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Months after her boyfriend died in 2010, Janetta Gardiner was declared married to the late Kenneth Vanderwerff by a judge. That declaration, though, was voided about a year and a half later, after the husband's cousins claimed the relationship between the two did not constitute a common law marriage.

But on Tuesday, the Utah Supreme Court reinstated the posthumous declaration of unsolemnized marriage.

The decision turned on whether Vanderwerff's estate was properly served notice of Gardiner's request for the marriage declaration. The Supreme Court ruled Gardiner, now 82, had waived service in her capacity as the estate's personal representative and therefore, it was an error to void the marriage.

According to court documents, Gardiner and Vanderwerff, an Ogden resident who had no children, were in a romantic relationship from about November 2007 until his death at age 78 on April 22, 2010. About a month later, Gardiner filed a petition in 2nd District Court for a judicial declaration of common law marriage.

The next day, Vanderwerff's step-grandson, William Francis, filed a separate probate case and was appointed special administrator of the estate. He also filed an objection to Gardiner's request for the declaration in the marriage case.

Based on the terms of Vanderwerff's will, he had appointed Gardiner as personal representative of the estate, and in August 2010 Francis agreed to his removal as special administrator.

Second District Judge Mark DeCaria held a hearing in the marriage case on Sept. 13, 2010, and granted the marriage declaration. He ruled Gardiner and Vanderwerff had established a common law marriage, dating from Nov. 23, 2007, through their cohabitation, their joining of financial responsibilities, their church activities and their holding themselves out as a married couple to relatives, neighbors, friends and church members.

No formal notice of the hearing was given to any members of Vanderwerff's family or Francis, who filed a motion two months later to have the declaration set aside.

DeCaria ruled in March 2011 that Francis — the grandson of Vanderwerff's first wife — had no standing in the case because he was not a biological or adopted relative of the deceased man. Then in August 2011, four cousins of Vanderwerff filed their own motion to throw out the declaration.

In March 2012, DeCaria signed an order setting aside the marriage declaration. The next month, he dismissed the case entirely based on Gardiner's alleged failure to serve process within 120 days of filing her marriage petition in 2010.

Gardiner appealed and the Supreme Court justices unanimously sided with her.

Associate Chief Justice Ronald Nehring, writing for the court, said DeCaria's order was based entirely on "the erroneous legal conclusion that Ms. Gardiner had failed to serve Mr. Vanderwerff's estate."

"A petition for a marriage declaration ordinarily must be served on the putative spouse — in this case, Mr. Vanderwerff," Nehring wrote. "Unfortunately, Mr. Vanderwerff was already deceased when Ms. Gardiner petitioned to have their relationship declared a marriage. Courts cannot exercise personal jurisdiction over individuals who have died."

Instead, the decision says, the estate's personal representative must be served — and, in this case Gardiner, the personal representative, waived service.

Twitter: @PamelaMansonSLC

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