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"Well, we were never actually married, but we were basically married. Common law married."
Few words raise more red flags for estate planners and probate attorneys than phrases like this.
Marriage is not only a declaration of love. It is also a fundamental change in two people's legal relationship with each other. Aside from questions of, e.g., property division and child custody that come up in a divorce context, marriage also fundamentally changes how your property is distributed after death.
When someone dies without a Will, their property is governed by the law of "intestate succession," a statutory scheme that determines which family members get the estate. (See M.G.L. c. 190B, § 2-101). Under Massachusetts law, a spouse has priority for intestate succession, and he or she takes either the decedent's entire estate or the majority of the estate (depending on whether there are children and/or on whether the decedent's parents are still alive). (See M.G.L. c. 190B, § 2-102).
But who is a spouse for purposes of intestate succession? Only someone legally married to the decedent at the time of death. In our modern society, many people may be happy to live together for years without being formally married, or they may have religious or philosophical objections to marriage. However, unless they were legally married, the Massachusetts courts will not care that someone was the decedent's boyfriend/girlfriend or romantic partner, even if they have lived together for many years, and even if they have children together. The surviving partner will get absolutely nothing under intestate succession.
Some of these problems can be avoided by executing a valid Will or Trust, in which you can specify that your property or money is to be left to anyone you chose, or by executing beneficiary designations on bank accounts, etc. Using these methods, you can choose who receives your property, so that it is not governed by the law of intestate succession. Many estate planning documents, however, (especially complex Trusts) will sometimes include generic references to "my spouse" without naming names, in order to provide flexibility for possible future remarriages. Such references can be problematic – or outright unenforceable – if the couple in question is not actually married.
Marital status also affects whether a person has "standing" to challenge a Will put forth by another person that may be invalid (e.g., because it is a forgery, or because the decedent did not have the mental capacity to make a will at the time it was supposedly made). If the challenger is not a spouse and thus would not receive anything under intestate succession, the courts generally will not consider their objections, unless there is already another Will that does include the would-be spouse.
But what is "common law marriage"? Many people say that they are "common law married," but what does that mean, and is it an actual marriage that confers any legal rights?
Formerly, in many jurisdictions, two people could legally establish that they were married, even if they never had a marriage ceremony or a marriage certificate, simply by showing that they lived together, that they considered each other to be married, and that people in the community also believed that they were married and, e.g., referred to them as "husband" and "wife."
Today, however, only 6 U.S. states (Colorado, Iowa, Kansas, Montana, Texas, and Utah), and the District of Columbia) allow common-law marriages. New Hampshire also recognizes common-law marriages, but only for purposes of determining probate succession after death (so no divorces or alimony).
Massachusetts law does not allow "common law marriages." In fact, Massachusetts was the first state in the country to ban common law marriages and actually abolished common law marriages during the colonial period, before they were even abolished in England! One can just imagine the early New England settlers gasping at the thought of a "marriage" taking place outside of a solemn church ceremony! Massachusetts (and every other U.S. state) does recognize common law marriages that were validly established in other states, thanks to the "Full Faith and Credit" clause of the U.S. Constitution. (U.S. CONST., art. IV, §1.)
However, given how few states actually allow common law marriages, it is important for anyone relying on an out-of-state common law marriage to be sure that their marriage was actually valid in the state they believe they were married in. Many states have abolished common law marriage in recent decades, including Alabama (2017), Florida (1968), Georgia (1997), Indiana (1958), Ohio (1991), Pennsylvania (2005), and South Carolina (2019), although those states still generally recognize marriages established before those dates.
Even in a state that technically allows common-law marriages, a would-be couple still generally has to establish not merely that they lived together, but that they actually held each other out to the world as spouses, and not just as romantic partners. This may be less common than it once was as society has become more accepting of non-marital relationships. The exact requirements may vary state-by-state, and concerned individuals should consult with a lawyer from the relevant jurisdiction, but it is a potential issue.
Moreover, if the validity of a would-be spouse's marriage is for some reason challenged in probate proceedings, proving up an out-of-state common law marriage could require presentation of detailed factual evidence, as opposed to simply producing a marriage certificate. This introduces uncertainty, increases expenses, and could slow down the probate administration process and the final distribution of a loved one's property.
Given the legal implications of not actually being married, it is important that unmarried couples consider their estate planning carefully. Experienced legal counsel can help draft estate planning documents that reflect the couple's actual wishes and can highlight potential pitfalls if marital status is questionable.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
