“Common-Law” Marriage Is Recognized In Some States

FEBRUARY 24, 2003 VOLUME 10, NUMBER 34

John Ober and Selma Klein lived together in rural northern Montana for a number of years, though they were never formally married. When Mr. Ober died in 2001, he had not made a will. The legal question became: who was entitled to Mr. Ober’s estate?

Montana (unlike Arizona) recognizes “common-law” marriages in at least some circumstances. In the fifteen states recognizing common-law marriages the rules vary, but most are similar to Montana’s. Mr. Ober’s probate case provides some insight into those rules.

Mr. Ober and Ms. Klein never went through a formal wedding ceremony, but Mr. Ober did propose to Ms. Klein in 1987, fourteen years before his death. The couple bought rings and, according to Ms. Klein, she wore hers all the time and Mr. Ober wore his sporadically.

Though Ms. Klein continued to use her former name for most purposes, the couple did have pre-printed address labels on which they were listed as “John or Selma Ober.” Perhaps most importantly, Mr. Ober carried a picture of Ms. Klein in his wallet—and on the back of that picture he had written the words “my wife.”

On the other side of the ledger, Mr. Ober and Ms. Klein had continued to file tax returns as single individuals (though Ms. Klein testified that she had paid no attention to the tax returns, which were prepared by her accountant). Mr. Ober did not tell his employer that Ms. Klein was his wife, and Ms. Klein did not report the marriage to Social Security, from which she continued to receive benefits on her deceased first husband’s account.

Montana law posed three questions for consideration by the court:

1. Were Mr. Ober and Ms. Klein competent to marry?

2. Did they assume a marital relationship “by mutual consent and agreement”?

3. Did they confirm their marriage by “cohabitation and public repute”?

The Probate Court considered all the evidence and determined that there was a valid marriage. The Montana Supreme Court concurred. Noting that the key question in previous cases had been whether the couple “felt married,” the state’s highest court confirmed the validity of the marriage, despite the lack of any formal marriage. In the Matter of the Estate of Ober, January 23, 2003.

A minority of states recognize common-law marriages, though such a marriage entered into in one state will be recognized if the couple moves to another state. Three states (Georgia, Idaho and Ohio) recognize common-law marriages only if they existed before a cut-off date (1997, 1996 and 1991, respectively). Alabama, Colorado, Iowa, Kansas, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, Utah and the District of Columbia all still recognize common-law marriages. New Hampshire recognizes them for inheritance purposes only.

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