marital privilege in Pennsylvania

2012The very foundation for “invoking the marital privilege is the existence of a valid marriage.” Commonwealth v. Maxwell, 505 Pa. 152, 165 , 477 A.2d 1309, 1316 (1984), cert. denied, 510 U.S. 995 , 114 S.Ct. 558 , 126 L.Ed.2d 459 (1993) (discussing spousal privilege outlined in Section 5913).

2012The very foundation for “invoking the marital privilege is the existence of a valid marriage.” Commonwealth v. Maxwell, 505 Pa. 152, 165 , 477 A.2d 1309, 1316 (1984), cert. denied, 510 U.S. 995 , 114 S.Ct. 558 , 126 L.Ed.2d 459 (1993) (discussing spousal privilege outlined in Section 5913).

2025C.G. v. J.H., 193 A.3d 891, 904 (Pa. 2018). 79 K.E.M., 38 A.3d at 810 . 80 See Douglas NeJaime, The Nature of Parenthood, 126 YALE L.J. 2260, 2339 (2017) (“Presently all but one state maintain a marital presumption that derives a spouse’s parentage from marriage to ‘the woman giving birth’ or ‘the natural mother.’”); James J.

2023Mindful of our authority to affirm a trial court on any basis supported by the record, we first examine whether the order establishing Junior’s parentage is sustainable through “application of the presumption of parentage married persons enjoy,” which we refer to herein as the marital presumption.6 C.G. v. J.H., 193 A.3d 891 , 905 n.12 (Pa. 2018).

2025It explained the marital presumption doctrine provides that “generally, a child conceived or born during the marriage is presumed to be the child of the marriage; this presumption is one of the strongest presumptions of the law of Pennsylvania[.]” Id. at 908 , quoting Brinkley v. King, 701 A.2d 176, 179 (Pa. 1997) (plurality).

2025It explained the marital presumption doctrine provides that “generally, a child conceived or born during the marriage is presumed to be the child of the marriage; this presumption is one of the strongest presumptions of the law of Pennsylvania[.]” Id. at 908 , quoting Brinkley v. King, 701 A.2d 176, 179 (Pa. 1997) (plurality).

2025C.G. v. J.H., 193 A.3d 891, 904 (Pa. 2018). 79 K.E.M., 38 A.3d at 810 . 80 See Douglas NeJaime, The Nature of Parenthood, 126 YALE L.J. 2260, 2339 (2017) (“Presently all but one state maintain a marital presumption that derives a spouse’s parentage from marriage to ‘the woman giving birth’ or ‘the natural mother.’”); James J.

2023However, for both types of spouses, since the purpose of the marital presumption is to preserve the inviolability of the intact marriage, “[w]hen there is no longer an intact family or a marriage to preserve, then the presumption . . . is not applicable.” Vargo v. Schwartz, 940 A.2d 459 , 463 (Pa.Super. 2007); K.E.M. v. P.C.S., 38 A.3d 798 , 806-07 (Pa. 2012) (“As to the [marital presumption], we note only that recent Pennsylvania decisions have relegated it to a substantially more limited role, by narrowing its application to situations in which the underlying policies will be advanced (centr

1999In concluding that pensions benefits, whether or not vested, constituted marital property under Section 3501, we reasoned that “[w]here the employee ‘benefits result from employment during the marriage, they are marital property since the benefits are received in lieu of higher compensation which would have enhanced the marital assets or the marital standard of living.’ ” Berrington v. Berrington, 409 Pa.Super. 355 , 598 A.2d 31, 34-35 (1991), aff'd, 534 Pa. 393 , 633 A.2d 589 (1993) (quoting Braderman v. Braderman, 339 Pa.Super. 185 , 488 A.2d 613, 618 (1985)).

1999In concluding that pensions benefits, whether or not vested, constituted marital property under Section 3501, we reasoned that “[w]here the employee ‘benefits result from employment during the marriage, they are marital property since the benefits are received in lieu of higher compensation which would have enhanced the marital assets or the marital standard of living.’ ” Berrington v. Berrington, 409 Pa.Super. 355 , 598 A.2d 31, 34-35 (1991), aff'd, 534 Pa. 393 , 633 A.2d 589 (1993) (quoting Braderman v. Braderman, 339 Pa.Super. 185 , 488 A.2d 613, 618 (1985)).

