Myth #26- Common Law Marriages are Legal

I want to debunk a myth I hear all the time: Arizona recognizes common law marriage. A lot of people think that, but Arizona does not recognize common law marriage.

What does it mean if you live together for 10, 15 or even 20 years if you are not legally married? Well it means if one of you should die, the other one has no legal rights when it comes to the probate process and no legal rights to assets that they are not listed jointly.

For example, Bob and Sue have been together for 15 years and incorrectly assume they have a common law marriage (but legally do not). Bob is the only person listed on the deed to the house and Bob did not record a Beneficiary Deed before he died.  The surviving partner has no legal rights to that home upon Bob’s death.

If the house goes through the probate process, the house will either go to Bob’s heirs, or to whomever Bob has listed in his Will. Even is Sue is listed as the beneficiary in Bob’s Will, the expenses of the probate, funeral, last illness, taxes and creditors will be paid first. If there are no other assets in the probate, the house will likely be liquidated to pay these expenses first. Any remaining monies would go to Sue. This means Sue may lose the house she lived in with Bob.

You may now be asking “What if we moved here from a state that does recognize common law marriage?” We do have a law in Arizona that says we will recognize other state’s marital laws. You must show, however, that you are holding yourself out as a married couple.

As evidence of this, a court will look to see if you have been filing your tax returns as a married couple. Lack of filing a married tax return is evidence that you do not hold yourself out as a married couple and Arizona would likely not recognize that common law marriage.

If you are living together and you want to take advantage of marriage laws in Arizona, including community property laws and intestate succession, you should consider if marriage is the right decision for you. A strong estate plan will also help protect couples who choose to remain in non-legal relationships. Because in Arizona an unmarried couple is just that, unmarried.

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