Cecily Zamora
Montana is one of the few states that recognize common-law marriages, which are marriages formed without a license or a wedding ceremony. The requirements for a common-law marriage in Montana include competency to marry, mutual consent and agreement, and confirmation of the marriage through cohabitation and public repute. This means that both parties must be of sound mind, not already married, and not closely related, among other criteria. Additionally, they must express their intention to be married and present themselves as spouses to the community. While cohabitation is considered, it is not the sole determining factor, and there is no specific length of time for cohabitation required. Common-law marriages in Montana are legally recognized and carry the same rights and responsibilities as solemnized marriages, including the need for a legal divorce to terminate the relationship.
| Characteristics | Values |
|---|---|
| Legal recognition | Common-law marriage is legal in Montana |
| Requirements | Spouses must be competent to marry, agree that they are married, and confirm their marriage by cohabitation and public repute |
| Proof | May include exchanging rings, taking the partner's last name, filing joint tax returns, and testimony from the community |
| Benefits | Common-law spouses have the same rights of inheritance as any other spouse, and children of the marriage are considered legitimate |
| Declaration | A Declaration of Marriage or an Affidavit of Common Law Marriage can be completed to make the marriage "official" |
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What You'll Learn
Competency to marry
To be deemed competent to marry in Montana, both parties must be of sound mind and meet the age requirements to marry. They must not be related, and they must not already be married to someone else.
The competency requirements for a common-law marriage are the same as those in a traditional marriage. The couple must be mentally capable of entering into a marital relationship, and they must not be related.
Montana law prohibits marriages between relatives, including ancestors and descendants, siblings, first cousins, uncles and nieces, and aunts and nephews.
To obtain a marriage license in Montana, specific requirements must be met, including providing satisfactory proof of age. No marriage license will be issued if either party is under the influence of drugs or alcohol.
In the case of a common-law marriage, both parties must agree to be married with the intention to be legally married. This agreement can be expressed privately or witnessed by others and may be implied through conduct. For example, the couple may exchange rings or other symbols of marriage, own property together, file taxes jointly, or be perceived as a married couple by their community.
It is important to note that simply living together does not constitute a common-law marriage in Montana. The couple must openly present themselves as husband and wife to the community and act as a married couple.
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Mutual consent and agreement
Montana is one of the few states that recognize common-law marriages. To establish a common-law marriage in Montana, both parties must be competent to marry. This means that both parties are old enough to marry, neither is already married or closely related to each other, and neither is suffering from a serious mental illness or under the influence of an intoxicating substance that impairs their ability to enter into a contract.
It is important to note that a common-law marriage cannot be formed accidentally or unintentionally. Both parties must actively agree to be married and present themselves as married to the public. This means that if a couple keeps their relationship a secret, they are not considered to be in a common-law marriage.
To make a common-law marriage "official," couples can complete an Affidavit of Common Law Marriage or a Declaration of Marriage, which must be drafted by a licensed Montana attorney and attested by at least two witnesses.
Upon separation or death, a common-law spouse has the same rights as any other spouse in Montana, including the right to inheritance and parental rights. However, proving a common-law marriage can be difficult and may require significant financial and emotional resources.
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Cohabitation and public repute
In Montana, common-law marriage is recognised by the state, and under certain circumstances, couples may be entitled to parental rights and/or a portion of the marital estate upon separation or death.
To establish a common-law marriage in Montana, the couple must prove that four conditions exist:
- The parties were competent to enter into a marriage
- There was an assumption of a marital relationship by mutual consent and agreement
- They acquired the reputation, character, and status of marriage in public
- They cohabited
The third and fourth conditions are often the most contentious. The couple must present themselves as husband and wife openly. The court will consider all the facts presented, as well as the various competing public policies of the State of Montana.
Cohabitation, or living together, is one issue the court will look at, but it is not the only determining factor. There is no specific length of time that must be met for cohabitation to count towards common-law marriage. Other factors, such as maintaining separate finances or having different last names, do not necessarily impact the determination of a common-law marriage.
The key factor is that the couple did not keep their relationship a secret from the community. If a couple has kept their marriage a secret, a common-law marriage will not be found.
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Declaration of Marriage
In the state of Montana, there are two ways to get married: with a marriage license and solemnization, or through common law. This answer will focus on the requirements for a Declaration of Marriage, which is the first step in the process of obtaining a marriage license.