2025Academy of Matrimonial Lawyers et al. at 16 (citing, e.g., 23 Pa.C.S. §2512(b)); the Adoption Act permits stepparent and second- parent adoptions, see id. at 17 (citing, 23 Pa.C.S. §2903; In re Adoption of R.B.F., 803 A.2d 1195, 1196 (Pa. 2002)); and the courts that have refused to apply the marital presumption in cases of marital breakdown have done so with the intention a person other than the husband will be identified as the child’s father, not to strip the child of a second parent, see id. at 18 (citing, e.g., Minnich v. Rivera, 506 A.2d 879, 882 (Pa. 1986)). [J-50-2024] - 36 goals by: es

2025Academy of Matrimonial Lawyers et al. at 16 (citing, e.g., 23 Pa.C.S. §2512(b)); the Adoption Act permits stepparent and second- parent adoptions, see id. at 17 (citing, 23 Pa.C.S. §2903; In re Adoption of R.B.F., 803 A.2d 1195, 1196 (Pa. 2002)); and the courts that have refused to apply the marital presumption in cases of marital breakdown have done so with the intention a person other than the husband will be identified as the child’s father, not to strip the child of a second parent, see id. at 18 (citing, e.g., Minnich v. Rivera, 506 A.2d 879, 882 (Pa. 1986)). [J-50-2024] - 36 goals by: es

2025Academy of Matrimonial Lawyers et al. at 16 (citing, e.g., 23 Pa.C.S. §2512(b)); the Adoption Act permits stepparent and second- parent adoptions, see id. at 17 (citing, 23 Pa.C.S. §2903; In re Adoption of R.B.F., 803 A.2d 1195, 1196 (Pa. 2002)); and the courts that have refused to apply the marital presumption in cases of marital breakdown have done so with the intention a person other than the husband will be identified as the child’s father, not to strip the child of a second parent, see id. at 18 (citing, e.g., Minnich v. Rivera, 506 A.2d 879, 882 (Pa. 1986)). [J-50-2024] - 36 goals by: es

2025The Superior Court elaborated that while the presumption is equally applicable to same-sex and opposite-sex spouses, see Int. of A.M., 223 A.3d 691, 695 (Pa. Super. 2019), its purpose is “to preserve the inviolability of the intact marriage,” and thus it is inapplicable if there is no intact family or marriage to preserve.

2023See e.g., J.L., supra at 357-58 (affirming trial court decision to forgo marital presumption); Barr v. Bartolo, 927 A.2d 635 , 643 (Pa.Super. 2007) (“[W]hile the parties remain married, there concededly is no intact family to preserve; hence, the [marital] presumption . . . is not applicable.”); Doran v. Doran, 820 A.2d 1279 , 1283 (Pa.Super. 2003) (“Because a divorce action was pending . . ., there was no longer an - 15 - J-E02004-23 intact family or marriage to preserve, and, therefore, the [marital] presumption . . . is inapplicable to the present case.”).

2023See e.g., J.L., supra at 357-58 (affirming trial court decision to forgo marital presumption); Barr v. Bartolo, 927 A.2d 635, 643 (Pa.Super. 2007) (“[W]hile the parties remain married, there concededly is no intact family to preserve; hence, the [marital] presumption . . . is not applicable.”); Doran v. Doran, 820 A.2d 1279, 1283 (Pa.Super. 2003) (“Because a divorce action was pending . . ., there was no longer an - 15 - J-E02004-23 intact family or marriage to preserve, and, therefore, the [marital] presumption . . . is inapplicable to the present case.”).

2023See e.g., J.L., supra at 357-58 (affirming trial court decision to forgo marital presumption); Barr v. Bartolo, 927 A.2d 635 , 643 (Pa.Super. 2007) (“[W]hile the parties remain married, there concededly is no intact family to preserve; hence, the [marital] presumption . . . is not applicable.”); Doran v. Doran, 820 A.2d 1279 , 1283 (Pa.Super. 2003) (“Because a divorce action was pending . . ., there was no longer an - 15 - J-E02004-23 intact family or marriage to preserve, and, therefore, the [marital] presumption . . . is inapplicable to the present case.”).

2023See e.g., J.L., supra at 357-58 (affirming trial court decision to forgo marital presumption); Barr v. Bartolo, 927 A.2d 635, 643 (Pa.Super. 2007) (“[W]hile the parties remain married, there concededly is no intact family to preserve; hence, the [marital] presumption . . . is not applicable.”); Doran v. Doran, 820 A.2d 1279, 1283 (Pa.Super. 2003) (“Because a divorce action was pending . . ., there was no longer an - 15 - J-E02004-23 intact family or marriage to preserve, and, therefore, the [marital] presumption . . . is inapplicable to the present case.”).

2023See Fish v. Behers, 741 A.2d 721 , 723 (Pa. 1999) - 12 - J-E02004-23 (adopting the plurality’s reasoning in Brinkley, supra; “In this case, there is no longer an intact family or a marriage to preserve.

2023See Fish v. Behers, 741 A.2d 721, 723 (Pa. 1999) - 12 - J-E02004-23 (adopting the plurality’s reasoning in Brinkley, supra; “In this case, there is no longer an intact family or a marriage to preserve.

