A common interplay I encounter between family law and wills is what happens when two people have lived together for years. They have had a lovely relationship, maybe they have had kids, maybe they haven’t. For whatever reason, they have decided that they didn’t want to get married. Many people have read or heard about a “common law” marriage. After living together for all these years, clients have come to me assuming that they are in a common law marriage. They have come to meet with me to figure out what their legal rights are in the common law marriage. One of the first things I usually tell them is that chances are, they are not in a common law marriage.

What is a Common Law Marriage?

A 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 head 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 places:

  • 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 purposes 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.

Next Steps

If you and your partner haven’t done any planning and are interested in some of the planning documents above, call my office to set up a meeting and we can review the best options for you – (877) AMAYERS.


Andrew Ayers
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I work with business and estate planning clients to craft legal solutions to protect their legacies.