What States Still Recognize Common Law Marriage? A 50 State Guide
Common law marriage allows a couple to gain spousal rights and obligations without obtaining a marriage license or having a wedding ceremony. This historical concept was initially recognized across the country, but over time many states enacted laws to abolish it. Today, only a minority of states still permit common-law marriage under certain circumstances.
What is the current status across all 50 states? In this comprehensive guide, we will identify the U.S. jurisdictions that recognize common-law marriage and those that have abolished it. You will also learn the specific legal requirements within approving states, as well as the process for establishing a valid common-law marriage. We will cover the pros, cons, benefits, and pitfalls to consider as well. Let’s dive in to clarify the complex legal landscape around common-law unions in America today!
What is Common Law Marriage?
A common law marriage is a legally recognized marital union between two consenting adults established without obtaining a marriage license or having a wedding. It is formed when a couple lives together for a significant period, holds themselves out to the community as spouses, and intends to be married.
Most states today require ceremonial marriage, but a few continue to permit this alternative route to spousal status. The requirements vary somewhat by state. Once a common law marriage is established, the couple enjoys all standard marital rights and obligations in areas like property, inheritance, child custody, divorce, and more.
Why Was Common Law Marriage Created?
Common law marriage emerged from English common law traditions in medieval Europe. At the time, marriage simply required mutual consent between two people. Ceremonies were optional and mainly served to document the union. Since most people were illiterate, mutual cohabitation and reputation as spouses in the community were considered acceptable proof of marriage.
When early American colonies adopted the English common law system, common law marriages were recognized as legally valid. This allowed for more flexibility in frontier areas without easy access to clergy or public officials to formally register marriages.
The practice continued in America for centuries, with states only beginning to abolish it in the late 19th century. Requirements were tightened to mandate marriage licenses, ceremonies, and registration for legal validity. However, a handful of states still permit common-law marriage under today’s laws.
What States Recognize Common Law Marriage Today?
Currently, only the following nine states recognize common law marriage by statute or case law precedent:
- Colorado
- Iowa
- Kansas
- Montana
- New Hampshire
- South Carolina
- Texas
- Utah
- District of Columbia
These jurisdictions all passed specific laws or legal rulings upholding the legality of common-law marriage for couples meeting certain requirements. Let’s examine some details on what’s required in each place.
Colorado
Colorado recognizes common law marriages established on or before September 1, 2006. Couples must satisfy these requirements:
- Cohabitation and mutual agreement to be married
- Reputation in the community as husband and wife
- Must be age 18 and competent
- Cannot be legally married to someone else
Couples in valid common-law marriages before 2006 remain legally married. But common law marriage was abolished for relationships started after that date.
Iowa
Iowa law permits common-law marriage. A couple must prove:
- Present intent and agreement to be married
- Continuous cohabitation
- Public declaration they are spouses
- Age 18 and capacity to contract
- Not already married
In addition, the union must meet one of these time thresholds:
- Remain together until one spouse’s death
- Cohabitate for at least one year
- Have a child and claim parentage
Kansas
Kansas still recognizes common-law marriage. A couple must:
- Capacity to marry
- Cohabitate and represent themselves as married
- Have a present marriage agreement
- Hold out publicly as spouses
- Must not be married to others
Montana
Montana allows common law marriage for couples who:
- Are competent to consent
- Enter the relationship voluntarily
- Cohabit and repute themselves as married
- Intend to be married
No time thresholds are specified.
New Hampshire
To establish a valid common-law marriage in New Hampshire, these elements must exist:
- Parties are free to marry
- Cohabitation
- Agreement to be married
- Reputation as spouses in the community
- At least 3 years together
South Carolina
South Carolina still recognizes common law marriage if parties:
- Are legally free to marry
- Cohabitate meaningfully together
- Intend to be married
- Have a reputation as spouses
The union must last for an ongoing period to be valid.
Texas
Texas law permits common law marriage with evidence that:
- Parties agreed to be married
- Lived together as spouses
- Represented to others they were married
No specific time thresholds are required.
Utah
Utah allows common law marriage for consenting couples who:
- Cohabitate
- Assume marital rights and duties
- Agree to a present marriage
- Have a reputation as spouses
- Are age 18 and capable of giving consent
- Are unmarried to others
District of Columbia
The District of Columbia still recognizes common law marriage established before 1901. Couples must provide evidence of:
- Agreement to be married
- Cohabitation
- Holding out to the community as spouses
- No formal solemnization
What States Abolished Common Law Marriage?
The vast majority of U.S. states and territories have abolished common law marriage over the past century either by statute or judicial opinion. These include:
- Alabama
- Alaska
- Arizona
- Arkansas
- California
- Connecticut
- Delaware
- Florida
- Georgia
- Hawaii
- Idaho
- Illinois
- Indiana
- Kentucky
- Louisiana
- Maine
- Maryland
- Massachusetts
- Michigan
- Minnesota
- Mississippi
- Missouri
- Nebraska
- Nevada
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Ohio
- Oklahoma
- Oregon
- Pennsylvania
- Rhode Island
- South Dakota
- Tennessee
- Vermont
- Virginia
- Washington
- West Virginia
- Wisconsin
- Wyoming
Any couples in these states must obtain a legal marriage license and have their marriage properly registered and certified to gain spousal rights. Simply living together is not sufficient.