2023See e.g., J.L., supra at 357-58 (affirming trial court decision to forgo marital presumption); Barr v. Bartolo, 927 A.2d 635 , 643 (Pa.Super. 2007) (“[W]hile the parties remain married, there concededly is no intact family to preserve; hence, the [marital] presumption . . . is not applicable.”); Doran v. Doran, 820 A.2d 1279 , 1283 (Pa.Super. 2003) (“Because a divorce action was pending . . ., there was no longer an - 15 - J-E02004-23 intact family or marriage to preserve, and, therefore, the [marital] presumption . . . is inapplicable to the present case.”).

2023See e.g., J.L., supra at 357-58 (affirming trial court decision to forgo marital presumption); Barr v. Bartolo, 927 A.2d 635, 643 (Pa.Super. 2007) (“[W]hile the parties remain married, there concededly is no intact family to preserve; hence, the [marital] presumption . . . is not applicable.”); Doran v. Doran, 820 A.2d 1279, 1283 (Pa.Super. 2003) (“Because a divorce action was pending . . ., there was no longer an - 15 - J-E02004-23 intact family or marriage to preserve, and, therefore, the [marital] presumption . . . is inapplicable to the present case.”).

2023However, for both types of spouses, since the purpose of the marital presumption is to preserve the inviolability of the intact marriage, “[w]hen there is no longer an intact family or a marriage to preserve, then the presumption . . . is not applicable.” Vargo v. Schwartz, 940 A.2d 459 , 463 (Pa.Super. 2007); K.E.M. v. P.C.S., 38 A.3d 798 , 806-07 (Pa. 2012) (“As to the [marital presumption], we note only that recent Pennsylvania decisions have relegated it to a substantially more limited role, by narrowing its application to situations in which the underlying policies will be advanced (centr

2023However, for both types of spouses, since the purpose of the marital presumption is to preserve the inviolability of the intact marriage, “[w]hen there is no longer an intact family or a marriage to preserve, then the presumption . . . is not applicable.” Vargo v. Schwartz, 940 A.2d 459, 463 (Pa.Super. 2007); K.E.M. v. P.C.S., 38 A.3d 798, 806-07 (Pa. 2012) (“As to the [marital presumption], we note only that recent Pennsylvania decisions have relegated it to a substantially more limited role, by narrowing its application to situations in which the underlying policies will be advanced (central

2021See Mason, 130 A.3d at 618 .

2001See State v. Newman, 235 Kan. 29 , 680 P.2d 257 (1984) (holding the statutory marital privilege under K.S.A. 60-423(b) and K.S.A. 60-428(a) does not extend to all observations of the acts of one spouse by the other but is limited to spoken or written statements or nonverbal signs or gestures seeking to transmit information from one spouse to another); State v. Drury, 110 Ariz. 447 , 520 P.2d 495 (1974), overruled in part on other grounds by, State v. Clark, 112 Ariz. 493 , 543 P.2d 1122 (1975) (restricting marital privilege under § 13-1802 A.R.S. to words and not acts thereby permitting testim

2001See State v. Newman, 235 Kan. 29 , 680 P.2d 257 (1984) (holding the statutory marital privilege under K.S.A. 60-423(b) and K.S.A. 60-428(a) does not extend to all observations of the acts of one spouse by the other but is limited to spoken or written statements or nonverbal signs or gestures seeking to transmit information from one spouse to another); State v. Drury, 110 Ariz. 447 , 520 P.2d 495 (1974), overruled in part on other grounds by, State v. Clark, 112 Ariz. 493 , 543 P.2d 1122 (1975) (restricting marital privilege under § 13-1802 A.R.S. to words and not acts thereby permitting testim

2001See State v. Carpenter, 83 Ohio App.3d 842 , 615 N.E.2d 1103 (1992) (interpreting Ohio Revised Code Ann § 2317.02(D) which provides “[hjusband or wife, [shall not testify] concerning any communication made by one to the other, or an act done by either in the presence of the other, during cover-ture...”); Hall v. State, 720 So.2d 1043 (Ala.Crim.App.1998) (interpreting the term confidential communication set forth in Ala. Rule of Evidence Rule 504 to include statements, acts and knowledge coming to the witness by one spouse’s observation of the act of the other due to the confidence inspired by

2001See State v. Carpenter, 83 Ohio App.3d 842 , 615 N.E.2d 1103 (1992) (interpreting Ohio Revised Code Ann § 2317.02(D) which provides “[hjusband or wife, [shall not testify] concerning any communication made by one to the other, or an act done by either in the presence of the other, during cover-ture...”); Hall v. State, 720 So.2d 1043 (Ala.Crim.App.1998) (interpreting the term confidential communication set forth in Ala. Rule of Evidence Rule 504 to include statements, acts and knowledge coming to the witness by one spouse’s observation of the act of the other due to the confidence inspired by