Gavin Howe
Common-law marriage has been practiced in the United States since the 1870s. While the specifics vary by state, common-law marriage is generally defined as a couple who lives together for a certain period and presents themselves as a married couple to their community. Common-law marriages are recognized for federal income tax purposes if they are recognized by the state in which the couple resides. The IRS treats common-law marriages on par with legally married couples, and common-law partners must file their tax returns jointly. To prove common-law marriage to the IRS, various factors are considered, including using the same last name, filing joint tax returns, and presenting evidence of an agreement to be married.
| Characteristics | Values |
|---|---|
| Recognition by the state | Common-law marriages are recognised for federal income tax purposes if they are recognised by the state in which the taxpayers reside. |
| Joint tax returns | Filing joint tax returns is one way to publicly represent a marital relationship. |
| Duration of cohabitation | Couples must live together for a while. |
| Public representation of the marital relationship | Couples must present themselves as a married couple to their family, friends, and community. |
| Capacity to marry | Both partners must be free to contract a valid ceremonial marriage (e.g. they are not already married to someone else). |
| Agreement to be married | Both partners must agree to be married. |
| Same last name | Couples may choose to use the same last name. |
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What You'll Learn
Common-law marriage recognition by state
In the United States, common-law marriage, also known as sui juris marriage, informal marriage, marriage by habit and repute, or marriage in fact, is a form of irregular marriage that is currently recognised in only a handful of states. These include Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah, South Carolina, and New Hampshire have limited recognition of common-law marriage.
The recognition of common-law marriage varies from state to state. Some states have abolished it but still recognise common-law marriages formed before a certain date or for specific purposes. For example, Alabama (if created before 1st January 2017), Florida (if created before 1st January 1968), Georgia (if created before 1st January 1997), Indiana (if created before 1st January 1958), Ohio (if created before 10th October 1991), and Pennsylvania (if created before 1st January 2005).
The status of common-law marriage in Utah is unclear. While government websites claim it does not exist, other legal sources state that "non-matrimonial relationships" may be recognised as marriages within a year of the relationship ending. Utah will only recognise such a relationship if it has been validated by a court or administrative order, with specific criteria met.
The recognition of common-law marriage by the IRS is dependent on the state in which the taxpayers reside. If a state recognises common-law marriage, the IRS will treat the couple as married for federal income tax purposes, even if they later move to a state that does not recognise such marriages. However, if a couple begins and maintains their relationship in a state that does not recognise common-law marriage, they will not be considered married by the IRS.
To prove a common-law marriage to the IRS, the couple must meet the requirements set by their state. These may include capacity to enter into a marriage, legal parental consent, public recognition of the marriage, and consummation. It is important to note that the IRS treats common-law marriages similarly to legally married couples in terms of tax filing and benefits.
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Benefits of filing as a common-law couple
Common-law marriage is a legally recognised marriage between two people who haven't purchased a marriage license or had a ceremony officiated by an officiant. Common-law marriage is permitted in several US states, and common-law spouses who meet their state's requirements are eligible for most of the financial benefits of a married couple.
- Common-law couples are exempt from the gift tax for gifts to each other.
- They enjoy unlimited marital exemptions for their estate up to the federal estate tax limit.
- They can claim deductions for mortgage interest if they co-own a house or have children.
- Inheritance of a common-law spouse's property is allowed with a valid will.
- Common-law spouses can use a medical power of attorney (POA) designating their spouse as the person to make medical decisions when they're incapable.
- Common-law couples can file joint tax returns, which may result in lower tax rates, higher income thresholds for tax brackets, and eligibility for tax credits and deductions that aren't available to single filers.
- They can combine charitable donations and claim them on whichever return offers the greatest tax benefit.
- They can contribute to their partner's RRSP.
- They can claim tax credits for dependents.
- They can access the Home Buyer's Tax Credit.
- They can transfer any unused tax credits to their spouse, including the Disability Tax Credit, pension income payment amounts, age credit for those over 65, and post-secondary education credits.
- They can split pension income with a partner to reduce their overall tax liability.
- They can receive spousal Social Security benefits if they can prove the number of years they lived together in a common-law state.
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Criteria for common-law marriage
In the United States, common-law marriage, also known as sui juris marriage, informal marriage, marriage by habit and repute, or marriage in fact, is a form of irregular marriage that survives only in a limited number of states and jurisdictions. These include Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, the District of Columbia, and Utah, as well as some provisions of military law.
