Disclaimer: This article is for educational purposes only and does not constitute legal advice. Please consult a qualified attorney for guidance on your specific situation.
Detailed Answer
Under Alabama law, a surviving spouse may claim a statutory allowance from the decedent’s estate to cover basic living expenses during probate. See Ala. Code § 43-8-91. To qualify, the claimant must prove the legal marriage. Normally, a certified marriage certificate is the primary proof.
If the original certificate is incomplete or missing, the probate court will look for secondary evidence. Courts accept alternative documentation that reliably establishes the marriage date and parties’ identities. Common forms of alternative evidence include:
- Affidavits from the officiant who performed the ceremony or from credible witnesses (e.g., family members, friends).
- Church or religious institution records confirming the ceremony.
- County clerk’s marriage license records if the certificate was returned to the issuing office.
- Joint federal or state tax returns indicating marital status.
- Insurance policies listing each spouse as beneficiary or insured.
- Bank or mortgage documents showing joint tenancy as “husband and wife.”
When presenting secondary evidence, the surviving spouse should file a sworn affidavit explaining why the original certificate is unavailable. The probate judge has discretion to admit such evidence if it is clear, credible, and consistent. In rare cases, the court may order the county probate office or the state vital records office to reissue a certified copy under Ala. Admin. Code r. 420-5-1.
Without any proof of marriage, the court cannot recognize the claimant as a surviving spouse. This would bar entitlement to the statutory allowance defined by § 43-8-91. Therefore, gathering multiple forms of corroborating documentation is key when the primary certificate is missing or incomplete.
Helpful Hints
- Act promptly: File your allowance claim within the probate deadlines under Ala. Code § 43-8-92.
- Collect contemporaneous records: Look for records created around the time of marriage (e.g., church bulletins, newspaper announcements).
- Secure affidavits early: Witness memories fade over time; obtain written statements while details remain fresh.
- Contact vital records: Request a duplicate certificate from the county where you applied for your license or from Alabama’s Department of Public Health.
- Consult counsel: An estate or probate attorney can advise on the best mix of evidence for your court petition.