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Love isn't all you need: an argument for statutory recognition of committed heterosexual relationships under intestacy laws in South Dakota in response to In Re Estate of Duval.

In In Re Estate of Duval, the South Dakota Supreme Court reversed the circuit court and ruled that Karen Hargrave was not, as she believed, the common law wife of her deceased intestate male partner. The court determined that Hargrave was not Duval's common law wife under Mexico's or Oklahoma's common law. As a result, Hargrave was denied the ability to inherit under intestacy laws as a surviving spouse. Under South Dakota's intestacy laws, unmarried committedheterosexual partners are unable to inherit intestate from a deceased partner, regardless of the relationship's duration, the purpose of the relationship, the pooling of resources, the intentions of the parties, the daily reliance upon one another, and the reputation of the relationship in the community. South Dakota should address this issue by adding a committed partner status for unmarried, heterosexual couples that would create a category similar to a surviving spouse for purposes of inheriting intestate. Alternatively, South Dakota should allow probate courts to place more emphasis on donative intent when adjudicating intestate estates in order to properly execute the intent of the decedent. This action would provide more protection and stability to the lives of the 20,970 South Dakotans currently living in unmarried committed partnerships and prevent undue hardship for surviving partners.

I. INTRODUCTION

In recent years, the traditional idea of what constitutes a 'family' has undergone drastic changes. (1) The United States Census Bureau reported that nearly 7.5 million households in the United States are comprised of heterosexual unmarried couples, a thirteen percent increase from 2009. (2) The 2010 United States Census indicated that 20,970 South Dakotans are living together in unmarried households. (3) One such family type is the committed heterosexual partnership. (4) While the number of committed heterosexual couples has increased, the number of Americans who obtain estate planning documents is decreasing. (5) In 2004, approximately forty-two percent of Americans had obtained a will. (6) By 2009, only thirty-five percent of Americans had written a will. (7) With the number of non-traditional families increasing and the number of individuals with estate planning documents decreasing, new laws and statutes need to be created to protect new types of family relationships. (8)

In the 2010 South Dakota Supreme Court decision, In Re Estate of Duval, it was determined that an explicit agreement to be married must exist in order for South Dakota to recognize a common law marriage created in another jurisdiction. (9) The appellee, Karen Hargrave, claimed that she and the decedent, Paul Duval, had a valid common law marriage under the laws of Mexico and Oklahoma. (10) The circuit court, however, held that there was not an explicit agreement to be married under Oklahoma's common law and, as a result, Hargrave could not inherit as a surviving spouse. (11) Although Hargrave and Duval had been in a committed, marriage-like relationship for almost fifteen years, Hargrave was denied the opportunity to inherit. (12) In short, the holding refused to acknowledge the merits of the longstanding relationship between Hargrave and Duval. (13) Due to the growing number of unmarried, committed partnerships in South Dakota, a need exists to create statutory protections to prevent other couples from Karen Hargrave's fate. (14) This note urges that the South Dakota Legislature create a "committed partner" status for the purposes of inheriting intestate between committed heterosexual partners who meet the criteria set forth in "totality of the relationship" test. (15) Alternatively, this note proposes that the South Dakota Legislature should adopt a law that would place increased emphasis on the intentions of the deceased for the purposes of intestate succession between unmarried partners. (16)

II. FACTS AND PROCEDURE

A. FACTS OF IN RE ESTATE OF DUVAL

In 1986, Paul Duval separated from his wife and the mother of his two daughters while he was living in Massachusetts. (17) Duval and his wife later divorced and, in 1994, Duval and Karen Hargrave began living together in Massachusetts. (18) The following year, Duval acquired a home in Custer, South Dakota (19) Hargrave moved from Massachusetts and joined Duval in the Custer home in 1996, which was held solely in Duval s name. (20) Beginning in 1997, Duval and Hargrave began spending the winter months in Nuevo Leon, Mexico while enjoying the summer months in Custer, South Dakota. (21) While traveling between South Dakota and Mexico, Duval and Hargrave spent time in Oklahoma, visiting Hargrave's family. (22) Hargrave and Duval never had a formal marriage ceremony. (23) Hargrave stated that she and Duval "mutually decided against" an official wedding because they acted as man and wife and felt married. (24)

In 1998, Duval and Hargrave purchased a home together in Nuevo Leon, identifying themselves as husband and wife on the contract. (25) While in Mexico, they presented themselves as husband and wife. (26) Although both Duval and Hargrave stated that they were single on a quitclaim deed in South Dakota in 2001, Hargrave explained that the common law marriage was entered into after the quitclaim deed's execution. (27) During a stay in Mexico in 2005, Duval was assaulted and entered an intensive care unit for the treatment of his injuries. (28) Hargrave stayed at the hospital during Duval's treatment. (29) Hargrave moved Duval to a rehabilitation center in Oklahoma and eventually to the Mayo Clinic in Rochester, Minnesota for continuing treatment. (30) Records at the Mayo Clinic stated that Hargrave was Duval's wife. (31) Following Duval's rehabilitation, Hargrave and Duval returned to Oklahoma in 2005. (32) While in Oklahoma, Duval purchased personal property and registered it under his name. (33) Duval and Hargrave resumed their custom of spending the winter months in Mexico and the summer months at the Custer, South Dakota residence. (34) Duval's (2006) income tax return listed Hargrave as his wife and had listed her as a dependent family member in prior years. (35)

In the summer of (2008), Duval died in a rock climbing accident in Custer County, South Dakota. (36) Duval's obituary named Hargrave as his wife. (37) Duval, however, died intestate. (38) Throughout their relationship, Duval and Hargrave "co-mingled" their personal property and were both financially supported by Duval's pension fund. (39) Some of Duval's pension money was used to purchase stocks in both of their names, to which Hargrave had complete access. (40) Hargrave was listed as the beneficiary of Duval s VA health benefits and had power of attorney over Duval. (41) Hargrave and Duval also represented themselves as married when registering for tax consultation services. (42)

B. PROCEDURE OF IN RE ESTATE OF DUVAL

Following Duval's death, one of his daughters submitted a petition and was named as personal representative of his estate. (43) Subsequently, Hargrave also filed a petition to be named the personal representative of Duval's estate as his surviving spouse. (44) In a probate proceeding in Custer County, the circuit court determined that Hargrave and Duval were married under the laws of Nuevo Leon, Mexico and Oklahoma, making Hargave a surviving spouse and personal representative of Duval's estate. (45) Duval's daughters appealed to the South Dakota Supreme Court, arguing that a South Dakota domicile prevented Duval and Hargrave from creating a common law marriage in either Mexico or Oklahoma, that Mexican concubinage is not recognized as a valid marriage in South Dakota, and that Hargrave and Duval did not have a common law marriage in Oklahoma. (46) The Supreme Court concluded that South Dakota does not "require parties to establish domicile in the state where the common-law marriage occurred." (47) The court also concluded that Duval and Hargrave did not have a valid marriage under either Mexico or Oklahoma law, preventing Hargrave from being treated as the surviving spouse for Duval's estate. (48)

