What Is Common Law Marriage?

Common law marriage, also known as informal marriage, is a legally recognized union where a couple lives together for a significant period and presents themselves as married to others.

Common law couples don’t attend a ceremony or complete official documentation, yet they have the same legal rights and responsibilities as traditionally wed spouses. Contrary to popular belief, however, living together for a set amount of time isn’t sufficient to establish a common law marriage. Below, we’ll break down the additional legal requirements and explain the impacts for couples considering this path. 

Common law marriage overview and background

The exact requirements for common law marriage vary between the few states that still recognize them, but couples who qualify have the same property rights, inheritance rights, and spousal support obligations as if they were traditionally married.

Couples may opt for a common-law marriage due to their personal beliefs or financial circumstances. For instance, they might wish to avoid the formalities of a traditional ceremony or the costs of a marriage license. Others may want their commitment to evolve naturally over time rather than marking it with a specific date and legal document. However, this path can lead to complications, especially when it comes to proving the marriage’s existence in legal matters.

Let’s take a look at the history of common law marriage and where they stand today:

Historical background

Common law marriages date back to America’s time as an English colony, where it was much harder to find a qualified cleric or wedding officiant. Many couples considered themselves married under common law out of necessity, as they had no other option to formalize their marriage. However, in 1753, the Clandestine Marriages Act was enacted in England to regulate marriages and eliminate secret unions, aligning with the traditions of the Catholic Church. This required all marriages to be performed by clergy members of the Church of England, with proper documentation and witnesses, but it didn’t affect the American colonies. 

As a result, the tradition of common law marriage continued in early America, though it’s far less popular and recognized than it once was. 

Common law marriage states

Less than 15% of the U.S. population lives in a state that still recognizes common law marriages. Here is the full list: 

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

If a couple legally establishes a common law marriage in one of these states, their marital status remains even if they move to a jurisdiction that doesn’t recognize them. In addition, several states recognize common law marriages if they were established before a specific date, including Florida, Georgia, Ohio, and Pennsylvania, as well as for inheritance purposes in New Hampshire. 

Learn more about common law marriage states here.

Common law marriage requirements

Unlike traditional marriages, which involve a ceremony and require a marriage license, common law marriages are formed through the couple’s actions and mutual agreement. States that recognize common law marriage typically require couples to satisfy some combination of the following conditions: 

Cohabitation

Cohabitation refers to living together as a family unit for an extended period, sharing a household and daily life like a married couple. However, there’s no specific minimum time that couples must live together to be considered married. Instead, the court assesses each case individually. 

Courts are more sympathetic to a couple’s claim to marriage the longer they’ve lived together, which is why it’s common to hear arbitrary numbers like seven or ten years to qualify. While there’s no defined time frame, it’s true that several years—if not decades—of cohabitation helps demonstrate the couple’s long-term intentions to marry. 

Legal capacity to marry

For a common law marriage to be valid, both partners must have the capacity to marry. This means that each party must meet specific legal requirements, which include the following: 

• Age. Both partners must be at least 18 years old. In some states, individuals under 18 may marry with parental consent, but these exceptions typically apply to formal marriages and not common law marriages. 
• Mental capacity. Both partners must have the ability to understand and consent to the marriage, meaning they’re in good health and of sound mind to fully understand the responsibilities they agree to. 
• Marital status. Neither partner can already be married to someone else.

These requirements ensure that both partners are capable and free to enter into a common law marriage. 

Intent

Like a traditional marriage, each partner must have the desire to get married. Rather than merely living together as roommates or close friends, they need to mutually agree and want to create a marital relationship. Likewise, couples must act in a manner that indicates they consider themselves married.

Public declaration

Couples who want to establish a common law marriage must present themselves as married to their social circle and community. This can involve using the same last name, introducing each other as husband and wife, and celebrating anniversaries or other significant dates together. 

It also helps to share financial responsibilities and benefits—such as opening joint bank accounts or naming each other as beneficiaries on insurance policies—to establish the practice of a marital relationship. 

Benefits and legal rights

Common law marriage offers several advantages similar to those enjoyed by traditionally married spouses, including the following: 

Inheritance rights

If one partner passes away, the surviving common law spouse is typically entitled to inherit their property and assets, even if there is no will. Additionally, in some states, a surviving spouse can claim a portion of the estate if the deceased partner left them less than what they would receive under state law, whether they were married traditionally or under common law.  

In these situations, it’s best to create a comprehensive estate plan or write a will to ensure your spouse receives the inheritance you want to leave for them. Nonetheless, in the context of common law marriage, spouses have the same inheritance rights as if they were formally married. 

Social Security benefits

If a couple meets the Social Security Administration’s (SSA) requirements for a common law marriage, they may qualify for various federal benefits, including the following: 

• Spousal retirement. One partner may be eligible for a portion of the other’s retirement benefits, which is particularly helpful if one spouse has a significantly lower earning history. 
• Survivor benefits. Upon the death of one partner, the surviving common law spouse is eligible to receive continued financial support. 
• Disability benefits. If a common law spouse becomes disabled, the other partner may qualify for Social Security disability benefits based on their age and the disabled partner’s work history. 

These benefits help common law spouses manage financial challenges that arise due to retirement, disability, or the loss of a partner. For more information, refer to the SSA’s eligibility requirements for spouses. 

