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.

Show Notes:

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.

Merrell and Krystal discuss Death with Dignity Statutes, and their concerns as estate planners. What about pressures on the elderly? How young is too young for a young adult trying to arrive at such a decision?


States with Death with Dignity Statutes

Colorado Medical Aid in Dying Statistics

Me Before You, a book by Jojo Moyes


:40 Introduction, Death with Dignity Statutes

1:21 A 17 year old girl in Belgium who used legal assisted suicide to end her life after rape

1:43  Elderly clients under pressure from children to use aid in dying laws?

2:28  States that have these laws and their various names (Medical Aid and Dying, End of Life Options Act, Death with Dignity Act, Patient Choice and Control at the End of Life Act, :  Colorado; California; Hawaii; New Jersey effective August 2019; Oregon; Vermont; Washington; and Washington, D.C.; and Montana rules that nothing prevents a doctor from prescribing meds that would end a patient’s life.

3:28 Colorado’s laws and hurdles

4:55 Vulnerability with elderly clients feeling pressured to die sooner than would be natural, and undue influence

6:21 What if you don’t have a diagnosis?

6:52 If the aid and dying statute is used, the death certificate shows that they died of their condition, or inanation

7:30 Merrell discusses her mother’s own decision to stop eating (where death with dignity was not an option)

9:06 As practioners, Krystal and Merrell discuss the difference that knowing of a terminal diagnosis makes in the counsel they feel comfortable offering.

12:03 Outlook for other states, being a resident of a state in order to take advantage of these kinds of statutes

13:00 Me Before You, the book about the Englishman who went to Sweden to take advantage of their laws

14:03 Discussing this option with clients



If you feel a little overwhelmed by the number of advance directives to consider and how they’re similar and dissimilar, this episode of Tax Boss will help! We discuss DNR orders, physicians orders for life-saving treatment, healthcare surrogates, living wills, and the difference between all of them. We also discuss why you may want to consider naming different people in each case.


Advance Care Directives


1:48 DNR – what it is and what it isn’t

4:36 What is included in a Healthcare Surrogate document?

7:09 Having conversations with the people you’ve named – what you’d like them to know that they may not know

8:00 The Living Will document and choosing who you’d want to have your back

10:30 The Terry Schiavo case and definition of artificial life support

12:14 Three different paths of the Living Will in Florida

12:53 The P.O.L.S.T or Physicians Orders for Life Sustaining Treatment

18:25 Medicare and skilled nursing facilities

19:40 Dealing with statements like, “You must not love your father if you won’t let me treat him.”


Weddings and funerals are two of the most stressful occasions we may encounter and they both require that you throw a party, too. Krystal and Merrell discuss information necessary to complete funeral home paperwork and why decisions made ahead of time really pay off, in many ways.


Estate Planning and Funeral Arrangement Resources from Your Caring Law Firm


2:10 Three questions asked by a mortuary for a death certificate

3:10 Naming an independent fiduciary to handle the passing of a loved one

5:30 Disposition of Human Remains document

8:00 Consider pre-paying if you think there will be a disagreement

9:45 Pre-planning pays off in a time of shock and sorry