C. RATIONALE FOR THE SOUTH DAKOTA SUPREME COURT'S DECISION IN DUVAL

The first argument presented by Duval's daughters was that Duval and Hargrave were required to be domiciled in a jurisdiction for a common law marriage to have taken place. (49) The appellants' posit that because Hargrave and Duval maintained a South Dakota domicile throughout their relationship, the couple could not have entered into a common law marriage in Mexico or Oklahoma. (50) The court, however, held that a marriage "valid in the state where it was contracted, is to be regarded as valid" in South Dakota. (51) The South Dakota Supreme Court succinctly dispatched the daughters' arguments, finding that South Dakota does not have a domicile requirement within S.D.C.L. section 25-1-38. (52)

The appellants' second argument was that Duval and Hargrave did not enter into a valid common law marriage via a legal concubinage under Mexican law. (53) Both Duval and Hargrave were free to enter into such a union, Duval having been divorced from the mother of his children since the early nineties. (54) At the time of Duval's death, Hargrave and Duval had been together for approximately fourteen years. (55) During that time, the couple had spent winters in Mexico from 1997 to 2005, and an unknown amount of time following Duval's recovery from his assault related injuries in 2005 and before his death in 2008. (56) The amount of time they spent in Mexico satisfied the five year minimum requirement under Mexican law. (57) It was never disputed that Duval and Hargrave were never formally married. (58) Hargrave argued that she and Duval were engaged in a concubine relationship and that Mexican concubinage was the equivalent of a common law marriage. (59)

The Supreme Court of South Dakota found that a Mexican concubinage was not the legal equivalent of a common law marriage because it does not confer the same obligations and rights as a common law marriage. (60) Justice Meierhenry indicated that the court followed the Rosales v. Battle (61) and Nevarez v. Bailon, (62) rationales in this determination. (63) In Rosales, the court stated that a common law marriage is not a "second-class sort of marriage" and that a "common law spouse has the same rights as any other spouse." (64) While common law marriages require a divorce proceeding to end them, a concubinage may be ended by either party for any reason. (65)

The court also used the ruling in Nevarez to determine that the informal relationship of concubinage could not be reinvented as a formal relationship in the United States. (66) In Nevarez, a Mexican plaintiff, the concubine of a deceased man, was found not to be his common law wife because she could not "qualify in her home jurisdiction as a surviving wife." (67) Although Hargrave and Duval held themselves out to be man and wife while in Mexico, they could not legally be so under Mexico's laws, which require civil validation of a marriage. (68)

The final argument by Duval's daughters was that the circuit court erred when it determined that Duval and Hargrave had a valid common law marriage under Oklahoma law. (69) According to the Supreme Court of Oklahoma, common law marriage requires an "actual and mutual agreement to enter into a matrimonial relation, permanent and exclusive of all others, between parties capable in law of making such contract, consummated by their cohabitation as man and wife, or their mutual assumption openly of marital duties and obligations." (70) The Oklahoma court continued, stating that "[a] mere promise of future marriage, followed by illicit relations, is not, in itself, sufficient to constitute such marriage." (71) Justice Meierhenry focused on whether a mutual declaration of intent between the parties to be married existed. (72) Evidence showing a mutual agreement to be married must be proved by "clear and convincing evidence." (73) The court also stated that mutual agreement must "be more than an implicit agreement." (74)

The court determined that Hargrave had not proven by clear and convincing evidence that she and Duval had a present intent to be married. (75) Hargrave testified that there was an "implicit agreement" in Oklahoma and stated that she and Duval decided they were married. (76) Justice Meierhenry, however, noted that the circuit court refrained from such a finding and stated that there was no evidence of an explicit agreement to be married. (77) The court found that an implicit agreement to be married was insufficient to prove the marriage existed and cited problems with Hargrave's inability to name a specific time, date, or episode where a declaration of intent to be married was made. (78) Citing Standefer v. Standefer, (79) where the couple in question was able to identify a specific anniversary for their entrance into common law marriage, the court determined that there was not sufficient evidence to prove that Hargrave and Duval had the requisite intent to be married. (80) Because Hargrave was unable to provide any specifics about the agreement between herself and Duval to be married, the court determined that the couple did not have a valid common law marriage under the laws of Oklahoma. (81)

III. BACKGROUND

A. A BRIEF HISTORY OF COMMON LAW MARRIAGE IN THE UNITED STATES

Common law marriage is defined as a "marriage that takes legal effect, without license or ceremony, when two people capable of marrying live together as husband and wife, intend to be married, and hold themselves out to others as a married couple." (82) In 1809, Fenton v. Reed (83) became the landmark common law marriage decision in the United States, holding that a marriage made by mutual agreement is a valid marriage if it was solemnized by a church. (84) The Supreme Court of the United States followed up Fenton with Meister v. Moore, (85) stating that common law marriages do exist but can be abrogated via statute. (86)

Although common law marriage was once considered a device to protect dependent women, the doctrine became subject to criticism around the turn of the twentieth century. (87) Prior to this period, women had been viewed as almost wholly dependent on men and the common law marriage was a response to ensure that women were provided for after abandonment or death of their partners. (88)

As women gained personal and financial freedom, common law marriage began to appear outdated. (89) Courts expressed worry when many people started to "believe that common-law marriage and living in adultery are synonomous [sic] terms." (90) Problems also arose because many people did not view common law marriages as permanent. (91) Common law marriage was seen by many as "inconsistent" and the cause of "distortion of public records, the validation of spurious marriages, and the invalidation of true marriages in cases where cohabitation is used as a criterion." (92) The practice was denounced by many as a "fruitful source of perjury and fraud," adding that this particular type of marriage should be "tolerated, not encouraged." (93) Once widely used to create valid marriages, only eleven states and the District of Columbia currently allow for the creation of a common law marriage. (94)

