Which States Allow Common Law Marriage?
Couples may currently enter into common law marriages in the states of Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma, Texas, Utah, and the District of Columbia. The law in Oklahoma has been confusing since the legislature changed it in 1998, and in recent years the legislature has considered imposing an explicit ban. New Hampshire recognizes common law marriage for inheritance purposes only. States that formerly recognized common law marriages will generally still recognize them if couples satisfied all the requirements before the ban was in place. States abolishing common law marriage relatively recently include Pennsylvania (2005), Georgia (1997), Idaho (1996), and Ohio (1991).
How Do State Requirements Differ?
Different states have slightly different requirements for establishing the existence of a common law marriage. The essential requirement is that both partners agree to be married. Because an agreement may be hard to prove where one party denies it, most states also require that the couple behave in a way that would demonstrate to others that they intend to be married, such as by calling each other husband and wife, filing joint tax returns, or purchasing property together.
Since it is customary for spouses to live together, many state laws also specify that the partners must live together; however no state that currently allows true common law marriage requires the partners to live together for any specific period of time. New Hampshire law requires partners to have lived together continuously for three years prior to the death of one of the partners to prove a common law marriage, but recognizes the marriage only for inheritance purposes.
In other states that require a couple to live together, the time period will generally be whatever the court considers long enough to establish that the relationship is a marriage. While this is typically a period of years, in some cases a much shorter time could suffice. This factor will be less important where other strong evidence of marriage exists.
Generally speaking, the strongest evidence that both partners intended to be married would be a written agreement between them. Some state laws acknowledge the importance of a written agreement. In Texas, for example, a couple may establish their common law marriage—referred to as "informal marriage"—either by conduct or by a filing a signed declaration in court. If the partners file the declaration, a court won’t look at whether or not they have satisfied the other requirements.
If a common law relationship ends, either through separation or through death of one of the partners, there may be a time limit on claiming rights based on the marriage. For example, in Utah, a party must petition the court for recognition of a common law marriage either during the relationship or within a year after it ends. In Texas, if no one brings a court action claiming that a common law marriage existed within two years after the parties have stopped living together, a court will presume that there was no marriage. For more information on presenting evidence of a common law marriage, see Proving a Common Law Marriage.
