Common Law Marriage in Alabama: Do I Have Inheritance Rights After My Partner Passes Away

Whatever your reason for choosing common law marriage over marriage, you’re probably wondering what your inheritance rights are or if you even have any at all. Although the legislature banned the recognition of new common law marriage in Alabama in 2016, there’s still good news for couples regarding inheritance and other rights. Keep reading to learn more.

What Is Common Law Marriage?

Common law marriage applies to couples in a relationship that has all the appearances of marriage without holding a marriage license from the state. It has all of the benefits and obligations of a formal marriage, including only being severed by death or divorce, paying alimony or child support, and property division.

In 2016, Alabama banned the recognition of common law marriage. However, couples who entered into a common law marriage before January 1, 2017, still have the privilege of being recognized by the state as long as they meet specific requirements.

What Are Alabama’s Requirements for Common Law Marriage?

Specific requirements must be met in order for a common law marriage entered into prior to January 1, 2017, to be recognized by the state. They include:

1. Both parties must be legally able to marry
   *This disqualifies people who are already married, closely related, under the age of 18, divorced within the past 60 days, or not of sound mind.

2. Both parties must intend to marry each other and take an affirmative act that demonstrates the intention.

3. Both parties must consider their relationship a marriage.

4. The couple must “hold themselves out as married.”
   *Ways to do this include signing a lease together, opening a joint bank account, filing joint tax returns, and presenting themselves as married to family and friends. 

As you can see, it’s not enough to just have children together or live together to qualify as common law married in the eyes of the Alabama courts. It’s also worth noting that for common law marriage in Alabama, there’s no time frame of living together that makes you and your partner common law married.

What Rights Do Common Law Marriage Partners Have?

As we said earlier, common law marriages have all of the benefits and obligations of traditional ceremonial marriages. If you’re common law married and your partner dies intestate (without a will), Alabama’s inheritance laws apply to you as the surviving spouse. This can include access to your partner’s social security payout and pension. Common law marriage also allows partners to make medical decisions for a disabled partner.

But in order for these rights to be applied, you must be able to prove that you were in a common law marriage during the probate process. Some steps you can take to meet your burden of proof include wearing wedding rings, referring to each other as husband and wife, taking up the other’s surname, and signing an affidavit of common law marriage.

This affidavit serves as a notarized legal document attesting to you considering yourself common law married. It can list the aforementioned steps you’ve taken to show your marriage commitment and documentation of joint living responsibilities (bank accounts, tax returns, deeds, etc.).

Know Your Rights as a Partner in a Common Law Marriage in Alabama

Like many matters that must go through the court system, the requirements for common law marriage and your inheritance rights as a partner can get confusing. At Kristin Waters Sullivan, we aim to help you and give you confidence that you and your family will be well taken care of if the worst happens. Creating an estate plan is one of the best ways to protect your legacy in a common law marriage. Contact Kristin Waters Sullivan today!