The criteria for common-law marriage can vary depending on the state or jurisdiction in which the marriage takes place. However, some general criteria include:
- Living together or cohabitation: There is no statutory requirement for the length of time a couple needs to live together, but generally, the longer the better.
- Legal right or "capacity" to marry: Both partners must have the legal capacity to marry, typically by being at least 18 years old, of sound mind, and not already married.
- Intent: Both partners must intend to be married and hold themselves out as a married couple to friends, family, and the community. This can include referring to each other as "spouse," taking the same last name, or changing social media names to match.
If a couple meets the criteria for common-law marriage in a state or jurisdiction that recognizes it, their marriage is generally valid for tax purposes, even if they later move to a state that does not recognize common-law marriage. However, it is important to consult a financial advisor and understand the specific requirements and benefits of filing taxes as a common-law couple.
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Common-law separation rules
Common-law marriage has been practiced in the United States since the 1870s. The rules are applied to any unmarried couples living together that meet certain conditions. If a couple lives together for a while and presents themselves as a married couple, their relationship may be considered a common-law marriage.
In the US, common-law partners need to be apart for a set period to be officially considered separated by the IRS. This period is similar to the rules for legally married couples. Each partner can claim a certain portion of the common-law partner amount, which is calculated when the tax return is filed for the year of separation.
In Canada, common-law couples can dissolve their union at any time, with no required legal action. However, if they have lived together for a long time, have children together, or own assets together, the separation can be complicated. Common-law partners do not have the same rights and obligations as married couples upon separation. For example, they do not have an equal right to possess the family home, and each partner is generally entitled only to what they brought into the relationship or acquired during it.
In Alberta, Canada, common-law couples have many of the same legal rights and obligations as married couples upon the breakdown of a relationship. They may have rights to partner support, child custody, and child support, but the division of property depends on the date of separation and the applicable legislation.
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Common-law marriage and tax savings
Common-law marriage has been practiced in the United States since the 1870s. It is important to note that common-law marriage is only recognized by a minority of states. If you are in a common-law marriage, it is treated the same as a legal marriage by the IRS. This means that common-law partners must file their tax returns together.
To be considered a common-law marriage, the couple must meet certain criteria. Firstly, both partners must be free to marry, meaning they are not already married to someone else. Secondly, the couple must have the capacity to marry, meaning they meet the legal requirements for marriage, such as being of legal age. Thirdly, the couple must agree to be married. This can be a spoken or written agreement, but it must be established that both parties consented to the marriage. Finally, the couple must represent themselves as a married couple to the public. This can include using the same last name, referring to each other as spouses, and filing joint tax returns.
If a couple meets the criteria for a common-law marriage in a state that recognizes such marriages, they will be considered married for federal income tax purposes, even if they later move to a state that does not recognize common-law marriages. However, if a couple begins their relationship in a state that does not recognize common-law marriage, they will not be considered married for tax purposes, even if they later move to a state that does recognize it.
There are several benefits to filing taxes as a common-law married couple. Common-law partners can save money by filing a joint return. They can also combine medical expenses and charitable donations to maximize deductions. Additionally, common-law partners can contribute to each other's retirement savings and claim spousal and common-law partner amounts if one partner earns less. Common-law partners can also receive each other's social security benefits.
It is important to consult a financial advisor before filing taxes as a common-law married couple to ensure that you are meeting the requirements of your state and maximizing your tax benefits.
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Frequently asked questions
Common-law marriage is a form of marriage where a couple lives together and presents themselves as married to their family, friends, and community, without a formal wedding ceremony. Common-law marriage has been practiced in the United States since the 1870s and is recognized in a minority of states.
To prove a common-law marriage to the IRS, you must meet the criteria set by your state. This typically includes both partners being free to marry (i.e., not already married), having the capacity to marry, agreeing to be married, and publicly representing themselves as married.
To prove a common-law marriage, couples can use the same last name, file joint tax returns, wear a wedding ring, and present themselves as a married couple to their community.
Yes, common-law partners can often save money by filing a joint tax return. Additionally, they can receive the same legal benefits as married couples, such as receiving one another's social security benefits and contributing to each other's retirement savings.
Common-law partners need to be apart for a set period to be officially considered separated by the IRS, similar to officially married couples. Each partner can claim a certain portion of the common-law partner amount, calculated when the tax return is filed for the year of separation.
