A Rose By Any Other Name (Might Stink in Court)

A few months ago, I had coffee with a very interesting medical professional. My coffee mate is a registered nurse focusing on obstetrics and gynecology for the LGBTQIA/GSM community, and at one point, she suggested writing up a legal glossary. In this post, I want to start with the term “in pari materia.” This might be one of more dry blog posts, but I think that it can show how difficult it can be to try and use self-help legal remedies.

In pari materia translates from Latin to “upon the same subject.” It has a similar meaning in law; it refers to the idea that when a term is used in similar cases, the term can have the same meaning in each of the cases. One timely example of this relates to the estate tax. The federal estate tax was introduced before the federal gift tax. When the gift tax was enacted, it was added as part of the estate tax, so common terms apply to both the gift tax and the estate tax.

This seems straight-forward, but here is an example that shows how difficult it can be. Section 8-412 of the Education title of the Maryland code says that a parent can be defined as “…a child’s natural parents[,]…a child’s adoptive parents, a person acting as a parent of a child such as a relative or a stepparent such as a relative or a stepparent with whom a child lives…[or]…a foster parent…” among other people, but only for purposes of that section. If you look at section 1-205 of the estates and trusts title, however, you can see that for “intestacy” (laws relating to property passing when a person doesn’t have a will), stepchildren and foster children do not have a legal relationship.

Take the case of common law marriage. Although the term “common law spouse’ comes up a lot, there are only 16 jurisdictions in the United States that recognize those relationships. One of them, New Hampshire, explicitly says as much in a statute: Persons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for the period of 3 years, and until the decease of one of them, shall thereafter be deemed to have been legally married. NH Stat. 457:39 Cohabitation, etc. (New Hampshire Statutes (2016 Edition)). If a person were to read this, they might think that New Hampshire recognizes common law marriage. However, if that person were to continue to read In re Estate of Bourassa, 949 A.2d 704 (N.H., 2008), they would realize that New Hampshire only recognizes common law marriage for one specific purpose (estate planning).

From reading this post, I have no doubt that I have made the case that this situation can arise only with regard to wills and not having wills; however, there are multiple other examples. What I want you to take away from this is that you have to be careful when you are trying to use self-help legal remedies. Although Shakespeare famously wrote that “a rose by any other name would smell as sweet” (Romeo and Juliet, 2.2.46-47), in a court of law, that rose might stink.

Disclaimer: Nothing in this post is intended as legal advice or to create an attorney-client relationship. If you have any legal concerns, please contact an attorney qualified to practice law in your state or district.

Ben Schenker