Cases in Context – No. 4 - 2025: Gallegos v. Wilkerson, 1968-NMSC-156
Supreme Court Case Number: 8605
Parties:
Counsel:
Justices:
Holding: The New Mexico Supreme Court affirmed the trial court’s decision that, of two women both claiming to have been the wife of Amarante Gallegos, Martha Wilkerson was his surviving spouse. Gallegos v. Wilkerson, 1968-NMSC-156, ¶¶ 1, 14.
Case Summary:
Background
At the time of his death in 1964, Amarante Gallegos, also known as Bert Holmes (“the decedent”), was living in New Mexico with Martha Wilkerson, also known as Martha Holmes (“Martha”). Id. ¶ 6. According to Martha, she and the decedent had been married since their common law marriage[1] in Texas in 1937. Id. ¶ 11. Another woman, Rosana Gallegos (“Rosana”), also claimed she was the decedent’s wife. Id. ¶ 1. According to Rosana, she and the decedent had been married since their common law marriage in Colorado in 1922. Id. ¶ 3. With both women making the same claim, a New Mexico trial court was asked to decide which one was the decedent’s surviving spouse, “entitled to administer [his] estate.” Id. ¶¶ 1-2. After considering the evidence, the trial court found the following facts. Id. ¶¶ 4-6.
Sometime after she was born in 1905, Rosana “met [the] decedent in San Luis, Colorado.” Id. ¶ 4. Rosana’s mother “would not consent” to a civil marriage[2] between Rosana and the decedent. Id. Instead, the decedent gave Rosana “a wedding ring inscribed with . . . March 27, 1922” and the couple “exchanged vows and lived together in . . . Colorado, holding themselves out as husband and wife.” Id.
On June 16, 1924, the decedent married another woman, Ursilita Bedan (“Ursilita”), in Colorado. Id. ¶ 6. Around the same time, Rosana and the decedent moved to New Mexico together. Id. ¶ 4. Three months later, Rosana gave birth to the couple’s first child. Id. Rosana and the decedent had two more children, with the third being born in Las Cruces in 1930. Id. In 1935, Rosana “took the children and moved to Albuquerque” because, according to her testimony, the “decedent [had been] running around with Martha.” Id. ¶ 5.
On March 22, 1937, Ursilita and the decedent were divorced. Id. ¶ 6. That November, a common law marriage took place between Martha and the decedent in El Paso, Texas. Id. ¶ 2. In 1942, “Rosana and [the] decedent went through a civil marriage” in New Mexico. Id. ¶ 6. Despite this, the decedent “continued to live with Martha until his death in 1964.” Id.
Although couples in New Mexico cannot marry through common law marriage, New Mexico courts will recognize common law marriages that are valid in the states where they took place. Id. ¶ 7. While the trial court found that a valid common law marriage between Martha and the decedent had taken place, the trial court made no finding about whether a valid common law marriage had taken place between Rosana and the decedent. Id. ¶¶ 2, 8. Consequently, Rosana appealed the case to the New Mexico Supreme Court. Id. ¶ 3.
Discussion
In its Opinion, the Supreme Court first discussed the alleged common law marriage between Rosana and the decedent. Id. ¶ 7. According to the Supreme Court, Rosana had the burden of proof to convince the trial court that she and the decedent had a valid common law marriage in Colorado. Id. ¶ 8. The trial court’s failure to make a finding about whether such a marriage did or did not take place had the same effect as finding that it did not. Id. The Supreme Court acknowledged that there “was probably sufficient [evidence] to support a finding of a valid marriage,” but decided that the trial court did not make a mistake when it found otherwise. Id. ¶ 9.
Next, the Supreme Court discussed the common law marriage between Martha and the decedent. Id. ¶ 11. The trial court had found that such a marriage took place and the Supreme Court determined that such a finding was “supported by substantial evidence.” Id. Thus, “[t]he finding . . . should not be disturbed by [the Supreme Court],” though Martha’s proof in the trial court’s record “was not materially more convincing . . . than . . . Rosana’s.” Id.
