Opinion
November 23, 1970
Appeal from a decree of the Surrogate's Court, entered November 17, 1969, which determined: That no common-law marriage was entered into between appellant and the deceased Amandus Watts; that appellant's petition praying that she be granted letters of administration be dismissed; and that appellant's answer and objections to the petition of one Cotignola praying for the probate of a paper writing dated October 10, 1953 be dismissed. Appellant contends that a commonlaw marriage was contracted between her and decedent in Florida in January of 1955. Although a common-law marriage cannot be entered into in this State, if such a marriage was validly entered into in Florida, it should be recognized as valid in New York. ( Shea v. Shea, 294 N.Y. 909.) The validity of the common-law marriage in Florida depends on the legal sufficiency, according to Florida law, of the record developed in the Surrogate's Court. ( Matter of Farber v. U.S. Trucking Corp., 26 N.Y.2d 44, 47.) Under the law of Florida appellant is required to establish only a prima facie case; once that is established, the burden shifts to the one asserting the illegality of the marriage. ( Matter of Beacher, 177 So.2d 838 [Fla.]; Matter of Alcala, 188 So.2d 903, 907 [Fla.].) In our opinion appellant established a prima facie case. (See Le Blanc v. Yawn, 99 Fla. 328.) Respondents' evidence was not sufficient to rebut the strong presumption of marriage. ( Matter of Alcala, supra; Matter of Farber v. U.S. Trucking Corp., supra, p. 55.) We conclude that a common-law marriage existed between appellant and decedent. Decree reversed, on the law and the facts, and matter remanded for further proceedings not inconsistent herewith, with costs to appellant payable from the estate. Herlihy, P.J., Reynolds, Greenblott, Cooke and Sweeney, JJ., concur.