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Common Law Marriages and Elderly Couples: State Policies

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Common law marriage is a legal concept that recognizes a couple as married, even if they have not gone through a formal ceremony or obtained a marriage license. This type of marriage is based on the couple’s actions and intentions, rather than a legal document. While common law marriage is not recognized in all states, it can have significant implications for elderly couples, particularly when it comes to state policies and benefits. In this article, we will explore the topic of common law marriages and elderly couples, focusing on state policies and how they impact these couples.

The Definition and History of Common Law Marriage

Common law marriage has its roots in English law, dating back to the Middle Ages. It was a way to recognize marriages that were not formalized through a church ceremony. In the United States, common law marriage was recognized by the early settlers and became a part of the legal system.

Common law marriage is typically established when a couple lives together and presents themselves as married. While the specific requirements vary by state, some common elements include:

  • Living together for a certain period of time
  • Intending to be married
  • Presenting themselves as married to others

It’s important to note that not all states recognize common law marriage. As of 2021, only a handful of states still recognize it, including Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, and Utah.

State Policies and Common Law Marriages

State policies play a crucial role in determining the rights and benefits of common law married couples, including elderly couples. These policies can vary significantly from state to state, leading to different outcomes for couples in different jurisdictions.

One key area where state policies come into play is property rights. In states that recognize common law marriage, couples are generally entitled to the same property rights as formally married couples. This means that if one partner passes away, the surviving partner has a legal claim to the deceased partner’s property, even if there is no will in place.

State policies also impact the division of assets in the event of a divorce. In states that recognize common law marriage, couples are subject to the same rules and regulations as formally married couples when it comes to property division. This can be particularly important for elderly couples who have accumulated significant assets over the course of their relationship.

State Benefits and Common Law Marriages

Another area where state policies have a significant impact on common law married couples is in the realm of benefits. Many government programs and benefits are tied to marital status, and the recognition of common law marriage can determine whether a couple is eligible for these benefits.

For example, Social Security benefits are often based on marital status. In states that recognize common law marriage, couples may be eligible for spousal benefits, survivor benefits, and other forms of support. However, in states that do not recognize common law marriage, these benefits may not be available to common law married couples.

Medicaid is another program where marital status can impact eligibility. In some states, common law married couples may be considered a single household for Medicaid purposes, which can affect income and asset limits. This can have significant implications for elderly couples who may require long-term care and rely on Medicaid for assistance.

Challenges and Controversies Surrounding Common Law Marriages

While common law marriage can provide legal recognition and benefits for elderly couples, it is not without its challenges and controversies. One of the main challenges is the lack of uniformity across states. With only a handful of states recognizing common law marriage, couples who move or travel between states may find their marital status in question.

Another challenge is the burden of proof. Unlike a formal marriage, common law marriage often requires evidence to establish its existence. This can be particularly difficult for elderly couples who may not have access to documents or witnesses that can support their claim.

There is also ongoing debate and controversy surrounding the recognition of common law marriage. Some argue that it is an outdated concept that should be abolished, while others believe it provides important legal protections for couples who choose not to go through a formal marriage ceremony.


Common law marriage can have significant implications for elderly couples, particularly when it comes to state policies and benefits. While only a few states recognize common law marriage, those that do provide legal recognition and rights for couples who choose to live together as married partners. However, the lack of uniformity across states and the burden of proof can present challenges for elderly couples seeking to establish their common law marriage. As the legal landscape continues to evolve, it is important for elderly couples to understand their rights and seek legal advice to ensure they are protected.

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