Common Law Marriage in California: Facts and Alternatives

Common law marriage—a situation where a state offers an unmarried couple legal protection that is similar to that of a married couple—can be confusing.

For starters, not every state recognizes common law marriages. Most don't. But several states will treat a couple living together as married, even when they haven’t obtained a marriage certificate. That common law designation can be incredibly helpful when it comes to the end of a relationship when assets and financial accounts need to be split.

For instance, if you lived with somebody for 20 years and your unmarried partner died in a state where you are considered to be in a common law marriage, you would be entitled to the same or similar benefits as any other widow or widower. In a state that doesn't recognize common law marriage, you wouldn't have that protection.

For the most part, California does not recognize common law marriage, but there are other options that unmarried couples can choose from to gain benefits, legal rights, and protections.

Does California recognize common law marriages?

No, California does not recognize common law marriages, with one significant exception. If you married in another state that recognized your union as a common law marriage, California will recognize that, too.

That's how the federal government also works. The federal government wouldn't declare that your partnership is a common law marriage, but if your state does, then it is federally recognized as one. In fact, every state recognizes common law marriage if it is legally recognized in the state you were common law married in.

States where common law marriage is recognized

If you're wondering where is common law marriage recognized, or what states recognize common law marriage, you're not alone.

Seven states, and the nation's capital, fully recognize common law marriage. We'll mention all of the common law marriage states in a moment, but it's worth noting that a few other states, until recently, did recognize common law marriage. For instance, South Carolina and Alabama.

• Colorado
• District of Columbia
• Iowa
• Kansas
• Montana
• Oklahoma
• Rhode Island
• Texas

If you and your partner live in California and do not want to marry but would like some of the legal protections of marriage, a California common law marriage isn't an option.

Instead, you probably would want to establish a domestic partnership. There are also other options for California couples to pursue such as a cohabitation agreement.

How to prove common law marriage from another state

If you have an official common law marriage where the marriage occurred in another state, all you need to have it accepted in California is the documentation that your other state gave you. For instance, Texas recognizes common law marriage. If you filed a Declaration of Information Marriage with the county clerk there, and the county clerk signed it, that form would be valid proof of your marriage in Texas. This would be good enough for California.

Here's another example: if you were a Rhode Island resident, you'd present your affidavit of common law marriage.

When it comes to presenting your information to the state, a family law attorney can help you navigate any bureaucracy.

Alternatives to common law marriage in California

Common law marriage may not be the law of the land in California, but that doesn't mean you can't be legally protected if you were in a relationship for an extended period, and then it ended.

Unmarried couples, and particularly unmarried parents, who want legal protections and benefits for the assets they acquire in a relationship, such as property acquired, may want to consider several strategies. After all, you and your partner may not be married spouses, but you should be able to share financial accounts without worrying that someday you could lose everything.

If you are in an unmarried partnership, you also may want to consider working with an attorney who specializes in family law and unmarried couples rights and has worked with California courts.

Domestic partnerships

This is a smart option for an unmarried couple who has been together for an extended period and believes they will continue to be.

It is a formal process that involves filling out a domestic partnership form with notarized signatures and a filing fee to the California Secretary of State’s Office. While it doesn't offer all the protections of a legal marriage, it does offer some protection and benefits, such as inheritance rights, eligibility for family health insurance plans, and medical decision-making rights.

Other states, though certainly not all, have similar arrangements.

Cohabitation agreements

Essentially, cohabitation agreements outline responsibilities to protect each partner’s rights when living together, even when you're unmarried partners. They also provide a smoother process if suddenly you do have to discuss property ownership, jointly owned accounts, and unpleasant topics such as child custody rights.

Healthcare surrogacy

Under California law, an unmarried live-in partner can be a healthcare surrogate and make important healthcare decisions, such as end-of-life decisions. A physician can select the live-in partner as the surrogate, but it's a risk to assume you would be picked—someone else could be the doctor’s choice.

