DISSENTS:
TAYLOR, C.J.WINCHESTER, J. (with whom TAYLOR, C.J. joins), concurring in part, dissenting in part:
¶1 I concur in the majority's holding regarding summary judgment in a workers' compensation proceeding and the resulting remand of the case. However, I cannot agree that decedent's employer was in privity with the decedent's mother after a probate court determined that Ms. Cotton was the common law wife of the deceased. Neither can I agree that the determination of Ms. Cotton's status as wife established her right to a death benefit pursuant to the Workers' Compensation statutes.
¶2 The majority opinion holds that a probate court's finding of a common law marriage between Mr. Hyde and Ms. Cotton is binding on Mr. Hyde's employer and the Workers' Compensation Court. The Court characterizes the challenge to Ms. Cotton's status as the surviving spouse of Mr. Hyde by the employer and the decedent's mother as a prohibited collateral attack on the probate court's judgment. I question the conclusion in the majority opinion.
13 As the majority opinion observes, the employer asserts that because it was not a party to the probate proceedings, the district court's judgment was not applicable to the employer. The Court reasons that this is an attempt to have the same issue adjudicated before another court, which is barred by issue preclusion. The Court cites and quotes State ex rel. Dept. of Transportation v. Little, 2004 OK 74, ¶ 24, n. 47, 100 P.3d 707, 718-719. In explaining the definition and elements of issue preclusion, footnote 47 in Little observes that the issue preclusion doctrine, formerly known at common law as collateral estoppel, "prevents relitigation of facts and issues actually litigated and necessarily determined in an earlier proceeding between the same parties or their privies." *417In order for the employer to be prevented from determining Ms. Cotton's status in the Workers' Compensation Court, (1) her status as common law wife must have been actually litigated; and (2) the employer must have been in privity with the mother in the probate case.
T4 So we must first examine whether the issue of Ms. Cotton's status was actually litigated. The majority opinion reveals that during the probate proceeding the mother "withdrew her written objection to Wife's appointment" as a personal representative of the decedent's estate. Preclusive effect is not given to an issue where that issue is never actually litigated. Cornelius v. Cornelius, 2000 OK CIV APP 124, ¶ 8, 15 P.3d 528, 531. The facts in Cornelius show that the ex-wife appealed a judgment which determined her ex-husband was the natural father of her daughter. The ex-wife contended that the ex-husband could not challenge their previous divorcee decree, which stated, "the plaintiff [Mr. Cornelius] is not the father of the minor child recently born to the defendant." Cornelius, 2000 OK CIV APP 124, n. 1, 15 P.3d at 529, n. 1. Mr. Cornelius subsequently filed a paternity claim. The man whom the ex-wife believed to be the father intervened in the proceeding and tests revealed a 99% probability that Mr. Cornelius was the father, and the test revealed a zero percent probability that the intervenor was the father. Cornelius, 2000 OK CIV APP 124, ¶ 2, 15 P.3d at 529. When examining the issue of the preclusive effect of the divorce decree, Mr. Cornelius explained he did not contest the dissolution because he could not afford an attorney and believed his wife would come back to him. Cornelius, 2000 OK CIV APP 124, ¶ 7, 15 P.3d at 530. When asked why he did not pursue paternity, he replied that his wife had told him he was not the father of the child. Cornelius, 2000 OK CIV APP 124, ¶ 2, 15 P.3d at 529. The Cornelius court found authority for a determination that a divorce decree should not be given preclusive effect on the issue of paternity where it was never actually litigated and the dissolution was based on the parties' stipulations. The court cited MceDamiels v. Carlson, 108 Wash.2d 299, 738 P.2d 254, 259 (1987)("[Clollateral estoppel precludes only those issues that have actually been litigated and determined; it 'does not operate as a bar to matters which could have ... been raised [in prior litigation] but were not'" 1}. Likewise, in the case now before this Court, where the mother of the deceased decides as a matter of strategy or any other reason not to contest Ms. Cotton's status as a wife, the issue has not been actually litigated. There may be valid reasons not to contest the issue in a probate, even though the party wishes to contest the issue in a Workers' Compensation Court.
