As we know, an estate plan must be crafted carefully to achieve the desired results. Hopefully, through the coordination of various strategies, the result is reached. Imagine the upheaval if you crafted an estate plan for someone whom you thought was unmarried and he or she turned out to be married!

In several American jurisdictions, it is still possible for someone to be married without a formal license certifying their relationship. “Common law marriage” can occur when a couple holds themselves out as married and cohabitates. States vary regarding exact requirements, such as the duration of required cohabitation. Certainly, if a couple has been living in a common law marriage jurisdiction, it would be wise to probe deeper as to whether they ever held themselves out as being married.

According to the National Conference on Uniform Laws, “Currently, only 9 states (Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma, and Texas) and the District of Columbia recognize common-law marriages contracted within their borders. In addition, five states have ‘grandfathered’ common law marriage (Georgia, Idaho, Ohio, Oklahoma and Pennsylvania) allowing those established before a certain date to be recognized. New Hampshire recognizes common law marriage only for purposes of probate, and Utah recognizes common law marriages only if they have been validated by a court or administrative order.” Read more on common law marriage here: www.ncsl.org

A current case illustrates the problems which might ensue. John O’Quinn was a successful Texas lawyer who won millions in breast implant and tobacco litigation. He died recently, leaving a Will stating that he was single and that he was leaving everything to his charitable foundation. His longtime companion, Darla Lexington, is asking the executor to treat her as his spouse. As Texas recognizes common law marriage, she may be entitled to a significant share of his estate. Read more on the case here: http://www.chron.com/disp/story.mpl/metropolitan/6969001.html

The problem in Texas is particularly acute as Texas recognizes both common law marriage and community property. Lexington could argue that his earnings were community property and one-half belonged to her. Non-community property states typically have an elective right to a “forced share” of around one-third of the estate.

In addition, Iowa has a unique circumstance as it is the only state that allows both same-sex marriage and common law marriage. To date, there has been no case testing the application of common law marriage in a same-sex situation.

When you have a client who has lived in a common law marriage jurisdiction, probe a little deeper to rule out the application of common law marriage. How can you craft an effective estate plan if you don’t even know if your client is married?

Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys
Direct Line: (858) 300-4739
www.aaepa.com