What is common law marriage?

Where it comes from

Common law marriage dates from a time when clergy and courthouses were far away and many couples simply began living as husband and wife. English and early American courts accepted those unions as marriages. Most states have since abolished the practice for new relationships, but a minority still allow it, and every state recognizes one validly formed where it was allowed.

The three requirements

• Capacity and cohabitation. Both partners must be legally able to marry — of age, not already married, not closely related — and must live together. There is no required number of years; the “seven years” rule is a myth.
• Present agreement to be married. Not a plan to marry later, but an agreement that you are married now.
• Holding out. Acting publicly as spouses: using the same surname, filing joint tax returns, naming each other as spouse on insurance or benefit forms, introducing each other as husband or wife.

What it means once it exists

Everything a licensed marriage means: property rights, spousal inheritance under intestacy laws, the ability to make medical decisions, eligibility for spousal Social Security and pension benefits, spousal support on separation, and the requirement of a formal divorce to end it. There is no such thing as a common law divorce. A person who “remarries” without first divorcing a common law spouse may be committing bigamy, and the second marriage may be void.

Recognition across state lines

A common law marriage validly created in a state that allows it is generally recognized in every other state, under the traditional rule that a marriage valid where it was formed is valid everywhere. So a couple married this way in Colorado remains married after moving to California, which does not create such marriages itself. Short visits to a recognizing state are usually not enough — most courts want real residence there while the requirements were met.

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Same-sex couples

Since Obergefell v. Hodges (2015), same-sex couples can form common law marriages on the same terms in states that allow them. Courts in some states have considered whether a relationship that met the requirements before 2015 can be recognized retroactively, with differing results.

How disputes usually arise

Almost always after a death or a separation, when one partner claims the marriage and the other — or the other's family — denies it. Proof is documentary: joint tax filings, deeds, leases, bank accounts, beneficiary designations, insurance cards, and affidavits from friends and family. The burden falls on the person asserting the marriage, usually by a preponderance of the evidence and sometimes by clear and convincing evidence, and vague testimony rarely carries it. Filing separate tax returns as “single” is strong evidence against a claimed marriage.

Common law marriage vs. cohabitation

Living together, even for decades and even with children, does not by itself create a marriage anywhere. Unmarried partners have no automatic right to property in the other's name, no inheritance without a will, and no spousal support. Some states allow claims based on an express or implied agreement between partners (sometimes called “palimony”), but these are much harder to win than a divorce claim.

Protecting yourself either way

Couples who want the status documented can marry formally, or in Texas record a Declaration of Informal Marriage. Couples who do not want to be married should keep their paperwork consistent — separate filings, no references to each other as spouses — and consider a written cohabitation agreement. In both cases, wills, beneficiary designations, health care proxies and powers of attorney prevent most of the disputes described above. A family law attorney in your state can review your situation.

Tax and benefits consequences

A couple in a valid common law marriage is married for federal tax purposes and must file as married, jointly or separately — filing as single can be treated as an incorrect return. A surviving common law spouse can claim Social Security survivor benefits, but the agency will ask for signed statements about the relationship, often from both relatives and friends.