15 Even if the mother of the deceased could be precluded from litigating the issue of Ms. Cotton's status as common law wife in the Workers' Compensation Court, the employer should not be so precluded. The employer does not stand in privity with the mother of the deceased. The majority opinion quotes Wilson v. City of Tulsa, 2004 OK CIV APP 44, ¶ 11, 91 P.3d 673, 677; "[The existence of privity depends upon the cireum-stances and requires 'a person so identified in interest with another that he represents the same legal right.'" In applying this sentence from the Wilson case, the majority concludes the employer and mother have the same interest regarding Ms. Cotton's status; both parties had the same opportunity to have the status determined by a court; and the district court happened to make the determination before the Workers' Compensation Court. I must disagree with the majority's conclusions.
T 6 The two parties did not have the same interest regarding Ms. Cotton's status with regards to a probate case. Probate is a special statutory proceeding confined to "(1) ascertaining whether decedent died testate or intestate, and if testate, (2) what testamentary disposition, if any, may be admitted to probate, (8) the administration of the estate's assets and (4) the final account and distribution." Wilson v. Kane, 1993 OK 65, ¶ 6, 852 P.2d 717, 722. The employer has no standing as a party in this probate case. It has no interest in determination of heirs for the purpose of dividing property of this es*418tate. The employer cannot be precluded from arguing the issue of "surviving spouse" by a probate determination of "common law spouse". The two issues are not the same.
T7 At this point the question concerning privity and the statutory rights required to support an award in the Workers' Compensation Court come together. - Title 85 0.8.Supp.2010, § 222 subsection 8 provides income benefits for death in a workers' compensation case. The benefit amounts for particular classes of dependents include the surviving spouse. "Surviving spouse" is defined in 85 0.8.2001, § 8.1(2) " Surviving spouse' means only the employee's spouse living with or actually dependent upon the employee at the time of his injury or death, or living apart for justifiable cause or by reason of desertion by the employee. ..." To meet the requirement for benefits, the claimant must not only be the spouse, but must be (1) living with, or (2) actually dependent upon the deceased at the time of his death, or (8) living apart for justifiable cause or by reason of earlier desertion by the deceased. This is not a matter determined by a probate court, so a ruling that Ms. Cotton is the common law wife absolutely cannot determine her right as "surviving spouse" because the ruling does not determine any of the three elements of 85 0.98.2001, § 8.1(2). The employer is not so identified in interest with decedent's mother in a probate case that it represents the same legal right in a workers' compensation case. Therefore, the employer and the decedent's mother are not in privity with each other, and because the determination of whether Ms. Cotton is the common law wife as an unlitigated issue in a probate case, does not bind the Workers' Compensation Court in the issue of whether Ms. Cotton is the "surviving spouse".
T8 To conclude, looking at the question of issue preclusion in a light most beneficial to Ms. Cotton, the most preclusive effect the probate court could have had on the workers' compensation case was that Ms. Cotton was the spouse. Because the "surviving spouse" issue is different than the "common law wife" issue, there is no privity between the status of the employer and the decedent's mother. In addition, because there was no actual litigation of the issue in probate court, there is no issue preclusion preventing the Workers' Compensation Court from determining the spousal status of Ms. Cotton.
. McDaniels v. Carlson, 108 Wash.2d 299, 305, 738 P.2d 254, 258.
. Although this statute was amended in 2005, 2009, and 2010, the applicable language has remained the same. Amended by Laws 2005, 1st Extr. Sess., SB 1, c. 1, § 20, emerg. Eff. July 1, 2005; Amended by Laws 2009, SB 901, c. 172, § 1, eff. November 1, 2009; Amended by Laws 2010, HB 2650, c. 452, § 5.