Common law marriage is not as common as many people believe. Simply living together does not mean that you have a common law marriage. There are strict requirements that have to be met for common law marriages to be considered valid. Additionally, only a few states in the United States recognize common law marriages.
States That Recognize Common Law Marriage
Every state has its own laws regarding common law marriages and only a few actually recognize this type of union. In the majority of states, it is still a requirement that you obtain a marriage license to be recognized as a married couple.
Common-law marriages are recognized by Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, Utah, and Washington, D.C. In Alabama and Rhode Island, common law marriage has been recognized by case law only. Similarly, while Oklahoma requires a formal marriage license, case law has upheld the right to a common law marriage.
Keep in mind that even within these states, the laws will vary. Any of the laws are also subject to change if the state's legislature sees fit to do so. To ensure that you know the current law in your state, contact an attorney or seek other legal advice regarding your particular situation.
States With Restrictions
Some states only recognize common law marriages if they were created within a certain time frame. The term used is "contracted," meaning you have entered into a common law contract (or agreement) and followed the requirements set by that state.
Notice how some states allow common law marriages before a certain date while others allow them only after a particular date. This grey area is another reason to reach out for local legal advice.
The Four Requirements
While the detail s do vary from one state to another, there are generally four requirements for a valid common law marriage. Living together is one of them, but it isn't enough.
- You must live together.
- You must present yourselves to others as a married couple. Some ways of doing this are by using the same last name, referring to one another as husband or wife, and filing a joint tax return.
- Although the time frame is not always well-defined, you have to be together for a significant period of time. Some states do define a specific number of years.
- You must have the intention to be married.
Exceptions to the Rules
There is a general agreement in the U.S. that every state will recognize a valid common law marriage of another state. However, this has been challenged by a number of states. Additionally, some laws may not fully recognize same-sex marriages that are otherwise valid in other locales. It is best to consult an attorney to make sure your common law marriage is recognized in the state where you are currently residing.
The Social Security Administration (SSA) will only recognize your common-law marriage if the state where you reside recognizes it. To make sure that you would be eligible for survivor benefits, you need to go to an SSA office and fill out forms, provide statements from two blood relatives, and provide supporting evidence of your common-law relationship.
Your state must also recognize common law marriages in order to be "considered married" when filing your federal income taxes. According to the Internal Revenue Service (IRS), Publication 17:
"You are considered married for the whole year if on the last day of your tax year you and your spouse meet any one of the following tests ... 2. You are living together in a common law marriage that is recognized in the state where you now live or in the state where the common law marriage began." - page 20
The Bottom Line
Regarding any issue involving your common law marriage—taxes, social security, moving, etc.—it is best to seek current advice from a professional in your state. Only they will be able to accurately inform you of the state laws and how they affect your specific situation.
Department of the Treasury. Your Federal Income Tax: For Individuals. Publication 17. Internal Revenue Service. 2017.
National Conference of State Legislatures. Common Law Marriage by State. 2014.
Social Security Administration. GN 00305.060 Common-Law Marriage—General. 2015.