Question about common law marriage...

[alice_in_wonderland]

is it recognized in all US states? There’s an IMHO thread (that I probably don’t need to link to) where the issue came up (at least for me).

So - is common law marriage recognized in all US states for the purpose of inheritance and wills and what not? My understanding of things is that when person A dies, their spouse gets their assets, regardless of any will or whatnot; however stipulations can be made (eg daughter gets piano, son gets roadser, etc).

Is that accurate?

Further, if a couple had lived together for 20 odd years, and partner A died, would partner B be considered a spouse even if they had never made it legal, so to speak?

Or does it completely depend on which state you’re in. I know the rules in Canada, and they’re pretty much as I’ve described, but I was wondering about down…there!

[Doctor_Who]

@alice_in_wonderland

is it recognized in all US states?

Right offhand, I can tell you no. There is no common law marriage in California. Others will have cites, etc. But the general answer is no.

• Peter Wiggen

[Gfactor]

No.

In most states in the United States today, there’s no such thing as common law marriage. No matter how many years you live together and how much fairy dust you sprinkle, you will never have a common law marriage.

http://www.unmarried.org/common-law-marriage.html

States That Recognize Common Law Marriage

Alabama
Colorado
District of Columbia
Georgia (if created before 1/97)
Idaho (if created before 1/96)
Iowa
Kansas
Montana
New Hampshire (for inheritance purposes only)
Ohio (if created before 10/91)
Oklahoma (possibly only if created before 11/1/98. Oklahoma’s laws and court decisions may be in conflict about whether common law marriages formed in that state after 11/1/98 will be recognized.)
Pennsylvania (if created before 9/03)
Rhode Island
South Carolina
Texas
Utah

Id.

[Gfactor]

Common-law marriage

[SnakesCatLady]

A will controls whether someone is legally married or not - however, if someone were to leave his/her spouse out of the will, it can be contested.

I believe common-law marriage is no longer recognized in Georgia.

[Gfactor]

@alice_in_wonderland

My understanding of things is that when person A dies, their spouse gets their assets, regardless of any will or whatnot; however stipulations can be made (eg daughter gets piano, son gets roadser, etc).

Sort of. Depending on the circumstances, the spouse gets what is called an elective, forced, widow’s share, or election against the will, depending on the time-frame and jurisdiction in question. In Michigan, if a spouse dies without a will (lawyers call this dying intestate), the spouse gets:

700.2102 Share of spouse.

Sec. 2102.

(1) The intestate share of a decedent’s surviving spouse is 1 of the following:

(a) The entire intestate estate if no descendant or parent of the decedent survives the decedent.

(b) The first $150,000.00, plus 1/2 of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent.

(c) The first $150,000.00, plus 3/4 of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent.

(d) The first $150,000.00, plus 1/2 of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has 1 or more surviving descendants who are not descendants of the decedent.

(e) The first $150,000.00, plus 1/2 of any balance of the intestate estate, if 1 or more, but not all, of the decedent’s surviving descendants are not descendants of the surviving spouse.

(f) The first $100,000.00, plus 1/2 of any balance of the intestate estate, if none of the decedent’s surviving descendants are descendants of the surviving spouse.

(2) Each dollar amount listed in subsection (1) shall be adjusted as provided in section 1210.

This provision is modified by this one:

(1) The surviving widow of a decedent who was domiciled in this state and who dies intestate may file with the court an election in writing that she elects to take 1 of the following:

(a) Her intestate share under section 2102.

(b) Her dower right under sections 1 to 29 of 1846 RS 66, MCL 558.1 to 558.29.

(2) The surviving spouse of a decedent who was domiciled in this state and who dies testate may file with the court an election in writing that the spouse elects 1 of the following:

(a) That the spouse will abide by the terms of the will.

(b) That the spouse will take 1/2 of the sum or share that would have passed to the spouse had the testator died intestate, reduced by 1/2 of the value of all property derived by the spouse from the decedent by any means other than testate or intestate succession upon the decedent’s death.

(c) If a widow, that she will take her dower right under sections 1 to 29 of 1846 RS 66, MCL 558.1 to 558.29.

