When it comes to marriage, relationships and the legal status of people who have been living together as a couple, the term “common law marriage” is often used. Common law marriages are recognized in a minority of states, though there is a lot of misinformation about how couples enter into this form of marriage. You should consult an attorney in your state if you need advice about common law marriages and how they affect estate planning concerns.
Contrary to popular belief, you cannot enter into a common law marriage simply by living with your partner for a certain amount of time. While each state’s rules about common law marriage differ, you and your partner must meet three essential requirements before you become married through common law. Both of you must intend to become married, hold yourself out to the public as a married couple and be of a minimum age, typically 18 or older.
If you meet these three legal requirements and do so in a state that recognizes common law marriages, you are legally married. There is no legal difference between a common law married couple and one that marries through other methods. A common law married couple has the same legal rights and obligations as any other married couple. This includes the right to inherit property from one another as well as make medical decisions for an incapacitated spouse. Further, there is no such thing as common law divorce, and even if you are married without a formal ceremony through common law, you must obtain a court granted divorce in order to end the marriage. If you and your partner do enter into a common law marriage this will necessarily affect any estate planning decisions as you are in a legal marriage and cannot disinherit your spouse.
Stephen A. Mendel, Estate Planning Attorney
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