Introduction to Estate Planning for Common Law Marriages

Introduction to Estate Planning for Common Law Marriages

Despite the name, common law marriages are uncommon, largely because they are only allowed in a select few U.S. states. Oklahoma is a state that recognizes valid common law marriages, making estate planning particularly important because there are situations where your relationship may not be acknowledged, or takes longer to verify. This can complicate you or your partner’s ability to make legal, financial, and medical decisions that affect your life and their life after you pass.

If you are in a common law marriage, here’s what you need to know about creating an estate plan that clearly states your relationship and wishes, so there is no legal confusion when you face a medical emergency, death, financial crisis, or life change. 

What Is a Common Law Marriage in Oklahoma?

People who want to get married in Oklahoma, whether common law or not, must meet basic legal requirements: being a minimum of 18 years old, having the mental capacity to enter into a marriage, not being closely related to your spouse, and not being married to anyone else.

Aside from those requirements, common law in Oklahoma is further defined as when two competent people mutually agree to enter into a relationship, exclusive of all others, and represent themselves as a married couple (e.g. living together, sharing a bank account, filing a joint tax return, referring to one another as husband/wife, etc.). No ceremony or licensing is required to establish a common law marriage, and there is no minimum amount of time that you and your partner must live together. 

Once established, couples in common law marriages have the same rights, benefits, and obligations as traditionally married people. To end the relationship, you must go through standard divorce proceedings, particularly if you want the court to issue orders dividing your property or awarding alimony.

Problems That Arise When You Don’t Have an Estate Plan

Common law marriages are inherently vague about a couple’s marital status. This can be beneficial on a personal level, but often makes it difficult for common law partners to be legally recognized as spouses—this can create a host of problems. 

A spouse typically has the right to make healthcare and financial decisions, can make final arrangements after their husband or wife’s death, and will receive a large portion (if not all) of their deceased spouse’s estate. Without an estate plan, healthcare providers, financial institutions, and lawyers might not recognize a common law partner as a spouse with these rights, meaning the partner could be left out of critical decisions about the couple’s life, money, and assets. For example, if you are in a serious car accident and incapacitated, a healthcare provider may defer to the wishes of your parents or siblings instead of your common law partner because—without an estate plan—those relationships are easier to prove. This could lead to a drawn out legal battle where your partner attempts to regain control of important medical decisions.

Or, if your partner passes away and you inherit their assets, you could potentially be subject to state and federal taxes without an estate plan, compared to traditionally married spouses that are not taxed on inherited money regardless of the presence of a will or a trust.  

In short, common law partners could lose essential rights, money, and decision-making power in their relationship without an estate plan.

What an Estate Plan for Common Law Marriages Should Include

A comprehensive estate plan can help common law couples avoid the problems discussed above. Each plan can be tailored to the couple’s wishes, but there are some elements that should be included: 

  • Last Will and Testament: Specify how you want your property to be distributed after your death, appoint an estate executor, and name guardians for any minors.
  • Revocable Living Trust: Specify how you want to distribute your property after you die in a way that is designed to save loved ones from the hassle and expense probate.
  • Healthcare Directive: Specify the type of medical treatment that you do or do not want in the instance that you cannot speak for yourself, as well as appoint someone to make healthcare decisions on your behalf should you be unable to.
  • Durable Power of Attorney For Finances: Nominate an agent to take care of your financial affairs if you become unable to handle the responsibilities on your own.
  • Beneficiary Designations: Name the beneficiaries that will receive certain financial assets (e.g. life insurance, retirement, stocks and bonds, etc.) directly, without going through a will or trust. 

Your attorney will ensure your estate plan includes these essential pieces, as well as any others that are relevant to you and your partner. 

Plan For the Future

An estate plan is critically important for common law marriages because it provides clarity about your relationship status and specifies you and your partner’s roles in regard to your finances, healthcare, and assets. Whatever the future holds, an estate plan can help protect your rights and carry out your wishes. Contact us to learn more about the process or inquire about our estate planning expertise.

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