Love, Relationships and Finance: Common-Law Marriages

What exactly is a common-law marriage?

Some states – right now there are 11, plus the District of Columbia and, to a limited extent, New Hampshire -- legally recognize that a man and a woman who have lived together for a sustained period of time, and who think of themselves and present themselves to the public as man and wife, are joined in “common-law” marriage within that state and are entitled to the protections of marriage. Since the marriage is not formally recorded, however, the burden of proof is with the couple -- or one partner.

The laws differ from state to state. In general, partners must prove that they have the mental capacity to marry, and they must have lived together under one roof for a significant period of time (this period is not defined in any state). They must share the same last name, refer to each other as “my wife” and “my husband,” and file joint tax returns. Their friends and acquaintances also must consider them to be “married.”

If you are in a common-law marriage and it breaks up, do you file for divorce the same way you would if you were formally married?

Yes.

Do marital rights automatically accrue to a person who lives with you as a spouse over a long period of time ?

Only if you live in one of the states that honor common-law marriages. In many other states, you can consider yourself to be husband and wife, file joint tax returns, and so on, but if you’re not legally married you have no rights if your partner dies or leaves. It’s even possible that if your partner were in an intensive care unit, you wouldn’t be allowed to visit in a non-common-law state; because you would not be considered “next of kin.” Establishing a durable power of attorney for health care (“durable” because it re mains in effect even if you become incapacitated) is the only way to protect yourself against this possibility.

I am 57 years old and I have lived in a common-law marriage with my partner for many years. Does Social Security make any allowances for us?

Usually, no, but there are a few ways in which you and your partner could achieve dependent status under Social Security Administration rules. The first is if one of you adopts the (age 18 or younger) child of the other one. The second is if you and your partner live in a state that honors common-law marriages.

Which states currently recognize common-law marriages?

In no real order, the states are: Oklahoma , Pennsylvania , Rhode Island, Alabama, Colorado, Iowa, Kansas, South Carolina, Texas, Utah, and Montana, as well as the District of Columbia, and for inheritance purposes only, New Hampshire.

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