How Common Law Couples Can Protect Themselves in Massachusetts

Like everyone else, you have probably heard the term “common law marriage,” at one point or another. But, what does it actually mean?

First, let’s deal with the myths: 

1. Everyone thinks that if you live together for a certain amount of time, you automatically become common law married. 
2. Others think that even if you don’t live together, but you have a child together, that makes you common law married. 

Neither of these assumptions is true.

Essentially, a common law marriage is where two people are considered to be lawfully married, simply by agreeing to live together and conduct themselves as husband and wife. 

Only about ten states unequivocally allow for common law marriages. These include:

• Colorado; 
• Kansas;
• Rhode Island; 
• South Carolina; 
• Iowa;
• Montana;
• Oklahoma; 
• Texans;
• Utah; and 
• The District of Columbia

What’s more, each of these states has different criteria that qualify a relationship as a common law marriage, generally:

1. Cohabitation – you live together 
2. Holding yourselves out to be a married couple – you conduct yourselves as husband and wife, for example by using the same last name, filing joint tax returns, calling each other husband and wife in public
3. You both intended to become husband and wife – some of the states listed above require that you prove there was a “meeting of the minds”, or that you both intended to enter into a lawful marriage. 

What Rights Does One Have as a Common Law Couple in Massachusetts?

While Massachusetts does not allow marriages to be formed by common law, common law marriages formed in other states are entitled to the same rights and benefits as any other marriage in Massachusetts, including: 

• Inheritance rights; 
• The right to divorce, including a division of your property and the right to alimony; 
• The right to file a joint tax return; and
• The right to make medical decisions for each other; 

What Happens if We Want End Our Common Law Marriage in Massachusetts? 

As we have just established, a common law married is treated the same in Massachusetts as any other marriage. This means that to end your common law marriage in Massachusetts, you will need to get divorced like with any other married couple. 

In fact, it will be in your best interest to go through the process to obtain a divorce decree that specifies the date when you become lawfully divorced. Otherwise, you could be held liable for debts and liabilities that your ex-spouse accumulates in the future. 

The Trouble With Common Law Marriages

The trouble with being in a common law marriage is that even if you meet all of the requirements listed above, there is still no presumption that a lawful marriage exists and your marital rights are not guaranteed.

People who get married the conventional way must obtain a marriage license, have a ceremony with witnesses, sign a marriage certificate, and then file it with the county clerk or registrar of records. Thus, they have formalized their marriage through both ceremony and paperwork, which then becomes a matter of public record.

But, for common law couples, no such evidence of a marriage exists. Consequently, common law couples often bear the burden of having to prove their status as a lawfully married couple in situations involving:

• The right to inherit from a deceased spouse’s estate;
• The right to make medical decisions for an incapacitated spouse; 
• The right to divorce;
• Etc.

For instance, what happens if your spouse denies the existence of your common law marriage to avoid having to pay you alimony, or when the family of your deceased spouse refuses to admit that you were lawfully married to the deceased just to keep you from inheriting he or her property? 

If you can’t prove that you and your partner ever intended to be common law married, he or she may simply leave you with nothing but bills. 

Likewise, if your home is only titled in the name of a partner who has died, his or her family may be entitled to inherit the home instead of you, leaving you out on the street with no home to live in. 

Furthermore, if your common law spouse dies without a will, you may not be entitled to receive any survivorship benefits, unless you can prove that a marriage actually existed between you and the deceased.

Tips for Protecting Your Interests When in a Common Law Marriage

Fortunately, you and your common law spouse can avoid the drama described above by finding solutions that take into account your specific partnership and that protect both you and your spouse, as well as, the rest of your family.

Here are a few such solutions:

• Joint Ownership – One solution is to title all of your assets in both of your names, with both of you listed as joint tenants with rights of survivorship. 

• A Living Trust – A living trust will enable you to enjoy your assets while you are alive and then skip the probate process and transfer them directly to your spouse after you die. 

• A Pour-over Will – A Pour-over Will can be an excellent complement to a living trust. With a pour-over Will, all of your assets are transferred into your trust and then distributed to its beneficiaries, according to the terms of the trust. This helps tie up loose ends if didn’t transfer all of your assets into your trust before you died. 

• Beneficiary Designations – Bank accounts, retirement accounts, and other financial accounts often permit you to designate a beneficiary who will automatically inherit what’s in that account after you pass away. You can name your common law spouse as beneficiary of these accounts to ensure that those assets pass on to them when you die. 

• Powers of Attorney & Living Wills – Financial  Powers of Attorney will provide each of you with the ability to manage the other’s finances in the event one of you becomes disabled or incapacitated. 

Powers of Attorney for Health Care and Living Wills are other documents that you can put in place to ensure that each of you has the authority to make medical decisions on each other’s behalf in the event of a disability or incapacitation.

Without these documents in place, your common law spouse may not even be able to visit you in the hospital, much less make important decisions about your care or treatment. 

Contact The Law Offices of Richard Mucci for More Information

For more information on how you and your common law spouse can protect your interests in Massachusetts, contact The Law Offices of Richard Mucci at 781-729-3999 to consult with a knowledgeable and experienced Massachusetts family law and estate planning, attorney.