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Brown v. sojourner: sc supreme court denies elective share to james brown’s surviving spouse

Axelrod & Associates, P.A.

In Brown v. Sojourner, decided June 17, 2020, the SC Supreme Court reversed a lower court’s finding that Tommie Rae Brown was James Brown’s surviving spouse and therefore entitled to an elective share of his estate.

Although Tommie Rae and James Brown were married in 2001 in SC, the distribution of his estate has been delayed since his death in 2006, in part due to confusion over the validity of Tommie Rae and James Brown’s marriage. She apparently was already married when she married James Brown, although there were questions over whether her prior marriage and subsequent attempts to annul the prior marriage were valid.

This decision stresses the importance of ensuring that any prior marriages or divorces have been finalized and are documented in the public record before entering into a new marriage – if the public record does not show that a prior marriage has been terminated, the new marriage will be “void ab initio” as bigamous.


James Brown and Tommie Rae married in December of 2001, and, on the marriage license, Tommie Rae affirmed that she had never been married before. The problem? That wasn’t true…

In 1997, Tommie Rae was married in Texas to another man, Javed Ahmed, a Pakistani native who was living in the United States. Ahmed also affirmed on his marriage license that he was not currently married at the time of his marriage to Tommie Rae.

In 2003, two years after their marriage, James Brown learned that Tommie Rae had already been married to Ahmed and had not obtained a divorce before entering into her marriage with him. Tommie Rae filed an action in the SC family court requesting an annulment of her previous marriage, which the court granted after Ahmed did not appear in court.

In 2004, James Brown asked the court for an annulment of his marriage to Tommie Rae, and Tommie Rae asked for a divorce and spousal support, but the case was dismissed after the two reached an agreement that included Tommie Rae’s agreement to “forever waive any claim of a common[-]law marriage to [Brown], both now and in the future.”

So, were they still married? Did their marriage never happen because Tommie Rae was already married when she attempted to marry James Brown? Did her annulment of the marriage to Ahmed “fix” her marriage to James Brown, allowing her to claim an elective share of Brown’s estate?

Bigamous Marriages are “Void ab Initio”

“[M]ost bigamous marriages are void ab initio by law as a matter of public policy.” This means that, if you attempt to marry a new spouse before resolving a prior marriage, the new marriage never happened.

If Tommie Rae was still married to Ahmed – and, if the first marriage to Ahmed was valid, she was still married to Ahmed because there is no record of her obtaining a divorce – then Tommie Rae’s attempted marriage to James Brown was void ab initio and she had no right to claim an elective share of his estate.

But Tommie Rae also argued that her initial marriage to Ahmed was not valid because Ahmed already had multiple wives in Pakistan at the time that he married Tommie Rae… if true, then the original marriage to Ahmed would be invalid and the subsequent marriage to James Brown would be valid…

Was Tommie Rae’s Prior Marriage “Void ab Initio?”

When Tommie Rae sought to annul her prior marriage to Ahmed, the annulment was granted on the grounds that her prior marriage was bigamous and therefore void ab initio because Ahmed had multiple wives in Pakistan.

The family court granted the annulment in 2004 based solely on her testimony that Ahmed had multiple wives, but the SC Supreme Court rejected that argument in the current estate case because no other evidence of Ahmed’s prior wives had been produced either in the current case or at the prior annulment hearing:

We first note Respondent’s arguments presuppose that Petitioners are conclusively bound by the factual finding in the family court’s annulment order that Ahmed had three wives in Pakistan (and that his marriage to Respondent was, therefore, bigamous). For the reasons discussed in the preceding section of this opinion, the annulment order does not bind third parties such as Petitioners to this factual finding, as they had no opportunity to contest this point. Further, Respondent has stipulated that she has no evidence that Ahmed had three wives in Pakistan, other than her own (unchallenged) testimony at the annulment hearing regarding Ahmed’s alleged statement to this effect. Cf. Gaines, 53 U.S. at 534 (“The great basis of human society throughout the civilized world is founded on marriages and legitimate offspring; and to hold that either of the parties could, by a mere declaration, establish the fact that a marriage was void, would be an alarming doctrine.”). Consequently, we agree with Petitioners that the alleged bigamous nature of Respondent’s first marriage was never established in this estate matter.

Although Tommie Rae’s marriage to Ahmed was annulled in 2004, that decision was not binding on the parties to the estate action because t