“Common Law Marriage” not so Simple in Florida
Marriage alters inheritance, social security benefits, and so many other important rights so do not mistake co-habitation for a “common law marriage” it could cost you! If you are not married to your long term partner and have commingled funds and accumulated assets you risk losing those assets to their heirs in intestacy if you lack a will. When you are married your spouse has a vested right in your estate that a long-term partner simply does not have as a matter of law. In fact the idea that long term cohabitation forms a legal marriage is largely a misnomer.
- Florida does not allow new common law marriages.
- Florida will only recognized a common law marriage formed before January 2nd 1968.
What is so important about marriage? A common law spouse (and in some cases former common law spouses) can be eligible for Social Security benefits and other survivor benefits. Its always best to know what you are legally entitled to as far as federal (and state) benefits.
All to often I hear people using facts like long-term cohabitation to acknowledge nuptial rights. This is not the law in Florida and Courts in Florida will not look to such factors in determining if there was in fact a legal marriage for probate purposes. Some states such as New Hampshire have stated that for purposes of Probate only common law marriages would still be acknowledged when the partners:
- Lived together for three or more years;
- Acknowledged one another as husband and wife; AND
- Were presumed husband and wife by the community.
In the past and still in some states long term cohabitation can turn into what was called a “common law marriage.” These are also sometimes called sui juris marriage, informal marriage or marriage by habit or repute. The original concept was that of a marriage considered valid by both parties that was never accompanies by a religious service or civil ceremony. In essence by representing themselves as a couple the law holds that they shall be treated that way.
This term has become common place in recent years however many Florida resident do not know that Florida does not recognize common law marriages to form at the moment. In fact common law marriages are now allowed in only a minority of jurisdictions.
Interestingly Florida DOES recognize common law marriages from other jurisdictions. Which states still use common law marriage?
- Alabama
- Colorado
- Washington D.C.
- Iowa
- Kansas
- Montana
- Oklahoma
- Rhode Island
- South Carolina
- Texas
- Utah (only if validated by Court Order*)
Its always best to know what you are legally entitled to as far as federal (and state) benefits.