No Common Law Marriage

By: Sanford R. Altman, Esq., retired

Question:
My sister has lived with a man for many years, helped raise his children and paid her share of the household expenses though their home was in his name. Now that he is seriously ill, my sister asked him what will happen to her should he pass away. His response was, “Don’t worry, you are my common law wife and you will get everything.” Is this true?

Answer:
Not in this state. While there are still a handful of states that recognize common law marriages, New York is not one of them. In those few other states, in order to qualify as a common law spouse, you must “hold yourselves out to be married” which means doing things like referring to each other as husband and wife, having joint accounts and living together for a minimum number of years. Here, your sister may well have done all of those things but, under the law, she is, basically, his roommate. It should also be pointed out, when considering whether or not his statement to her is true, that, even if your sister were legally his wife, she would not necessarily be entitled to “get everything” if he dies. Without a Will or a Living Trust stating that all of his assets go to her, it is the law of the state that determines her inheritance. In New York, she would only be entitled to approximately one half of his assets with the balance going to his children.

The results of this situation can be very harsh especially in your sister’s case where she has given so much over the years. If he does pass away without her taking any further action there are, however, several legal avenues which might be explored to lessen the severity. One of these methods would entail proving in Court, that her expenditures for the house together with his promise that it all would be hers created what is known as a constructive trust on her behalf giving her rights to a portion of his property.

The second method depends on the laws of common law marriage in other states. If the happy couple spent some time (in some cases as little as a vacation) in states that still recognize common law marriages and held themselves out to be married, that state may still recognize them as being married. This “marriage” in turn would generally be recognized in New York.

As you can see, both of these methods entail court proceedings. Such proceedings can be lengthy, expensive and success is uncertain. A more direct and certain way of accomplishing the goal is simply to have her partner sign certain documents while he is still alive and competent. The foremost of these would be a Will where he clearly states his intention that your sister receive what he promised. The second would be a deed where he transfers interest in his home to your sister by, for example, changing the ownership from him individually to the two of them as joint tenants with right of survivorship. For any documents executed in these type of circumstances, one may expect a challenge by his family. Therefore, it is more essential than ever that you have the documents prepared by and executed under the supervision of an attorney. Attorney involvement gives the documents the legal presumption that they are valid.

For those readers who are in similar circumstances but with more flexible time constraints, as always I urge advanced planning. If you are living together and unmarried, which is your choice, and one of you owns the home (or even if both of your own it), at the very least you should have a written agreement covering your rights and responsibilities. The law is very specific as to what happens if married couples split up or one dies. If you are unmarried you are, essentially, left to your own devices. You may well find that any blood relative has more rights than you despite all the time, energy, caring and even money you have contributed. An agreement between the two of you, preferably prepared by an attorney to insure that all bases are covered, can avoid your being left out in the cold.