The Declaration of Marriage form can be obtained from Montana Vital Records, or parties can prepare their own following the prescribed requirements. The form must be one-sided, on 8.5 x 11 paper, and include the following information for both parties:
- Date of marriage (cannot be a future date)
- Statement of legal competence to enter into the marriage contract
- Signatures of both parties and two witnesses (which can include Clerk of Court staff)
- A 2" x 2" blank space for the Court seal, and two blank spaces for official use (notarization and filing)
Both parties must appear in person to sign and file the declaration, and must provide proof of age, such as a driver's license or passport. The cost for issuing a marriage license is $53, payable in cash, money order, or by card (with a processing fee).
Now, turning to common law marriages in Montana, here are the requirements:
Montana recognizes common-law marriages, which are formed without a license and solemnization. To establish a valid common-law marriage, three elements must be proven to the district court:
- Competency to Enter into Marriage: Both parties must be of age, not already married, not closely related, and have the mental capacity to enter into a marital relationship. Neither party can be under the influence of an intoxicating substance that impairs their ability to enter into a contract.
- Mutual Consent and Agreement: Both parties must express their intent to be married to each other. This can be done privately or publicly, and does not need to be in any particular form.
- Cohabitation and Public Repute: The couple must confirm their marriage by living together and presenting themselves as a married couple to the community. This includes actions such as exchanging rings, taking the partner's last name, and filing joint tax returns.
It is important to note that simply living together or having children together does not constitute a common-law marriage. The relationship must be communicated to others, who recognize the couple as spouses. Additionally, common-law marriages can only be terminated through a legal dissolution process.
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Rights of inheritance
Montana does not have an inheritance tax. However, if you inherit an estate from someone who lived in a state that levies inheritance tax, you will be responsible for paying it.
If you die without a will in Montana, your children will receive an "intestate share" of your property. The size of each child's share depends on how many children you have, whether or not you are married, whether your children are also your spouse's children, and whether your spouse has children from another relationship. Adopted children will receive an intestate share, just like biological children. Foster children and stepchildren who have not been legally adopted will not automatically receive a share.
If you are married and die without a will, what your spouse gets depends on whether or not you have living parents or descendants. If you don't, your spouse inherits your entire estate. If you leave behind a spouse and descendants with that spouse, your spouse inherits everything. If you leave behind a spouse, descendants with that spouse, and your spouse has children from another relationship, your spouse gets $150,000 of your estate plus half of the balance, and your descendants inherit everything else. If you leave behind a spouse and children with someone other than that spouse, your spouse gets $100,000 of your intestate property plus half of the balance, and your descendants get everything else.
To inherit under Montana's intestate succession statutes, a person must outlive you by 120 hours. "Half" relatives inherit as if they were "whole". Relatives conceived before but born after you die inherit as if they had been born while you were alive, as long as they survive at least 120 hours after birth. An heir's immigration status does not affect their right to inherit a portion of your estate.
Montana recognizes common-law marriages. To have a common-law marriage declared valid in Montana, the party seeking to establish one must prove the following four conditions:
- The parties were competent to enter into a marriage.
- There was an assumption of a marital relationship by mutual consent and agreement.
- The couple acquired the reputation, character, and status of marriage in public.
- The couple presented themselves as husband and wife openly.
Upon the death of one spouse in a common-law marriage, the surviving spouse has the same rights of inheritance as any other spouse.
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Frequently asked questions
For a common-law marriage to be valid in Montana, the couple must meet the following requirements:
- Both parties must be competent to enter into a marriage (i.e., be of legal age, unmarried, not closely related, and of sound mind).
- There must be a mutual consent and agreement to enter into a marital arrangement.
- The couple must confirm their marriage through cohabitation and public repute (i.e., they present themselves as a married couple to the community).
No. While a common-law marriage in Montana will be accepted by every state in the nation, only a few states recognize common-law marriages formed within their borders. These states include Alabama, Colorado, Iowa, Kansas, Rhode Island, South Carolina, Texas, and Utah.
Proving a common-law marriage can be challenging, especially if your spouse is not available to testify to the existence of the marriage. You may consider drafting a Declaration of Marriage to support your claim. This document must be drafted by a licensed Montana attorney and attested by at least two witnesses and an authorized official. You can also file a Declaration of Marriage without Solemnization with the Clerk of the District Court.
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