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Feb. 27, 2026 Get Citation Alerts Download PDF Add Note

In re Common-Law Marriage of Kelley

Supreme Court of Kansas

• Citations: None known

• Docket Number: 129332

• Opinion

• Authorities (6)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

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Combined Opinion

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 129,332

In the Matter of the Common-Law Marriage of
EDWIN W. KELLEY and MARY V. (GERLT) KELLEY.

SYLLABUS BY THE COURT

1.
The Kansas Supreme Court has jurisdiction to review a district court
determination that a couple had a common-law marital relationship and to either approve
or disapprove that determination.

2.
The essential elements of a common-law marriage in Kansas are: (1) capacity of
the parties to marry; (2) a present marriage agreement between the parties; and
(3) a holding out of each other as husband and wife to the public.

3.
The party asserting a common-law or consensual marriage bears the burden of
proving the existence of the marriage.

Appeal from Wyandotte District Court; TIMOTHY L. DUPREE, judge. Submitted without oral
argument January 29, 2026. Opinion filed February 27, 2026. Affirmed.

David C. Graham, of Kansas City, was on the brief for appellants.

No other parties appear.

1
The opinion of the court was delivered by

STANDRIDGE, J.: The Wyandotte District Court granted an uncontested petition
brought by Edwin W. Kelley and Mary V. (Gerlt) Kelley seeking judicial confirmation of
their common-law marital relationship and Mary's resulting name change. In this
uncontested appeal, Edwin and Mary ask us to affirm the district court's ruling.

Ordinarily, appellate courts lack jurisdiction to review cases that lack adverse
parties. In re Marvin S. Robinson Charitable Trust, 317 Kan. 492, 494, 531 P.3d 1224
(2023). But under United States Supreme Court precedent, federal courts and agencies
are not bound by lower state court decisions on issues of state law and will only defer to
decisions of a state's highest court. See Commissioner v. Estate of Bosch, 387 U.S. 456,
465, 87 S. Ct. 1776, 18 L. Ed. 2d 886 (1967). As a result, we agreed to review the district
court's order. See In re Estate of Keller, 273 Kan. 981, 985-86, 46 P.3d 1135 (2002)
("States have responded to Bosch by considering appeals where no adverse parties were
involved and where the appellants asked the court to affirm the lower court."). For the
reasons set forth in this opinion, we affirm the district court's judgment.

Facts and procedural background

On September 18, 2022, Edwin and Mary were married during an unlicensed
wedding ceremony in Washington state with an officiant and immediate family members
in attendance. On November 13, 2022, Edwin and Mary held a wedding reception to
celebrate their marriage with family and friends in Kansas City, Kansas, where they
currently reside. Invitations to the event referenced the couple's September wedding.

After the wedding ceremony, Edwin and Mary began living together and started
introducing and presenting themselves as a married couple in public and on social media.
Family members, friends, and business associates consider them to be a married couple.

2
They have joint bank accounts, file joint taxes, and are listed as husband and wife on their
automobile insurance policies. Edwin is listed as Mary's spouse on her employer-
provided health insurance policy.

Since the wedding, Mary has referred to herself as Mary Kelley. She uses the last
name Kelley in public, on social media, and signs her business emails as Mary Kelley.
But several government agencies and other organizations have refused to acknowledge
Mary's name change. She has been unable to change her name on bank accounts, health
insurance, credit cards, and utility bills because they require a government-issued
identification listing her new name. And without a marriage license or other legal
document, Mary cannot obtain a driver's license or a social security card with her new
name.

To remedy these issues, Edwin and Mary filed a petition for declaratory judgment
on February 25, 2025, seeking recognition that they are lawfully married to each other in
a valid common-law marriage and that Mary lawfully changed her surname to Kelley.

The district court held an evidentiary hearing, where Edwin and Mary testified and
presented evidence, including additional testimony from family members and friends. No
witnesses or parties appeared to oppose the petition. At the conclusion of the hearing, the
court declared that Edwin and Mary "are in fact married" based on the clear and
overwhelming evidence that they had met the requirements of a common-law marriage.
To that end, the court found: (1) Edwin and Mary had a present marriage agreement
between themselves on September 18, 2022; (2) they had the capacity to marry when
they made that agreement; and (3) since September 18, 2022, they have been and
continue holding out each other as husband and wife to the public. The court also granted
Mary's request to legally change her surname to Kelley.

