I. The Misconception
Many couples believe that if they live together long enough and act like a married couple, they are automatically common law married. If you are in Florida, this is not true. Common-law marriage is a legally recognized union between two people who have not obtained a marriage license or had a formal ceremony, but who present themselves to the public as married and intend to be married. However, as of 2016, common law marriage is not recognized in Florida for relationships entered after January 1, 1968, as stated by Fla. Stat. 741.211.
Understanding that common law marriage is not recognized in Florida is vital for several legal and financial reasons, including, but not limited to, the absence of automatic legal rights or protections, proper division of property, medical decision-making, alimony support, tax disadvantages, retirement planning, and debt responsibility.
II. When and Why, Florida Abolished Common Law Marriage
Florida abolished common-law marriage, effective January 1, 1968. This means that any common law relationship established after this date in Florida is not legally valid. Common law marriage emerged during a time when formal ceremonies were less accessible; a couple’s declaration and intent to be married, coupled with their cohabitation, were deemed sufficient. However, as society evolved and formal marriage became more accessible and legally standardized, many states, including Florida, have moved to abolish common law marriage to create more precise legal boundaries and protections for individuals.
III. The Exceptions
While Florida does not recognize common law, there are exceptions to the rule. The first exception, which we have already mentioned, is marriages established before January 1, 1968, in the state of Florida. If a couple genuinely met the common law requirements before this date, their marriage is still recognized today.
The second exception is common law marriages validly formed in other states. The Full Faith and Credit Clause, found in Article IV, Section 1 of the U.S. The Constitution mandates that states within the United States respect and honor the “public acts, records, and judicial proceedings” of other states. Therefore, Florida will recognize a common-law marriage if it was legally established in a state where common-law marriage is still recognized, meaning that moving to Florida does not invalidate a common-law marriage from another state.
IV. The Consequences of Not Being Legally Married in Florida
A. Property Rights and Ownership
In a divorce, the assets and debts acquired by married couples during the marriage are subject to equitable distribution by a Florida court. For unmarried couples, however, there is no such automatic right. Additionally, property ownership for unmarried partners is generally determined by who holds the title, deed, or account in their name. If a house, car, or bank account is solely in one partner’s name, the other partner, regardless of how much they contributed financially or through labor, may have no legal claim to it if the relationship ends. This can lead to one partner being left with nothing, even after years of shared life and contributions.
Furthermore, not being legally married in Florida means you will have no marital home protections. Florida has specific “homestead” protections for married couples regarding their primary residence. These protections do not automatically extend to unmarried partners, potentially leaving the non-owning partner vulnerable to being forced out of a shared home upon separation or death.
B. Financial Implications and Benefits
Financially, being unmarried in Florida leaves partners with no automatic safety nets. Unlike a divorce, where a court can order a spouse to pay alimony, Florida law provides no such entitlement for unmarried partners, even after decades of financial dependency. Furthermore, critical benefits often aren’t shared. Unmarried partners are typically unable to be covered under each other’s employer-sponsored health insurance plans, and they cannot file joint federal or state income tax returns, potentially missing valuable benefits and deductions.
Additionally, debt responsibility typically falls solely on the person whose name is on the loan or account. While this means you are not automatically responsible for your partner’s debts, remember the reverse is also true; they are not obligated to cover yours, even if the debt benefited both of you.
C. Healthcare and End-of-Life Decisions
The lack of recognition of common law marriage in Florida carries significant risks for healthcare and end-of-life decisions. Crucially, in a medical emergency or if one partner becomes incapacitated, the unmarried partner typically has no automatic legal authority to make healthcare decisions. This power usually defaults to legal next-of-kin, potentially excluding the very person closest to the incapacitated individual and leading to heartbreaking disputes or situations where wishes aren’t honored.
Equally critical are inheritance rights. If an unmarried partner dies without a valid will, Florida’s intestacy laws govern the distribution of assets. These laws prioritize legal spouses, children, parents, and siblings. Unmarried partners are not included in this default hierarchy. This stark reality means your partner could inherit nothing from your estate, regardless of your wishes or the length of your relationship, potentially losing shared property, bank accounts, or sentimental items.
D. Parental Rights and Responsibilities (for Unmarried Parents)
While Florida law is clear on establishing paternity and ensuring child support obligations regardless of marital status, the path to securing full parental rights (like timesharing and decision-making authority) for an unmarried father often requires a formal Petition to Establish Paternity. Without this, the mother generally has sole legal rights to the child. While agreements can be made informally, they are not legally binding without a court order, which can leave a parent vulnerable if the other party decides to change terms.
V. Alternatives to Formal Marriage in Florida
Since common law marriage is not an option in Florida, many couples wonder what they can do to protect themselves. The most straightforward way to gain complete legal protection is through formal marriage. However, if marriage is not your chosen path, there are alternative options such as cohabitation agreements. These agreements are contracts that clearly outline property ownership, financial responsibilities, and how assets would be divided in the event of a relationship ending. Importantly, cohabitation agreements are legally enforceable in Florida.
Another vital way unmarried couples in Florida can protect themselves is through the use of estate planning documents. This includes executing a will or a trust to ensure your assets are distributed according to your wishes. Furthermore, you can execute a durable power of attorney for healthcare, which designates who can make medical decisions on your behalf, and a durable power of attorney for finances, which defines who can manage your financial affairs if you become unable to do so.
VI. Conclusion
For any relationship entered after January 1, 1968, Florida law is unequivocally clear that living together, regardless of the duration, does not constitute a marriage. While Florida does honor common law marriages validly formed in other states before you move here, you cannot establish one within Florida today.
Understanding the implications of the Florida law is essential for safeguarding your future.
Without the legal framework of marriage, unmarried partners in Florida lack automatic rights concerning property, finances, healthcare decisions, and inheritance. This leaves you vulnerable in situations you might not even consider, highlighting the critical need for proactive planning. So, if you are in an unmarried partnership in Florida and want to ensure your interests, assets, and loved ones are truly protected, proactive legal planning is not just advisable, it’s essential.
If you have questions or would like to learn more about marital rights, do not hesitate to contact one of our experienced business attorneys at EPGD Business Law in Miami, Florida. Call us at (786) 837-6787 or email us to schedule a consultation.
