Hargrave v. Duval-Couetil (In re Estate of Duval)
777 N.W.2d 380 (South Dakota 2010)


  • Duval and Hargrave lived together for 14 years but never formally married.
  • They would spend their summers in South Dakota and winters in Mexico.
    • They also spent some time in Oklahoma.
  • When Duval died in 2008, an issue arose as to whether Hargrave was his common law wife for inheritance purposes.


  • The circuit court ultimately concluded that Hargrave had established that she and Duval met the requirements for a common-law marriage under the laws of both Mexico and Oklahoma.
    • Duval referred to Hargrave as his wife on an income tax return form;
    • Designated her as the beneficiary on his VA health benefits application; and
    • Executed a general power of attorney in her favor.
    • Duval’s two daughters appealed.

(1) Whether a common-law marriage validly entered into in another jurisdiction is recognized in South Dakota.
(2) If so, whether Duval and Hargrave would be considered validly married under the laws of either Mexico or Oklahoma.

(1) Yes.
(2) No.
Case reversed.

(1) A South Dakota statute (SDCL 25-1-38) provided that “[a]ny marriage contracted outside the jurisdiction of this state … which is valid by the laws of the jurisdiction in which such marriage was contracted, is valid in this state.”

  • Thus, the first issue was easily disposed of.

(2) The court then concluded that Duval and Hargrave were not validly married under either Mexico or Oklahoma law.

  • Mexico: “A Mexican concubinage is not the legal equivalent of a common-law marriage in the United States.”
  • Oklahoma: Oklahoma requires:
    • (1) A mutual agreement or declaration of intent to marry, (2) consummation by cohabitation, and (3) publicly holding themselves out as husband and wife.
      • Additionally, the party alleging a common-law marriage must satisfy these elements by clear and convincing evidence.
    • Here, Hargrave testified that she and Duval entered into an “implicit agreement” to be married while they were in Oklahoma….When asked on cross-examination if there was ever a point when she and Duval made an agreement to be married, Hargrave stated in the negative, and said the couple just decided “well, I guess we are [married].”
    • An implicit agreement wasn’t enough, thus she failed to satisfy the first element.

Note: Today, only nine or so states recognize common law marriages.