Being a married couple in Maryland creates many benefits. One benefit is the joint ownership of real property (land and buildings) as "tenants by entireties." This is an ancient construct where the married couple is seen as one unit, owning the land as one. A deed describing a tenancy by the entireties would read "Jane and John Whiteacre, as husband and wife."
In rare cases, a deed is drafted without reference to "as husband and wife." Maryland law will still recognize the ownership as a tenancy by the entierties if there was an actual marriage. This may require some investigation by real estate and title professionals, but it stems from the importance of a real marriage. It is not the words in the deed that create the tenancy by the entireties, it is the marriage. The words in the document are merely descriptive of the marriage.
This special joinder of two spouses into one unit is Maryland's way to encourage marriage. Creditors for one spouse or the other cannot attach or levy against the property, and court judgments of one or the other cannot attach. Only joint debts and judgments will attach (the IRS has special super powers in this area that require a separate article).
Married couples also pass ownership to each other, upon death. No new deed is required, and their tenancy by the entireties owned property does not pass through probate. This process greatly benefits estate planning, and tax avoidance (at least for the first spouse to die). It is that simple- one spouse dies, the property is automatically and instantaneously owned by the surviving spouse.
Status, then, is paramount. The corporate benefits of matrimony are only bestowed by the State where there has been a valid marriage. Maryland does not recognize common-law marriage, where a couple lives together and acts like a couple, without having participated in a ceremony and obtained a marriage license.
The existence, or not, of a marriage is commonly understood to be based on a State issued marriage license-- Have a license? Then you are married. Don't have a license? Then you must not be married.
Or are you?
Maryland's Court of Special Appeals published an opinion that clears up an ambiguity that has persisted in the law since at least 1915. In Trapasso v. Lewis, the litigants contested whether a marriage evidenced only by a religious ceremony, but no marriage license, constituted a valid marriage. At issue was whether the surviving spouse owned 100% of the home, or only 50%. If the marriage was not valid, then the deceased spouses' interest would be owned by a trust, controlled by the deceased spouse's child from a prior marriage.
The appellate court teaches us that Maryland's marriage license law, which has not changed since 1915, does not invalidate a marriage for lack of a State issued license. It merely makes it a misdemeanor, punishable by a fine. The statute's admonition that "an individual may not marry in this State without a license..." does not carry with it a presumption or determination that the marriage is invalid. The couple are merely at risk of a $500 fine.
That same couple may still enjoy all the corporate benefits of marriage if there is adequate indicia of a religious ceremony. And this is where things remain foggy. Most can readily agree that ceremonies conducted by the world's major religions, before licensed officiants, with an exchange of vows constitute "religious ceremony." There is still plenty of room to argue against traditions of lesser known and accepted religions.
The difficulty remains that any inquiry is backward facing. Proponents for validity of a marriage not evidenced by a State issued license must marshal evidence, witnesses and circumstances. It is even more likely, now, that this issue will percolate more frequently in probate, real estate, and debt collection actions.
This Firm has long wrestled with the validity of ceremonial marriage in the context of probate and real estate disputes. But it is not hard to imagine a credit card company may file a lawsuit to declare a marriage invalid so that it can then enforce a money judgment against a family home. The bigger the debt, the deeper a creditor may dig into a family's history. The courts have post-judgment discovery proceedings that make this information accessible.
Remember, after you "put a ring on it," get that license.
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