Cameron Miranda
Common-law marriage is a unique legal concept that is currently recognized in only 15 states and the District of Columbia. Each state has its own rules and requirements for what constitutes a common-law marriage, and it's important to understand the specific laws in your state. Generally, common-law marriage is established by cohabitation and both partners' intent to be married, without a marriage license or ceremony. To prove a common-law marriage, certain documents may be required, such as an affidavit, property deeds, tax returns, insurance policies, or a Declaration of Informal Marriage. These documents can demonstrate factors such as cohabitation, shared finances, and assumption of a married name. Proving a common-law marriage can have significant implications for property division, inheritance rights, and access to spousal benefits in the event of death or divorce.
| Characteristics | Values |
|---|---|
| Number of states recognizing common-law marriage | 15 states and the District of Columbia |
| Requirements | Living together, agreeing that you are married, holding out to others that you are a married couple, having the legal right to marry, and intending to be married |
| Proof of common-law marriage | Affidavit, property deed, public announcement of marriage, birth certificates, deeds showing joint ownership, bank statements, loan documents, credit card accounts, church records, etc. |
| Proof of common-law marriage in Texas | Declaration of Informal Marriage with the county clerk |
| Proof of common-law marriage if the state doesn't recognize it | Written documentation, such as lease agreements, tax returns, and insurance policies |
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What You'll Learn
Common-law marriage requirements vary by state
Common-law marriage is an informal marriage without a marriage license, certificate, or ceremony. It is fully recognised in seven states and the District of Columbia, though the number of states that recognise it is in flux.
The requirements for common-law marriage vary by state. Generally, you will need documents that show a long-term domestic partnership. For example, common-law marriage in Texas requires proof that you and your partner agreed to be married and live together in Texas as a married couple (cohabitation). However, Texas does not require the couple to be together for a specific period before they can declare themselves to be in a common-law marriage.
Couples in states that recognise common-law marriage must sign a living-together contract if they don't want to be seen as married, especially if they own property together or share a last name. Common-law couples can't file joint tax returns with the IRS if they live in a state where common-law marriage isn't recognised.
Some common documents that can be used to establish a common-law marriage include:
- An affidavit, or written statement, in which you swear under oath that you are married
- A driver's license or Social Security number card that shows a name change that matches your spouse's name
- Birth certificates that name you and your common-law spouse as parents of your child
- Deeds showing title to property held jointly
- Bank statements and checks showing joint ownership of accounts
- Loan documents, leases, mortgages, and promissory notes that show joint financial obligations
- Credit card accounts in the names of both common-law spouses
- Church records indicating familial status, membership information, baptismal certificates of the spouses' children, Sunday School registration forms, etc.
In addition to cohabitation, couples may need to show that they mutually assumed the responsibilities of a marriage, such as sharing income and expenses, leasing or owning a home together, raising children together, or both contributing to the upkeep of their home.
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Proving common-law marriage in court
Proving a common-law marriage in court can be challenging, especially for same-sex couples. Common-law marriage is only recognised in a handful of states, and each has its own requirements. Generally, you will need documents that show a long-term domestic partnership. For example, common-law marriage in Texas requires proof that you and your partner agreed to be married and lived together in Texas as a married couple.
If you've considered yourself married but never obtained a marriage license or had a ceremony, you might have a common-law marriage. However, this depends on where you lived when you established your relationship and whether you can prove you met the legal requirements for a valid common-law marriage.
To establish a valid common-law marriage, you and your partner must generally have lived together ("cohabitated") consistently during the marriage. While there's no rule about living together for a set amount of time, cohabitation is usually a minimum requirement. In addition, you'll need to show that you mutually assumed the responsibilities of a marriage, such as sharing income and expenses, leasing or owning a home together, raising children together, or both contributing to the upkeep of your home.
You can use various documents to establish a common-law marriage, including:
- Affidavit: A written statement in which you swear under oath that you and your partner are married, including the date and location where you mutually agreed to become spouses.
- Public announcement of your marriage: Save-the-date, wedding invitation, or social media post.
- Driver's license or Social Security card showing a name change that matches your spouse's name.
- Birth certificates naming you and your partner as parents of your child.
- Deeds showing joint ownership of property.
- Bank statements showing joint accounts.
- Loan documents, leases, mortgages, and promissory notes showing joint financial obligations.
- Credit card accounts in both names.
- Tax returns and insurance policies.
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Common-law marriage and cohabitation
Common-law marriage is an informal marriage without a marriage license or ceremony. It is a valid and legal way for a couple to marry and is recognised in only 15 states and the District of Columbia. Each state has its own rules about what is required to have a common-law marriage, but generally, you will need documents that show a long-term domestic partnership. For example, common-law marriage in Texas requires proof that a couple agreed to be married and lived together as a married couple (cohabitation).
Cohabitation is a general minimum requirement for common-law marriage, although some courts have said it is becoming a less important factor in determining whether a common-law marriage exists. However, couples must live together to be considered in a common-law marriage, and the longer they live together, the stronger their case is. Other requirements include that both partners must be at least 18 years old, of sound mind, and not already married to other people.