B. CONTINUED RECOGNITION OF COMMON LAW MARRIAGE IN THE UNITED STATES

1. Rationale for Retaining Common Law Marriage

Although most states have abandoned the common law marriage doctrine, eleven states and the District of Columbia have retained statutes and policies supporting common law marriage. (95) While common law marriage is quickly becoming a dying doctrine, couples "continue to believe in its existence" and it "has not stopped couples from entering into relationships they believe are informal marriage." (96) The most persuasive reason in favor of common law marriage is the prevention of undue hardship on surviving partners, children, or couples who split up. (97) Being deemed married can "affect rights to benefits such as Social Security and workers' compensation" and the ability to bring a wrongful death suit. (98) Montana's courts have used the presumption of common law marriage to reverse a decision that would have made a child illegitimate for purposes of obtaining social security benefits from the decedent, preventing undue hardship. (99) New Hampshire's limited common law marriages exist to protect surviving partners from undue economic hardship. (100) By recognizing common law marriages, states can also protect their citizens when "parties may end a relationship they believed was an informal marriage and have no recourse in ending that relationship." (101)

2. Formation of Common Law Marriages in General

The elements used to determine the validity of common law marriages vary from state to state. (102) Generally, these elements include the ability to marry, an agreement to marry, cohabitation as a married couple, and a reputation in the community as a married couple. (103) The ability to marry means that the union cannot be prevented by state law, such as a same-sex union or an incestuous union between a father and daughter, or because one of the partners is already in a marital state. (104) Declarations of intent to be married must be "present, immediate, and permanent" in order to create a valid common law marriage. (105) An agreement to marry cannot be "an agreement to marry in the future." (106)

The parties must cohabitate in the same residence as husband and wife, though there is usually "no specific period of cohabitation ... required." (107) During the time the couple is living together, they must also obtain a reputation among their community as a married couple. (108) Couples can prove that they presented themselves as husband and wife in the community by enlisting witnesses and providing the court with documents such as "letters ..., hotel registers, hospital and medical records, income tax returns, and the like." (109) Additionally, agreements to enter into common law marriages are often "inferred by courts when a couple engages in cohabitation and acquires a reputation as husband and wife." (110)

C. THE HISTORY OF COMMON LAW MARRIAGE IN SOUTH DAKOTA

The South Dakota Supreme Court determined in 1916 that common law marriages were allowed by South Dakota law. (111) The 1919 and 1939 South Dakota Codes require both consent and consummation to create a common law marriage, stating that, "[c]onsent alone will not constitute marriage; it must be followed by a solemnization, or by mutual assumption of marital rights, duties, or obligations." (112) In 1959, the South Dakota Legislature ended their recognition of common law marriage, amending the statute to read, "[c]onsent alone will not constitute a marriage; it must be followed by a solemnization." (113)

Although South Dakota abrogated common law marriage domestically, the state continues to recognize common law marriages entered into in other jurisdictions, requiring that "[a]ny marriage contracted outside the jurisdiction of the state, except a marriage contracted between two persons of the same gender, which is valid by the laws of the jurisdiction in which such marriage was contracted, is valid in this state." (114) The current South Dakota statute states that, "[m]arriage must be solemnized, authenticated, recorded as provided in this chapter provided, however, that noncompliance with its provisions does not invalidate any lawful marriage consented to and subsequently consummated prior to July 1, 1959." (115)

D. MEXICAN CONCUBINAGE AND THE LAWS OF THE UNITED STATES

While common law marriages can still be obtained in several jurisdictions within the United States, Mexico does not recognize common law marriage. (116) Marriages in Mexico are valid only "by presentation of a certified copy of the certificate or instrument drawn up in the Civil Authorities' authorized book." (117) In Mexico, concubinage is a type of domestic relationship that exists as an alternative for a traditional marriage. (118) Concubinage is defined as an "informal union that must be declared in a formal judgment by the civil court." (119) In order to establish a valid concubinage, a man and woman must live in a marital state for a period of longer than five years without a formal marriage ceremony. (120) Additionally, there must be no legal reason for preventing a union between the couple. (121) As a Texas court notes in Nevarez v. Bailon, Mexican concubinage does not carry the "stigma" that many people attach to the doctrine of concubinage and is utilized by thousands of Mexicans. (122) Concubines have the right to inherit property through intestacy but either party within the relationship may terminate a concubinage at will, without the consent of the other party, (123) Two important cases involving Mexican concubinage within the United States both resulted in concubinage being rejected as a valid marriage by California courts. (124)

E. INTESTACY LAWS AND DONATIVE INTENT IN THE UNITED STATES

When an individual dies without a will, probate codes and intestacy laws exist to help determine how the deceased would like to have their property disposed of. (125) By allowing for intestate succession, probate codes "seek to further the testamentary freedom of those who, for whatever reason, die without exercising their right to provide expressly for the distribution of property at death." (126) Intestate succession takes effect in the absence of a will and each state has a code determining which relatives are eligible to obtain a portion of a decedent's estate. (127) Many intestacy laws in the United States are modeled in some way after the Uniform Probate Code ("UPC"), (128) which states that "[a]ny part of a decedent's estate not effectively disposed of by will passes by intestate succession to the decedent's heirs." (129) South Dakota has adopted this language in its own statute. (130)

Under South Dakota's intestate succession laws, a surviving spouse receives the entire estate if the decedent has no descendants or if all of the surviving descendants of the deceased are also descendants of the surviving spouse. (131) This system of giving precedence to a surviving spouse was created because it was assumed that the "decedent would have provided generously for [his or her] spouse had [he or she] left a valid plan for the distribution of her estate." (132) The surviving spouse also receives the first 100,000 dollars "plus one-half of any balance of the intestate estate, if one or more of the decedent's surviving descendants are not descendants of the surviving spouse." (133) Under general intestacy laws, heterosexual committed partners are not granted any inheritance rights regardless of the nature or longevity of the relationship, or the intentions of the deceased. (134)

Donative intent is the "intent to surrender dominion and control over the gift that is being made." (135) Intestacy statutes were created to distribute property in a way that "approximates what decedents would have done if they had made a will." (136) Problems tend to arise when probate codes are used to deal with nontraditional families, as they were created to best serve traditional family types. (137) When the UPC was updated in 1990, the drafters sought to continue the "decline of formalism in favor of intent-serving policies." (138) The result was a revised UPC that recognized second marriages and children that were not blood relatives of the decedent to "reflect modem families." (139) While the UPC "proclaims honoring donative intent as its primary aim, it does not allow for discretion in individual cases in order to effectuate that aim where its rules mandate inequitable outcomes," such as the adverse outcome for Karen Hargrave. (140)

