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Volume 1 - Opinions of Counsel SBEA No. 111

Opinions of Counsel index

Aged exemption (ownership period) (common law marriage) - Real Property Tax Law, § 467:

Where property is devised by a woman to a man with whom she resided for thirty-five years, the period of ownership by both parties may be combined for purposes of computing the five-year ownership requirement, only if it can be established by the devisee that he is the surviving spouse of a common law marriage contracted prior to April 29, 1933.

We have received an inquiry concerning the length of ownership requirement of section 467 of the Real Property Tax Law which authorizes a partial exemption on real property owned by certain persons sixty-five years of age or over.

In the factual situation presented, a woman who died in November, 1971, had owned a home since 1945, which, under her will dated July 21, 1969, was devised to a man with whom she had resided for thirty-five years. Apparently there was no ceremonial marriage. It would appear that the man (the devisee) has applied for the exemption authorized by section 467. Our opinion is requested as to whether the period of ownership of the property by both parties may be combined for purposes of computing the five-year period of ownership required by section 467.

Subdivision 3(b) of section 467 of the Real Property Tax Law requires that title to property, for which exemption is sought under that section, must have been vested in an otherwise qualified applicant for at least sixty consecutive months prior to the date of making application for exemption. In computing this five-year period of ownership, the time of ownership of the property by a surviving husband (or wife) may be combined with the time of prior ownership of the same property by a deceased spouse where the surviving spouse acquires sole title by virtue of devise by or descent from the deceased spouse. Therefore, in this situation, whether the time of ownership of the property by the testator may be combined with the time of ownership of the same property by the devisee for purposes of section 467 would depend upon whether or not the devisee is a surviving spouse of a valid common-law marriage.

Common-law marriages were abolished in New York State on April 29, 1933 as the result of an amendment to section 11 of the Domestic Relations Law (L. 1933, ch. 606). However, courts have held that common-law marriages contracted prior to April 29, 1933, are as valid as a ceremonial marriage provided the parties were competent to marry (see, People v. Massaro, 288 N.Y. 211, 42 N.E. 2d 491).

It is noted that the will is dated July 21, 1969, and recites that the parties have resided as man and wife for the past thirty-five years (from 1934?) which relationship apparently began subsequent to the date that common-law marriages were abolished in this State. Assuming that to be the case, the time of ownership of the property by the testator may not be combined with the time of ownership by the devisee for purposes of section 467 of the Real Property Tax Law. However, if the applicant can establish that he is a surviving spouse of a valid common-law marriage contracted prior to April 29, 1933, then the period of ownership by both parties may be combined for purposes of computing the required five-year period of ownership under section 467.

April 10, 1972

NOTE: Superseded by Opinion 12-35.

Updated: