How do you ‘import’ a common law marriage from one state to the next? What do you have to show to prove you were married by common law? Krystal and Merrell discuss all of this, and the argument for just getting married.
Let’s start by defining common law marriage – A common law marriage is a legally recognized marriage between two people who have not purchased a marriage license or had their marriage solemnized by a ceremony. Not all states have statutes addressing common law marriage. In some states case law and public policy determine validity.
We have heard the stories and have clients ask us, if I live with my partner/significant other for 6 months or some other period of time, are we common law married? The answer is not so simple.
States that statutorily recognize common law marriage: Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas and Utah, and the District of Columbia. Without getting into the particulars of the laws surrounding common law marriage in each state, it is worthwhile to note that each state’s statutes are different and you should consult legal counsel in your particular state to get more information.
Several states recognize common law marriage through case law as well, including Rhode Island and Oklahoma, as well as the District of Columbia.
There are also several states that used to allow common law marriage: Pennsylvania, Ohio, Indiana, Georgia, Idaho, Oklahoma, Florida, and Alabama. Each of these states has a statute that identifies the date on which common law marriages are no longer recognized. For example, Florida’s law states that no common law marriage may be entered into after January 1, 1968, and Alabama’s is January 1, 2017.
There is no hard and fast rule or rules that “prove” common law marriage. There are many factors that Courts look at when making a determination, including:
- You must live together (the amount of time varies by state)
- You must have the legal right, and the capacity, to be married (age, sound mind, not married to someone else, etc.)
- You must consent/be in agreement that you are “married”
- You must have a reputation in the community that you are married – holding yourself out to family and friends as a married couple, referring to each other and introducing each other as spouse/husband/wife, hold joint accounts and credit cards
- Filing joint tax returns
- Holding bank accounts jointly
- Holding real property jointly
- Having and raising children together
- Sharing a common surname
- Identifying a party as a spouse on insurance or benefit forms
- Wearing rings
Ultimately, it is a judge that will make the determination, based upon the evidence presented.
How does common law marriage affect estate plans and trust/estate administration?
Estate planning is especially important for couples in common law marriages because this type of marriage is unusual and may be not acknowledged when it matters most — like during a health crisis or after an unexpected death. In a health care crisis, if a marriage is not recognized, a common law spouse may not get to make critical health care or financial decisions for their partner. They may not have access cash or property needed to pay necessary bills such as a mortgage or rent.
In the event of the death of a partner, the surviving party may have to fight to receive their partner’s property. And if you live in a state that doesn’t recognize common law marriage, then even if you live together in a relationship for 50 years and consider yourselves married, the surviving partner will not receive any portion of the deceased party’s estate unless they have an estate plan in place.
On the other hand, if you do not want your relationship to be deemed a common law marriage at your death, it is important to make that acknowledgment in your estate planning documents to prevent another party from claiming a common law marriage and request a spousal share of your estate.
If you are in, or have clients in a committed, long-term relationship who have not officially married or obtained a marriage license, have the conversations with them about incapacity and death planning. Help them through the process of how they want to define their relationship and prepare the property documents to make their decision clear.