Cecily Zamora
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a legally recognised marriage between two people who have not purchased a marriage license or engaged in a ceremony overseen by an officiant. Common law marriages are recognised in several U.S. states, as well as in other countries, and confer many of the same rights as a formal marriage. This includes inheritance rights, social security benefits, and other financial benefits. To be considered a common-law marriage, the couple must live together, hold themselves out publicly as a married couple, and meet the requirements under state law. While the specific requirements vary by state, common elements include cohabitation, joint finances, and publicly referring to each other as husband and wife.
| Characteristics | Values |
|---|---|
| Legal recognition | Common law marriage is legally recognised in some states, but not all. |
| Formalities | Common law marriage does not require a marriage license, certificate or ceremony. |
| Rights | Common law marriages are treated the same as traditional marriages in some states, granting the same legal rights and benefits, including inheritance rights, tax returns, and Social Security. |
| Separation | Common law marriages can only be legally ended by divorce in states where they are recognised. |
| Capacity | Those who lack the capacity to marry, such as those living with a married partner, can still be considered married under common law. |
| Recognition | All states recognise legal marriages from other states, including common law marriages. |
| Proving marriage | Common law marriage can be proven by providing certain legal documents and meeting state requirements. |
| Name change | Name changes are possible with common law marriage but require petitioning the court and vary by state. |
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What You'll Learn
Common law marriage recognition across states
Common law marriage is a legally recognised marriage between two people who have not purchased a marriage license or participated in a formal ceremony. In the United States, common law marriage is also known as sui juris marriage, informal marriage, marriage by habit and repute, or marriage in fact. It is a form of irregular marriage that is currently recognised in a limited number of states, with some variation in the requirements for recognition.
Nine states and the District of Columbia recognise common law marriages, although the specific criteria for recognition may vary. These states include Montana, New Hampshire, Oklahoma, and Rhode Island, and Texas. However, it is important to note that the laws and requirements for common law marriage can change over time, and some states may have specific conditions or limitations. For example, in Texas, there is a two-year time limit to establish a common law marriage after separating from a partner.
To be recognised as a common law marriage, couples generally need to meet certain requirements, such as living together for a consistent period, introducing themselves as a married couple to their community, sharing finances, and neither partner being married to anyone else. Some states may have additional or more specific criteria, such as New Hampshire, which recognises common law marriages solely for inheritance purposes if the couple lived together for at least three years.
It is important to note that not all states recognise common law marriages, and relocating to a state that does not recognise this form of marriage can lead to legal complexities. In such cases, couples may need to formalise their marriage with a license to protect their legal rights. Additionally, dissolving a common law marriage in a state that recognises it still requires formal divorce proceedings, similar to traditional marriages.
While the specific requirements and recognition of common law marriage vary across states, it is important for couples to understand the legal standing of their union in their state of residence. Seeking legal advice and maintaining thorough documentation can help reinforce claims of a common law marriage and protect the rights of both partners.
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Common law marriage and taxes
Common-law marriage has been practised in the United States since the 1870s and is still applied in various forms across ten states and the District of Columbia. Five additional U.S. states practice common-law marriage with some restrictions.
The recognition of common-law marriage varies depending on the state. If a state recognises common-law marriage, the IRS treats these relationships as legally married couples for federal income tax purposes. This means that common-law partners are eligible for all the legal benefits that married couples receive. For example, common-law spouses can claim unlimited marital exemptions for estate planning purposes, up to the federal estate tax limit. They can also inherit property from one another, assuming there is a valid will in place.
However, if a common-law couple lives in a state that does not recognise common-law marriage, they will not be considered married for federal income tax purposes. In this case, each partner must file their own tax returns with the IRS. They must include their personal information, the name of their common-law partner, their net income, and social insurance number on their tax return.
It is important to note that the requirements for a valid common-law marriage vary by state. Common requirements include living together for a period set by the state, often 12 months, and both partners having the legal capacity to marry, which includes being 18 years old or above and being unmarried.
Before filing tax returns as a common-law partner, it is recommended to consult a financial advisor to understand the tax implications and ensure that you are making the best choice for your financial future.
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Common law marriage and inheritance
Common-law marriage is a type of legal marriage that does not require a license, witnesses, or an officiated ceremony. Instead, it is based on social contracts, where couples live together, have children, and present themselves as married to their community. While it may have been more common in the past, today, only a few states recognize common-law marriage, including Texas, Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance only), Oklahoma, Rhode Island, South Carolina, Utah, and the District of Columbia.
The recognition of common-law marriage varies across states, and this creates complexities when it comes to inheritance. In states that do not recognize common-law marriage, a surviving partner in a common-law union may not be entitled to any inheritance from their deceased partner's estate. This can lead to significant challenges and legal battles for the surviving partner, as they may have limited standing to contest probate decisions.
