Disclaimer: This article is for educational purposes only and does not constitute legal advice. Always consult a qualified attorney for guidance on your specific situation.
Detailed Answer
Under Hawaii’s Probate Code, a surviving spouse may petition the probate court for a family allowance—an amount set aside to support the spouse and minor children during estate administration. To qualify, the petitioner must prove a valid marriage to the decedent. The primary proof is a certified marriage certificate issued by the Department of Health, Vital Records.
1. Requirement to Prove Marriage
Hawaii Revised Statutes (HRS) §560-2-608 authorizes a family allowance for a surviving spouse. The probate court requires proof of marriage as part of the petition. A certified marriage certificate (HRS §560-1-201’s definition of public record) is the usual method to establish that legal relationship.
2. Consequences of an Incomplete or Missing Certificate
If your marriage certificate is incomplete—missing signatures, incorrect names or dates—or you cannot locate it, the probate court may:
- Delay ruling on your allowance petition.
- Require additional documentary or testimonial evidence.
- Set a hearing to resolve the doubt over marital status.
Without clear proof, creditors or other heirs might contest the allowance, arguing you lack standing as a spouse.
3. Alternative Evidence Under Hawaii Law
HRS §560-1-201 permits the court to accept secondary evidence when a public record is unavailable or defective. You can submit:
- An affidavit from the officiant or clergy member who performed the marriage.
- Sworn statements from two or more attendees who witnessed the ceremony.
- A certified copy of a court order correcting or reissuing the marriage certificate.
- Joint tax returns, insurance policies or property deeds listing you as spouse.
File a motion asking the court to admit these materials as substitute proof. Provide clear explanations for why the original certificate is incomplete or missing.
4. Impact on the Allowance Claim
Even with a missing certificate, you remain entitled to seek a family allowance. However, expect procedural delays until the court accepts your alternate proof. Once admitted, the court will calculate and grant the statutory allowance, typically ranging up to $20,000, to cover living expenses during estate settlement.
Key statutes:
- HRS §560-2-608 (Family allowance).
- HRS §560-1-201 (Definitions; admissibility of public records).
Helpful Hints
- Request a certified copy of your marriage certificate early from the Hawaii Vital Records.
- If the original is defective, file for a court-ordered correction or reissuance.
- Gather affidavits from the officiant and ceremony witnesses.
- Compile joint financial documents showing spousal relationship.
- Consider hiring probate counsel to navigate evidentiary hearings efficiently.