MSU Extension discusses estate planning aspects of common law marriages

Friday May. 14th, 2021

A MontGuide published by Montana State University Extension aims to help residents understand the ins and outs of common law marriage.

In Montana, a common law marriage means two partners could be considered as being married even if they have not gone through a legal ceremony or signed a marriage contract, according to Marsha Goetting, Extension family economics specialist.

The Montana Supreme Court has established three elements for creating a common law marriage, she said, and anyone asserting the existence of a common law marriage must prove the three elements in district court.

First, the parties must be competent to be married traditionally — not related, not already married to someone else, and have the mental capacity to enter a marriage. 

Second, the parties must have assumed a marital relationship by mutual agreement, meaning they expressed consent and intent to be married to each other. The couple can decide on the date they were “married.” It could align with when they moved in with one another or by retroactively picking a date. 

“Others observe mutual consent from the conduct of the parties,” Goetting said. “Ways of expressing mutual consent varies from marriage to marriage.”

Third, the parties must have confirmed their marriage by cohabitation and public repute, meaning they let the others know they are married by referring to one another as husband or wife. Common law marriages validated by the Montana Supreme Court typically have focused on this element, Goetting said. While cohabitation is one issue the court will consider, Goetting said it is not the determining factor.

“The perception that if a couple lives together for a certain number of years, they automatically have a common law marriage is wrong,” Goetting added. “There is no specific length of time of living together that creates a common law marriage in Montana.”

In some court cases, only one or two of the factors existed for the marriage to be common law. The clearer the proof, the more likely the district court will rule the marriage to be  common law. Examples of proof include neighbors believing a couple is married, both wearing wedding rings or having the same last name.

However, Goetting said, two competent individuals could live together their whole adult lives and never form a common law marriage. If they never represented themselves as spouses, never acted as if they were married and never said, “We are married,” then a common law marriage would not exist. District courts and the Montana Supreme Court consider all the facts presented in each case. 

The lack of a common law marriage could cause issues when it comes to estates. Take, for example, an unmarried couple who lived together for 15 years prior to the man’s death. They never obtained a marriage license or had a wedding. They did not have any children together, however, he had children from a previous marriage. All property was in the man’s name, and he died without a will. Does his property pass to the man’s children or to the woman with whom he lived? Goetting said it depends.

In one outcome, the woman could file in district court as the surviving spouse because she believed she and the man had a common law marriage. If the court agrees, she would be granted some inheritance along with the man’s children. If she is not a “wife,” all of his estate would pass to his children.

Information about common law marriages is available at Paper copies are also available at local county and reservation Extension offices.