Common Law Marriage: Be Careful!

Back in the early days of our country, when justices of the peace and clergy were harder to find and the population more spread out, there arose the concept of a "common law" marriage. The basic idea was that if a man and a woman held themselves out to the community as married, and considered themselves to be husband and wife in all their dealings with the public and themselves, then the law would recognize them as such.

At the present time, only about a dozen states still recognize a common law marriage formed under their own laws. However, under the U.S. Constitution's "full faith and credit" provision, a common law marriage valid in any one of these dozen states will be recognized as a legal marriage in all of the other states.

Unfortunately, because there is no piece of paper to point to, whether a couple will be recognized as married for purposes of state law (and hence federal law, which follows state law on this determination) is a facts and circumstances test.

Here are some of the factors that judges have looked at in making a determination that a couple were married at common law:

• living together
• holding themselves out as married to the general community
• exchange of wedding rings
• attending holiday celebrations and family gatherings together
• traveling together
• filing income taxes marked as married individuals
• completing medical records as married
• sharing domestic responsibilities

• the female's reference to her partner as her "boyfriend" or "partner" to emergency medical personnel
• failure of one partner to indicate she was married when applying for a mortgage
• holding themselves as married only to a small circle of friends and co-workers but not the general community

• A surviving spouse is entitled to a certain percentage of a deceased spouse's estate if the spouse died with no will; if declared to be unmarried, that surviving "spouse" gets nothing.
• A surviving spouse is entitled to a certain percentage of a deceased spouse's estate if the spouse had a will but omitted or left little to the other "spouse"; this is called an "elective share" and could be as much as 50% of the deceased spouse's estate.
• With larger estates, only a legal spouse can claim the unlimited marital deduction, saving thousands of dollars in estate taxes.
• Only legal spouses can file income taxes as "married filing jointly."
• Only a legal spouse would have certain rights and access to medical records under federal and state laws.
• Only a legal spouse is entitled to the Social Security payments of a deceased spouse.

Article Source: http://www.content.onlypunjab.com

© 2007 by K. Gabriel Heiser Attorney K. Gabriel Heiser has devoted his legal practice to Medicaid planning, elder law, and estate planning for the last 23 years. NOTE: For more information on this topic and other Medicaid planning techniques, see www.MedicaidSecrets.com, which describes an exciting new 256-page book written by attorney Heiser, "How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets." You don't have to go broke to get Medicaid to pay your nursing home bills, you just have to know the rules and planning techniques. For the first time ever, you can learn the inside secrets of high-priced estate planning and elder law attorneys, in attorney Heiser's new book.

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