As the coronavirus pandemic has played out, the questions I have been getting have been evolving. Recently, I’ve had a few calls with people who have lived with their significant other for years. Maybe they have kids, maybe they don’t. But they’ve made a decision not to get married. With the coronavirus illnesses, however, they are now particularly concerned about what happens to their children and their assets in case they get sick. Most of the calls are from people who do not have an estate plan (usually a will, healthcare directive and other documents). The callers have read or heard about a “common law” marriage. After living together for all these years, they assume that they are in a common-law marriage. They also assume that they can inherit their significant other’s assets like a spouse would.
Unfortunately, one of the first things I usually tell them is: chances are, they are not in a common-law marriage.
What Is A Common-Law Marriage?
Common-law marriage is a legal relationship where two people are considered married, even though they did not formally register their marriage. They have lived together, told people they were married, and have generally appeared to be married to the outside world. People use the term “common-law marriage” frequently for a couple who have lived together for years. Another more popular term recently is that the people are “cohabiting” together.
Why Am I Not In A Common-Law Marriage?
After explaining the concept of a common-law marriage, clients normally shake their heads and tell me that’s what they have. They are sure they are in a common-law marriage and we should start preparing their estate plan. However, to be in a common-law marriage, you need to be in the following states:
- District of Columbia
- Colorado
- Iowa
- Kansas
- Montana
- Oklahoma
- Rhode Island
- South Carolina
- Texas
- Utah
If you’re in New Hampshire, they recognize a common-law marriage for probating an estate purpose only.
I am not admitted to practice law in any of the locations on the list. So when my clients come to meet with me, I inform them that if they aren’t in one of those locations, they don’t have a common-law marriage.
So What Can We Do To Protect Our Rights?
When the shock has worn off (ok, there normally isn’t a lot of shock), the next steps are figuring out what to do next to protect both of the people in the relationship. The good news is that there are plenty of options to choose from. It all depends on what you are looking to work out. Some common legal documents for you to consider:
- Will or Trust
- Power of Attorney
- Health Care Directive
- Cohabitation Agreement
- Beneficiary Designations on Financial Accounts
Even though you aren’t officially married, there are plenty of options to protect your rights. Without these documents, your significant other may not be entitled to inherit your assets. Their family (who they may be estranged from) could have superior claims to the assets. And if there’s a significant size of the estate, you could be in for a costly legal fight.
With all the fears of coronavirus, now is the time to make sure you’ve got your planning in place to avoid any of these issues.
