Loughmiller's Estate, Matter of, 52359

Decision Date10 June 1981
Docket NumberNo. 52359,52359
PartiesIn the Matter of the ESTATE OF Owen C. LOUGHMILLER, Deceased.
CourtKansas Supreme Court

Syllabus by the Court

1. Under the authority of K.S.A. 23-115, Kansas recognizes a marriage between first cousins where the marriage is valid in the country or state where celebrated.

2. Under the facts and circumstances of this case, a wife with prior business and financial experience knowingly and voluntarily entered into a separation and property settlement agreement in contemplation of divorce which divided the couple's property between the two and barred each party from inheriting from the other's estate. Where the contract was executed and divorce proceedings were interrupted by the death of the husband, the agreement is valid to bar the wife from inheriting from the estate of her husband under the laws of intestate succession, even though it was not approved by a trial court pursuant to K.S.A. 60-1610(e).

3. In a civil case the record is examined and it is held : The trial court did not err in holding the marriage valid; the trial court erred in not finding the separation agreement and property settlement valid.

Richard L. Helms, of Jones & Dearth, Chartered, Parsons, argued the cause and was on the brief for appellant.

E. Richard Brewster, of Gehrt & Roberts, Chartered, Topeka, argued the cause and was on the brief for appellee.

HERD, Justice:

Sam L. Loughmiller, Jr., executor of the estate of Owen C. Loughmiller, deceased, appeals from a trial court decision holding Peggy L. Loughmiller was legally married to the deceased and that the property settlement agreement between Peggy and Owen was not a valid consent to the will and failed as a post-nuptial agreement.

The facts are undisputed. Owen C. Loughmiller and Peggy L. Loughmiller were first cousins and were married August 30, 1973, in Lamar, Colorado, in a Methodist church by a Methodist minister, in accordance with the laws of Colorado. At the time of the marriage, Owen was a resident of Kansas and Peggy was a resident of Oklahoma. The couple established their home in Parsons, Kansas, after the marriage. The Loughmillers' later experienced marital difficulties and in contemplation of divorce, they entered into a separation and property settlement agreement on January 25, 1979. On March 13, 1979, Owen executed a will which omitted any mention of Peggy. On April 18, 1979, he filed a petition for divorce from Peggy. The divorce action was interrupted by Owen's death on May 10, 1979.

Loughmiller's will was admitted to probate in Labette County on June 12, 1979, and on November 17, 1979, Peggy filed an election to take one-half the decedent's estate by intestate succession as surviving spouse. The court held an evidentiary hearing and found although marriages between first cousins are void if contracted in Kansas (K.S.A. 23-102), such marriages validly contracted outside Kansas must be held valid in Kansas pursuant to K.S.A. 23-115 where there is no evidence such marriages are odious to the public policy of Kansas. The court also held the separation agreement was invalid as to consent to the will because it was not executed pursuant to K.S.A. 59-602. In addition, the court held since the parties had not been divorced and a trial court had not approved the agreement, it failed as a post-nuptial separation and property settlement agreement. Therefore, as the surviving widow of Owen Loughmiller, Peggy Loughmiller's request to take according to the laws of intestate succession was upheld. This appeal followed.

Appellant initially questions the legality of the Loughmillers' marriage. Was the first cousin marriage valid and legally recognizable in Kansas? The statutes which must be reconciled are K.S.A. 23-102 and 23-115, which provide:


"All marriages between parents and children, including grandparents and grandchildren of any degree, between brothers and sisters of the one half as well as the whole blood, and between uncles and nieces, aunts and nephews, and first cousins, are declared to be incestuous and absolutely void. This section shall extend to illegitimate as well as legitimate children and relations."


"All marriages contracted without this state, which would be valid by the laws of the country in which the same were contracted, shall be valid in all courts and places in this state."

Obviously, if the Loughmillers' marriage had been celebrated in Kansas, it would be void, pursuant to K.S.A. 23-102.

The general rule with regard to the recognition of marriages solemnized elsewhere is that if the marriage is valid where contracted, it is valid everywhere. The exceptions to that rule are (1) polygamous marriages and marriages incestuous according to the principles of Christendom and (2) marriages prohibited by the forum state for public policy reasons. Annot., 117 A.L.R. 186.

There are three reasons for prohibiting incestuous marriages: (1) they are forbidden by ecclesiastical law (see Old Testament, Leviticus 18: 6-18); (2) inbreeding is thought to cause a weakening of the racial and physical quality of the population according to the science of eugenics; (3) they prevent the sociological consequences of competition for sexual companionship among family members. 52 Am.Jur.2d, Marriages § 62, p. 915.

