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You may be married and not know it. You are probably thinking to yourself "How is this possible?!" It is true, you may be married and not know it -- even without a quick trip to Las Vegas.
DAVID SWANN / DSWANN@STARBULLETIN.COMBy Judith Sterling and Michelle Tucker
Some states recognize "common law" marriage. While the exact requirements vary from state to state, the parties must have been legally able to have married, must have expressed a present intent to marry and typically must have cohabitated. Depending on the state, the present intent to marry may be demonstrated by something as simple as telling neighbors that you are married. You may have entered into a common law marriage if you lived together with someone in any of the following jurisdictions: Alabama, Colorado, District of Columbia, Georgia, Idaho, Iowa, Kansas, Montana, New Hampshire, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas or Utah.
Hawaii does not recognize a common law marriage resulting from cohabitation. However, Hawaii, as do other states, will recognize a marriage validly entered in another state. In other words, if you live in Texas and do the acts necessary to result in common law marriage in Texas, then Hawaii, California and New York will consider you to be married. This is the case even though Hawaii, California and New York would not have recognized the cohabitation as marriage if it had occurred in their own states.
A common law marriage, like any other marriage, can have significant impact upon your estate plan. For example, John Ober and Selma Klein lived in Montana, a common law marriage state, for many years. John and Selma never had a marriage ceremony and never had a marriage license. However, John did propose to Selma in 1987 and they wore wedding rings. John carried a picture of Selma in his wallet, labeled "my wife" on the reverse side. However, John and Selma filed tax returns as "single" individuals. John did not report the marriage to his employer, nor did Selma report the marriage to social security, from which she continued to receive benefits from her deceased first husband's account.
John Ober died "intestate," without a will, in 2001. The court found that John and Selma were married in Montana pursuant to common law marriage. Accordingly, Selma had the inheritance rights of a spouse, the same as if they had been married in a traditional ceremony.
The existence of a common law marriage can disrupt an otherwise well planned estate. In fact, a pre-existing common law marriage could even invalidate a later traditional marriage. A qualified estate planning attorney can help you determine your marriage status and can help you plan your estate to achieve your goals in light of that status.
Judith Sterling and Michelle Tucker are certified public accountants and partners in the Honolulu law firm of Sterling & Tucker. Reach them via www.sterlingandtucker.com or by calling 531-5391.
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