(3) The surviving spouse electing under subsection (1) is limited to 1 choice. Unless the testator’s will plainly shows a contrary intent, the surviving spouse electing under subsection (2) is limited to 1 choice. The right of election of the surviving spouse must be exercised during the lifetime of the surviving spouse. The election must be made within 63 days after the date for presentment of claims or within 63 days after service of the inventory upon the surviving spouse, whichever is later.

(4) Notice of right of election shall be served upon the decedent’s spouse, if any, as provided in section 3705(5), and proof of that notice shall be filed with the court. An election as provided by this section may be filed instead of service of notice and filing of proof.

(5) In the case of a legally incapacitated person, the right of election may be exercised only by order of the court in which a proceeding as to that person’s property is pending, after finding that exercise is necessary to provide adequate support for the legally incapacitated person during that person’s life expectancy.

(6) The surviving spouse of a decedent who was not domiciled in this state is entitled to election against the intestate estate or against the will only as may be provided by the law of the place in which the decedent was domiciled at the time of death.

(7) As used in subsection (2), “property derived by the spouse from the decedent” includes all of the following transfers:

(a) A transfer made within 2 years before the decedent’s death to the extent that the transfer is subject to federal gift or estate taxes.

(b) A transfer made before the date of death subject to a power retained by the decedent that would make the property, or a portion of the property, subject to federal estate tax.

(c) A transfer effectuated by the decedent’s death through joint ownership, tenancy by the entireties, insurance beneficiary, or similar means.

So it is a bit more complicated than the spouse gets the assets. First, the spouse doesn’t get all of the assets. And second, the existence of a will is important. Third, it matters whether there are kids (or grandchildren, if the kids are dead) or not.

Most states have similar provisions, but the details will vary by state.

[alice_in_wonderland]

Interesting. That’s pretty well completely opposite from these parts. If you live with someone for (typically) one year, then as far as the courts are concerned, you’re married. If you seperate, one spouse could be entitled to support, future incomes, pensions, etc. Additionally, if one spouse dies, the other is treated as a husband or wife.

Thanks for the info guys.

[Gfactor]

@alice_in_wonderland

Interesting. That’s pretty well completely opposite from these parts. If you live with someone for (typically) one year, then as far as the courts are concerned, you’re married. If you seperate, one spouse could be entitled to support, future incomes, pensions, etc. Additionally, if one spouse dies, the other is treated as a husband or wife.

According to Wikipedia:

Canadian federal law does not have “common law marriage”, but various federal laws include “common law status,” which automatically takes effect once two people (of any gender) have lived together in a romantic relationship for one full year. Partners may be eligible for various government benefits of married spouses based upon their relationship with the individual who is eligible for some type of family based benefit. As family law varies between provinces, there are differences between the provinces regarding the recognition of common law marriage.

In Ontario, a common law province, the Ontario Family Law Act specifically recognizes common law spouses in sec. 29 dealing with spousal support issues; the requirements are living together for three years or having a child in common and having “cohabitated in a relationship of some permanence.” However, the part that deals with marital property excludes common law spouses as sec. 2 defines spouses as those who are married together or who entered into a void or voidable marriage in good faith. Thus common law partners do not always evenly divide property in a breakup, and the courts have to look to concepts such as the constructive or resulting trust to divide property in an equitable manner between partners. Another difference that distinguishes common law spouses from married partners is that a common law partner can be compelled to testify against his or her partner in a court of law.

In 1999, after the court case M. v. H., the Supreme Court of Canada decided that same-sex partners would also be included in common law relationships.

Québec, which unlike the other provinces has a Civil Code, has never recognized common-law partnership as a kind of marriage. See about De Facto Marriage in Québec. However, many laws in Québec explicitly apply to common-law partners (called “de facto unions” or conjoints de fait) as they do to spouses. See a List of These Rights and Freedoms As in the other provinces, same-sex partners may become common-law spouses in Québec.

A recent amendment to the Civil Code of Québec recognizes a type of domestic partnership called civil union that is similar to common-law marriage and is likewise available to same-sex partners.

