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Common-Law Marriage

A marriage formed without a licence or ceremony by living together as spouses and holding yourselves out as married - which states still allow it, what has to be proved, why every state recognises one validly formed elsewhere, and what it means for property, support and inheritance when the relationship ends.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

What it means

A common-law marriage is a marriage that exists in law without a licence, a ceremony or any record, because the parties agreed to be married, lived together as spouses and presented themselves to the community as a married couple. It is a real marriage, not a lesser status: once formed it carries every right and duty of a licensed marriage and can be ended only by divorce or death, so a person who has one and marries again without a divorce is a bigamist. Only a minority of states still allow a common-law marriage to be formed, and several have abolished it prospectively while continuing to recognise those formed before the cut-off date; the rest never recognised it or ended it long ago. Because of the general rule that a marriage valid where it was formed is valid everywhere, however, every state recognises a common-law marriage validly formed in a state that permits it, and a couple who formed one and moved is married in their new state too.

The elements are stated slightly differently in each state that has the doctrine but come to the same thing: a present agreement to be married (not an agreement to marry in the future), capacity to marry, cohabitation, and a reputation as husband and wife - joint tax returns, shared surnames, introductions as "my wife" or "my husband", insurance and beneficiary forms naming a spouse, joint leases or deeds. No period of cohabitation, however long, creates a common-law marriage by itself; living together for many years without the agreement and the holding-out is not a marriage in any state, and the popular belief in a fixed number of years is wrong everywhere. The party asserting the marriage bears the burden of proof, and in some states the standard is clear and convincing evidence because the claim is usually made after the relationship has ended or one partner has died.

The question typically surfaces at exactly those moments: a separation where one partner claims a share of property and support, a death where the survivor claims an intestate share, a pension, Social Security survivor benefits or the right to sue for wrongful death, or a creditor or an ex-spouse who asserts the marriage to reach assets or end alimony. If the marriage is found, the couple's property is divided and support awarded under the divorce statutes as for any marriage, and the survivor takes as a spouse; if it is not, an unmarried partner in most states has no claim to the other's property or support except under a contract or an equitable theory such as unjust enrichment, and no inheritance without a will. Couples who do not want to be treated as married in a common-law state should say so in writing; those who do should marry with a licence, which costs little and removes the proof problem entirely.

Where this comes from

Common-law marriage is state law. The states that currently permit its formation, those that recognise only marriages formed before a statutory cut-off, and those that never recognised it are each defined by that state's statute and case law, and the list changes; no national rule exists. Recognition of a marriage valid where celebrated is the general conflict-of-laws rule stated in Restatement (Second) of Conflict of Laws § 283 (1971), subject to a state's strong public policy. For federal purposes the Social Security Administration determines marital status under the law of the state of the worker's domicile, 42 U.S.C. § 416(h)(1)(A), and applies the same rule to common-law marriages in its Program Operations Manual System, GN 00305.060. Federal tax law follows state law on whether a couple is married, Rev. Rul. 58-66. Elements, standards of proof and cut-off dates are each state's own and are not stated here.

When people hire a lawyer for this

Anyone whose rights turn on proving or disproving a common-law marriage - a partner at separation, a survivor claiming an estate or a benefit, a spouse whose alimony would end on the recipient's remarriage - should get advice in the state whose law applies, which may be the state where the couple lived earlier rather than where they live now. The evidence is documentary and fades quickly, so the file should be built early. Couples who have moved from a common-law state should find out whether they are already married before either of them marries someone else.

Find a lawyer for this in your state

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

If you cannot afford a lawyer, civil legal aid programmes provide free help with many of these problems: civil legal aid programmes by state.

Related free reference tools: statute of limitations for a personal-injury claim, by state, quoted from each state's official text - part of LawyerLand's legal reference tools.