Will Your Common-Law Spouse Inherit Your Wealth?

Inheritance laws are complex and vary by state or region. In common-law states, ownership is determined by whose name is on the title, and a spouse is not automatically entitled to half of the assets obtained during the marriage. However, in most common-law states, a surviving spouse is protected from complete disinheritance and can claim up to half of the decedent's property. In community property states, any property acquired during the marriage is jointly owned, and a spouse may have an automatic right to an inheritance. Without a will, inheritance is generally based on succession laws that prioritize legal spouses and family members. With a will, you can choose your beneficiaries, including common-law partners, but it is important to understand the specific laws and requirements of your state or region.

Can a common-law spouse take your inheritance?

Inheritance laws vary by state

Inheritance laws in the US vary by state, and they govern more than just who gets what. The laws dedicated to inheritance often overlap with systems of ownership, marriage, and taxation. Each state has its own constitution and set of laws, and what counts in one state may not be the rule of law in another.

There are three dominant systems for inheritance and property ownership in the US: common law, community property law, and elective community property law. The majority of US states have based their legal codes on English common law, but there are exceptions, such as California and Texas, which, as former Spanish colonies, have laws based on the Spanish civil law system. Louisiana, a former French colony, is another exception, founded on Napoleonic civil law.

Under common law, every person is entitled to their property and the risks and benefits therein. Even married couples are held accountable for what they own and earn separately. In common-law states, ownership is determined by whose name is on the title (for real estate or a car, for example). If only one spouse's name is on the deed of a home, that spouse owns the home, even if the other spouse paid for it. In a common-law state, a spouse is not automatically entitled to half of the assets obtained during the marriage. However, many common-law states protect a surviving spouse from complete disinheritance with an inheritance law that allows them to claim one-third to one-half of the decedent's property.

In contrast, community property law considers income received from employment, property bought during the marriage, and separate property that a spouse gives to the marriage as being "shared" between partners. Under this system, each spouse automatically owns half of what they each earned while married. So, when one spouse dies, half of their estate automatically goes to their partner, while the other half may be distributed to other beneficiaries. There are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

Elective community property law is a hybrid of the two, allowing spouses to opt into community property arrangements. Alaska, Kentucky, and Tennessee are the three states governed by this system.

Common-law spouses can inherit in certain regions

Inheritance laws are statutes and regulations that determine how individuals receive assets from the estate of a deceased family member. These laws vary by state and region, and they can be complex. In the United States, there are three systems governing how individuals receive assets from a deceased relative: community property, elective community property, and common law. Most states are governed by common law, but there are nuances and exceptions to these rules.

In common-law states, ownership is determined by whose name is on the title, such as for real estate or a car. If only one spouse's name is on the deed of a home, that spouse owns the home, even if the other spouse paid for it. However, in some common-law states, a surviving spouse is protected from complete disinheritance and can inherit one-third to one-half of the decedent's property. In certain states, the amount a spouse can inherit increases with the length of the marriage.

Community property states, including Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, have their own rules about what spouses own and can claim. In these states, any property acquired by either spouse during the marriage is considered jointly owned by the "marital community". Alaska, Kentucky, and Tennessee are considered elective community property states, allowing couples to choose to transfer assets to a community property trust.

In Canada, common-law partners can only inherit intestate estates (estates without a will) in British Columbia, Manitoba, Saskatchewan, and the Northwest Territories. In every other region of Canada, a "spouse" is defined as someone to whom one is married. However, in Texas, a common-law spouse is afforded the same rights as a spouse in a formal or traditional marriage, including community property rights, homestead rights, and exempt property rights.

Common-law marriage requirements

In the United States, common-law marriage has existed since colonial times, when America was a colony of England. Common-law marriage, also known as non-ceremonial marriage, is a legally and informally recognised marriage without a formal wedding ceremony, marriage license, or marriage certificate. Common-law marriage is currently recognised in seven states and the District of Columbia, and each state can create its own rules for qualification.