F. SOLUTIONS EXPLORED BY OTHER STATES GIVING INHERITANCE RIGHTS TO COMMITTED COHABITANTS

Due to the changes taking place among heterosexual couples, four states have granted the formal right to inherit through intestacy to unmarried but committed heterosexual cohabitants. (141) Of these states, New Hampshire has the most liberal statute, allowing a surviving partner to inherit as a surviving spouse through intestate succession. (142) The statute states that "[p]ersons cohabitating and acknowledging each other as husband and wife, and generally reputed to be such, for the period of 3 years, and until the decease of one of them, shall thereafter be deemed to have been legally married." (143) By determining postmortem that a couple was married, the New Hampshire system prevents a surviving partner, who would otherwise not be entitled to any property gained during the partnership, from suffering undue hardship. (144) New Hampshire is the only state out of the four allowing intestate succession between partners that does not require that the couple do anything, such as register with the state, to be eligible to be considered a surviving spouse. (145)

Vermont allows heterosexual couples to inherit through an entrance into a civil union. (146) The Vermont statute states that "[p]arties to a civil union shall have all the same benefits, protections and responsibilities under law ... as are granted to spouses in a civil marriage." (147) Civil unions, however, are not recognized by the federal government, preventing partners from obtaining any sort of federal benefits extended to couples engaged in a traditional marriage. (148)

Hawaii created a reciprocal beneficiary program for both same-sex and heterosexual couples who are otherwise prohibited from engaging in a traditional marriage. (149) The couples are required to register with the state but are then allowed to receive certain benefits, including the right to inherit intestate. (150) In 2003, California instituted a domestic partnership registration that gives registrants the right to inherit from a deceased partner through intestacy. (151) Once registered, the surviving domestic partner is entitled to the same percentage of property as a surviving spouse. (152)

Some jurisdictions have attempted to create equitable solutions to the problems that a surviving committed partner faces following an intestate death. (153) Courts in several different states have endeavored to create tests by which a non-traditional relationship may be measured for the purposes of inheritance. (154) For example, the New York Court of Appeals propagated the "totality of the relationship" test to determine whether a surviving partner was eligible to inherit from the deceased's estate. (155) The totality of the relationship test is based on the "exclusivity and longevity of the relationship, the level of emotional and financial commitment, the manner in which the parties have conducted their everyday lives and held themselves out to society, and the reliance placed upon one another for daily family services." (156) When applying the totality of the relationship test, the court instructs that the "dedication, caring and self-sacrifice of the parties should ... control" inheritance decisions. (157)

Several states have recognized the need for laws governing the distribution of property during the separation of formerly committed partners. (158) In Connell v. Francisco, (159) Washington created a "meretricious relationship" status, which is defined as a "stable, marital-like relationship where both parties cohabit with knowledge that a lawful marriage between them does not exist." (160) In order to determine whether a meretricious relationship exists, several factors are examined, including "continuous cohabitation, duration of relationship, pooling of resources, purpose of relationship, services for joint projects, and the intent of the parties. (161) The court continued, stating that meretricious relationships would be meaningless without a community-property-like presumption attaching to all property acquired during the relationship. (162) In a recent case, In Re Black, (163) a Washington court affirmed a lower court judgment dividing property gained by the parties who were engaged in a meretricious relationship. (164) Washington also allows for the equitable distribution of property jointly gained during a meretricious relationship in the event of the death of one partner, but not the rest of the deceased's property. (165)

Oregon has instituted a similar system of equitable distribution when a meretricious relationship ends with a separation. (166) An Oregon Appellate Court held that the court was not precluded from exercising [their] equitable powers to reach a fair result based on the circumstances of each case." (167) In Wilbur v. DeLapp, (168) the female partner in the meretricious partnership was able to obtain rights to portions of real property and retirement benefits that existed solely in the male partner's name, stating that "legal ownership of property ... is not dispositive" of sole ownership. (169)

IV. POSSIBLE SOLUTIONS FOR SOUTH DAKOTA

A. COMMITTED PARTNER STATUS OPTION

Just as the social and economic situation of the early twentieth century decreased the need for common law marriages, the modern social and economic circumstances demonstrate the need for more concrete rights for heterosexual partners in committed relationships. (170) One legislative option for South Dakota is the adoption of a "committed partner" status for the purpose of granting rights to the surviving heterosexual partner of a deceased individual who dies intestate. (171) Modeled after the New Hampshire system, a committed partner who had cohabitated with the decedent for a statutorily set period of time as husband and wife would be eligible to inherit under the laws of intestate succession. (172) The surviving partner would be equated with a surviving spouse for purposes of inheritance under S.D.C.L. section 29A-2-102(1) and (2). (173) This system would prevent undue hardship for surviving partners and require evidence similar to that required to prove a marriage at common law. (174)

In order to determine whether a surviving partner qualifies as a committed partner, multiple factors, such as the exclusivity of the partnership, the duration of relationship, purpose of relationship, pooling of resources, the intentions of the parties, daily reliance upon one another, and how they portrayed their relationship in the community could be taken into account in a combination of the New York and Washington schemes. (175) Additionally, portraying the marital relationship to the community would also need to be a "deliberate" act, not just the whims of "public perception." (176) Although the new legislation would recognize the parties unmarried status, it would acknowledge the relationship's merits of commitment and longevity. (177)

In applying this proposed scheme to In Re Estate of Dural, the outcome may have been very different. (178) Duval and Hargrave were in an exclusive relationship for nearly fifteen years. (179) As to the purpose of the relationship, Hargrave testified that "they held themselves out as husband and wife and felt like they were married." (180) During the time that Duval and Hargrave were together, they pooled their resources in several ways. (181) First, the couple shared a residence in Massachusetts, South Dakota, Mexico, and Oklahoma, and "co-mingled their personal property." (182) Second, while Duval was alive, the couple jointly drew upon and lived off of money from Duval's pension fund. (183) A couple may qualify as a committed partnership under intestacy laws if one partner is the primary financial contributor and the other provides support that is "less tangible." (184) This situation describes the relationship between Duval and Hargrave because his pension money was used for living expenses and Hargrave spent an extended period of time helping Duval work towards recovery. (185) addition to living off Duval's pension, the money was invested in the stock market and the accounts were in both Hargrave and Duval's names. (186)

While no will exists to show that Duval explicitly wished that Hargrave inherit portions of his estate, Duval's intent to provide in some way for Hargrave can be inferred. (187) Duval specifically listed Hargrave as his Veteran's health benefits beneficiary and as his spouse on both tax return forms and with a tax consulting company. (188) Additionally, Hargrave was listed as a spouse on hospital records and had power of attorney over Duval. (189)