How Do You Establish a Common Law Marriage?
The requirements can vary, but generally, these steps establish a common-law marriage:
- Live together and establish a shared domestic life like a married couple.
- Make a mutual agreement or promise to be married. This can be explicit or inferred from conduct.
- Represent to others in the community that you are married. Tell family, and friends, and introduce your partner as your spouse.
- Conduct yourselves consistent with marital status in how you title assets, file taxes, share expenses, make medical decisions, parent children together, and more.
- Document your intent and lives together through photos, shared bills, correspondence, social media, insurance policies, wills, and other evidence indicating coupledom.
- Meet state age, competency, and marital eligibility requirements.
- Satisfy any applicable time thresholds for cohabitation or duration of relationship.
- Refrain from denying or contradicting your married status publicly. Act consistently as spouses only.
Follow your state’s particular requirements to completion to gain valid common law marital rights.
What Rights Come with Common Law Marriage?
Once a valid common law marriage is established, the couple enjoys broad rights like formally married spouses, including:
- Jointly owning marital property
- Naming your spouse on insurance policies
- Inheriting from your spouse without a will
- Making end-of-life care and funeral decisions
- Filing joint tax returns
- Seeking alimony or equitable division upon divorce
- Establishing paternity and custody of children
- Obtaining Social Security and government benefits
- Accessing accounts and information of your spouse
Essentially all standard marital rights and obligations apply to properly validated common-law marriages.
How Do You End a Common Law Marriage?
Common law spouses must get legally divorced to end the marriage the same as a ceremonial marriage. One spouse cannot simply walk away and consider the union informally dissolved.
To legally terminate common-law status, traditional divorce proceedings must be filed and carried through in court. This involves dividing marital assets equitably, determining alimony if applicable, resolving child-related issues, and getting a final divorce decree.
Without formal divorce, one spouse could theoretically be sued for marital obligations like spousal and child support later on. So it is vital to make the marriage and divorce official through the court.
What are the Pros of Common Law Marriage?
Advantages that attract some couples to common-law marriage include:
- Achieving marital rights without the time, expense, and inconvenience of obtaining a marriage license and staging a formal wedding. The marriage essentially forms automatically through cohabitation and intent without paperwork.
- Keeping the marriage private. No public record is created and couples don’t have to announce anything.
- Allowing informality and flexibility in the relationship dynamics without the traditional expectations of ceremonial marriage.
- Providing legal protections, property rights, parental rights, and inheritance rights faster and easier than unmarried cohabitation or piecemeal contracts.
- Qualifying for certain government benefits restricted to spouses like Social Security, health insurance, and tax benefits.
- Avoiding testifying against each other in court per marital privilege.
For some couples opposed to the formalities of licensed marriage, common-law marriage can be appealing.
What are the Cons of Common Law Marriage?
Disadvantages of common law marriage include:
- Lack of 100% certainty you are legally married without an official license and certificate. Proving a valid common law union years later to access marital benefits can be difficult.
- Establishing inadequate proof of marriage then losing the partner’s pension, Social Security benefits, inheritance, alimony, or other rights meant for spouses.
- Failing to end the marriage officially through divorce means lingering financial obligations, liability for debts, and barriers to marrying another.
- Unequal division of assets/property without a formal divorce agreement if you separate.
- Confusion for any children from the marriage about legitimacy if no public documentation of the parent’s marriage exists.
- Being denied treatment, access to information, and other spousal rights by skeptical third parties who want to see a marriage license.
- Tax fraud risks if you incorrectly file taxes as married without meeting common law requirements.
Clarify marital status upfront and follow formal processes to avoid issues down the road.
Key Questions and Answers About Common Law Marriage
- Can we establish a common-law marriage just through cohabitation? No, you must meet all the requirements like intent, public representation, community reputation, eligibility, and time thresholds required in your state.
- Do we register a common law marriage anywhere officially? No registration is required, but you should keep thorough documentation proving you are a qualified spouse under the law in case you ever need to establish proof.
- How long do we have to cohabitate before it’s considered a marriage? Time requirements differ by state but range from one to three years. Cohabitation alone does not equate to marriage – you must meet all criteria.
- Once we separate, does our common law marriage automatically end? No, you must still obtain a formal divorce decree through court to legally terminate marital rights and obligations, just like any licensed marriage.
- If we move, will our common-law marriage still be valid? It depends on the laws of your new state. Check to see if common-law unions are recognized and whether previously established ones are grandfathered in. Consult a local attorney to be sure.
Conclusion
While most states abolished common law marriage over a century ago, nine states plus Washington D.C. still recognize this alternative marital arrangement today under limited circumstances. Couples who meet strict state law requirements can gain spousal rights without needing a marriage license or ceremony. However, ambiguities around evidence and proof make common law unions risky. Before considering this path, research laws in your state thoroughly, consult an attorney, and weigh the pros and cons. With eyes wide open, you can make the best decision for your personal situation and relationship.
