## Facts

- Nhia Xiong and Mai Xiong were members of the Hmong ethnic group.
- In March or April 1975, while living in Laos, Nhia and Mai took part in a traditional Hmong marriage ceremony.
- Nhia asserted that they did not register the marriage with the Laotian government (which he said Laotian law required) because he feared disclosure to the government due to his work assisting the CIA.
- In May 1975, Nhia and Mai fled Laos and ultimately lived in a refugee camp in Thailand for about five years.
- Nhia and Mai came to the United States in 1980 and told immigration authorities that they were married.
- They lived in Illinois briefly and then moved to Pennsylvania, where they lived for three years as husband and wife and had three children.
- The family later moved to Wisconsin, where Nhia and Mai continued living as husband and wife and had a fourth child.
- Nhia and Mai became U.S. citizens in 1985; Mai’s citizenship papers stated that she was married.
- In 1998, Mai died in a car accident while traveling as a passenger in a car driven by Nhia.
- Mai and Nhia’s children sued Nhia and State Farm Insurance Company for wrongful death.
- The insurer argued that under Wisconsin’s wrongful-death statute, Wis. Stat. § 895.04, Nhia—if he was Mai’s surviving spouse—owned the wrongful-death claim.
- The children argued Nhia was not Mai’s legal spouse because no legally valid marriage occurred under Laotian, Thai, or Wisconsin law, so the children could bring the wrongful-death claim.
- The circuit court ruled that Wisconsin should treat Nhia and Mai as married and dismissed the children’s wrongful-death action; the children appealed.

## Issues

1. Whether, for purposes of Wis. Stat. § 895.04, Mai had a “surviving spouse” so that Nhia had first priority to own and bring the wrongful-death claim.
2. Whether Wisconsin may treat Nhia and Mai as married based on a common-law marriage formed during their residency in Pennsylvania, even though Wisconsin does not create common-law marriages and the validity of the earlier Hmong ceremony in Laos was disputed.

## Decision

- The Wisconsin Court of Appeals affirmed the judgment dismissing the children’s wrongful-death claim.
- The court concluded that, under the specific circumstances—including the couple’s prior residence in Pennsylvania, a common-law marriage state—Mai’s status was that of a spouse under Wis. Stat. § 895.04.
- Because Nhia was treated as Mai’s surviving spouse, he had first priority to the wrongful-death cause of action, and the children could not maintain a separate wrongful-death action while he was alive.

## Legal Principles

- Under Wis. Stat. § 895.04, ownership and control of a wrongful-death claim follow a statutory order of priority; a surviving spouse has priority over surviving children.
- Wisconsin generally recognizes a marriage that was valid under the law of the jurisdiction where it was formed, unless recognition is barred by a strong Wisconsin public policy.
- Although Wisconsin does not create common-law marriages, it may recognize a common-law marriage validly formed in another state that allows common-law marriage.
- A couple’s cohabitation and holding themselves out as husband and wife in a common-law marriage jurisdiction can establish a legally valid marriage under that jurisdiction’s law; Wisconsin may then treat the parties as spouses for statutory purposes.
- Questions about defects in an earlier foreign marriage ceremony may not defeat spousal status if the parties later formed a valid marriage in a U.S. jurisdiction that recognized their marital relationship.

## Conclusion

The court held that Wisconsin could treat Nhia and Mai as married based on their conduct and residency in Pennsylvania, which recognized common-law marriage, and therefore Nhia qualified as Mai’s surviving spouse under Wis. Stat. § 895.04, requiring dismissal of the children’s separate wrongful-death claim.


Xiong v. Xiong, 648 N.W.2d 900 (2002)