The extensive care Hargrave provided to Duval following his assault in Mexico, showed daily commitment to their relationship. (190) Finally, Duval and Hargrave held themselves out as a married couple in Mexico and in Oklahoma. (191) Based on the totality of the relationship test advocated by New York and Washington, it is likely that Hargrave would have been able to inherit at least some portion of Duval's estate under S.D.C.L. section 29A-2-102. (192) Although lacking a traditionally sanctioned marital relationship, committed partnerships preserve and beget [marriage's] most valuable qualities such as values, commitment, affection, and support." (193) By focusing on the "reality of family life," a statutory intestacy scheme will be able to protect committed partners who satisfy the totality of the relationship test. (194) This alternative outcome would also still provide Duval's daughters with a share of their father's property. (195)

Opponents of recognizing committed partnerships for intestacy purposes voice similar concerns as opponents to common law marriage. (196) Fraud was among the issues raised by individuals challenging the validity of the common law marriage doctrine. (197) The concern is that non-committed roommates may take advantage of the committed partner status in order to fraudulently obtain rights to one another s property. (198) This fear, however, would be alleviated by the case-by-case examination committed partnerships would be subjected to in intestacy situations. (199) In order to distinguish roommates from committed partners, courts could look at whether a mortgage was co-signed between the partners and what contributions each partner made to the union. (200) Roommates simply splitting bills or supporting themselves from totally separate bank accounts would not qualify as living as a married couple. (201) The factors taken into account by the totality of the relationship test would be difficult for a surviving partner to fake. (202) Fabricating evidence needed to support factors usually present in committed partnerships, such as financial intermingling, cohabitation, public reputation, and duration of the relationship, would be nearly impossible to do and would not be an efficient means of committing fraud for any such potential felon. (203)

By expanding intestacy rights for heterosexual committed partners, South Dakota could protect its citizens by recognizing there may be financial interdependence between the deceased and the surviving partner. (204) Because Hargrave was denied the right to inherit, Hargrave was not compensated for any financial or other contributions, including "time, support and sacrifices," she may have made during the relationship. (205) Had the proposed committed partner status for intestacy purposes had been in place, it is likely that Hargrave would have been entitled to a portion of Duval's estate. (206)

B. DONATIVE INTENT OPTION

As an alternative to the "committed partner" status option, South Dakota could adopt a policy allowing probate courts to review the potential donative intent of the deceased in intestate proceedings under certain circumstances. (207) Courts would consider donative intent as a factor for determining how an intestate individual's property should be distributed. (208) Intestacy statutes began as a way to distribute property so that it "approximates what decedents would have done if they had made a will." (209) During the revision of the UPC, the drafters added "additional provisions that ..., serve to effectuate the decedent's donative intent." (210) Whether the intended donee was a sibling, friend, committed partner, or any other individual, the court should be able to look at the actions of the decedent in life that might demonstrate intent to provide for another person who may not fall in the line of intestate succession. (211)

In order to determine if a decedent intended to leave property to an individual, the surviving member of the committed partnership would need to prove that the deceased desired to support and provide for the surviving partner. (212) The surviving partner would prove donative intent through a "multifactor approach" that would determine whether a couple "demonstrate[d] sufficient commitment" to warrant inheritance under intestacy laws. (213) Factors to determine donative intent would include "cohabitation, financial interdependence (such as shared assets or debts), exclusivity of the relationship, similarity to a marriage relationship ... a minimum duration of the relationship, and naming the partner as a beneficiary under a non-probate instrument." (214)

Hargrave and Duval had lived together for nearly fifteen years in a committed partnership, far surpassing the mandatory three year cohabitation required by New Hampshire law in the determination as to whether a committed partner may inherit through intestacy. (215) During the time they lived together, Hargrave and Duval were financially intertwined, living off of Duval's pension and purchasing a home together in Mexico. (216) This asset sharing would allow Hargrave to show that she and Duval were combining resources as if in a marital relationship. (217) Also, the couple believed their relationship was a valid common law marriage and treated their exclusive relationship as such. (218) In addition, Hargrave was named as a beneficiary of a non-probate instrument as Duval's Veteran's health benefits beneficiary. (219) Under the multi-factor test for determining whether donative intent existed, a court could reasonably find that Duval intended to leave a portion of his estate to Hargrave. (220)

By "divorcing" donative intent from the need to be married, intestate law can be used to provide a surviving partner with a portion of the couple's shared assets after the other partner's death. (221) States would also be free to disregard the recognition of common law marriages or unions between committed partners in granting inheritance under intestacy. (222) There would be no need for a statutory scheme that would "target [a] particular relationship specifically." (223) The goal would instead be to emphasize and effectuate the deceased's donative intent towards any individual with sufficient ties to the decedent and to grant the state more flexibility when dealing with these situations. (224)

V. CONCLUSION

As the 2010 Census showed, South Dakota is one of many states with an increasing population of unmarried cohabitating individuals. (225) Although the number of these types of couples has increased, protections for their rights under intestacy laws have not advanced at the same pace and "insufficiently protect their interests." (226) In Re Estate of Duval demonstrates the need for increased protections for "vulnerable" committed heterosexual couples. (227) By adding a committed partner status to South Dakota's intestacy statutes or by simply allowing probate courts to place more emphasis on the decedent's donative intent during intestacy proceedings, South Dakota will be more able to protect its 20,970 or more citizens that currently abide in unmarried but committed households. (228)

It is too late to help Karen Hargrave. The South Dakota Legislature, however, has the ability to prevent future injustice from being inflicted upon its citizens. This note advocates a position that is a liberal step for the socially-conservative state of South Dakota. This proposal, however, continues to adhere to traditional social norms of preventing undue hardship on a surviving committed partner, as evidenced through the historical reasons for acceptance of common law marriages. Further, this proposal does not seek to redefine marriage, but instead advocates for making measured changes that are consistent with South Dakota's traditional family values. Although South Dakota is a conservative state, we have previously been at the forefront of progressive change in other areas of the law. For example, South Dakota was the first state to make spousal rape a criminal offense in 1975. (229)

For over 20,000 South Dakotans, this problem is a reality, not a political principle. South Dakota has a duty to protect the best interests of its citizens. It is time that South Dakota recognizes that traditional family values can be found outside of the traditional heterosexual marriage, and start protecting its people from the incredible injustice suffered by Karen Hargrave.

(1.) Peter J. Harrington, Untying the Knot: Extending Intestacy Benefits to Non-Traditional Families by Severing the Link To Marriage, 25 J. CIV. RTS & ECON. DEV. 323, 323-4 (2011).

(2.) Nigel Duara, Unmarried Households Put Married Couples In the Minority, HUFFPOST HEALTHY LIVING, May 28, 2011, http://www.huffingtonpost.com/2011/05/28/unmarried-householdminority-married-households_n_868506.html (citing United States Census Bureau).

