A client recently asked me about the status of Georgia common law marriage, and in answering him, I thought it might be a good time for a reminder for all of us (including those in other states) that even if a state no longer recognizes common law marriage, usually such marriages remain valid if formed prior to the date of a statutory enactment prohibiting them. In addition, most states also recognize common law marriages formed in other states.

For example, the State of Georgia recognizes common law marriages formed prior to January 1, 1997 as well as valid common law marriages formed in other states.   Under Georgia law, a valid common law marriage may be formed between a man and a woman if they have (1) the capacity to make a marriage contract, (2) actually entered into a nuptial contract (usually proven by evidence of the couple holding themselves out publicly as spouses), (3) consummated their union by cohabitation, and (4) achieved all of the above prior to 1997.

Why is this important?   At death, spouses are entitled to certain rights, such as a right to years support (or “elective share” in some states) and a right to inherit from his or her spouse who died without a Will.   Achieving the status of “spouse” is critical in the ability to claim these rights which can be the basis of significant asset value.   Proving (or disproving) common law marriage is a very fact-sensitive endeavor, fraught with litigation potential.

The moral of the story?   Work with your estate planner to ascertain marital status with certainty before death so that desired outcomes can be achieved and unwanted outcomes can be avoided.  How long a couple has been in a relationship while in the state could be a critical fact.   Also, if the couple entered into the relationship while residing in another state which honors common law marriage, marriage likely is presumed in a state that does not currently recognize common law marriage.

Here is a link with more specific state information from the National Conference of State Legislators.