Common Law Confusion

"I thought that by living together seven years, we had a common law marriage. But when he died I found out I had no rights at all."
(From a recent letter to Dear Abby)


Of all the legalities related to marriage and divorce, common law marriage is the most misunderstood. I'm willing to bet that at least ninety percent of the people who say they have a common law marriage don't have one.

Common law marriage has historically been recognized only in a fairly small number of states, and that number been shrinking in recent years as states have "prospectively" abolished it. (For example, in Pennsylvania no cohabitation arrangement that began after January 1, 2005 can be recognized as a common law marriage). As of right now, only ten states, plus the District of Columbia, recognize "new" common law marriages, and one of those states (New Hampshire) recognizes it only for the purposes of inheritance.

And no state automatically grants common law marriage status solely on the basis of cohabitation for a particular period of time, or on the fact that the couple had children together or owned their home jointly. In the states where common law marriage is permitted, the couple (or, if one person dies, the survivor) has to prove there was an "intent to be married". Proof of intent might mean having to show that you filed joint tax returns, or that you used the same last name, or that you both wore wedding rings. One way or the other, you have to come up with credible evidence that the two of you consistently held yourselves out to the world as a married couple.

If the evidence isn't strong enough, you'll be out of luck in claiming any inheritance or survivor rights that married people are automatically entitled to. You may even wind up fighting your (supposed) common law spouse's relatives in court. For example, if you move in with a man who has a child from a previous marriage or relationship, and he eventually dies without a will, that child may argue in court that the two of you never satisfied the legal requirements of a common law marriage. A surviving spouse is entitled in most jurisdictions to a guaranteed one-third share of the decedent's estate, even if he didn't leave a will. But if you can't prove you were a lawful spouse at the time of his death---common law or otherwise---you get nothing, and the children or other blood relatives would get everything.

Given that in most states a marriage license costs about fifty dollars, people are crazy to rely on vague common law marriage definitions to establish a marital relationship that can have far-reaching implications. If you're truly holding yourselves out as being married, then why not get married formally and not have to worry about it?

I should mention that gay cohabitation arrangements have never been awarded common law marriage status in any state of the country. Now that the door to gay marriage has apparently been closed in California, there may be a legislative effort in common law marriage states to extend the law there to gay couples, but it would probably be a lost cause. Gay marriage may well become an accepted practice in the years ahead, but common law marriage---straight or gay---is a concept that is quickly dying and not likely to be revived.