(3.) U.S. Census Bureau, South Dakota Household and Group Quarters Population, 2010 CENSUS, http://factfinder2.census.g~v/faces/tabtleservices/jsf/pages/productview.xhtml?pid=DEC_10_SF1_QTP1 2&prodType=table.

(4.) Harrington, supra note 1, at 324.

(5.) Press Release, LexisNexis, Lawyers.com Survey Reveals Drop in Estate Planning By Americans in 2009; Ailing Economy Likely Reason (Feb. 25, 2010), http://www.lexisnexis.com/media/press-release.aspx?id= 1268676534119836.

(6.) Id.

(7.) Id.

(8.) See generally In Re Estate of Duval, 2010 SD 2, 777 N.W.2d 380.

(9.) Duval, 2010 SD 2, [paragraph] 18, 777 N.W.2d at 385.

(10.) Id. [paragraph] 1.

(11.) Id. [paragraph] 20.

(12.) Id. [paragraph][paragraph] 1-2, 20.

(13.) See Jennifer Seidman, Functional Families and Dysfunctional Laws." Committed Partners and Intestate Succession, 75 U. COLO. L. REV. 211,226 (2004).

(14.) U.S. Census Bureau, South Dakota Household and Group Quarters Population, 2010 CENSUS, http://factfinder2.census.gov/faces/tableservices/jsf/pages/pr~ductview.xhtml?pid=DEC_10_SF1_QTP1 2&prodType=table; Harrington, supra note 1, at 323.

(15.) See infra Part IV.A.

(16.) See infra Part IV.B.

(17.) Brief for Appellant at 5, In Re Estate of Duval, 2010 SD 2, 777 N.W.2d 380 (No. 25065) [hereinafter Appellant's Brief].

(18.) Appellant's Brief, supra note 17, at 5; In Re Estate of Duval, 2010 SD 2, [paragraph] 2,777 N.W.2d 380, 381.

(19.) Appellant's Brief, supra note 17, at 4.

(20.) Duval, 2010 SD 2, [paragraph] 2, 777 N.W.2d at 381; Appellant's Brief, supra note 17, at 5.

(21.) Duval, 2010 SD 2, [paragraph] 2,777 N.W.2d at 381.

(22.) Appellant's Brief, supra note 17, at 5.

(23.) Duval, 2010 SD 2, [paragraph] 4, 777 N.W.2d at 381.

(24.) Id.

(25.) Brief for Appellee at 5, In Re Estate of Duval, 2010 SD 2, 777 N.W.2d 380 (No. 25065) [hereinafter Appellee's Brief].

(26.) Duval, 2010 SD 2, [paragraph] 2,777 N. W. 2d at 381.

(27.) Appellant's Brief, supra note 17, at 6.

(28.) Duval, 2010 SD 2, [paragraph] 3,777 N. W. 2d at 381.

(29.) Id.

(30.) Id.; Appellant's Brief, supra note 17, at 6-7.

(31.) Appellee's Brief, supra note 25, at 8.

(32.) Id. at 7.

(33.) Id.

(34.) Duval, 2010 SD 2, [paragraph] 3,777 N.W.2d at 381.

(35.) Appellee's Brief, supra note 25, at 8.

(36.) Duval, 2010 SD 2, [paragraph] 3,777 N.W. 2d at 381.

(37.) Appellee's Brief, supra note 25, at 8.

(38.) Appellant's Brief, supra note 17, at 8.

(39.) Appellee's Brief, supra note 25, at 6.

(40.) Id. at 7.

(41.) Duval, 2010 SD 2, [paragraph] 4,777 N.W. 2d at 381.

(42.) Appellee's Brief, supra note 25, at 8.

(43.) Appellant's Brief, supra note 17, at 8.

(44.) Id.

(45.) Duval, 2010 SD 2, [paragraph] 5,777 N.W. 2d at 381.

(46.) Id.

(47.) Duval, 2010 SD 2, [paragraph] 9, 777 N.W.2d at 382.

(48.) Id. [paragraph] 20.

(49.) Id. [paragraph] 8.

(50.) Id.

(51.) Id. (citing Garcia v. Garcia, 127 N.W. 586, 589 (S.D. 1910)).

(52.) Id. [paragraph] 10.

(53.) Id. [paragraph] 5.

(54.) Appellant's Brief, supra note 17, at 5.

(55.) Duval, 2010 SD 2, [paragraph][paragraph] 2-3, 777 N. W. 2d at 381.

(56.) Id.

(57.) Appellant's Brief, supra note 17, at 7-8.

(58.) Duval, 2010 SD 2, [paragraph] 4, 777 N.W.2d at 381.

(59.) Appellee's Brief, supra note 25, at 15-19.

(60.) Duval, 2010 SD 2, [paragraph] 13,777 N.W.2d at 384.

(61.) Rosales v. Battle, 7 Cal. Rptr. 3d 13 (Cal. Ct. App. 2003).

(62.) Nevarez v. Bailon, 287 S.W.2d 521, 523 (Tex. Civ. App. 1956). In Nevarez, a Mexican plaintiff who was the concubine of a deceased man, was found to not be his common law wife because she could not "qualify in her home jurisdiction as a surviving wife." Id.

(63.) Duval, 2010 SD 2, [paragraph] 14, 777 N.W.2d at 384.

(64.) Rosales, [paragraph] Cal. Rptr.3d at 17 (citing Barron v. Apfel, 209 F.3d 984, 985-86 (7th Cir. 2000)).

(65.) Rosales, [paragraph] Cal. Rptr.3d at 17.

(66.) Duval, 2010 SD 2, [paragraph][paragraph] 12-14, 777 N.W.2d at 383-84.

(67.) Nevarez, 287 S.W.2d at 523.

(68.) Appellee's Brief, supra note 25, at 4; Nevarez, 287 S.W.2d at 523.

(69.) Duval, 2010 SD 2, [paragraph] 5, 777 N. W. 2d at 381.

(70.) D.P. Greenwood Trucking Co. v. State Industrial Commission, 271 P.2d 339, 342 (Okla. 1954).

(71.) Id.

(72.) Duval, 2010 SD 2, [paragraph] 16, 777 N.W.2d at 384-85.

(73.) Id.

(74.) Id. [paragraph] 18.

(75.) Id. [paragraph] 19.

(76.) Id. [paragraph] 17.

(77.) Id. [paragraph] 18.

(78.) Id.

(79.) Standefer v. Standefer, 26 P.3d 104, 107-8 (Okla. 2001).

(80.) Id.; Duval, 2010 SD 2, [paragraph][paragraph] 16-19 777 N.W. 2d at 384-86.

(81.) Duval, 2010 SD 2, [paragraph] 19, 777 N.W.2d at 385.

(82.) BLACK'S LAW DICTIONARY 986 (7th ed. 1999).