On the other hand, in states that do recognize common-law marriage, the surviving spouse may have inheritance rights similar to those in a traditional marriage. For example, in Texas, a common-law spouse can inherit from the decedent's estate, regardless of whether there is a valid will. They are afforded rights such as community property, homestead rights, and exempt property. To establish a common-law marriage in Texas, the couple must live together, agree that they are married, and present themselves as married to the public.
The lack of clear legal documentation and guidelines in common-law marriages can make inheritance disputes more likely. It is crucial for couples in common-law marriages to consider estate planning measures, such as creating a will, to protect their partner's inheritance rights and ensure their wishes are carried out.
Additionally, it is important to note that inheritance laws in the United States are governed by three systems: community property, elective community property, and common law. Most states follow common law, which allows certain relatives to claim an inheritance, regardless of the terms of the deceased's will. However, spouses in common-law marriages may face challenges in proving their marital status and, therefore, their entitlement to inheritance.
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Common law marriage and health insurance
In the United States, health insurance is a complex issue, and common-law marriage can further complicate matters. While all states recognize a valid common-law marriage, insurers' obligations vary depending on the state in which the marriage was established. Insurers must adhere to the definition of "spouse" established by the state, and self-insured plans may choose to exclude common-law spouses from their definition of "spouse". However, employers sponsoring health plans generally cannot exclude common-law spouses from those plans.
In Texas, for example, some counties recognize common-law marriages, while others do not. Couples in a common-law marriage in Texas can register their union by filing a declaration with the county clerk. If they choose not to declare their marriage, they may need to provide other documents, such as lease agreements or tax returns, to prove their marriage when enrolling their spouse in a health insurance plan.
Under the Health Insurance Portability and Accountability Act (HIPAA), employees have the right to enroll a new spouse and dependent children in health coverage. These rights extend equally to common-law marriages. Additionally, the Patient Protection and Affordable Care Act (PPACA) requires employers to include common-law spouses in their definition of "spouse" when offering health insurance.
It is important to note that enrolling a common-law spouse in a health plan can have legal consequences, including rights and obligations under federal and state tax, estate, and property laws. For example, in the case of a separation, a common-law spouse cannot be removed from the health plan until the next open enrollment period or until the marriage is formally dissolved through a divorce decree.
Overall, while common-law spouses may be eligible for health insurance coverage under their partner's plan, the specific requirements and implications can vary depending on the state and the insurer's policies. It is always best to consult with an attorney or legal expert to understand the specific rights and obligations associated with common-law marriage and health insurance in a particular state.
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Common law marriage and name changes
In the United States, common law marriage is a union between a man and a woman who have not been formally married, but their marriage is recognised by the state based on that particular state's laws. Common law marriages are not recognised in all states, and each state has its own requirements for a union to be defined as a common-law marriage. Same-sex couples can establish a common law marriage in some places.
In a common law marriage, there is no formal ceremony and no marriage certificate. Therefore, changing one's name after a common law marriage is not the same process as changing one's name after a formal marriage. Federal courts rule that a name change at will or by "common law" is legal under the U.S. Constitution. However, to make the name change official, one must obtain legal permission to change their name through their local county court system.
In Texas, there is no law about changing one's name after an informal (common law) marriage. To change one's name on a Texas driver's license or ID, one must provide a marriage license or a marriage verification letter from the Texas Department of State Health Services (DSHS).
It is important to note that the threat of identity theft and fraud has led more companies and government agencies to require legal documentation to change one's name. For example, a name change document is required to change one's name on a passport. An experienced family law attorney can help one understand their marital rights and obligations, including name changes.
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Frequently asked questions
Common-law marriage, also known as informal marriage, is a legally recognised marriage between two people who have not purchased a marriage license or engaged in a ceremony overseen by an officiant.
Common-law marriage is recognised in nine states and the District of Columbia in the US. While it is not recognised in Canada, some provinces may extend to couples in marriage-like relationships many of the rights and responsibilities of a marriage. In the UK, Scotland does not recognise common-law marriage, but it did have a type of irregular marriage called 'marriage by cohabitation with habit and repute' which could apply to couples in special circumstances until 2006.
The requirements for a common-law marriage vary depending on the state. However, some general requirements include living together (cohabitation) for a certain amount of time, holding themselves out publicly as a married couple, sharing a last name, bank accounts or assets, and being financially interdependent.
Common-law married couples enjoy many of the same benefits as legally married couples, including inheritance rights, Social Security benefits, and the ability to combine health insurance policies to reduce monthly premiums.
A common-law marriage can only be legally ended by divorce in states where the practice is recognised. To prevent a common-law marriage designation, couples can sign a written statement expressing their intention not to be married under common law, file taxes separately, and manage finances independently.