The common requirements for common-law marriage are as follows:

• Living together: While there is no statutory requirement for the length of time a couple needs to live together, generally, the longer a couple lives together, the stronger their case is for common-law marriage.
• Legal right or "capacity" to marry: Both partners must have the legal capacity to marry, typically requiring both partners to be at least 18 years old, of sound mind, and not already married to other people.
• Intent: Both partners must intend to be married and behave as a married couple, presenting themselves as such to friends, family, and the public.
• Cohabitation: Both partners must live together in a way that is perceived by society as a married couple, and the cohabitation must be voluntary.

It is important to note that the requirements and recognition of common-law marriage vary by state and country. For example, Canada does not have the institution of common-law marriage, but common-law relationships are recognised for certain purposes. In England, common-law marriages were abolished in 1753, but English law does recognise common-law marriages in limited circumstances, such as marriages in prisoner-of-war camps during World War II.

Common-law spouses' inheritance rights

Inheritance laws are statutes and regulations that determine how individuals receive assets from the estate of a deceased family member. These laws vary by state and can be complex. In the US, there are three systems governing how individuals receive assets from a deceased family member: community property, elective community property, and common law. Most states are governed by common law.

In a common-law state, ownership is determined by whose name is on the title (for real estate or a car, for example). If only one spouse's name is on the deed of a home, that spouse owns the home, even if the other spouse paid for it. If the title doesn't apply to the type of personal property in question, ownership is determined by who purchased the property. A spouse is not automatically entitled to a 50% interest in property acquired during the marriage. However, most common-law states protect a surviving spouse from complete disinheritance with an inheritance law that allows them to claim one-third to one-half of the decedent's property. In some states, the amount a spouse can inherit increases with the number of years of the marriage.

In community property states, any property acquired by either spouse during the marriage is jointly owned by the “marital community”. These states include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In Alaska, spouses can enter into a community property arrangement by written agreement, and in Kentucky, South Dakota, and Tennessee, couples can choose to transfer assets to a community property trust.

Without a will, inheritance is generally based on the succession laws of a province or territory, which prioritize legal spouses, children, and other family members. With a will, you can choose anyone to inherit your assets, including common-law partners, friends, family members, or charities. Common-law partners can only inherit intestate estates (estates without a will) in certain regions, such as British Columbia, Manitoba, Saskatchewan, and the Northwest Territories. In other regions, the common-law partner has no inheritance rights without a will.

To establish a common-law marriage, couples must typically meet certain requirements, such as agreeing to be married, living together as husband and wife, and holding themselves out to others as married. Evidence of a common-law marriage may include a signed declaration of informal marriage, joint tax returns, shared bank accounts, property records, and witness testimony.

Inheritance rights of surviving spouses

Inheritance laws are statutes and regulations that determine how individuals receive assets from the estate of a deceased family member. These laws vary by state and can be complex. They are based on whether the deceased person lived in a ""community property or "common-law" state, and whether a will was left.

In community property states, any property acquired by either spouse during the marriage is jointly owned by the “marital community”. These states are: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In Alaska, spouses can also enter into a community property arrangement by written agreement, and in Kentucky, South Dakota, and Tennessee, couples can choose to transfer assets to a community property trust.

In common-law states, ownership is determined by whose name is on the title (for real estate or a car, for example). If only one spouse's name is on the deed of a home, that spouse owns the home, even if the other spouse paid for it. If the title doesn't apply to the type of personal property in question, ownership is determined by who purchased the property. A spouse is not automatically entitled to a 50% interest in property acquired during the marriage. However, in most common-law states, a surviving spouse is protected from complete disinheritance, with a law allowing them to claim up to one-half of the decedent's property. In some states, the amount a spouse can inherit increases with the number of years of the marriage.

Without a will, inheritance is based on the succession laws of the region, which prioritize legal spouses, children, and other family members. With a will, a person can choose anyone they want to inherit their assets, including common-law partners, friends, family members, or charities. In common-law relationships, the couple must meet the criteria for common-law marriage in their region, which may include a minimum time requirement. In Texas, for example, a common-law spouse is afforded the same rights and privileges as those in a formal or traditional marriage, including retaining a 50% interest in community property, homestead rights, and the right to claim certain property as exempt from creditors' claims.

Frequently asked questions