Markie Bernardy
October 10, 2016
Wills, Trusts and Estates

Common Law Marriage

You have probably heard about common law marriage… heck you might even know a few couples who fit the bill!

But, did you know that many states DO NOT recognize common law marriage? Furthermore, the guidelines defining it are usually pretty vague and can vary from state to state.

Wisconsin does not recognize common law marriage.

This means that unmarried couples living in Wisconsin need to go the extra mile to protect their assets and their partner in case of death or disability with legal documents that can be drafted with the help of an attorney.

States That Recognize Common Law Marriage

There are less than a dozen states that currently recognize this type of unmarried partnership and they are: Alabama, Colorado, District of Columbia, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas, and Utah.

If you live in, or have lived in one of these states, your union would be considered a common law marriage as long as you also adhere to the guidelines defining common law marriage. Those guidelines will be discussed later in this post.

States That Recognize Common Law Marriage

Keep in mind that several states did formerly recognize common law marriage before abolishing the law within the last 20 years.

A couple would had to have been together prior to when the state abolished recognizing an unmarried union to still be considered a common law marriage today.

The important thing here is that if you move from a state that recognized common law marriage to a state that does not, the state that you are looking to reside in will only recognize a common law marriage that was properly upheld in another state. This means that if you recently moved to Wisconsin from Iowa and you have a common law marriage upheld by Iowa law, Wisconsin will recognize your common law marriage.

What Defines a Common Law Marriage?

The guidelines defining common law marriage are few and vague. Many people believe you need to live together for seven years to qualify but this is a common misconception.

Here are four of the defining factors that would allow an unmarried partnership to qualify as a common law marriage:

  1. You must be able to get married
    • This means you are at least 18 years old
    • You are not currently married
    • And that both people are of sound mind to get married
  2. As a couple, you have the intent to marry
  3. You live together
  4. You present yourselves to the community as a married couple by referring to each other as “Husband” and “Wife,” by sharing the same last name, sharing finances, or filing joint taxes.

Documents That an Unmarried Couple Should Obtain

Since common law marriage is not recognized in Wisconsin, the best way to solidify your partnership, is to have a written agreement between you and your partner.

You may have strayed away from a legal marriage to avoid that little piece of paper but without documentation, in the event that your partner passes, you may have no legal rights to their health, their assets, or their estate.

The more documented proof that you have of your joint ventures, the better. Even if you do live in a state which recognizes common law marriage, legal documents may help to avoid having to prove your union to the courts in the event that your partner passes away.

“What happens if we are unmarried and do not have documentation?” Well if an unmarried partner passes away without a will, in a state that does not recognize common law marriage, inheritance will go to next of kin. Next of kin will be the closest living blood relative.

This means that without legal documentation the partner may not have any rights to the assets of their significant other.

There are several things an unmarried couple can do and documents that they can obtain to protect their assets, such as:

  1. Name each other as Beneficiaries – Make sure your significant other is named as the beneficiary on all pensions, retirement accounts, and insurance policies.
  2. Have a Will or Living Will – As mentioned earlier, if there is no will, assets will be passed on to next of kin which could be a child, parent, sibling or other blood family member.
  3. Have a Living Trust – Unlike a will, a living trust will not be released to the public.
  4. Durable Power of Attorney – in case of disability this gives the other party the right to make decisions and sign documents on your behalf.
  5. Title your property correctly – Make sure all real estate is properly titled. If your partner is not listed on your home it will again go to their next of kin. This means a significant other living in a home, may be forced to leave upon the death of their partner if the property is not properly listed.
  6. Designate a health care surrogate – this would let medical personnel know who you would like to make decisions for you, if you’re unable to make them yourself.
  7. Create a Domestic Partner Agreement – similar to a prenuptial agreement, this outlines how assets and income are handled during the relationship and what happens to joint assets if the relationship were to end.

Having these documents will protect your partner in case of your death or disability. Our Green Bay estate planning attorneys can help you easily navigate the right document for you and your significant other. For more information call one of our Green Bay attorneys today at (920) 499-5700.

References:

http://www.nolo.com/legal-encyclopedia/free-books/living-together-book/chapter2-4.html

http://www.npr.org/2016/09/04/487825901/no-you-re-not-in-a-common-law-marriage-after-7-years-of-dating

http://family.findlaw.com/marriage/common-law-marriage.html

 

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