(83.) Fenton v. Reed, 4 Johns. Cas. 52 (N.Y. 1809).

(84.) Id. at 52.

(85.) Meister v. Moore, 96 U.S. 76 (1877).

(86.) Id. at 77.

(87.) Ariela R. Dubler, Wifely Behavior: A Legal History of Acting Married, 100 COLUM. L. REV. 957, 996-97 (2000).

(88.) Id. at 964.

(89.) Id. at 996-7.

(90.) OTTO E. KOEGEL, COMMON LAW MARRIAGE AND ITS DEVELOPMENT IN THE UNITED STATES 102 (1922).

(91.) Id. at 103.

(92.) WILLIAM J. O'DONNELL AND DAVID A. JONES, THE LAW OF MARRIAGE AND MARITAL ALTERNATIVES 15-6 (1982).

(93.) Baker v. Mitchell, Pennsylvania Threshermen & Farmers' Mut. Casualty Ins. Co., Intervener, 17 A.2d 738 (Pa. Super. Ct. 1941).

(94.) Andrea B. Carroll, Reviving Proxy Marriage, 76 BROOK. L. REV. 455, 456 (2011) (listing Alabama, Colorado, District of Columbia, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, and Utah as the 12 jurisdictions that currently recognize common law marriage). See COLO. REV. STAT. ANN. [section] 14-2-109.5 (West 2005 & Supp. 2010); MONT. CODE ANN. [section] 40-1-403 (2009); N.H. REV. STAT. ANN. [section] 457.39 (LexisNexis 2007 & Supp. 2010); S.C. CODE ANN. [section] 20-1-360 (1976 & Supp. 2010); TEX. FAM. CODE ANN. [section] 2.401 (West 2006 & Supp. 2010); UTAH CODE ANN. [section] 30-1-4.5 (1998 & Supp. 2010); Hoage v. Murch Bros. Constr. Co., 50 F.2d 983, 985-86 (D.C. Cir. 1931); Wall v. Williams, 11 Ala. 826 (1847); Gammelgaard v. Gammelgaard, 77 N.W.2d 479 (Iowa 1956); Smith v. Smith, 165 P.2d 593 (Kan. 1946).

(95.) Carroll, supra note 94, at 456.

(96.) Sonya C. Garza, Common Law Marriage. A Proposal for the Revival of a Dying Doctrine, 40 NEW ENG. L. REV. 541,545 (2006).

(97.) Cynthia Grant Bowman, A Feminist Proposal to Bring Back Common Law Marriage, 75 OR. L. REV. 709, 758 (1996); Spradlin v. U.S., 262 F.Supp. 502 (D. Mont. 1967); Garza, supra note 96, at 545.

(98.) Cynthia Grant Bowman, A Feminist Proposal to Bring Back Common Law Marriage, 75 OR. L. REV. 709, 758 (1996).

(99.) Spradlin v. U.S., 262 F. Supp. 502 (D. Mont. 1967).

(100.) N.H. REV. STA3. ANN. [section] 457:39 (LexisNexis 2007 & Supp. 2010).

(101.) Garza, supra note 96, at 545.

(102.) Bowman, supra note 97, at 715-16.

(103.) Id. at 712-13.

(104.) Id.

(105.) Flores v. Flores, 847 S.W.2d 648,650 (Tex. App. 1993).

(106.) Id. at 713.

(107.) Bowman, supra note 97 at 713.

(108.) Garza, supra note 96, at 546.

(109.) Bowman, supra note 97, at 714.

(110.) Ellen Kandoian, Cohabitation, Common Law Marriage, and the Possibility of a Shared Moral Life, 75 GEO. L.J. 1829, 1842-43 (1987).

(111.) In re Svendsen's Estate, 158 N.W. 410, 413 (S.D. 1916).

(112.) S.D.C.L. [section] 102(1918); S.D.C.L. [section] 14.0101 (1939).

(113.) 1959 S.D. Sess. Laws 71.

(114.) S.D.C.L. [section] 25-1-38 (2004 & Supp. 2011).

(115.) S.D.C.L. [section] 25-1-29 (2004).

(116.) Carlos R. Soltero & Amy Clark-Meachum, The Common Law of Mexican Law in Texas Courts, 29 HOUS. J. INT'L L. 119, 151-52 (2003).

(117.) Rosales v. Battle, 7 Cal. Rptr.3d 13, 17 (Cal. Ct. App. 2003).

(118.) Nevarez v. Bailon, 287 S.W.2d 521,522-23 (Tex. Civ. App. 1956).

(119.) Rosales, 7 Cal. Rptr.3d at 17.

(120.) Compilacion Legislativa del Estado de Nuevo Leon, Book I of Persons, Title V of Matrimony, Ch. 11 of Concubinage, Art 291, Pg 50.

(121.) Id.

(122.) Nevarez, 287 S.W.2d at 523.

(123.) Rosales, 7 Cal. Rptr.3d at 17.

(124.) Id. at 18 (stating that a surviving female concubine may inherit under Mexican intestacy laws, she cannot inherit under California's laws); Nevarez, 287 S.W.2d at 523 (stating that because the concubinage is not a valid marriage in the state of Chihuahua, Mexico, it cannot be declared a valid marriage in Texas).

(125.) Harrington, supra note 1, at 331.

(126.) E. Gary Spitko, The Expressive Function of Succession Law and the Merits of Non-Marital Inclusion, 41 ARIZ. L. REV. 1063, 1070 (1999).

(127.) Marissa J. Holob, Respecting Commitment: A Proposal to Prevent Legal Barriers From Obstructing the Effectuation of Intestate Goals', 85 CORNELL L. REV. 1492, 1498 (2000).

(128.) Id.

(129.) Unif. Probate Code [section] 2-101(a) (2008).

(130.) S.D.C.L. [section] 29A-2-101 (2004 & Supp. 2011).

(131.) S.D.C.L. [section] 29A-2-102(1) (2004).

(132.) Spitko, supra note 126, at 1065.

(133.) S.D.C.L. [section] 29A-2-102(2) (2004).

(134.) Holob, supra note 127, at 1501.

(135.) "Donative Intent," BLACK'S LAW DICTIONARY (9th ed. 2009).

(136.) King v. Riffee, 309 S.E.2d 85, 87-88 (W. Va. 1983).

(137.) Rebecca L. Melton, Legal Rights" of Unmarried Heterosexual and Homosexual Couples" and Evolving Definitions of "Family, "29 J. FAN. L. 497 (1990/1991).

(138.) Unif. Probate Code art. II, Refs and Annos, (2011).

(139.) Harrington, supra note 1, at 331.

