongful death/survival suit involving a claim of a same-sex common law marriage. In this suit, a woman was killed in a car accident, and her mother filed suit against the driver. Same-sex partner intervened, asserting that she and decedent were married by common law; she therefore had standing to sue as an heir. Obergefell v. Hodges was decided during the pendency of the case. Defendants sought summary judgment, asserting lack of standing by alleged spouse because (1) Obergefell does not apply retroactively and (2) there was no evidence of an informal, or common law, marriage.
Result: The court denied the summary judgment on both bases. In both civil and criminal cases, unconstitutional laws and rules are void ab initio, or void from inception, as if they never existed. Based on U.S. Supreme Court precedent, the court found that Obergefell applies retroactively. Texas law provides that to establish the existence of an informal marriage, one must proffer evidence that the couple "agreed to be married and after the agreement they lived together in this state" and "represented to others that they were married." Tex. Fam. Code § 2.401(a)(2). Alleged spouse provided affidavits and other evidence sufficient to raise a genuine issue of material fact on the existence of a marriage, so summary judgment was inappropriate.