To prove a common-law marriage, couples can use documents such as an affidavit, property deed, birth certificates, bank statements, loan documents, leases, mortgages, and more. In Texas, couples can register their common-law marriage by filing a declaration with the county clerk. This declaration is valid proof of marriage and is considered as such for all legal purposes. If no declaration was filed, it may be necessary to go to court to prove the marriage.
Same-sex couples have the same legal right as opposite-sex couples to establish a common-law marriage, but they may have a harder time gathering the required evidence. For instance, same-sex couples did not previously have the option to file joint tax returns or list their partner as their spouse on many official documents. However, some courts have held that judges should take a broad view that considers these realities when assessing evidence of a same-sex common-law marriage.
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Same-sex common-law marriages
The concept of common-law marriage has existed since the United States began. However, only a minority of states (sources cite 7, 15, or 16) and the District of Columbia currently recognize common-law marriages, and each has its own requirements that couples must meet.
In states that do recognize common-law marriages, there are generally four requirements to create one:
- You must live together, although the amount of time required varies by state.
- You must both have the legal right or "capacity to marry," meaning you must be of legal age, of sound mind, and not already married to someone else.
- You must hold yourself out to friends and family as being a married couple, such as by using the same last name, referring to each other in public as "husband" or "wife," or sharing joint bank accounts or credit cards.
- You must mutually assume the responsibilities of a marriage, such as by sharing your income and expenses, leasing or owning a home together, raising children together, or both contributing to the upkeep of your home.
Same-sex couples have the same legal right as opposite-sex couples to establish a common-law marriage. However, gay and lesbian partners may have a harder time gathering the evidence required to prove that their relationship qualifies. For example, these couples didn't have the option to file joint tax returns or list their partner as their spouse on many official documents before same-sex marriage was legalized. Additionally, because gays and lesbians often faced discrimination in social and professional settings, same-sex couples haven't always had the ability to hold themselves out in public as a married couple.
Some courts have ruled that judges should take a broad view that considers these realities when assessing evidence of a same-sex common-law marriage. For example, in 2019, a South Carolina court ruled that a same-sex couple who lived together for about 40 years had a common-law marriage, even though South Carolina did not recognize same-sex marriage until 2014. Similarly, in Pennsylvania, a same-sex common-law marriage will be recognized if contracted before January 1, 2005, even though Pennsylvania did not recognize same-sex marriages until May 20, 2014.
To prove a common-law marriage, couples can use documents like an affidavit or property deed. Other examples of evidence that may help to prove a valid common-law marriage include:
- A public announcement of your marriage (e.g., save the date, wedding invitation, social media post, etc.)
- Driver's license or Social Security number card that shows a name change that matches your spouse's name
- Birth certificates that name you and your common-law spouse as parents of your child
- Deeds showing title to property held jointly by both parties
- Bank statements and checks showing joint ownership of accounts
- Loan documents, leases, mortgages, and promissory notes that show joint financial obligations
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Common-law marriage and inheritance
Common-law marriage is a type of legal marriage that does not require a marriage license, witnesses, or an officiated ceremony. It is currently recognized in only a few states, including Texas, Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina, Utah, and the
In terms of inheritance, the rights of a common-law spouse can vary depending on the state and the specific circumstances of the relationship. In states that recognize common-law marriage, common-law spouses typically have the same inheritance rights as those in a traditional marriage. For example, in Texas, a common-law spouse can inherit from a decedent's estate, with or without a valid will, and is entitled to community property, homestead rights, and exempt property. They may also receive a family allowance during the estate administration process.
However, in states that do not recognize common-law marriage, the surviving significant other may not be entitled to any inheritance unless there is an estate plan in place. This can create challenges when a couple believed they were married under common law, but their state does not recognize such marriages. Therefore, it is essential to understand the specific requirements and rights associated with common-law marriage in your state, especially when it comes to inheritance and estate planning. Consulting an experienced family law or probate attorney in your area can help you navigate these complexities and ensure your rights are protected.
To establish a common-law marriage and ensure inheritance rights, various documents can be used as evidence. These may include affidavits, property deeds, birth certificates, bank statements, loan documents, mortgages, credit card accounts, and witness testimonies from friends and family. Additionally, joint tax returns, shared bank accounts, and property records can also demonstrate a marital relationship.
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Frequently asked questions
A common-law marriage is an informal marriage without a marriage license or ceremony. It is a valid and legal way for a couple to marry in certain states.
Yes, you need to provide certain legal documents to prove your common-law marriage. These may include an affidavit, property deed, birth certificates, bank statements, loan documents, and more.
The requirements for a common-law marriage vary by state, but generally include living together, agreeing to be married, holding yourselves out as a married couple, and having the legal capacity to marry.
You can prove a common-law marriage by providing evidence of your relationship, such as documentation showing joint ownership, financial obligations, or name changes. A judge will consider the circumstances and decide if you lived and acted like a married couple.
No, common-law marriages are only recognized in a limited number of states and the District of Columbia. Each state has its own requirements and rules for common-law marriages.
