States That Recognize Common-Law Marriage

Common-law spouses may enjoy benefits similar to those with a marriage license

Reviewed by Khadija Khartit

A common law marriage is a legally recognized marriage between two people who have not purchased a marriage license or engaged in a ceremony overseen by an officiant. In the United States, common-law marriage is allowed in several states. Not all states address common-law marriage with a statute but use public policy to determine validity.

Key Takeaways

• A common law marriage is a legally recognized marriage between two people who have not purchased a marriage license or engaged in a ceremony overseen by an officiant.
• Fewer than a dozen states and the District of Columbia recognize common-law marriages.
• Common-law spouses who meet their states’ requirements are eligible for most of the financial benefits of a married couple, including Social Security.
• Both married and common-law married couples must file for divorce if they wish to be separated.

Choosing Common-Law Marriage

Some couples choose to forgo the legalities of marriage and opt for a common-law relationship. This type of union recognizes a couple as somewhat equivalent to being legally married even if vows were not exchanged in a civil or religious ceremony and a marriage license was not obtained.

States that allow common-law marriage may not have statutes in place but require conditions to be met for a couple to be considered married by common law such as:

• The couple lives together in a state that recognizes common-law marriages.
• Live together for a consistent period, such as seven or 10 years.
• Introduce themselves to friends, neighbors, and coworkers as a married couple, calling each other “my husband” or “my wife” and perhaps using the same last name.
• Maintain joint finances such as leases/mortgages, bank accounts, and credit cards.
• Neither partner is married to someone else.

Note

If a state recognizes common law marriage and a couple does not want to be seen as married, they must sign a living together contract—especially if they own property together or use the same last name.

Benefits of Common-Law Marriage

• Tax Returns: Common-law couples where common-law marriage is not recognized cannot file joint tax returns with the IRS. Instead, they must either file separately or as head of household. However, couples recognized as married by common law enjoy many benefits as legally married couples, provided they have lived in a state that recognizes common law for most of their marriage.
• Separation: A common-law marriage can only be legally ended through a divorce. In states where the practice is recognized, it must be dissolved like a traditional marriage.
• Social Security: Partners can receive Social Security benefits if they can prove the number of years they lived together in a common-law state.
• Medical Benefits: When recognized as married in an eligible state, combining health insurance policies may reduce the amount paid in monthly premiums compared to those paid individually.
• Tax Benefits: Recognized common-law marriage partners are exempt from the gift tax for gifts to each other, enjoy unlimited marital exemptions for their estate up to the federal estate tax limit, and can claim deductions for mortgage interest if they co-own a house or have children.
• Wills: Inheritance of a common-law marriage spouse’s property is allowed with a valid will. However, if a spouse dies without a will, their children and other family members assume the inheritance rights, leaving the surviving common-law spouse with none.
• POA: Use of a medical power of attorney (POA) designating a common-law spouse as the person to make medical decisions when they are incapable.

If one spouse buys property without putting the other on the deed, it can be sold without the other’s consent. Couples should consider purchasing major assets using co-ownership agreements to avoid this.

Where Its Legal

Fewer than a dozen states and the District of Columbia recognize common-law relationships, and each of those states has specific requirements that must be met:

• Colorado: If contracted on or after Sept 1, 2006. Common-law spouses must be 18 or older and not prohibited by other laws.
• Iowa: Intended to support dependents, but otherwise not banned.
• Kansas: Couples must be mentally capable of committing, must be 18 or older to marry, and must represent themselves as married in the community.
• Montana: Not prohibited and not invalidated by the state’s marriage chapter.
• New Hampshire: The statute uses the phrase “cohabitation” not “common-law marriage,” saying such unions can be recognized solely for inheritance purposes. This may occur when an estate is settled after one of the partners dies if the couple lived together for three years before the death.
• Oklahoma: Aside from unions formed before Nov. 1, 1998, common-law marriage has been the subject of conflict between state law and the courts. To be recognized as a qualified common-law marriage, the individuals must prove that they are living together, financially interdependent, not related by blood that would prohibit marriage, and are 18 or older.
• Rhode Island: Both partners must intend to be married and act as if they are married. This means they must live together and present themselves as married to friends and family.
• Texas: Both parties in an informal marriage must consent to be married, live together, and tell others they are married.
• Utah: For a “marriage not solemnized,” both partners must be able to agree to the marriage, and others must know them as a married couple.

Some states have ruled that only those unions that met the state requirements for a common-law marriage by a specified date will be recognized—not those that happened later. Those states and dates are:

• Alabama: Jan. 1, 2017
• Georgia: Jan. 1, 1997
• Idaho: Jan. 1, 1996
• Ohio: Oct. 10, 1991
• Pennsylvania: Jan. 1, 2005. Partners must also exchange vows to be married uttering “words in the present tense, uttered with the view and to establish the relation of husband and wife.”
• South Carolina: South Carolina abolished common-law marriages on July 24, 2019, but recognizes common-law marriages that occurred before that date.

Important

Filing taxes as a legal common-law couple allows partners to take advantage of many tax deductions, including the American Opportunity Tax Credit (AOTC), Child and Dependent Care Tax Credit, Earned Income Tax Credit (EITC), and the Lifetime Learning Credit (LLC).

History of Common-Law Marriage

Common-law unions were prevalent on the European continent in the Middle Ages. The Council of Trent mandated weddings performed by a priest and two witnesses and outlawed them in the Roman Catholic nations.

In October 1855, the concept of a common law marriage was defended at the New York Surrogate’s Court. The case involved the passing of John Tummalty who, though unmarried, had a long-standing relationship with someone in which he did not have a formal ceremonial marriage. The court ruled that society would not benefit if such relationships in which children could be born were no longer considered valid in the eyes of the law.

The U.S. Supreme Court ruled in Meister v. Moore in 1877 that if a state’s law did not specifically prohibit it, a non-ceremonial marriage could be lawful and enforceable.

Are Same-Sex Common-Law Marriages Permitted?

Some legal authorities feel that the same factors that apply to opposite-sex couples in common-law marriages apply to LGBTQ+ couples. As of 2021, only Iowa, Rhode Island, Colorado, and the District of Columbia specifically allow for same-sex common-law marriages.

How Do Common-Law Marriages and Civil Unions Differ?

Common-law marriages are different than civil unions. A civil union is a legal relationship between two people that confers rights only on the state level. Civil unions were primarily a way for same-sex couples to have a legally recognized relationship before same-sex marriage became legal in all 50 states after the Supreme Court made its ruling in the 2015 case of Obergefell v. Hodges.Not all states recognize civil unions. Whether a couple is same- or opposite-sex, a civil union provides no right to federal protections or benefits.

Is There Common-Law Marriage in the U.K.?

Many people choose to live with their partners in the United Kingdom just as spouses do after they get married. But there is no definitive law surrounding common-law marriages in England and Wales. Couples in Scotland are able to make limited claims in the event of a separation or death while those in Northern Ireland only have access to legal protection in certain cases.

The Bottom Line

A common law marriage is legally recognized in several states. Couples who meet their states’ requirements are eligible for most of the financial benefits of a married couple, including Social Security and tax benefits.

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