Marriage vs. Common Law Marriage: An Overview
Marriage is a legal union between two people which requires a license and ceremony in most states. 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.
- Only nine states and the District of Columbia still recognize common law marriages.
- People who meet their state's common law marriage requirements will be eligible for most of the financial benefits—including federal benefits—of a married couple.
- Those who move outside a state in which they established a common law marriage should check with an attorney regarding their status after the move.
- A formal divorce is necessary to end a common law marriage.
In many jurisdictions, getting married requires being wed by an ordained minister or other person who has recognized authority to carry out a legal marriage. This can be done either in a religious setting or in a non-denominational or secular setting such as a city hall or court house. Here, a marriage license is issued and officially recorded. In the U.S., most states require a legal marriage in order for spousal benefits such as filing a joint tax return, sharing financial accounts, and so on.
Common Law Marriage
A common law marriage, on the other hand, will recognize a couple as equivalent to 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 a couple to be considered married by common law. They 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 themselves 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, they 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 states 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)
What Is the Financial Impact of a Common Law Marriage?
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 they will need to prove the number of years they lived together in a common law state.
- Qualifying for employer benefits through their spouse (i.e. health insurance).
- Exemption from the gift tax.
- Unlimited marital exemptions for their estate—up to the federal estate tax limit.
- Claiming deductions for mortgage interest (if they co-own a house) and children (if applicable).
- Inheritance of their spouse’s property as long as there is a valid will (but if a spouse dies without a will, his or her children and other family members will have inheritance rights).
- Use of a medical power of attorney designating their common law spouse as the person (rather than another family member) who will make medical decisions when they are incapable.
Many of those benefits can help save money. Having one shared health plan instead of purchasing two separate plans, for example, could save thousands of dollars per year.
If a state recognizes common law marriage, and a couple does not want to be seen as married, they need to sign a living together contract—especially if they own property together or use the same last name.
While common law couples get to enjoy the financial and legal benefits of marriage in most cases, they may also be vulnerable to some of the potential downsides. If one spouse buys property on their own and the other spouse is not on the deed, for instance, the property can be sold without their consent. To circumvent this issue, major assets should be bought using co-ownership agreements. To be on the safe side, obligations and rights should be reviewed with an attorney who understands common law marriage.
The Bottom Line
Couples who move out of the state in which they established a common law marriage need to be aware that all states recognize a common law marriage that a couple legally entered into in another state. Still, after the move, they may want to sit down with an attorney in their new state to be sure they meet the legal obligations required to maintain their rights as a married couple. Keeping good records, especially if they move around a lot, can help when it comes to claiming federal benefits.
And if a common law couple decides to part ways, even though there is no "common law divorce," they will still need to have their relationship legally dissolved. This relates to the fact that a person in a common law marriage could be liable for providing the same type of support for their ex-spouse as someone in a legally binding marriage might be required to do after divorce.