MSU Extension: Montana Common Law Marriage and Estate Planning

This article is one in a series focusing on estate and legacy planning. The authors are Kaleena Miller, Madison-Jefferson County Extension Agent, kaleena.miller1@montana.edu, and Marsha Goetting, MSU Extension Family Economics Specialist, marsha.goetting@montana.edu.

“Couples living together should be aware that a court could later find their actions constitute a marriage,” says Marsha Goetting MSU Extension Family Economics Specialist. “They should be careful not to hold themselves out as married unless they are willing to accept the possible legal and estate ramifications.”

John and Mary, an unmarried couple, lived together for 15 years prior to John’s death. They never obtained a marriage license or had a wedding. John had two children from an earlier marriage while Mary had no children. They did not have any children together. All real property was in John’s name only.

They had a joint tenancy checking account with a balance of $80,000. John died without a written will. There is no question about the checking account passing to Mary as it is titled in both John's and Mary’s names as joint tenants with the right of survivorship. However, does the real property valued at $2 million pass to John’s two children or to Mary?

“Do John and Mary have a common law marriage?” asks Kaleena Miller, Madison-Jefferson County Extension Agent.

“It depends,” says Goetting. Mary filed in district court as a surviving spouse because she believed she and John had a common-law marriage. If Mary “wins,” she inherits $1,075,000 in value of the property while John’s children from his earlier marriage inherit $925,000. Why the difference in amounts?

Under Montana law, the estate of a person who dies without a will is divided between his spouse and children from a prior marriage. If Mary is not a “wife,” all of John’s estate passes to his children.

John’s two children asserted in district court that a common law marriage between their dad and Mary definitely did not exist. If they “win,” they inherit their father’s estate – all $2 million. None of the value of the real property passes to Mary.

As seen above common law marriages have estate planning consequences, not only for the couple, but also for their family members. Children may be concerned about their inheritance rights if one of their parents is “living together” with someone who is not their parent.

One of the partners may also wonder if “living together” for a certain number of years, such as seven, proves the existence of a common law marriage. The answer is no. Years are not a determining factor. If an estate planning goal is to protect the inheritance rights of a surviving spouse, then a signed Affidavit of Common Law Marriage form is one method of proving mutual consent and agreement.

A Declaration of Marriage without Solemnization also serves as an official record of the marriage of the two parties. If an estate planning goal is to protect the inheritance rights of children, grandchildren, parents, siblings, or others, then a will can be written or a trust established.

A common law marriage recognized in Montana will be accepted by every state in the nation. Eight other states and the District of Columbia recognize common law marriages formed within their borders: Alabama, Colorado, Iowa, Kansas, Rhode Island, South Carolina, Texas, and Utah. Montana also accepts common law marriages recognized in these states.

After the death of one party, there may be confrontations between the “surviving spouse” of a perceived common law marriage and the deceased person’s other heirs – children, grandchildren, parents, and/or siblings as in the case of John’s children.

“An estate plan could help prevent these conflicts. Also, court costs and attorney fees could be avoided from a contentious court case to determine the existence of a common law marriage,” said Goetting.

The drafting of a will or trust and the related broader matter of estate planning involves decisions requiring professional skill and judgment, which can be obtained only through years of training, study, and experience. “An attorney is the appropriate professional to consult about legal documents such as wills, trusts, or contracts that are best suited for your individual situation,” said Miller.

More information about Common Law marriages and Estate Planning is available at the MSU estate planning publications website at https://bit.ly/3EX9B4G The fact sheet is available at the MSU Extension Madison-Jefferson County Office. Call 406-287-3282