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Volume 6 - Opinions of Counsel SBEA No. 93

Opinions of Counsel index

Veterans exemption (member of exempt class) (common-law spouse or surviving spouse) - Real Property Tax Law, § 458:

Where a valid common-law marriage can be proven, the common-law spouse or unremarried surviving spouse of a veteran can receive a veterans exemption (Real Property Tax Law, § 458).

Our opinion has been requested as to whether a veterans exemption (Real Property Tax Law, § 458) may continue to be granted where a common-law wife survives her husband who had been receiving the exemption. The deed states that the applicant and the veteran took title to the property as tenants by the entirety. We are also asked if the assessor can demand proof that the woman was legally married to the veteran.

Among the requirements of section 458 is that title to the property for which exemption is sought must be in the veteran or some other person designated in the statute, such as the “spouse” or “unremarried surviving spouse” of the veteran. The woman has not remarried, so the spousal relationship which existed between the parties is the issue.

The word “spouse” is not defined in the Real Property Tax Law, but as a general rule, words in statutes are to be given their ordinary meaning (Polhemus v. Fitchburg R. Co., 123 N.Y.502, 26 N.E.31). “Spouse” has been held to mean one’s husband or wife, and “surviving spouse” is the one of a married couple who outlives the other (In re Atwood’s Trust, 262 Minn. 193, 114 N.W.2d 284; see also, United States Fire Insurance Co. v. Cruz, 35 Misc.2d 272, 230 N.Y.S.2d 779, aff’d, 239 N.Y.S.2d 531).

In this case, it is alleged that the applicant was the common-law wife of the veteran. It has been the public policy of the State to withhold recognition of common-law marriage (People v. Allen, 27 N.Y.2d 108, 261 N.E.2d 637, 313 N.Y.S.2d 719). Common-law marriages were valid in New York prior to January 1,1902, when they were expressly prohibited (L.1901, c.339). In 1907, that prohibition was repealed (L.1907, c.742) and common-law marriages were again recognized until April 29, 1933, when chapter 606 of the Laws of 1933 took effect. However, common-law marriages entered into in New York before the effective date of the 1933 law (except those entered into between January 1, 1902 and January 1, 1908) are recognized as valid (In re Benjamin’s Estate, 34 N.Y.2d 27, 311 N.E.2d 495, 355 N.Y.S.2d 356; In re Haffner’s Estate, 254 N.Y. 238, 172 N.E. 483). In addition. New York will recognize a common-law marriage if it was validly contracted under the laws of another state (In re Watts’ Estate, 31 N.Y.2d 491, 294 N.E.2d 195, 341 N.Y.S.2d 609; Merritt v. Chevrolet Tonawanda Division, General Motors Corp., 50 A.D.2d 1018, 377 N.Y.S.2d 663).

Accordingly, if a common-law marriage is purported, the first question in determining its validity is when and where it was entered into. The burden of proving a common-law marriage is on the one claiming its existence. Documentary evidence, cohabitation and reputation as husband and wife, declarations, conduct, etc. are considered probative in proving the contention (Gall v. Gall, 114 N.Y. 109, 21 N.E. 106; see also, In re Mandels Estate, 108 N.Y.S.2d 922, aff’d, 278 App. Div. 682, 103 N.Y.S.2d 674).

If it can be proven that a valid common-law marriage existed, than a valid tenancy by the entirely also existed (In re Baffa’s Estates, 139 Misc. 298, 248 N.Y.S. 332); the applicant is now sole owner of the property, and may continue to receive the veterans exemption so long as she remains unremarried (see e.g., 1 Op.Counsel SBEA No. 63, 3 Op.Counsel SBEA No. 87). If it cannot be shown that a valid common-law marriage existed, the tenancy by entirety fails and a joint tenancy is deemed to have existed (Estates, Powers and Trusts Law, § 6-2.2(c)). No exemption could be granted, however, since the applicant would not then be the surviving “spouse” of a veteran.

In our opinion, there is no question but that the assessor can demand proof of spousal relationship from an applicant claiming to be the spouse or unremarried surviving spouse of a veteran. We have previously stated that “(a] town assessor may at any time review veterans’ exemption applications to determine whether the owner of the property is one of the persons described in the statute as qualifying for the exemption . . .” (2 Op.Counsel SBEA No. 20). This could consist of the presentation of a valid marriage license (Domestic Relations Law, § 13), or as noted above, proof that a valid common-law marriage existed.

January 23, 1980