Finally, the Supreme Court considered Rosana’s argument that “since both Martha and [the decedent] were residents of New Mexico, public policy should intervene to prevent them from avoiding” New Mexico’s “law that a [marriage] ceremony [be] performed by an authorized person.” Id. ¶ 13. The Supreme Court interpreted New Mexico law and found that “[the Supreme Court] should not hold invalid a common law marriage contracted by the[] parties in Texas” just because Martha and the decedent later became residents of New Mexico. Id. The Supreme Court did not interpret the fact that common law marriage is not permitted in New Mexico to mean that “overriding public policy . . . [would] require” the Supreme Court to “hold invalid this marriage, [which was] legal in Texas,” where it took place. Id.
Conclusion
In sum, the alleged common law marriage between Rosana and the decedent in 1922 was not proven. Id. ¶ 14. As decided by the trial court, since the common law marriage between Martha and the decedent was valid, Martha was the decedent’s surviving spouse. Id. With no divorce between Martha and the decedent having taken place, the civil marriage between Rosana and the decedent in 1942 was not effective. Id. ¶¶ 6, 15. The trial court’s judgment was affirmed. Id. ¶ 16.
Sources for Further Reading:
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[1] Common-law marriage: “A marriage that takes legal effect, without license or ceremony, when two people capable of marrying live together as spouses, intend to be married, and hold themselves out to others as a married couple.” Marriage, Black’s Law Dictionary (12th ed. 2024).
[2] Civil marriage: “A wedding ceremony conducted by an official, such as a judge, or by some other authorized person.” Marriage, Black’s Law Dictionary (12th ed. 2024).
This case is focused on who was married to Mr. Gallegos. Born in 1899 in Colorado, he agreed to marry Rosana Gallegos in 1922, but married Ursilita Bedan in 1924. They had one child. In 1924 Amarante and Rosana moved to New Mexico and he changed his name to Bert Holmes. In the 1930 census he was described as married to Bertha and working as a mechanic in a garage. Amarante and Ursilita were divorced March 22, 1937. For reasons not fully explained, Amarante changed his name to Bert Holmes after moving to New Mexico. The 1950 census lists his occupation as Snapper Foreman and married to Martha. He died in 1964.
Martha also claims to be the legitimate wife of Mr. Gallegos. Born 23 Dec 1915, in Shawnee, Oklahoma. In 1937, she and Bert engaged in a common law marriage in Texas. According to her obituary, she and Bert worked on the west coast during WWII. Martha was a welder and later worked at White Sands Missile range. The 1950 census lists her and Bert living together as a married couple in Organ, New Mexico. She married a man named Woolley in 1970. She died April 21st, 2004, in Carlsbad New Mexico.
(Obituary, Martha Woolley, Carlsbad Current-Argus, Apr. 24, 2004.)
According to New Mexico (NMSA 1978, sec. 40-1-1 (2025)):
"Marriage is contemplated by the law as a civil contract, for which the consent of the contracting parties, capable in law of contracting, is essential."
"The essence of the contract of marriage is the consent of the parties, as in the case of any other contract; and, whenever there is present. perfect consent to be husband and wife, the contract of marriage is completed."- Justice Mitchell, Hulett v. Carey (In re Hulett's Estate), 66 Minn. 327, 69 NW 31 (1896)
A marriage “allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons.” (Justice Kennedy, Obergefell v. Hodges, 576 U.S. (2015))
In New Mexico: NMSA 1978, sec 40-1
In New Mexico: NMSA 1978, sec. 40-1-6. Restrictions on marriage of minors.
A. The county clerk shall not issue a marriage license to an unemancipated person sixteen or seventeen years of age, and no person authorized by the laws of this state to solemnize marriages shall knowingly unite in marriage any person sixteen or seventeen years of age, unless the minor first receives the written consent of each of the minor's living parents as shown on the minor's certificate of birth, or the district court has authorized the marriage of such person upon request of a parent or legal guardian of the person for good cause shown, and a certified copy of the judicial authorization is filed with the county clerk.
People who are the same gender
"On May 15, 2008 the California Supreme Court ruled that provisions in the state’s marriage statutes disallowing same-sex marriages violate the California Constitution...The court ruled that the statutory language “limiting the designation of marriage to a union ‘between a man and a woman’ is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples.” (In re Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d 384, 43 Cal. 4th 757 (2008)
"Blood tests required by statutes vary from state to state, but the most commonly required ones are for syphilis, sickle cell anemia, infectious or genetic diseases, rh compatibility, or tuberculosis." (Greenfield, 7)
New Mexico eliminated the requirement for pre-marital blood tests on June 14, 2013.
