Cameron Miranda
In most places, common-law marriages are not treated the same as traditional marriages. In the UK, for example, common-law marriages are considered a modern-day myth and are not recognized by the law. Intestacy laws dictate what happens to the estate of a person who dies without a will, and these laws are applied irrespective of the deceased's wishes or how long a couple has been cohabiting. In Ontario, if a common-law spouse dies without a will, the surviving spouse will not inherit any part of the estate. However, in some places, marriage does override a will. In California, for instance, a marriage automatically revokes any pre-existing will or trust regarding the new spouse's inheritance rights unless the documents provide for a new spouse or indicate that the new spouse will receive nothing. In North Carolina, if you don't update your will after marriage, your spouse may still inherit a portion of your estate through an elective share, which allows a surviving spouse to claim a percentage of the deceased's estate regardless of what the will says.
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What You'll Learn
Common-law marriage rights vary across states
The rights and benefits of common-law marriages vary across different states in the US. Common-law marriage is a term often used to refer to cohabiting couples, regardless of their legal rights. This has created some public confusion regarding the legal rights of unmarried partners.
In some states, common-law marriages are no longer recognized. For example, California abolished the common-law contract of marriage in 1895 and will only recognize a domestic common-law marriage contracted before that date. However, California does recognize the rights of omitted spouses, where a surviving spouse is entitled to a share of their deceased spouse's estate, unless the will expressly indicates otherwise.
In other states, common-law marriages are still recognized and provide similar rights to married couples, including inheritance rights. For instance, in North Carolina, a spouse may inherit a portion of their deceased spouse's estate through an "elective share," even if they are not mentioned in the will.
The recognition of common-law marriages and the rights they confer can vary depending on the specific circumstances and the standards established by each state's statutes and case law. For example, in Utah, a common-law marriage must be validated by a court or administrative order, which establishes that the couple meets specific requirements, such as cohabitation and assuming marital rights and duties.
It's important to note that the laws and requirements regarding common-law marriages can change over time, and seeking legal advice is essential to understanding one's rights and obligations in a particular state.
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Common-law spouses are not treated the same as married spouses
In Canada, for example, common-law spouses may be treated similarly to married spouses for certain purposes, such as taxes and financial claims. However, they are not legally considered married. In the event of a common-law spouse's death, the surviving spouse may be omitted from inheriting any part of the estate, as they are not considered to have the same rights as a legally married spouse.
The rights of common-law spouses can vary depending on the jurisdiction. In some US states, common-law marriages are recognised and may provide financial benefits similar to those of married couples, such as Social Security and tax exemptions. However, in other areas, common-law spouses may have no special rights, and the division of assets upon separation may be decided by property law.
To ensure their rights are protected, common-law spouses can consider a cohabitation agreement, similar to a prenuptial agreement, which outlines the division of income, assets, and debts in the event of separation. This can provide clarity and ease the process of separating.
In summary, while common-law spouses may be treated similarly to married spouses in specific contexts, they are not legally considered married and do not automatically have the same rights, particularly regarding inheritance and property division. The specific rights and protections afforded to common-law spouses can vary depending on the jurisdiction.
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Common-law marriage is a myth in the UK
Cohabiting couples are the fastest-growing family type in the UK, with approximately 3.3 million in 2016. However, many people erroneously believe they have rights as 'common-law spouses'. This is a misconception, as there is no such status or concept in UK law. The term 'common-law spouse' is often used, but it is not a legal status. Unmarried couples do not have the same legal rights as married couples, whether in relation to maintenance, property ownership, or pensions. This can lead to financial difficulties when separating, especially when children are involved.
For example, if an unmarried couple with children separates, only the person with parental responsibility can legally make decisions about the child's upbringing. Unmarried fathers, in particular, may face challenges regarding parental rights. In terms of property ownership, if a family home is held in one person's name, the other may have to claim a share in the event of a separation.
Cohabiting couples do not have the same recourse to the Court as married couples for financial support or maintenance, even if one partner was financially dependent on the other. This can result in severe financial difficulties, especially when compared to a married couple in a similar situation. While child maintenance can be ordered, the lack of legal rights for long-term unmarried couples remains a significant issue, and reform is long overdue.
To protect their legal position, cohabiting couples can seek advice on drawing up cohabitation agreements and determining how property should be owned. Family mediation can also provide a safe and healthy environment for couples to resolve their differences with the help of a trained, independent mediator.
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Marriage revokes pre-existing wills in California
In California, a marriage does not automatically revoke a pre-existing will. However, a surviving spouse who is not named as a beneficiary in their spouse's will, created before marriage, may be considered an "omitted spouse". In such cases, the surviving spouse is generally entitled to the same inheritance as if the decedent had died without a valid will. This is referred to as an "intestate share" of the decedent's estate.
California Probate Code sections 21610-12 protect the rights of omitted spouses. These laws assume that if a person marries and then dies without updating their will, they would have wanted to provide for their new spouse. As a result, the new spouse is entitled to receive a share of the decedent's estate, unless the will expressly indicates otherwise.
Under California law, a marriage automatically revokes any pre-existing will or trust regarding the new spouse's inheritance rights unless the documents provide for a new spouse or clearly indicate that the new spouse will receive nothing. This is known as "revocation by operation of law". This means that if someone marries and doesn't update their will or trust, it is assumed that they would have wanted to provide for their new spouse but either forgot or didn't have the opportunity to make the change.
It is important to note that once the testator dies, their will cannot be revoked, as only the testator has the authority to revoke it. However, if the will appears to be invalid, it can be objected to or challenged through a will contest.
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Marriage can dramatically alter the fate of your assets
In North Carolina, if you don't update your will after marriage, your spouse may still inherit a portion of your estate through what's known as an "elective share". This legal provision allows a surviving spouse to claim a percentage of the deceased's estate, regardless of what the will says. The percentage varies depending on the length of the marriage contract.
Prenuptial or postnuptial agreements can outline how your assets will be divided if your marriage ends. These agreements are especially important if you have children from a previous marriage or if you are an entrepreneur.
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Frequently asked questions
Common-law marriage is not recognised in the UK. No matter how long you have cohabited with your partner, the law does not recognise you as a married couple. Therefore, if your common-law partner passes away without leaving a will, intestate laws will come into effect, and you will not be entitled to any inheritance from their estate.
In California, a marriage automatically revokes any pre-existing will or trust regarding the new spouse’s inheritance rights, unless the documents provide for a new spouse or clearly indicate that the new spouse will receive nothing. This is called revocation by operation of law.
In Ontario, if a common-law spouse dies intestate (without a will), the surviving spouse will not inherit any part of the estate. However, depending on the facts and circumstances, a surviving common-law spouse can file a claim against the estate in two ways: filing a dependency claim or filing a claim for unjust enrichment.
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