3 Questions About Common Law Marriage in California and How It Could Impact Your Estate Plan

Question 1: What is a common-law marriage?

In some states couples can get married without ever having to go through a marriage ceremony or receive an official marriage license. This is known as common-law marriage. If you become married through common law you are a legally married couple and must obtain a divorce if you want to end the marriage.

Question 2: Does California allow common-law marriage?

No. There are only a handful of states that allow couples to get married through common law, and California is not one of them. However, if you lived in a state that recognized common-law marriage and entered into such a marriage while living there, you are legally married. This is true even if you later moved to another state that doesn’t recognize common-law marriage, such as California.

Question 3: How do you become common law married?

The requirements differ between states, but in order to be legally married through common law you must be old enough to enter into a marriage, intend to become married, and openly hold yourselves out to the public as a married couple. There is no minimal time limit involved, and you cannot, for example, become automatically married after living together for a certain number of years.

Question 4: How will this impact my estate plan?

If you are married through common law you are legally married and cannot develop an estate plan without taking this into consideration. There are specific rules and laws that apply to married couples that are different than those that apply to people who are single. For example, you cannot choose to disinherit your spouse, and if you create a will that does not leave anything to your spouse this can create serious complications and lead to court battles.

Persons in non-traditional marriages, whether they be same-sex or opposite-sex couples, should always consult with an experienced and qualified estate planning attorney to develop an estate plan that is custom tailored to your circumstances and goals.

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Timothy P. Murphy

Timothy P. Murphy is an estate planning and elder law attorney whose practice emphasizes helping people to build, preserve and pass on their wealth. He works with his clients to accomplish their goals while avoiding unnecessary court proceedings and minimizing or eliminating exposure to death taxes.

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