Estate Planning for Common Law Marriages

Having a clear estate plan can protect you and your partner.

By , Attorney · University of Arkansas School of Law

Estate planning is especially important for couples in common law marriages because this type of marriage is unusual and may be not acknowledged when it matters most—like during a health crisis or after an unexpected death. In such situations, if a marriage is not recognized, a common law spouse may not get to make critical health care or financial decisions for their partner and may have to fight to receive their partner's property.

If you are in a common law marriage, you and your partner can protect yourselves and your families from difficulty and confusion by laying out your wishes in your estate plan. If your estate plan is clear—about your health care wishes, who should make decisions on your behalf, and what should happen to your property—any confusion about your marital status will have less of an impact because the key legal issues will be addressed by your documents.

Common Law Marriage

Common law marriage is a type of marriage that can be created when a couple lives together and represents themselves as a married couple. No ceremony or licensing is required to establish a common law marriage, although a couple may be able to officially record the existence of their marriage with a state or county court.

Only a few states still allow couples to create common law marriages. However, several additional states continue to recognize common law marriages that were created before a certain date. Some states recognize common law marriages established in other states even if the state doesn't otherwise allow common law marriage. Each of these states sets out its own requirements for creating a common law marriage. Once established, couples in common law marriages have the same rights, benefits, and obligations as traditionally married people. And if they decide to break up, they must go through the standard divorce proceedings. Also, like traditional marriage, you cannot establish a common law marriage if you are already married to someone else.

What Happens If You Don't Have an Estate Plan

If you are in a common law marriage and you don't have an estate plan, it may be difficult for your partner to get the recognition needed to act as your spouse. Common law marriages are not the norm, and they are often misunderstood. It is quite possible that there could be confusion about your marital status—especially in a crisis or emergency situation. In these situations, a health care provider may listen to what your parent or sibling says since this type of relationship is easier to prove. Your spouse may file a legal case to try to get the control to make important decisions, but others may make these important decisions for you while the case is pending.

Clarity about your marital status is important because—in the absence of an estate plan—the law generally gives spouses the right to make health care decisions, have power over finances, make final arrangements for a deceased person's body, and receive at least a large portion of their deceased spouse's estate.

So if health care providers, financial institutions, or lawyers don't recognize your partner as your spouse—and you don't have an estate plan that clearly lays out your wishes—your partner may be left out of critical decisions about your health care, your finances, or the distribution of your property.

The risk to your partner will be even greater if your family members do not know about or do not approve of your marriage. They may try to make medical, legal, and financial decisions on your behalf without consulting your partner. Your family may even choose to keep your partner from visiting you in a hospital or other medical facility.

The best thing you can do to protect yourself, your partner, and your estate is to make a comprehensive estate plan that makes all of your emergency and end-of-life wishes clearly understood.

Key Elements of an Estate Plan for Common Law Partners

To avoid the problems discussed above, create a comprehensive estate plan. Consider making a will, a living trust, health care directives (including a living will and power of attorney for health care), and a durable financial power of attorney. Also, review your beneficiary designations to make sure they reflect your wishes.

Last Will and Testament

The cornerstone of an estate plan is a last will and testament. Your will can indicate how you want your property to be distributed after you die, appoint an executor to wrap up your estate, and nominate guardians for of your minor children. To make a clear plain English will, try using Nolo's bestselling Quicken WillMaker & Trust.

Revocable Living Trust

A revocable living trust is another way to distribute your property after you die. Compared to a will, it's usually more work to set up and manage. However, living trusts offer some significant advantages that wills cannot provide. For example, with a living trust, you can

  • Leave detailed instructions on how the trustee should manage trust property.
  • Put conditions on gifts, so that a beneficiary will only receive the gift if specific conditions are met.
  • Keep trust property out of probate (an expensive and time consuming court process).With a living trust, your successor trustee can transfer trust property directly to beneficiaries without approval from the probate court.
  • Give your successor trustee the power to manage trust property in case you become incapacitated.

Most people make living trusts to avoid probate. However, not everyone needs a living trust to avoid probate. For example, in most states, small estates do not need to go through probate. And there are many other ways to avoid probate—like beneficiary designations, transfer-on-death deeds, and some forms of coownership.

You can make a living trust with Nolo's Quicken WillMaker & Trust.

Healthcare Directives

Use one or more healthcare directives to ensure that your partner has the information and power needed to honor your wishes for medical care if you can't speak for yourself.

Use a living will (called a directive or declaration in some states) to state the type of medical treatment that you do or do not want. State laws inform what your living will can cover, but in most states, you can use your living will to decide:

  • whether to be hooked up to machines that keep you artificially alive
  • when to end life-prolonging treatments
  • whether to receive treatment for new conditions
  • whether to stop receiving food and water
  • whether to donate your organs, and
  • what type of pain relief you receive.

You can also leave specific instructions for your healthcare providers and family that explain other wishes, like religious preferences or instructions for notifying family.

Clearly stating your health care wishes in a living will may prevent conflicts between your partner and your family during a stressful time.

In addition to your living will, it's a good idea to also make a power of attorney for health care (sometimes called a medical power of attorney, health care proxy, or other similar name). In this document, you state who should make medical decisions on your behalf if you can't make decisions for yourself. (The person you name won't have this power if you can make those decisions for yourself.)

The person you name (called your agent, health care proxy , or surrogate) must follow the instructions you provided in your living will. But it's a good idea to discuss your values and the type of medical care you want to receive so your agent feels confident about making decisions that you likely would make under the same circumstances. In some states, you can also give your agent the power to make decisions about what will happen to your body after you die.

When you name your partner as your health care proxy, medical providers are obligated to follow your partner's instructions even if another close family member would have made a different decision.

Many states combine living wills and powers of attorney for healthcare into one document, often called an "advance directive."

Finally, in addition to living wills and powers of attorney for health care, you might also consider making a POLST form or a DNR order. While not strictly estate planning forms, they are useful for instructing health care providers about your medical wishes in an emergency. You can get these forms from your doctor.

Durable Power of Attorney for Finances

A durable power of attorney for finances lets you nominate an agent to take care of your financial affairs if you become unable to handle these responsibilities on your own. In the document, you can decide exactly how much power that person can have. For example, you can state that your agent should be able to pay your bills, maintain your insurance coverage, buy or sell real estate, or handle other financial responsibilities on your behalf. Or, you can give a broad power that allows your agent to handle all of your financial matters. You can also determine when your agent's powers begin. They can begin immediately, or they can "spring" into effect only if you become incapacitated. The term "durable" means that the powers stay in effect even if you become incapacitated.

Beneficiary Designations

Some financial assets pass directly to beneficiaries, without going through a will or trust. For these types of financial accounts or policies, you use "beneficiary designations" to tell the company that manages the asset who should get it when you die.

These assets usually have beneficiary designations:

  • life insurance policies
  • bank accounts
  • retirement accounts
  • stocks and bonds

If you have any of these, you probably filled out the beneficiary designation when you set up the account or policy. Because circumstances (and relationships) change over time, it's a good idea to regularly review your beneficiary designations to make sure they reflect your wishes.

Get Help If You Need It

If you are in a common law marriage, setting up an estate plan to clearly and legally state your wishes will go a long way in preventing legal and practical conflicts between your family and your spouse. Planning your estate also helps to ensure that the person making important decisions about you is the one you trust the most.

If you have a small or simple estate, you may be able to do much of your estate planning yourself. However, see an estate planning lawyer if you have a large estate or complicated assets or circumstances.

Also, get legal advice if you have any concerns or questions about the status of your common law marriage.

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