Healthcare decisions

When a partner is incapacitated or unable to make medical decisions for themselves, the common law spouse typically has the legal authority to step in and make those decisions on their behalf. Being recognized as a spouse also grants them access to important medical information, which helps them stay informed about their partner’s health status, treatment options, and healthcare provider’s observations. 

Tax benefits

Couples recognized as legally married under common law can file joint tax returns, which may result in lower tax rates, higher income thresholds for tax brackets, and eligibility for tax credits and deductions that aren’t available to single filers. 

Common law spouses also benefit from estate tax provisions, such as the unlimited marital deduction, which allows one spouse to transfer any amount of assets to the other without incurring estate or gift taxes. 

Insurance and employment benefits

Many employers extend health, dental, and life insurance benefits to their employees' spouses. In a common law marriage, the partner should be eligible for these benefits, ensuring they have access to necessary healthcare and financial protection. In addition, common law spouses can benefit from employment perks like family leave, bereavement leave, and access to retirement accounts or pension plans if offered by their partner’s employer. 

Challenges and limitations

While common law marriage offers various benefits, it also poses potential challenges. Here are a few considerations to keep in mind: 

Proving the existence of a common law marriage

Since you don’t need a marriage certificate for a common law marriage, it can be difficult to prove it exists. If a dispute arises, such as when filing taxes or claiming inheritance, you may need to provide substantial evidence to demonstrate your marital status. This can include testimonies from friends and family, shared financial records, and other relevant documents that show your commitment to each other. 

Differences in state requirements

Common law marriage isn’t universally recognized, and the requirements for establishing one vary among the states that do recognize it. The criteria can also be subjective, such as the public perception of the relationship, which can create confusion and challenges—especially for couples who move from one state to another. 

Legal complexities in dissolution

Without a formal marriage license, disputes over the existence of the marriage can complicate the divorce process. Matters related to property division, spousal support, and child custody can become contentious, as your partner can attempt to disprove your rights as a spouse in a common law divorce.

In these situations, it’s especially crucial to consult a divorce lawyer who’s familiar with common law marriage. That way, you can focus on your personal needs and recovery rather than the legal complexities and stress of the separation. 

Unexpected legal costs

Besides dissolution, couples may need to hire an attorney to prove their marital status, understand state-specific common law marriage requirements, or create a will or estate plan, among other family-related legal needs. Although these costs can add up, the benefits of a legally recognized and protected relationship often outweigh the expenses, providing peace of mind and security for both partners. 

How to prove common law marriage

Couples trying to prove a common law marriage must typically provide several types of evidence. Here are some standard methods and documents to establish your marital status: 

• Tax and bank information. Joint tax returns, bank accounts, and credit cards help demonstrate shared financial interests and responsibilities. 
• Leases or mortgages. Having both names on property leases or mortgages shows that the couple shares living arrangements and expenses. 
• Insurance policies. Policies that name the other partner as a beneficiary indicate a level of commitment similar to spouses.
• Affidavits. Written statements sworn under oath by the couple and their friends or family can attest to the marriage’s legitimacy. 
• Government identification. Official records, like a driver’s license or Social Security card, that show one partner has taken the other’s surname can help prove their intentions to marry. 

Keep in mind that each state and government entity has unique requirements for proving a common law marriage. As a result, it’s best to consult directly with the party requesting proof to understand what documentation or evidence they require. 

Is common law marriage right for you?

Common law marriage saves a trip to the courtroom, but it’s not for everyone. It may appeal to couples who value flexibility and prefer to avoid traditional institutions, as well as those who have built a life together without formalizing their union.  

Nonetheless, considering the legal complexities and state-specific regulations we’ve discussed, you might want to seek legal advice if you intend to prove or dissolve a common law marriage. Aside from helping you understand and comply with these varying requirements, a lawyer can protect your interests with a prenuptial agreement, an estate plan, or just honest advice when you need it most. 

Alternatives to common law marriage

If you’re still wary of common law marriage, you might consider these alternatives to recognize your commitment to your partner: 

• Cohabitation agreements. Legal contracts that outline the rights and responsibilities of each partner in a relationship. They can cover property division, financial support, and other vital matters that protect each party without the need for marriage. 
• Domestic partnerships. Legal recognition that offers many of the same benefits as marriage, such as health insurance, inheritance rights, and hospital visitation rights. 
• Civil unions. Arrangements that provide legal benefits and protections similar to marriage, but their recognition may vary by state. 
• Marriage. Entering into a traditional marriage gives spouses full legal partnership rights and benefits at the state and federal levels. 

If you’re unsure of what to do next or want more information about your rights for each option, reach out to a family law attorney to get personalized advice and guidance. No matter which path you choose, having the right support will give you confidence and protect your interests as you embark on the next chapter with your significant other.

FAQs

Can a common law marriage be established accidentally?

No, a common law or any legally recognized marriage can only be established deliberately. Both partners must mutually agree to be married and present themselves as a married couple to the public. 

Can same-sex couples enter into a common law marriage?

Yes, it's possible to enter into a same-sex common law marriage. After the Supreme Court legalized same-sex marriage in 2015, courts have since ruled the requirements are the same as for opposite-sex couples, including cohabitation, mutual intent to be married, and public representation as a married couple. 

How long before a relationship is considered common law marriage?

There’s no defined duration for a relationship to be considered a common law marriage. States that recognize common law marriage evaluate each case individually, but they don’t have a minimum time requirement. Still, long-term relationships and extended periods of cohabitation can help demonstrate the couple’s claim to marriage.