Poster from the Library of Congress https://lccn.loc.gov/98518378
You cannot marry in New Mexico if:
Bigamy consists of knowingly entering into a marriage by or with a person who has previously contracted one or more marriages which have not been dissolved by death, divorce or annulment. Both parties may be principals.
Whoever commits bigamy is guilty of a fourth degree felony.
Morrill Act (1862).
This act, titled An Act to punish and prevent the Practice of Polygamy in the Territories of the United States and other Places, and disapproving and annulling certain Acts of the Legislative Assembly of the Territory of Utah, was passed to prevent people from claiming multiple spouses.
"The Edmunds Act of 1882 made polygamy a felony and took away the right to vote, hold office, or serve on a jury from anyone engaged in a polygamous relationship." -Response to Anti-Polygamy Legislation
Current reasons for marriage include a desire to formalize a relationship, cultural expectations, religious requirements, and being able to make medical or financial decisions. In New Mexico an individual can be designated to make these decisions for another with a living will.
NMSA 1978, 24-7A Uniform Health-Care Decisions
In the past, marriage had significant impact on the life and rights of women. Having a relationship recognized or not recognized was important. A recognized marriage would mean legitimate children, inheritance, access to pensions, and social standing.
Marriage could remove certain freedoms. Spanish law allowed women to keep property owned before marriage, but many U.S. states followed a common law where property of the wife transferred to the husband upon marriage. Children were considered property of the husband.
In 1884 New Mexico passed the Married Woman's Act which stated that a married woman's property before marriage remained hers. This law also allowed married women to enter contracts without the consent of her husband.
Prior to September 1922, a married woman in the U.S. could lose her citizenship if she married someone who was the citizen of a different country. It wasn't until 1936, that "women who lost U.S. citizenship by marriage between 1907 and 1922 and whose marriage had terminated through death or divorce" could "resume her citizenship upon taking the oath of allegiance." (NARA)
On September 22, 1922, Congress passed the Married Women's Act. This law gave each woman a nationality distinct from her husband.
In re Gabaldon's Estate (Gabaldon v. Gabaldon) 1934
"We think that irregular marriage is now, and has been in the past, as little practiced in New Mexico as elsewhere. In 1860 the non-Catholic population was inconsiderable. The edicts of the church were deemed highly binding upon conscience. Marriage was generally regarded as a sacrament. The Act of 1860 reflects the view that the law of the church in that regard was the law of the state. No doubt, with the influx of men from the east, irregular alliances were formed with native women, some of them perhaps marriages according to the common law. This situation was rather effectively cleared up by the Edmonds-Tucker Act (USCA title 18, § 519), in force here from 1887 until statehood. While it did not itself effect the invalidity of any marriage or attempted marriage, it was in fact rigorously enforced, resulting in {*397} the postponed celebration of many, and in discouraging future alliances except according to the forms of law."
Dubler, A. R. (1998). Governing Through Contract: Common Law Marriage in the Nineteenth Century. The Yale Law Journal, 107(6), 1885–1920. https://doi.org/10.2307/797340
Davis, Jennifer. Marriage Equality in the US, https://blogs.loc.gov/law/2021/06/marriage-equality-in-the-us/
Greenfield, Gary E., Author, Susan E Watkins, and U.S.. Global Legal Research Directorate Law Library Of Congress. Doing Research in Current Marriage and Divorce Law: Guide and Selective Annotated Bibliography. [Washington, D.C.: The Law Library of Congress, Global Legal Research Directorate, 1991] Pdf. https://www.loc.gov/item/2021699839/.
Koegel, Otto E. Common law marriage and its development in the United States, John Byrne & Company, Washington, 1922.
May, Geoffery, Marriage laws and decisions in the United States, a manual, Russell Sage Foundation, New York, 1929.
Robinson, G. (2008) United States: Same-Sex Marriage Ban Held Unconstitutional in California. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2008-05-02/united-states-same-sex-marriage-ban-held-unconstitutional-in-california/.
Saether, Steinar A. Bourbon Absolutism and Marriage Reform in Late Colonial Spanish America. The Americas, Vol. 59, No. 4, Cambridge University Press, April 2003.