Marriage is a legal union between two people, and in most states it requires a license and a ceremony. But in a handful of states, if you and your partner have been living together and behaving as if you are married, you may have what's known as a common law marriage. It's not automatic—there are rules that you must follow. But if you do, you can claim many of the same financial benefits that a traditionally married couple receives.
Don't confuse a common law marriage with a civil union, which is a legal relationship between two people that confers rights only on the state level. Before same-sex marriage became legal in all 50 states, civil unions were primarily a way for same-sex couples to have a legally recognized relationship. Not all states recognize civil unions, which means they may not be valid if you move to another state. And whether a couple is same- or opposite-sex, a civil union provides no federal protections or benefits. However, common law marriages do qualify for many of the same rights as a marriage with a legal state license.
Here's a review of the basics of common law marriage and the states that recognize it, as well as a look at the financial benefits of this type of union.
- Only nine states and the District of Columbia still recognize common law marriages. Review the laws of your state to be sure you are meeting its requirements.
- If you meet your state's common law marriage requirements, you will be eligible for most of the financial benefits—including federal benefits—of a married couple.
- You can move outside a state in which you established a common law marriage, but check with an attorney regarding your status after your move.
- You will need to formally divorce to end a common law marriage.
Have You Met the Rules for Common Law Marriage?
A common-law marriage may exist in states that recognize a couple as legally married, even if the couple never said their vows in a civil or religious ceremony and don’t have a marriage license. While states don’t have official rules on the books regarding common law marriage, there are certain conditions that have to be met for you to be considered married by common law. You must:
- Be a heterosexual couple living together in a state that recognizes common law marriages.
- Live together for a significant period of time. Although many people believe seven or 10 years is the requisite timespan, no state provides a specific timeframe for cohabitation.
- Introduce yourself to friends, neighbors, and coworkers as a married couple, calling each other “my husband” or “my wife” and even using the same last name. Also, you must file a joint tax return and have joint bank accounts and credit cards.
- Be of sound mind.
- Not be married to someone else.
States That Recognize Common Law Marriages
Only nine states and the District of Columbia recognize common law relationships, and each of those state has specific requirements that must be met:
- Colorado—If contracted on or after Sept 1, 2006, must be 18 or older and not prohibited by other law.
- Iowa—Intended for the purposes of support for dependents, but otherwise not prohibited.
- Kansas—Both man and woman must be mentally capable of making the commitment, must be 18 or older to marry, and must represent themselves as married in the community.
- Montana—Not prohibited and not invalidated by the state’s marriage chapter.
- New Hampshire—Common law marriages cannot be formed, but can be recognized solely for inheritance purposes, i.e., when an estate is being settled after one of the partners dies, if the couple lived together for three years prior to the death.
- Rhode Island—Both man and woman must intend to be married and act as if they are (i.e., live together and present themselves as married to friends and family).
- South Carolina—Allows for marriage without a valid license. No specific laws on common law marriage.
- Texas—Both members of the couple must consent to be married, live together, and tell others they are married.
- Utah—Both partners must be able to agree to the marriage, and others must know them as a married couple.
In addition, some states have "grandfathered" common law marriages, meaning that only those unions that meet the state requirements for a common law marriage by a specified date will be recognized. Those states and dates are:
- Alabama—January 1, 2017
- Georgia—January 1, 1997
- Idaho—January 1, 1996
- Ohio—October 10, 1991
- Oklahoma—November 1, 1998
- Pennsylvania—January 1, 2005 (in addition, partners must exchange vows to be married)
How Does a Common Law Marriage Impact You Financially?
Couples recognized as married by common law enjoy many of the same benefits as legally married couples, provided they have lived in a state that recognizes common law for most of their marriage. These benefits include:
- Eligibility to receive Social Security benefits—but you will need to prove the number of years you lived together in a common law state
- Qualifying for employer benefits through your spouse (i.e. health insurance)
- Exemption from the gift tax
- Unlimited marital exemptions for your estate—up to the federal estate tax limit
- Claiming deductions for mortgage interest (if you co-own a house) and children (if applicable)
- Inheritance of your spouse’s property as long as there is a valid will (but if your spouse dies without a will, his or her children and other family members will have inheritance rights, not you)
- Use of a medical power of attorney designating your common law spouse as the person (rather than another family member) who will make medical decisions for you when you are incapable of making them yourself
Many of those benefits can help save you money. Having one shared health plan instead of purchasing two separate plans, for example, could save you thousands of dollars per year.
If your state recognizes common law marriage, and you don’t want to be seen as married, make sure you sign a living together contract—especially if you own property together or use the same last name.
While you get to enjoy the financial and legal benefits of marriage in most cases, you may also be vulnerable to some of the potential downsides. If your spouse buys property on their own and you are not on the deed, for instance, the property can be sold without your consent. To circumvent this issue, be sure you buy major assets using co-ownership agreements. To be on the safe side, review your obligations and rights with an attorney who understands common law marriage in your state.
The Bottom Line
If you move out of the state in which you established your common law marriage, rest assured that all states recognize a common-law marriage that a couple legally entered into in another state. Still, after the move, you may want to sit down with an attorney in your new state to be sure you meet the legal obligations required to maintain your rights as a married couple. Keeping good records, especially if you move around a lot, can help when it comes to claiming federal benefits.
And if you and your common-law spouse decide to part ways, even though there is no "common-law divorce," you will still need to have your relationship legally dissolved. Keep in mind that you could be liable for providing the same type of support for your ex-spouse as a spouse in a legally binding marriage might be required to do after divorce.