What Is a Common Law Marriage?
The concept of common law marriage originated in English common law. It typically involves a cohabiting couple enjoying the same or nearly the same rights as a legally married couple. Today, only a minority of states recognize common law marriages in the United States.
However, even in those states that recognize common law marriages, living together alone is usually not sufficient to show a common law marriage. States that recognize common law marriages usually require couples to:
- Live together (this can be as short of a period as 3 years); and
- Call each other “wife” and “husband” in front of others; and
- Have certain joint bank accounts, file taxes jointly, etc.; and
- Use the same last name in certain situations.
None of these factors alone are decisive in the proof of a common law marriage and courts would usually look at the case overall.
Are Common Law Marriages Valid in Florida?
Common law marriages are not valid in Florida. According to § 741.211 of the Florida Statutes, “No common-law marriage entered into after January 1, 1968, shall be valid”. But common law marriages entered into before 1968 are, therefore, protected by law.
This means that couples who cohabitate together in Florida do not have the same legal rights as those who have a marriage certificate. However, if the couple lives together in another state that does recognize common law marriages, and then relocates to Florida, Florida courts will respect that common marriage. American Airlines, Inc. v. Mejia, 766 So. 2d 305 (Fla. 4th DCA 2000).
What Happens if My Common Law Partner Dies in Florida?
As noted above, Florida does not recognize common law marriages, unless (1) the marriage was formed before 1968 or (2) the marriage was begun in a state that recognizes common law marriages. If neither of these circumstances apply, a surviving common law partner does have legal rights to the estate of his/hers deceased partner. This is true even if you have lived together for many years.
If you want to avoid disinheriting your common law partner, the best option would be to consult an estate planning attorney to include your common law partner into your estate planning documents, such as deeds to real property, a will, a trust, etc. This is because if a person drafts legal provisions in his estate planning documents, leaving his common law partner certain assets, the courts will enforce those provisions.