In other words, if you want to be each other's healthcare surrogate, it’s better if both parties work with an attorney who is an expert on family law matters and can help you appoint your surrogate.

Durable power of attorney

A durable power of attorney permits your partner to handle your legal and financial decisions if it becomes necessary, such as your being incapacitated.

Unmarried couples don’t have identical rights as married couples. If it’s important to each of you that you have the other as an advocate, getting an attorney’s help to create a durable power of attorney for each of you is the best way to ensure that you’re both protected.

Living wills

In California, you’ll often hear a living will referred to as an advance healthcare directive. That's essentially what a healthcare surrogate is, but living wills are used when a patient is terminal.

Wills

If you aren't married and don't have a will, under California law your assets will go to your children. If you don’t have kids, your belongings will be transferred to your parents instead of your partner.

If you and your partner want power over what happens to your assets and property rights after you’re no longer around, a will is an essential estate planning tool.

How to protect yourself and your partner in CA

There are many reasons couples decide not to opt for traditional marriage. Fortunately, a couple interested in receiving legal protections and benefits similar to those of a married couple can generally get at least some protections.

For instance, unmarried parents might want to protect themselves so they don't find themselves in a challenging breakup. You probably don't want to fight over your kids with each of you hoping for child custody rights. You also may want protection in terms of how assets or joint financial accounts are split up. If you're the one who takes care of the home, while your partner earns the paycheck, you might also want to know you'll receive financial support if your relationship ends.

If you want to make sure you both are on firm legal ground, consider looking into the options outlined above and talking to a family law attorney who can help you protect you and your partner.

FAQ

What rights do unmarried couples have in California?

Unmarried couples don’t have the same rights as married couples. Traditionally married couples have many legal rights that non-married partners don't.

But you can obtain some rights if you enter into a formal agreement, such as a domestic partnership, in which you would have legal rights into how property, assets, joint bank accounts, alimony payments, federal taxes, and inheritance are handled in case of a split or death.

How is child support handled if we weren’t married?

If you live in California and you aren’t married to your child’s father, your father is required to pay child support. That said, proof of paternity has to be established before the father is legally obligated to spend money on raising the child—or before the dad could request being included in child custody.

This is a family law matter situation in which you would be advised to find an attorney, one who understands the nuances between marriage and domestic partnerships and has experience in working with unmarried couples, parental rights, and palimony claims.

Can you get a prenup for a domestic partnership?

Technically, no, prenups are for married couples. But if you and your partner live in California, you can often shoehorn a lot of concerns into your agreement, such as spousal support (even though you technically aren't spouses) and who gets what with financial accounts.

One thing you can’t do with domestic partnerships is pre-agree on anything related to child custody or child support issues.

How long is common law marriage in California?

A lot of people believe that if you're in a long-term relationship, you automatically have a legal marriage and are considered legally married if you live together at least seven years. That's a common misconception, and there are many myths involving common law marriage.

There is no length of time associated with common law marriage in California. For that matter, there is no common law marriage in California. California is one of the many states that has not recognized common law marriage, unless you've first established a common law marriage in another state that does recognize it.

Who gets the house when an unmarried couple splits up in California?

Whoever owns the house. California isn't a state that allows common law marriages, but it is a community property state.

A community property state is one in which a divorcing couple divides their assets equally. If you both own the house, it would be considered community property. You would carve up the property rights if you were splitting up.

If only one of you owns the house, the one who doesn't own it won't have community property rights. That may not feel fair if, for instance, one party has their name on the property and one partner made the mortgage payments for years. But this isn't a common law married situation; California is not a common law state.

That's why a family law attorney can be invaluable, even if you aren't married or necessarily consider yourself as part of a family unit. If you've invested a lot of time and money into a relationship, you may not be legally married or considered legally married by the state, but you still have legal rights. Or, rather, you can be legally protected, if you take legal precautions such as drafting a cohabitation agreement.