Even though the concept of common law marriage has been around for many years, a lot of people don't understand how it works. One of the reasons may be that most states don’t allow them anymore. But if you live in a state that recognizes these marriages—or you did when you first began a committed, marital relationship—you may meet the requirements for a common law marriage.
What Is Common Law Marriage?
Common law marriage is a legal status that arises out of the nature of your relationship with a significant other, rather than because of a marriage certificate or a civil or religious marriage ceremony.
Requirements for a Common Law Marriage
The most fundamental requirement for a common law marriage is “shared intent.” In short, both you and your partner must intend to be married, even though you've never formalized your marriage in the traditional sense.
But it's not just a matter of what's in your minds. You must treat your relationship as a marriage and demonstrate your shared intention to be married through concrete actions. The details of the types of actions that qualify can vary from case to case, and from state to state. Evidence of your intentions might include:
- signing a written agreement acknowledging that you consider yourselves married
- holding yourselves out as a married couple to friends, family, and your community
- calling your partner your spouse, husband, or wife
- exchanging wedding rings and celebrating anniversaries of your commitment
- sharing finances, income, and property
- opening joint bank accounts
- filing joint tax returns
- listing each other as "spouse" on beneficiary designations, insurance papers, and other formal documents.
Some of these factors may change over time, with evolving social customs. For instance, in a time when many unmarried couples live together with no plans to get married, the fact that you live with your partner isn't evidence on its own that you have a common law marriage. Similarly, keeping separate last names is no longer evidence that you don't see yourselves as married.
Finally, to be in a common law marriage, you must comply with some basic laws regulating all marriages. Although those laws vary a bit from state to state, you generally must:
- meet the minimum age requirement for getting married in your state (usually 18 years)
- have the mental capacity to enter into the marriage (be of sound mind)
- not be married to someone else, and
- not be closely related to your spouse.
What Difference Does a Common Law Marriage Make?
The question about whether you were in a common law marriage typically comes up when:
- your partner dies and you're making a claim against the estate
- your partner died as a result of someone else's negligence, and you want to sue for wrongful death as a surviving spouse
- you're applying for certain Social Security benefits based on your spouse's earnings
- you and your partner break up, and one of you wants a court order for support, division of your property, or both.
In many of these situations, you may have to file a separate legal proceeding to determine the legal status of your relationship. If a court does determine that you were in a valid common law marriage, it can have a profound effect on your life. That finding basically puts you in the same position as someone who had a formal marriage ceremony and received a marriage certificate. You'll have all the benefits and obligations of married couples. And if you want to end your common law marriage, you’ll need to get a legal divorce, with all that entails.
Child support and child custody don't depend on the parents' marital status. That's because judges may issue support and custody orders for children whether or not their parents were ever married. But marital status does affect whether a court has the authority to award alimony or issue orders dividing your property. If you're considered a common law spouse, you may:
- request a share of your joint property
- be liable for your joint debts, and
- be entitled to receive—or be ordered to pay—spousal support.
As a common law spouse, you may also be entitled to benefits accorded to those who are traditionally married, such as Social Security benefits based on your common law spouse's earnings record. But the Social Security Administration will only recognize your common law marriage if you established it in a state that allows this type of informal marriage.
What States Recognize Common Law Marriage?
Only a few states authorize common law marriage as a current, viable form of marriage. Others have abolished the practice and so don't allow new common law marriages, but they still recognize any of these marriages that existed before the ban took effect.
Finally, all states should recognize common law marriages from other states where they're legal. So if you establish a valid common law marriage in a state where it's legal but then move to a state that doesn't permit these informal marriages, you will still be considered married.
States that Still Authorize Common Law Marriage
The following jurisdictions currently (as of 2022) authorize common law marriages:
- Colorado
- District of Columbia
- Iowa
- Kansas
- Montana
- Oklahoma
- Rhode Island
- Texas, and
- Utah
New Hampshire will recognize certain common law marriages, but only after one of the spouses dies. This means that the issue of whether a couple was in a common law marriage would affect issues like inheritance.
States That Recognize Prior Common Law Marriages
The states below recognize only common law marriages that already existed before the dates shown, when the states abolished the practice (although we're only showing states where the law changed after 1940):
- Alabama (1/1/2017)
- Alaska (1/1/1964)
- Florida (1/1/1968)
- Georgia (1/1/1997)
- Idaho (1/1/1996)
- Indiana (1/1/1958)
- Michigan (1/1/1957)
- Minnesota (4/27/1941)
- Mississippi (4/5/1956)
- Nevada (3/29/1943)
- Ohio (10/10/1991)
- Pennsylvania (1/1/2005)
- South Carolina (7/24/2019), and
- South Dakota (7/1/1959).
Same-Sex Common Law Marriages
Ever since the U.S. Supreme Court held that same-sex couples have a constitutional right to marry "on the same terms and conditions as opposite-sex couples" (in Obergefell v. Hodges, 576 U.S. 644 (2015)), courts around the country have held that same-sex couples are entitled to have their valid common law marriages recognized. Many courts have also held that the Obergefell decision must be applied retroactively. That means that gay couples are entitled to have their valid common law marriages recognized, as long as they established the relationship in a state that generally recognized common law marriage—even if the state's law at the time limited those marriages to heterosexual couples.
Time Limitations for Claiming a Common Law Marriage
Some states (such as Texas and Utah) put a time limit on when you can claim that you were in a common law marriage after the relationship is over.
Here's an example of how that works: Say your relationship ends, but at some point down the road, you decide you want alimony and some of your former partner’s assets. You figure a divorce is the way to go, but your ex denies that you were ever in a common law marriage. So you file a petition asking a judge to declare that your relationship qualified as a legal common law marriage. If your state puts a one-year limitation on making that claim but it's been longer than that since you split up, your petition will be denied.