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Estate Planning in Common Law Marriages Making Comeback

Posted by Nina Whitehurst | Dec 01, 2017 | 0 Comments

Laws on common law marriage vary from state to state.

Not all states recognize common law marriage and its impact on an estate, according to the Wills, Trusts & Estate Prof Blog in "Why Common Law Couples Need an Estate Plan (New York)."

In most states, the idea of common law marriage has been abolished for a long time. Only a small number of states recognized the concept until recently.

The concept of common law marriages has only been recognized by a small number of states until recently.  However, more some states are now beginning to recognize these marriages again.

The reason behind the renewed recognition is probably because more couples are choosing to live together for long periods of time.  They are acting like married couples despite never making it “official” through the process of formally getting married.

By recognizing the existence of a common law marriage, the courts are then able to treat the couple as they saw themselves when it comes to divorcing or settling an estate.

What makes a valid common law marriage varies from state to state.

Normally, if the couple holds itself out to the public as married or tells a government agency that they are married, then a common law marriage exists. For example, if the couple files a joint tax return with the IRS, then the existence of a common law marriage will be recognized in those states that allow them and the couple will be in trouble with the IRS in other states.

Since not all states recognize common law marriages, it is important that you understand you will still need an estate plan to protect your common law spouse's interests in some states.

Reference: Wills, Trusts & Estates Prof Blog (Oct. 25, 2017) "Why Common Law Couples Need an Estate Plan (New York)."

About the Author

Nina Whitehurst

Attorney at Law Nina has been practicing law for over 30 years in the areas of estate planning, real estate and business law She is currently licensed in Alaska, Arizona, California, Colorado, Oregon and Tennessee. Her Martindale-Hubbell attorney rating is the highest achievable: 5 stars in peer...


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