A federal bill passed in mid-2004 now recognizes statutory marriages between same-sex couples. This follows upon the decisions of several federal courts that have struck down, within the provincial bounds of their jurisdiction, that portion of the federal Marriage Act which limits statutory marriage to opposite-sex couples.

[Chronos]

In a sense, though, all states have common law marriage, due to the “Full Faith and Credit” clause of the Constitution. That is to say, if one state recognizes a marriage, then (in general) all states recognize it (there are exceptions, but they’re a bit too politicized for me to feel comfortable discussing them in GQ). So if you and your sweetie live together in Montana for a while (I don’t know the length required) and present yourselves as married, even without ceremony, then you’re common-law married. If you then move to New York (which does not have common law marriage), you’re still married.

[Si_Amigo]

@Chronos

In a sense, though, all states have common law marriage, due to the “Full Faith and Credit” clause of the Constitution. That is to say, if one state recognizes a marriage, then (in general) all states recognize it (there are exceptions, but they’re a bit too politicized for me to feel comfortable discussing them in GQ). So if you and your sweetie live together in Montana for a while (I don’t know the length required) and present yourselves as married, even without ceremony, then you’re common-law married. If you then move to New York (which does not have common law marriage), you’re still married.

What about those guys who got married in Massachuttes?

[Gfactor]

@Chronos

In a sense, though, all states have common law marriage, due to the “Full Faith and Credit” clause of the Constitution. That is to say, if one state recognizes a marriage, then (in general) all states recognize it (there are exceptions, but they’re a bit too politicized for me to feel comfortable discussing them in GQ). So if you and your sweetie live together in Montana for a while (I don’t know the length required) and present yourselves as married, even without ceremony, then you’re common-law married. If you then move to New York (which does not have common law marriage), you’re still married.

It’s a little murkier than that. The Supreme Court has repreatedly noted that Full Faith and Credit is only required for sister-state judgments:

Our precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments. “In numerous cases this Court has held that credit must be given to the judgment of another state although the forum would not be required to entertain the suit on which the judgment was founded.” Milwaukee County , 296 U.S., at 277 . The Full Faith and Credit Clause does not compel “a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.”

FindLaw's United States Supreme Court case and opinions.

It has often been recognized by this Court that there are some limitations upon the extent to which a state may be required by the full faith and credit clause to enforce even the judgment of another state in contravention of its own statutes or policy. . . . And in the case of statutes, the extrastate effect of which Congress has not prescribed, as it may under the constitutional provision, we think the conclusion is unavoidable that the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events. . . . Although Massachusetts has an interest in safeguarding the compensation of Massachusetts employees while temporarily abroad in the course of their employment, and may adopt that policy for itself, that could hardly be thought to support an application of the full faith and credit clause which would override the constitutional authority of another state to legislate for the bodily safety and economic protection of employees injured within it. Few matters could be deemed more appropriately the concern of the state in which the injury occurs or more completely within its power.

FindLaw's United States Supreme Court case and opinions.

http://www.ag.state.mi.us/opinion/datafiles/2000s/op10236.htm

http://www.law.yale.edu/outside/html/Public_Affairs/455/yls_article.htm

Here is an example of a state that does recognize a marriage that is valid where celebrated: http://www.rrb.gov/pdf/l-99-5.pdf

Here is a lawyer who disagrees with my analysis: Common Law Marriage

Michigan seems to only recognize foreign state marriages that were solemnized
For those interested, here are the requirements to form a common-law marriage state-by-state

[Zabali_Clawbane]

To further complicate things, the requirements that must be met in order for a common law marriage to be acknowledged/legal vary by state as well.

[ethelbert]

Many years ago I was a claims authorizer for Social Security. We often had to establish relationships for wife’s/widow’s benefits. I recall instances where a couple would visit a state where common law marriage was recognized and if they represented themselves as man and wife (e.g. registering in a hotel as man and wife), that was sufficient to establish the relationship. The state that comes to mind is Pennsylvania.

Disclaimer IANAL and this was in the late seventies.