(140.) Seidman, supra note 13, at 223.

(141.) Harrington, supra note 1, at 339. These states include Vermont, Hawaii, California, and New Hampshire. Id.

(142.) Id. at 340.

(143.) N.H. REV. STAT. ANN. [section] 457:39 (LexisNexis 2007 & Supp. 2010).

(144.) Id.

(145.) Harrington, supra note 1, at 339.

(146.) Id.

(147.) VT. STAY. ANN. tit. 15 [section] 1204 (2002 & Supp. 2010).

(148.) 1 U.S.C.A. [section] 7 (2011). "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or wife." Id. The statute was enacted in 1996. Id.

(149.) HAW. REV. STAY. [section] 572C-2 (LexisNexis 2005).

(150.) Harrington, supra note l, at 339 (Vermont, Hawaii, California, and New Hampshire).

(151.) Seidman, supra note 13, at 231.

(152.) CAL. PROB. CODE [section] 6401 (West 2003).

(153.) Seidman, supra note 13, at 236.

(154.) See notes 155-57.

(155.) Id.

(156.) Braschi v. Stahl Associates Co., 543 N.E.2d 49, 55 (N.Y. 1989).

(157.) Id.

(158.) Connell v. Francisco, 898 P.2d 831,834 (Wash. 1995); In Re Black, No. 64903-5-1, 2010 WL 2994049 (D. Wash. Ct. App. Aug. 02, 2010); Olver v. Fowler, 168 P.3d 348,355 (Wash. 2007); Wilbur v. DeLapp, 850 P.2d 1151, 1153 (Or. Ct. App. 1993).

(159.) Connell, 898 P.2d at 834.

(160.) Id.

(161.) Id.

(162.) Id.

(163.) In Re Black, No. 64903-5-I, 2010 WL 2994049 (D. Wash. Ct. App. Aug. 02, 2010).

(164.) Id. at *3.

(165.) Olver v. Fowler, 168 P.3d 348, 355 (Wash. 2007).

(166.) Seidman, supra note 13, at 237.

(167.) Wilbur v. DeLapp, 850 P.2d 1151, 1153 (Or. Ct. App. 1993).

(168.) Id.

(169.) Id.

(170.) Harrington, supra note 1, at 323-27.

(171.) Id. at 327.

(172.) N.H. REV. STAT. ANN. [section] 457:39 (Lexis-Nexis 2007 & Supp. 2010).

(173.) S.D.C.L. [section] 29A-2-102 (2004).

(174.) Seidman, supra note 13, at 227; Harrington, supra note 1, at 351.

(175.) See Braschi v. Stahl Associates Co., 543 N.E.2d 49, 55 (N.Y. 1989); see also Connell v. Francisco, 898 P.2d 831,834 (Wash. 1995).

(176.) Harrington, supra note 1, at 350.

(177.) Seidman, supra note 13, at 234.

(178.) See In Re Estate of Duval, 2010 SD 2, 777 N.W.2d 380.

(179.) Duval, 2010 SD 2, [paragraph][paragraph] 2-3,777 N.W.2d at 381.

(180.) Id. [paragraph] 4.

(181.) Appellee's Brief, supra note 25, at 4-8.

(182.) Id. at 4-6.

(183.) Id at 6.

(184.) Harrington, supra note 1, at 351.

(185.) Appellee's Brief, supra note 25, at 6-7.

(186.) Id. at 6.

(187.) Id. at 8.

(188.) Id.

(189.) Id.

(190.) Id. at 6-7.

(191.) Id. at 5, 20.

(192.) S.D.C.L. [section] 29A-2-102 (2011).

(193.) Melton, supra note 137, at 497.

(194.) Harrington, supra note 1, at 349.

(195.) S.D.C.L. [section] 29A-2-102 (201l).

(196.) Seidman, supra note 13, at 234.

(197.) Baker v. Mitchell, Pennsylvania Threshermen & Farmers' Mut. Casualty Ins. Co., Intervener, 17 A.2d 738 (Pa. Super. Ct. 1941).

(198.) Harrington, supra note 1, at 349-50.

(199.) Melton, supra note 137, at 497.

(200.) Harrington, supra note 1,349-50.

(201.) Id. at 350.

(202.) Id. at 350-51.

(203.) Id.

(204.) Holob, supra note 127, at 1511.

(205.) Id. at 1511-12.

(206.) In Re Estate of Duval, 2010 SD 2, [paragraph] 20, 777 N.W.2d 380, 386; see supra Part III.F

(207.) Harrington, supra note 1, at 352.

(208.) Spitko, supra note 126, at 1066.

(209.) King v. Riffee, 309 S.E.2d 85, 87-88 (W. Va. 1983).

(210.) Spitko, supra note 126, at 1069.

(211.) Id. at 1088.

(212.) Id.

(213.) Id.

(214.) Id.

(215.) In Re Estate of Duval, 2010 SD 2, [paragraph][paragraph] 2-3, 777 N.W.2d 380, 381; N.H. REV. STAT. ANN. [section] 457:39 (LexisNexis 2007 & Supp. 2010).

(216.) Appellee's Brief, supra note 25, at 5-6.

(217.) Id. at 5-7.

(218.) Duval, 2010 SD 2, [paragraph] 17, 777 N.W. 2d at 381.

(219.) Appellee's Brief, supra note 25, at 8.

(220.) Spitko, supra note 126, at 1088.

(221.) Harrington, supra note 1, at 352.

(222.) Id.

(223.) Id.

(224.) Id.

(225.) U.S. Census Bureau, South Dakota Household and Group Quarters Population, 2010 CENSUS, http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=DEC_10_SF1_QTP1 2&prodType=able.

(226.) Holob, supra note 127, at 1498.

(227.) Harrington, supra note 1, at 323.

(228.) U.S. Census Bureau, South Dakota Household and Group Quarters Population, 2010 CENSUS, http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=DEC_10_SFI_QTP1 2&prodType=table.

(229.) J.C. Barden, Marital Rape. Drive for Tougher Laws is Pressed, The New York Times (May 13, 1987), http://www.nytimes.com/1987/O5/13/us/marital-rape-drive-for- tougher'laws'ispressed.html?pagewanted=all&src=pm.

BRITTANY H. HATTING, First and foremost, thank you to the South Dakota Law Review for this incredible opportunity. I would also like to thank my editors, Rebecca Lamprecht, Raleigh Hansman, and Kasey Wassenaar, and Professor Gingiss for their help and guidance over the past months. Thank you to my husband Zachary, my family, and friends for their support and love, and a special thank you to the author's "boys," for knowing that a wiggly tail can make a day of frustration melt away.
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