Common Law Marriage

Learn about common law marriages and find out what states recognize them.

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Marriage is the legal union of two people. Once they become married to each other, their responsibilities and rights toward one another concerning property and support are defined by the laws of the state in which they live. While a married couple may be able to modify some of the rules set up by their state, they can end their marriage only by a court granting a divorce or an annulment. Many people believe that if you live with a person for a long time you’re automatically married—that you have what is called a common law marriage, with the same rights and responsibilities of a couple who has been legally married. In most states, this is not true. In these states, marriage requires a license and ceremony.

States That Recognize Common Law Marriage

Only a dozen or so states recognize common law marriage:

Alabama

New Hampshire (for inheritance purposes only)

Colorado

Oklahoma

District of Columbia

Rhode Island

Iowa

South Carolina

Kansas

Texas

Montana

Utah

In a few other states, common law marriages will be recognized if they were created before the date the practice was abolished. These are Georgia (created before 1997), Idaho (created before 1996), Ohio (created before 1991), and Pennsylvania (created before 2005). Kentucky recognizes common law marriage only for purposes of awarding workers’ compensation benefits.

What if you establish a common law marriage in a state that recognizes it and move to another state that doesn't? A state that doesn’t provide for common law marriages will still recognize one if it was properly formed in a state that does provide for them. For example, if you have been living together in a common law marriage state for many years and then relocate to a non–common law marriage state soon before one of you dies, the laws of common law marriage will apply to the division of the deceased partner’s estate.

EXAMPLE: Colorado allows common law marriages; California does not. If Bob and Carol started living together in Los Angeles in 1980 and are still happily coupled today (but have never gone through a marriage ceremony), they are not legally married, even if they pretend they are. If, however, they started living together in Colorado in 1985 with the intention of forming a common law marriage and moved to California in 1995, both Colorado and California will recognize their common law marriage as valid.

How to Tell Whether You Have a Common Law Marriage

There are no absolute rules or guidelines; whether or not a common law marriage exists depends on the facts of each situation. However, a common law marriage can occur only when all of the following occur

• You are a heterosexual couple who lives together in a state that recognizes common law marriages

• You have lived together for a significant amount of time (not defined in any state). Despite much belief to the contrary, the length of time you live together does not by itself determine whether a common law marriage exists. No state law or court decision says seven years or ten years of cohabitation is all that is needed for a common law marriage. It’s only one factor the court may consider.

• You hold yourselves out to the community (your neighbors, friends, and coworkers) as a married couple—typically, this means using the same last name, referring to the other as “my husband” or “my wife,” and filing a joint tax return. 

Courts most often apply the rules of common law marriage in situations where one partner dies without a will and the other claims there was a common law marriage so as to inherit property under intestate succession laws. These laws automatically give a share of property to a spouse but don’t recognize an unmarried partner. 

If your state recognizes common law marriages where both partners are still living and your relationship meets the requirements, you may need to end your relationship by divorcing, just as you would if you had gotten married with a license and ceremony. Check with a lawyer who knows that law in your state to get this all sorted out.

Changing Your Name if Your Marriage Is Common Law

Anyone can do a name change--you don't need to be married. In theory, most states allow you to legally change your name by usage only -- meaning that you simply start using your new name without any court action, and at no cost. However, practically speaking, because you don't have a marriage certificate, you will need an official court order changing your name before you'll get government agencies and many private companies, such as banks and title companies, to accept your new name.

What to Do If You Don't Wish to Have Your Relationship Recognized as a Common Law Marriage

If you live together in a state that recognizes common law marriages and don’t wish to be married, it’s a good idea for you both to sign a statement making it clear that this is your joint intent. If you use the same last name and/or mix property together, it’s essential that you do this. Otherwise a common law marriage may later be found to exist.  Here's sample language for this type of statement of joint intent not to have a common law marriage. You can use the living together contract.

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