WHAT IS COMMON LAW MARRIAGE AND ITS LIMITATIONS

Gabriel Katzner - December 21, 2021 - Estate Planning
Estate Plan for a couple on Common-Law Marriage

Common law marriage, a marriage in which a couple lives together for a period of time before declaring themselves to be married, has existed in some form or another in the United States since the late 1800s. A common law marriage does not require taking part in a judicial or religious ceremony. As society evolves, the definition of marriage evolves as well. In the event of illness or death, common-law marriages can present some difficulties in planning.

Requirements for Common Law Marriages

To meet the state requirements for common law marriages, these three elements are commonly required:

  1. Cohabitation: the couple must live together (length of time may vary by state).
  2. The couple must present themselves to the public as married. This may include taking the same last name, referring to each other as a spouse, holding joint financial accounts or credit cards.
  3. Both members of the couple must agree that they are married.

Common Law Marriage States. What States Recognize it?

Only a few states recognize common-law marriages, including Texas, Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina, Utah, and the District of Columbia.

How Many Years Is Common Law Marriage?

In some states, the laws regarding common law marriages have changed, so marriages created before a specific date that satisfies all the requirements for a common-law marriage are recognized. In contrast, marriages after the date or that do not meet all the conditions are not.

  • Colorado: Common law marriage contracted on or after Sept. 1, 2006.
  • Iowa: Common law marriage for purposes of the Support of Dependents Chapter inside the Iowa Code
  • Kansas: Common law marriage will be recognized if the parties are 18 or older.
  • Montana: Not strictly prohibited, they are not invalidated by the Marriage Chapter.
  • New Hampshire: For the period of 3 years, and until the decease of one of them.
  • South Carolina: allows for marriages without a valid license.
  • Texas: Common Law Marriage under specific circumstances.
  • Utah: Recognize Common Law Marriage but it is under a set of specific circumstances that are sometimes hard to prove.

Is There Common Law Marriage In California?

California currently doesn’t recognize “common law marriage”.

What’s The Difference Between a Common Law Marriage and a Traditional Legal or Religious Marriage?

Once established, a common law marriage is as valid and binding as a traditional legal or religious marriage. However, only people in the states in which common law marriages are recognized and who meet all of the requirements for common law marriages can benefit from them.

The Difference in Common Law Between States

The difference in laws between states and the fact that the laws are constantly evolving can cause issues when a state does not recognize common law marriages or does, but not all requirements were met. For example, suppose a couple believes they met the criteria for a common law marriage but do not, and one member of the couple dies. In that case, the significant other could be left in a difficult financial and legal situation.

If the law does not recognize a marriage or union, the significant other will not be able to inherit anything when their spouse dies. If a couple resides in a state that does not recognize common law marriages, contesting the decision in probate court will be futile because there is no standing to contest. The length of the marriage will not make a difference in a state in which common law marriages are not recognized.

Financial and Healthcare Issues when Common Law Marriage

There are also healthcare and financial issues to consider as well. For example, if a partner becomes ill and cannot advocate for themselves, their partner in an unrecognized union cannot provide input without an estate plan. Consider a scenario in which family members advocate for healthcare treatment that one member of a couple knows is against their sick partner’s wishes. The partner will not have any input into the decision and will stand by helplessly.

The Importance of Estate Planning in Common Law Marriage

If a partner is incapacitated and needs financial support or their property needs attention, their partner could not help without an estate plan. Legal documents providing access to the accounts and property would be required. Imagine being in a situation where the home is in one partner’s name, and they become incapacitated. The other partner may be unable to make rent or property payments on a dwelling and therefore may have no right to continue living there.

How an Estate Plan Can Help

A formal estate planning lawyer can help ensure that plans are in place to take care of a partner. If you are in a common law marriage or believe that you are and need help planning for the future, we can help.

You are welcome to schedule a call with us or reach us directly at 855.434.2062 to learn more about how best to plan today to protect those most important to you.

Gabriel Katzner

In 2002, Gabriel Katzner, the founding partner of Katzner Law Group received his Juris Doctorate with honors from the Fordham University School of Law. After spending the first 7 years of his legal career
practicing at Cahill Gordon & Reindel LLP, an international law firm based in New York, he went on to found his own firm.

Gabriel Katzner has a track record, along with a vast number of
outstanding public reviews across platforms, of working hard on behalf of individuals who need assistance with comprehensive
estate planning services. Finding a lawyer who is knowledgeable about revocable and irrevocable trust planning, guardianship for minor children, asset protection, trust administration and probate,
as well as Medi-Cal / Medicaid planning is extremely important.

Years of experience: More than 17 years
Location: San Diego, CA



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This page has been written, edited, and reviewed by a team of legal writers following our comprehensive editorial guidelines. Furthermore, it has received approval from attorney Gabriel Katzner, an experienced estate planning lawyer with over 17 years of legal expertise.

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