First cousin marriages were not prohibited at common law (52 Am.Jur.2d, Marriages § 63, p. 916) and such marriages were not Biblically prohibited. Moreover, there are opposing views regarding the effects of inbreeding from first-cousin marriages. See Storke, The Incestuous Marriage Relic of the Past, 36 U. of Colo.L.Rev. 473, 477 (1964); Moore, A Defense of First-Cousin Marriage, 10 Cleveland Marshall L.Rev. 136 (1961); Foster, Marriage: A "Basic Civil Right of Man," 37 Fordham L.Rev. 51, 62 (1968). See generally, Nagan, Conflict of Laws and Proximate Relations: A Policy-Science Perspective, 8 Rutgers Camden L.J. 416, 442-443 (1977); Drinan, The Loving Decision and the Freedom to Marry, 29 Ohio St.L.J. 358 (1968).

Our research reveals we are without direct precedent in Kansas on this question. Before tackling the few Kansas cases which touch upon this issue, we will detail a few decisions from other jurisdictions to illustrate reasons advanced by forum states in considering whether to uphold or nullify a marriage between first cousins.

Cases following the general rule in first cousin marriages are Mazzolini v. Mazzolini, 168 Ohio St. 357, 155 N.E.2d 206 (1958); In re Miller's Estate, 239 Mich. 455, 214 N.W. 428 (1927); and Garcia v. Garcia, 25 S.D. 645, 127 N.W. 586 (1910). In Mazzolini, the court followed the general rule because the Ohio statute merely prohibited such marriages; it did not expressly state such a marriage would be void. In Miller, and in Garcia, the courts noted the lack of legislative intent to void marriages valid in other states but void in the forum state. The court in Garcia also noted the nullification of marriages solemnized in other forums would have disastrous results to the rights of inheritance and the legitimization of children. Finally, the court in Garcia noted first cousin marriages were not incestuous according to Biblical law.

The following cases followed the exception to the general rule in considering first cousin marriages and found such marriages violate strong public policy. In re Mortenson's Estate, 83 Ariz. 87, 316 P.2d 1106 (1957); Meisenhelder v. Chicago & N. W. Ry. Co., 170 Minn. 317, 213 N.W. 32 (1927); Johnson v. Johnson, 57 Wash. 89, 106 P. 500 (1910). In the Mortenson case, the Arizona statute stated marriages valid where solemnized would be valid in Arizona. However, the statute went on to expressly prohibit an Arizona domiciliary from evading Arizona law by leaving the state to enter into a marriage that would not be valid if celebrated in Arizona where the parties intended to return to Arizona to live. The court held the statute prohibiting evasion of Arizona laws showed a marriage solemnized in another state under the stated conditions would have the same effect as if it had been solemnized in Arizona. In Meisenhelder, first cousins who were residents of Illinois were married in Kentucky. The husband was killed in Illinois in an industrial accident and the widow attempted to recover for his death under the Employer's Liability Act. The court found the marriage null and void pursuant to the Uniform Marriage Evasion Act which provided if residents of Illinois who intended to reside in Illinois went to another state and contracted a marriage prohibited by Illinois law, the marriage would be null and void for all purposes. In the Johnson case, the Washington statute declared such marriages incestuous and entering into them was punishable by criminal penalties. The court interpreted those statutes to imply that evasion of Washington law was prohibited although there was no statute expressly prohibiting evasion of Washington law. The court made a passing reference to the repugnance of such marriages by noting that the couple's only child was deaf and mute.

We refer the reader to Annot., 117 A.L.R. 186 for additional cases dealing with recognition of a foreign marriage where such marriage is questioned by the forum state.

In Kansas, the case of Westerman v. Westerman, 121 Kan. 501, 247 P. 863 (1926), contains a discussion of K.S.A. 23-115. In that case, Bertha Westerman, formerly married to William Rice, was granted a divorce from Rice in Kansas. The divorce statute in effect at that time stated both parties to the divorce were prohibited from remarrying within six months from the date of the divorce decree. Nine days after the decree was entered, Bertha was married in Missouri to Henry Westerman. The parties thereafter lived in Kansas. A few months later, Bertha filed a petition in a Kansas court to annul the marriage. A district court found the marriage null and void. Henry Westerman died two years later. In 1925,...

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