Common Law Marriage in Florida: Facts and Alternatives

It’s no secret that marriage rates have been going down over time. Getting married is a big step, after all—one that requires a valid marriage certificate and carries a lot of risks. 

You’re not alone if you and your partner simply decide to live together as if you were married, a situation people often call a “common law marriage.” In the eyes of the law, however, common law marriage doesn’t exist unless you live in a few select states—and Florida isn’t one of them. 

Without a valid marriage certificate, you could spend your entire life with the same partner, and Florida would generally still consider you “legal strangers.” That’s risky too, since you’ll lose out on many important benefits that marriage offers, such as paying less in taxes, having access to your spouse’s healthcare coverage, and having access to spousal support in the event you split up. If you know the risks, however, you can take steps to work around them.

Does Florida recognize common law marriages?

Generally, no. — Florida does not recognize common law marriage except in two cases:

• Common law marriages before January 1, 1968: Florida does not recognize new common law marriages after this date. But it’ll still honor a Florida common law marriage entered before then.
• Common law marriages from other states: If you and your partner have a valid common law marriage in another state and then move to Florida, it’ll still be honored in the Sunshine State, thanks to the Full Faith and Credit Clause.

In particular, a few states and federally recognized tribes still allow for common law marriage, which means they’re valid in Florida as well:

• Colorado
• Iowa
• Kansas
• Montana
• Oklahoma
• Rhode Island
• Texas

The District of Columbia also recognizes common law marriage as a legal marriage.

Alternatives to common law marriage in Florida

Getting married automatically bestows you with many legal protections. Some of these are government-specific with no way to get around them, such as lower tax deductions for people who aren’t married or veteran’s benefits for surviving spouses.

But you can give some of those protections to your unmarried partner by taking a few extra legal steps. Let’s look at a few alternatives to common law marriage under Florida state law.

Domestic partnerships

The state of Florida does not recognize domestic partnerships. However, some cities and counties will allow you and one partner to register your domestic partnership.

The benefits you’ll get vary depending on the specific program. If you register your domestic partnership in Tampa, for example, you’ll get some of the same rights as a married couple when it comes to making healthcare decisions for your incapacitated spouse.

In addition, registering as a domestic partnership may give you all the benefits of formal marriage when it comes to receiving certain benefits through the federal government, such as Social Security and Medicare.

Cohabitation agreements

You don’t necessarily have to wait for Florida law to give you certain legal protections. You can write many of these safeguards in yourself by drawing up a contract for you and your partner to sign. It’s similar to other legal agreements you’d sign with a business associate, for example, or someone you hire.

As long as the terms of your cohabitation agreement mesh with already-existing laws, you and your partner are free to include whatever you want in them. You can’t, for example, require the IRS to treat you as legally married to gain tax benefits. But you can set terms for property division if you split up, similar to how divorce law might apply to a married couple. In this way, a cohabitation agreement functions similarly to a prenuptial agreement.

Healthcare surrogacy

Married couples are automatically considered first in line if they need to make medical decisions for a spouse who’s not able to such as if they’re injured in an accident. Even among married couples, it’s a good idea to create and sign an “advance healthcare directive” specifying who, exactly, you’d like to make these decisions for you, along with backup options and the signature of two other witnesses.

If you ever split up with your partner, remember to update your healthcare surrogate list. Unlike married couples who divorce, your ex-partner won’t automatically be excluded from this list.

Durable power of attorney

Similar to an advance directive for healthcare decisions, a durable power of attorney lets you give someone else the power to make financial and legal decisions for you in case you’re unable to do so. This could happen permanently, such as if one partner develops dementia, or on a short-term basis, like if a partner is deployed for a certain period.

Wills

The strongest way you can offer legal rights to your partner is by creating a will. Without one, your partner has no legal standing against marital property for which they aren’t specifically listed as an owner, like your home. Instead, with a legally married couple, inheritance rights go first to the other spouse, then children, parents, brothers and sisters, grandparents, aunts and uncles, and eventually the State of Florida itself—in that order.

If you’re not in a legally recognized marriage, you have no marital rights or property rights for things your name wasn’t attached to, no matter the length of your long-term relationship. If you’re not listed on the deed of your house, for example, you could be kicked out after your partner passes away—unless your partner had a formal will in place that specified you as a beneficiary.

How to protect yourself and your partner in FL

Getting married is a personal choice. If marriage isn’t right for you or it’s not an option, you shouldn’t have to give up all of your rights when it comes to protecting your loved ones. You’ll just need to be proactive about bestowing some of those rights to your partner rather than letting the law step in and do it for you.

The biggest thing you and your partner can do to protect each other is to take advantage of any and all legal arrangements you’re entitled to—and to do it now while you’re still able.

Most of us aren’t experts in all of the potential legal arrangements we can benefit from, along with the state and federal laws that might limit them. That’s why experts highly recommend seeking legal advice from an attorney who’s experienced in helping unmarried couples with estate planning in your area. Many estate planning attorneys offer a free consultation to see if you’re a good fit for each other.

FAQs

Does Florida recognize common law marriage from other states?

Yes, Florida will recognize common law marriage in other states, as long as you met the requirements for a legal common law marriage under your old state’s laws before you moved out.

Is it illegal to live together unmarried in Florida?

Not anymore, but it was technically illegal to live together with an unmarried partner up until 2016. After that year, the law was repealed, legally allowing unmarried people to live together.

How does Florida define marriage?

To be considered married in Florida, you’ll need to have followed all of the state laws to get married, such as being over age 18 (in most cases), applying for a Florida marriage license, having a formal ceremony, and recording that license with a court clerk. An official copy of the license will be sent to the couple.

When did Florida abolish common law marriage?

Florida stopped recognizing all new common law marriages after January 1, 1968. Like all states, Florida will still recognize common law marriages if you move to the state after gaining legal common law marriage status somewhere else.

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

If you’re not married, the father has to be legally identified before they can be ordered to pay child support. Simply naming them as the father on a child’s birth certificate isn’t enough under family law. Fathers can do this voluntarily by signing a Paternity Acknowledgment form (DH-511 or DH-432), by an order from the Florida Child Support Program, or by a court order.