Jury Verdict Recognizing Second Wife as Legal Widow Upheld Based on Circumstantial Evidence

Wills and Estate Planning Controversies — Case Summaries

Jury Verdict Recognizing Second Wife as Legal Widow Upheld Based on Circumstantial Evidence of Prior Divorce Despite Conflicting Probate Court Certifications

Prepared March 15, 2026

Court: Court of Appeals of Georgia

Date: March 9, 2026

Citation: In re the Estate of George Edward Samuel, Deceased, No. A25A1573, 2026 WL 656332 (Ga. Ct. App. Mar. 9, 2026)

Summary of Relevant Facts

George and Delores Samuel married in 1963 and had two children, including Devon. Delores moved out of the marital home with the children and settled in Boston; the couple never lived together after 1969. Delores petitioned for divorce in Connecticut in 1970, but no evidence was presented that she further pursued that filing. George met Rosemary in 1971, and their relationship turned romantic in 1972, while both parties were still married to their respective first spouses at the time. George and Rosemary lived together from that point until he died, working together as cross-country truck drivers. Delores filed for separation and custody in Massachusetts in 1973 and petitioned for divorce in Massachusetts in 1981. The parties produced conflicting certifications from different clerks of the Suffolk County, Massachusetts probate court. The certificate proffered by Rosemary was titled “Certificate of Divorce Absolute” and stated that on May 8, 1973, a Judgment of Divorce Nisi was entered, and that ninety days having expired, it became a Judgment of Divorce Absolute. The certificate proffered by Devon, from a different clerk, certified that no judgment of divorce existed in the records for the 1973 or 1981 filings. Neither party introduced testimony from any employee at the clerk’s office explaining these contradictory documents. Rosemary eventually divorced her first husband in 1989, and Tennessee issued a certificate of marriage to George and Rosemary in 2003.

Procedural Background

After George’s death in 2021, Devon filed a petition to probate George’s will in solemn form, initially identifying Rosemary as George’s “spouse.” Devon subsequently amended the petition to identify Delores as George’s “spouse” and filed a petition to determine heirs seeking a determination that Rosemary was not an heir. Devon moved for summary judgment, which the court denied. The court held a three-day jury trial at which Devon, Delores, and Rosemary testified, along with other family members and representatives of law firms who testified about the conflicting Massachusetts probate court certifications. The jury found that George’s marriage to Delores had been dissolved by divorce, which had the effect of recognizing Rosemary as George’s widow. Devon immediately moved for a judgment notwithstanding the verdict, which the trial court denied. Devon timely appealed, raising six enumerations of error.

Main Controversies

The central controversy was whether George’s first marriage to Delores had been legally dissolved, which would determine whether his subsequent marriage to Rosemary in 2003 was valid and whether Rosemary was his legal widow for purposes of heir determination. A secondary controversy concerned whether circumstantial evidence alone could establish the fact of a prior divorce when no direct evidence of a divorce decree was available and the probate court’s own records were contradictory. Additional controversies included whether the trial court erred in admitting a probate clerk’s certificate that Devon characterized as “facially false” and introduced through a surprise witness, and whether the jury charge allowing proof of any fact through circumstantial evidence was proper.

Position of the Parties

Devon argued that Rosemary failed to prove the prior divorce because she did not introduce a divorce decree as direct evidence, that the trial court erred in admitting a probate clerk’s certificate that was facially and legally false and introduced by a surprise witness not previously disclosed, that the trial court erred in charging the jury that any fact can be proven through circumstantial evidence, that the trial court erred in denying his motion for summary judgment and motion for new trial, that the trial court erred in not ruling on burden of proof, and that the trial court erred in permitting improper and prejudicial sympathy arguments in closing. Rosemary argued that under Georgia law, the burden shifted to her to establish the prior divorce once Delores was shown to be alive, and that she met that burden through circumstantial evidence including the clerk’s certificate showing a 1973 judgment of divorce nisi and the 2003 Tennessee marriage certificate demonstrating a government agency recognized George as legally capable of marriage.

Holding or Decision

The Court of Appeals affirmed the jury verdict and judgment on all six enumerations of error, holding that sufficient evidence supported the jury’s finding that George’s marriage to Delores was dissolved by divorce and that Rosemary was George’s legal widow.

Reasons for the Decision

The court applied the Georgia rule that where a party to a ceremonial marriage was previously married and the validity of the second marriage is challenged, a presumption arises that the second marriage is valid until evidence is adduced that the first spouse is living, at which point the burden shifts to the party contending the second marriage is valid to show the first marriage was dissolved. The court held the jury was authorized to find that Rosemary met her burden through circumstantial evidence. On the evidentiary challenge to the clerk’s certificate, the court found Devon waived his objection by initially objecting but then acquiescing when the exhibit was re-tendered, with his attorney stating he had “no objection.” On the jury charge regarding circumstantial evidence, the court held the charge was a correct statement of law and properly given because Rosemary did not have direct evidence to establish George’s marital status. On the timing of the charge—which Rosemary first requested after closing arguments—the court held the trial court had authority to modify its scheduling order and that both parties were clearly aware before trial that circumstantial evidence was central. On the sufficiency of the evidence, viewing it in the light most favorable to the verdict, the court held the jury was authorized to find the evidence preponderated to Rosemary’s hypothesis that George was legally divorced. The remaining claims of error were either abandoned for lack of supporting argument or waived for failure to object at trial.