Common Law Marriage: Fact or Fiction?

People often ask whether or not couples can be considered to have a common-law marriage in New Hampshire, and thus, entitled to the same benefits which formally married couples are entitled. The long-standing, erroneous belief is after "7 years (or some other arbitrary number), you become common-law married." This may be true in a few states, but not in New Hampshire. There is no common law marriage in New Hampshire for purposes of tax benefits, health insurance coverage, or any of the multitude of benefits married couples enjoy. Similarly, legal benefits available for married couples for divorce, alimony, and/or property division upon the end of a relationship are unavailable to unmarried couples, no matter how long they have lived together, or how many kids they might have.

What New Hampshire does recognize, however, is a common law spouse upon death of the other party for inheritance purposes only. This means that a couple who cohabitates for more than three years, and holds themselves out to be married to the public, and who are generally believed to be married by the public, are not considered legally married while both partners are living, but, upon the death of either partner, a Court can find a common law marriage exists for purposes of estate distribution. This would grant the surviving partner an opportunity to have a "spousal share" of the deceased partner's estate.

The standard for common law marriage for inheritance purposes under the statute (RSA 457:39) is high. Generally, it is easy for partners to prove they have lived together for three or more years. Where the trouble often lies is in proving that they held themselves out to the public to be married, and that the community believed them to be married. This means more than simply sharing a checking account, owning a home together, or having a child together- or even a combination of all three!

Increasingly, couples choose to cohabitate together for any number of reasons. That reason no longer is limited to marriage. Couples move in together for financial reasons, for love, for convenience, in anticipation of marriage, in lieu of marriage, and many other reasons. Couples also make active decisions regarding their finances- whether to share bank accounts, who to name as the beneficiary of the life insurance policy, or their 401(k) or investment accounts, whether to buy property together, to name a few. These decisions may not necessarily reflect a person's position on marriage, but they are precisely the factors that Courts will look at to determine whether a common law marriage existed at the time of a parties' death.

The intent of the parties is what matters in determining whether a common law marriage existed for purposes of inheritance. Did people in the community believe the couple to be married? Did the couple call each other husband and wife? Did they wear wedding bands or other pieces of jewelry reflecting their level of commitment or believe that they were married? The determination is absolutely fact-driven, and will turn on testimony of friends, family, witnesses, and people in the community to give their perception as to the nature of the parties' relationship.

The solution, if there is one, to the quandary of "are we or are we not married and entitled to each other's stuff'" is to formalize your union. Get married, in a formal ceremony. Or don't. But beware that, unless you make formal a legal marriage, you will not be legally entitled to all the benefits which married couples receive. Without a marriage, when your partner dies, you may not be entitled to any portion of that estate, because you may not be able to prove you were common-law married. However, just as a formal marriage may provide the security a person needs in a relationship, simply completing your estate plan, and discussing those plans with your significant other, will likely reduce the need for litigation down the road to prove you were a spouse for inheritance reasons. If you and your partner have estate documents which establish the intent to distribute the estate to each other, or at least include provisions for each other, then the issue of common-law marriage should not be at issue.

Leslie Leonard is an attorney at Cooper Cargill Chant in North Conway, focusing on family law and estate planning. Cooper Cargill Chant is the largest law firm north of the lakes region in New Hampshire. With its main office in North Conway, Cooper Cargill Chant lawyers have over 150 years of experience. Cooper Cargill Chant attorneys are recognized leaders of the N.H. Bar Association, have chaired the Boards of the N.H. Bar Association, the N.H. Association for Justice, and the N.H. Bar Foundation. Lawyers have won numerous awards for their representation of clients throughout New Hampshire, including awards for legal service to the poor, for work in domestic violence cases, in helping form and develop businesses, and in personal injury work. With offices located in North Conway and Berlin, Cooper Cargill Chant is counsel to hundreds of small businesses and associations, and thousands of individual clients throughout northern New Hampshire and western Maine. For more information, call (603) 356-5439 or visit them online at www.coopercargillchant.com.

LeonardLeslie Leonard of Cooper Cargill Chant. (COURTESY PHOTO)