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Common Law Marriage and Estate Distribution

Common Law Marriage sounds like a relationship status from the distant past; however, if you meet the criteria courts still recognize it as a legal status. Pennsylvania and New Jersey both had a common law marriage statute, but both states have abolished this type of union.

Pennsylvania Common Law Marriage

On January 2, 2005, Pennsylvania became one of the last states to abolish common law marriage. If you did not declare to be “married” before that date, you could only make your union legal by obtaining a marriage license and having a ceremony of some kind. However, the courts will still recognize common law marriage if certain criteria were met before the abolishment date.

In Pennsylvania, common law marriage existed between a man and a woman who had “capacity” and “present intent.” Capacity just means that the two were eighteen years of age or older. Present intent is where the waters get a bit muddy, and litigation begins. The couple must have spoken words to each other to establish the existence of a marital relationship. The couple must have verbally expressed that they considered themselves married, even though there was no certificate or ceremony, this is the most litigated issue of common law marriage recognition.

Courts highly scrutinize Common Law Marriage claims. The burden is the heaviest to carry on the person who claims this concept when it comes to estates. The petitioner must prove by clear and convincing evidence that he or she and the deceased were common-law married.

PA Common Law Marriage Case Example:

Gessner Estate (Chester County, PA)

This case arose out of Chester County, PA, where the decedent’s “life partner” attempted to claim spousal share at zero percent inheritance tax when her partner died in 2013. Due to the Supreme Court’s decision in Obergefell v. Hodges making same-sex marriage a fundamental right to same-sex couples, the Pennsylvania Court in the Gessner case did not make this a factor in their decision making. The PA Court only looked at the facts on their face for incidents before common-law marriage abolishment on January 2, 2005. This court found that a common-law marriage did not exist in this case. The court’s reasoning is as follows:

The Rebuttable Presumption

Because the issue of whether a common law marriage existed in regards to a putative spousal share, the courts created a rebuttable presumption. The presumption is in favor of a common law marriage where there is an absence of testimony about the exchanging of words under present intent. “The party claiming a common law marriage who proves (1) constant cohabitation, and (2) a reputation of marriage . . . that is broad and general” creates the rebuttable presumption of marriage. Staudenmayer v. Staudenmayer, 552 Pa. 253, 263, 714 A.2d 1016, 1030 (1998). That case, however, clarified that constant cohabitation and reputation are not enough to establish that a common-law marriage existed. Those two things are “merely circumstances which give rise to a rebuttable presumption of marriage.” Id.


The court brought up a case called In re Nikita’s Est., 346 Pa. 63, 65, 29 A.2d 521, 522 (1943): “The rule which permits a finding of marriage duly entered into based upon reputation and cohabitation alone is one ‘of necessity’ to be applied only in cases where other proof is not available.” “Necessity” arises when the spouse claiming common-law marriage is unable to produce testimony in regards to the exchange of words showing present intent. The example for estates is the Dead Man’s Act which bars testimony about what a deceased person has said. The law permits a finding of marriage based on cohabitation and reputation upon “satisfactory” proof if no other proof is available.

Common Law Marriage in Pennsylvania; Bottom Line:

If you have no intention of your constant cohabitation which started before January 2, 2005, as being recognized as a common-law marriage after your death, you should explicitly fill out relevant documents (i.e. a Will, Trust, beneficiary designation form) as “single.” If you intended for your relationship to be a common-law marriage, you should consult an attorney to ensure the validity of status.

New Jersey Common Law Marriage.

New Jersey abolished common law marriage as of December 1, 1939. Before that date, a “present agreement” between parties to become husband and wife was recognized as a valid marriage. The new statute, however, did not change the status of couples who already had established their union.

New Jersey will not recognize a common-law marriage of a couple that lived together in New Jersey, moved to another state to become common-law married, and then returned to New Jersey for residency. However, if the couple has moved from a state that recognizes common-law marriage, then New Jersey will honor that union, this is explained in the following case:

NJ Common Law Marriage Case Example:

Est. of Booth v. Dir., Div. of Taxn., 27 N.J. Tax 600 (N.J. Tax 2014).

The petitioner and decedent were not legally married. However, the petitioner claimed that they were common-law married in Pennsylvania. They had resided in New Jersey for the last 36 years of decedent’s life. He claimed they declared themselves married in society and to their families. However, decedent did not make any provisions for the petitioner in her Will or Codicil to her Will. He was requesting an elective share of her estate or to inherit the entire estate as her husband.

The Estate and Petitioner reached a settlement agreement in that case. The estate conceded that there was no question that the couple had resided together for 51 years. Also, they purported themselves as a married couple. The Estate claimed that litigation was too risky and would be too costly. A trust was put into petitioner’s name, and New Jersey courts approved this settlement agreement.

New Jersey Legal Requisites for Common Law Marriage

The only legal requisites of common-law marriage in New Jersey were the “capacity” of the parties and “mutual consent” to become man and wife.

NJ Common Law Marriage Case Example:

Crenshaw v. Gardner, 277 F. Supp. 427 (D.N.J. 1967).

“Capacity” of the parties to enter into the marriage means just what it sounds like; The parties must have had the capacity to contract; to understand what they were doing. For example, in this case, the court reasoned that “[i]f putative wife knew of decedent’s incapacity to enter into valid common-law marriage . . . in December 1939 . . . the putative wife could not have had the requisite intent to contract a valid common-law marriage.”

Regarding mutual consent, “it has been held that cohabitation with a matrimonial habit . . . is evidence of a common law marriage.” In this case, if the claimant, in this case, knew of decedent’s prior incapacity to enter into a valid common-law marriage, she could not, in any case, have had the requisite intent to contract a valid common law marriage.

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If you have any questions about Common Law Marriage and Estate Law or any other estate planning topics, feel free to contact us to schedule a free consultation. For more than two decades Klenk Law has focused only on Estate Law. We’ve seen it all, and this experience allows us to explain complex estate planning techniques clearly and concisely. We make it easy for you to understand estate planning so you can make the best decisions for yourself and your family.

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