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To Have, but Not to Hold? Common Law Marriage and Estate Planning

Understanding the estate planning implications of common law marriage

Marriage as a legal institution has taken a variety of forms throughout history. As society evolves, how we identify marriage in our society also changes. In some states, a couple may be deemed married without having participated in judicial or religious ceremonies, called common law marriage. This creates some potential issues when planning for illness or death.

Estate Planning Challenges with Common Law Marriage

The first issue individuals may face when dealing with the concept of common law marriage is proving that a marriage exists in the first place. At the time of this writing, only a few states recognize common law marriage. These states and territories are Texas, Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina, Utah, and the District of Columbia. Each jurisdiction has different requirements regarding what constitutes a common law marriage within its jurisdiction. For example, in the District of Columbia, an individual must establish two elements:

  1. A mutual agreement, in the present tense, to enter into a state of matrimony; and
  2. The consummation of their agreement by cohabitating as husband and wife.

The second potential issue is that some states once recognized common law marriages but now they do not. In these states, whether your marriage is recognized under the law is based on when you entered into the relationship and when your state formally abolished common law marriage. These states often recognize common law marriages that came into existence before the date of abolishment. For example, while Maryland law does not authorize two individuals to establish a “common law” marriage within the state, Maryland courts uphold marriages that were validly entered into in accordance with another state’s law. 

States that provide rights to individuals in common law marriages often afford common law spouses the same rights and opportunities provided to individuals married under traditional legal or religious marriage ceremonies when the required factors are met. However, this only accounts for a relatively small number of people. Problems arise when a state does not recognize common law marriages, and an individual in a relationship that was thought to be a marriage passes away, leaving a significant other. For that significant other, the results can be dire.

When the marriage or union is not legally recognized, the significant other cannot inherit anything if their loved one passes away. Additionally, in states where common law marriage does not exist, there is no standing to contest anything in probate. Imagine, for example, that a couple lives together in a relationship for fifty years that they considered a marriage, but in fact common law marriage is not legally recognized in their state. If one partner passes away, the surviving significant other will be unable to receive any inheritance from their loved one, unless they have an estate plan in place. Whether the couple cohabitates has no bearing on the process in states that don’t recognize common law marriages.

The challenges are not limited to death. In the absence of marriage rights under common law, significant others who have no estate plan in place are also out of luck when it comes to healthcare and financial decisions. If a partner falls sick and healthcare decisions must be made, the other partner will be unable to provide any input regarding the sick partner’s wishes. This may be especially difficult if the sick partner has family members advocating for healthcare decisions that the other partner knows are contrary to what the ill partner would want.

Additionally, suppose particular accounts and property require attention while one partner is unable to make decisions. In that case, the absence of legal documents would prevent the other partner from having access to cash and property. The impact of this can be significant. For example, suppose the couple’s residence is owned and paid for by the partner that is ill or has died. The remaining individual may have no means to continue making rent or mortgage payments on the property and no rights to continue to reside in the residence. Unfortunately, people in these situations typically are not prepared for these outcomes.

If you believe that you may be entitled to the rights of a surviving spouse under a common law marriage, we can discuss the details of your situation. Call (443) 741-1088, (301) 941-7809 or (202) 640-2133 to schedule a meeting with Andre O. McDonald, a knowledgeable Howard County, Montgomery County and District of Columbia estate planning, special-needs planning, veterans pension planning and Medicaid planning attorney so that we can help ensure that you have a plan in place and your wishes are carried out.


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For help with estate planning, special needs planning or elder law throughout Howard, Montgomery, Prince George’s, Anne Arundel, and Baltimore County; and Baltimore City, contact McDonald Law Firm, LLC.

McDonald Law Firm, LLC

Columbia Office

10500 Little Patuxent Pkwy, #420
Columbia, MD 21044-3563

Bethesda Office:

(By Appointment Only)

7315 Wisconsin Avenue, Suite 800 West
Bethesda, MD 20814

Washington, DC Office:

2101 L Street, N.W., Suite 300
Washington, DC 20037

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