3
Thereafter, Edwin and Mary filed a notice of appeal with the Court of Appeals
which stated:

"This appeal is for certification purposes only based on the grounds that . . . the
IRS and federal courts are not bound by lower state court decisions but must instead
merely give those decisions proper regard. On matters of state law, deference is given to
decisions rendered by the state's highest court. In re Estate of Keller, 273 Kan. 981, 985-
986, 46 P.3d 1135 (2002), citing Commissioner v. Estate of Bosch, 387 U.S. 456, 465 87
S. Ct. 1776, 18 L. Ed. 2d 886 ."

After the appeal was docketed with the Court of Appeals, we granted the appellants'
motion to transfer the case under Kansas Supreme Court Rule 8.02 (2025 Kan. S. Ct. R.
54).

Confirmation of the Kelley marriage and Mary's name change

Edwin and Mary ask us to affirm the district court's ruling that they met the
requirements of a common-law marriage and its decision to grant Mary's request to
legally change her surname to Kelley.

We have jurisdiction to consider this uncontested appeal because, as reflected in
the notice of appeal, the United States Supreme Court has held that the Internal Revenue
Service and federal courts are not bound by lower state court decisions. On matters of
state law, only decisions rendered by the state's highest court are controlling. See Bosch,
387 U.S. at 465. Thus, an appeal is necessary to give a ruling in this kind of case legal
effect on federal courts and agencies. We may therefore approve or disapprove the
district court's determination that a common-law marriage exists and that Mary has
legally changed her surname. See In re Common-Law Marriage of Heidkamp and Ritter,
317 Kan. 125, 127-28, 526 P.3d 669 (2023).

4
"Common-law marriage establishes a legally cognizable status that does not
depend on religious or civil ceremony for its validity but is created by the consent of the
parties." 317 Kan. at 128 (citing Feighny, Common Law Marriage: Civil Contract or
"Carnal Commerce", 70 J.K.B.A. 20, 21 [April 2001]). Kansas has long recognized the
validity of common-law marriage. See State v. Walker, 36 Kan. 297, Syl., 13 P. 279
(1887) ("The mutual present assent to immediate marriage, by persons capable of
assuming that relation, is sufficient to constitute marriage at common law."); State v.
Hughes, 35 Kan. 626, 629, 12 P. 28 (1886) ("[T]he weight of authority and the better
reason support the proposition that the acts and declarations of the parties, coupled with
cohabitation, are competent evidence to go to the jury in proof of marriage.").

The essential elements of a common-law marriage are: (1) capacity of the parties
to marry; (2) a present marriage agreement between the parties; and (3) a holding out of
each other as husband and wife to the public. Driscoll v. Driscoll, 220 Kan. 225, 227, 552
P.2d 629 (1976). The party asserting a common-law marriage bears the burden of proving
the existence of the marriage. 220 Kan. at 227.

The district court found, based on undisputed evidence, that Edwin and Mary had
established the elements necessary to prove the existence of a common-law marriage and
that Mary had legally changed her surname. We review the district court's findings to
determine whether they are supported by substantial competent evidence. See Heidkamp
and Ritter, 317 Kan. at 128-29 ("If the district court's findings are supported by
substantial competent evidence and the court properly applied the rules, this court will
affirm the district court."). Substantial competent evidence refers to legal and relevant
evidence that a reasonable person could accept as being adequate to support a conclusion.
Granados v. Wilson, 317 Kan. 34, 41, 523 P.3d 501 (2023).

Based on our review of the record, we hold the evidence supports the district
court's findings and conclusions that Edwin and Mary established the elements necessary

5
to prove the existence of a common-law marriage and that Mary legally changed her
surname. On September 18, 2022, Edwin and Mary agreed to be married in a wedding
ceremony. On that date, they were both over the age of 18, they were not married to
anyone else, and they demonstrated the mental capacity to enter into a marital
relationship. Since that time, they have presented themselves to the public as a married
couple, and the public considers them to be a married couple. They have conducted their
personal, business, and financial affairs in a manner consistent with a marital
relationship. Mary refers to herself as Mary Kelley and uses the last name Kelley in
public, on social media, and in her business emails.

We agree with the district court's findings and conclusions confirming the
existence of a common-law marriage between Edwin and Mary, and Mary's legal
surname change to Kelley.

The district court's judgment is affirmed.

LUCKERT, J., not participating.

6