Q: After rather nasty divorces 12 years ago, my lady friend and I decided that rather than marry, we would live together. We each have two children by our prior marriages. Although we kept our assets and incomes separate throughout our relationship, I have given her some property during the relationship. We live in my home. Everything was fine until I was diagnosed with cancer last year.
I am now 66 and in rather poor health; she is 62 and in good health. We have been squabbling lately because she thinks that I should either prepare a new will that leaves her a wife's share of my estate (about $150,000) or go through a ceremonial marriage so she will receive her share. This was never our understanding, but she says that she has been to a lawyer who will either sue me now or sue my estate after I die and claim common-law marriage. I can't trust her any more, but can't get her to leave. And her children are now in the picture. To make matters worse, my lawyer says this is possible. How can this be, especially since I never intended to be married? Is there anything I can do short of going to court due to my health?
A: Although the number of unmarried cohabitants continues to grow in the United States, if you live in or lived in one of the 13 states that recognize common law marriage (Pennsylvania, Alabama, Colorado, District of Columbia, Iowa, Kansas, Montana, New Hampshire for inheritance purposes only, Oklahoma, Rhode Island, South Carolina, Texas, or Utah) during your relationship, you may be in for a surprise or, at least, heavy duty litigation.
Although the definition and proof requirements vary from state to state, "common-law marriage" is a marriage that is not formalized by a ceremony but, instead, is created by a non-ceremonial mutual agreement to marry followed by cohabitation. In other words, if a man and a woman consummate an agreement to marry when both are legally capable and thereafter cohabit with an assumption of marital duties and obligations, depending on where they lived, they just may be married.
Even if you do not live in one of these 13 states, if you and your friend lived in one of those 13 states and are determined to have consummated a marital relationship there, you may just be married depending on the requirements of the state where you lived. Generally speaking, the elements necessary to establish a common law marriage: (1) a mutual agreement to marry; (2) continuous cohabitation after that agreement, (3) holding out as husband and wife to the community; and (4) being regarded as husband and wife in the community. The burden to prove a common law marriage is on the person who asserts the marriage, and is rather difficult, and courts generally review these situations very carefully.
Bottom Line: A line has been drawn in the sand, and your relationship has been breached. If you try to put her out of your home, you can expect to spend your last years in court, which is not a very pleasant thought. If she stays and you know what she will do after you die, your last years will be miserable. If you and she go through a ceremonial marriage, she will definitely receive her share. Had you and she prepared a cohabitation agreement early in your relationship, you would not be in this position today. But you can't cry over spilled milk. We suggest that you speak with a good matrimonial lawyer and estate-planning lawyer to get all of your options before you make a mistake.
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