My common law husband of 34 years has recently been trying to convince me to have an actual marriage ceremony performed. He says he wants to "make it legal" so we will be "protected if the other one dies." He also says he wants to "make an honest woman of me," to which I always reply that it is way too late for that. Does it make any difference? As far as I am concerned, we are already married.
Answer:
First, to be absolutely clear, in New York State common law marriage sim-ply does not exist. It is not recognized by law, gives you no protection, no rights, and no responsibilities. It doesn’t matter if you are living together for five years or fifty years. In this state, no ceremony - no marriage. As far as the law is concerned, right now you are just roommates.
There are currently only a handful of states that still recognize common law marriages. The main criterion is "holding yourselves out to be husband and wife" for a certain period of time. This holding yourselves out to be husband and wife, sometimes referred to as "playing house," may include such things as referring to yourselves as "Mr. and Mrs.," living together, having a joint checking account in the "Mr. and Mrs." name, filing joint tax returns, etc. The time periods also vary. Sometimes, even vacationing in one of these states while holding yourselves out to be husband and wife may be enough. You can literally leave for vacation single and come back married. This, of course, is neither very romantic nor very dependable.
So if you are perfectly happy the way things are, why bother actually getting married? Your roommate had the right idea - protection. Once your marriage is legally solemnized, the law provides you with certain rights and, naturally, certain responsibilities. You have the right to be supported by your spouse, and also the obligation to support your spouse. You have the right to be sole beneficiary on his IRA. Your spouse, with most pension plans, can elect to receive a little less payment while he or she is alive so that you will continue receiving the pension throughout your life as well. You are also entitled to receive widow or widower’s benefits from the military and Social Security.
While all of these benefits are just a sampling of those reserved for legally married couples, the one that comes up most frequently is that a husband or wife cannot be disinherited. This means that, if your husband signs a Will leaving everything to someone else and, even if he specifically says you get nothing, you are still entitled to a share of his estate. In New York State, when the spouse leaves you nothing in his Will, you still have the right to one-third of his or her estate or $50,000, whichever is greater. This is referred to as the spouse’s "elective share." If the deceased spouse failed to have a Will prepared at all - showing that he or she was merely neglectful rather than purposely trying to leave their husband or wife penniless - the surviving spouse is entitled to an even greater percentage.
Here’s an illustration. A client came to us after her live-in boyfriend of many years passed away. He had promised her that she would be taken care of after he was gone, and assured her that his house would be left to her. He even told her that all of this was contained in his Will and that she would be well provided for. Unfortunately, once he died, no Will could be found. By the time she reached our firm, the house had already been taken over by the boyfriend’s niece, his sole heir under the law. Unless and until we could find the elusive Will, our client had absolutely no rights.
However, if the practical reasons are not sufficient for you to walk down the aisle, there is still hope. There are several things which can be done to protect you. The most obvious is that you can each execute a Will leaving your property to the other. More secure than this is joint ownership. Your home may be owned either as joint tenants with right of survivorship or as tenants in common, giving you all or at least part of the home when the other dies. A jointly owned bank account is somewhat different in that, when one partner dies, the other automatically owns it all. All of these methods provide at least some protection where the law offers you none because you are not legally married.
You may have noticed that the title of today’s column mentions not only marriage, but divorce as well. We have explored the impact of not being married when your partner dies. The other side of the coin is that there are repercussions when one member of a couple dies who has been separated but never legally divorced. Over the years, several clients have come in for Wills to be prepared who indicated that their spouses and they had separated, but there was no separation agreement and no divorce. Sometimes the separations were for as long as 20 years and our client had no idea where the other was, or even if he or she was still alive. What is the problem? The elective share. You may want to leave your possessions to your children and certainly nothing to your long-gone spouse, but the law says otherwise. If he or she shows up after you die, your spouse can claim a share of your estate regardless of what you say in your Will. It is well worth your peace of mind to search for and find him or her and, if a separation agreement or waiver of elective share cannot be agreed upon, file for divorce. A colleague reported that one of his long time clients decided to avoid paying his estranged wife alimony by refusing a divorce. Though his lawyer advised him otherwise, he decided to bet that she would die first and would never get her elective share. He lost the bet. He died first, she claimed her elective share, and now the rest of his family is suffering. As always, whether marriage or divorce, if you want the protection of the law, make it official.
