Should you live with a partner you’re not married to? One aspect to consider is the fact that some states may consider you married without you taking the step of going through the formal step of marriage. It’s a concept known as common law marriage. The necessary elements of a common law marriage are a present intent of both parties freely given to become married, a public declaration by the parties or a holding out to the public that they are husband and wife, continuous cohabitation together as husband and wife, and both parties being capable of entering into the marriage relationship. In a common law marriage, the difference is that the couple has not participated in an official marriage ceremony or obtained a marriage license.
What are the advantages of common law marriage?
Common law spouses who meet their state’s requirements are eligible for most of the financial benefits of a married couple. Financial benefits can include eligibility for spousal Social Security benefits in states recognizing common law marriage, so long as the common law spouse can show how long the couple lived together. Another advantage is being able to get certain job-related benefits such as health insurance, from the spouse’s employer.
The federal tax code also acknowledges common law marriage. Common law married couples can file a joint return if they’re considered married under a common law marriage recognized by either the state where you live or the state where the common law marriage began. Filing jointly can benefit the higher earning partner if they make significantly more than their counterpart. The recognition of common law marriage also preserves the ability to claim tax deductions if the couple owns a home or has children together.
What are the disadvantages?
Some disadvantages of common law marriage include the fact that it is not recognized in all states and that it can be difficult to prove that a common law marriage exists. In addition, common law spouses do not have the same legal rights as married couples in some areas such as property rights and inheritance.
The following states recognize valid common law marriages at the time of this blog post:
Colorado
District of Columbia
Iowa
Kansas
Montana
Oklahoma
Rhode Island
Texas
Utah recognizes only common law marriages that have been validated in a judicial proceeding.
New Hampshire recognizes common law marriage for inheriting property. 13 states have never permitted common law marriage, and 28 no longer permit common law marriages to be contracted within their jurisdiction. The latter group will only recognize a domestic common law marriage if it was contracted in the state before the date of abolition.
Because the majority of states do not recognize common law marriage, here are some important tips to follow if you do not plan to formally tie the knot:
Update your financial beneficiaries. If you intend to name your partner as a beneficiary, you will need to make sure you change your documents to do so.
Make sure you have guardianship of kids recorded in a document. Otherwise, a judge may have to decide for you.
Draft powers of attorney for healthcare and finances. If you are not in a state that recognizes your common law marriage, it is not presumed your partner can make decisions on your behalf for healthcare and financial affairs.
Draft a living will. You will want to spell out your end-of-life decisions in writing. Otherwise, others may contest what may have been specified to your partner.
Only a few states currently allow common law marriage. If you live in one of the states that allow it, you can enjoy the benefits of being married without the formal step of marrying. The downside occurs once you live in an area that does not recognize common law marriage. Be sure to add “update your beneficiary designations and estate planning documents” on your checklist.
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