Nov 6, 2015

Is there common law marriage in Florida?

In my estate planning practice, I advise many clients who have been living together for a long time, sometimes for decades. They are committed to one another, take care of one another, and often refer to each other as spouses. But they have chosen not to marry, typically because (1) there are children from prior marriages whose inheritances they wish to protect, and/or (2) each one wishes to shield his/her assets if the other requires long-term nursing care.

These individuals often ask me if Florida considers them to be common-law married. In most cases, the answer is no. Florida recognizes common law marriage only if the marriage is valid in one of nine states that recognize it, or if it occurred in Florida prior to January 1, 1968. In all my years of practice, I have run across only one case of a couple whose union would be considered a common law marriage.

Not being considered married is a relief to most unmarried clients, because it allows them to avoid the above-mentioned legal entanglements. But there's a downside, too: they are denied the automatic privileges they may want, such as property rights, or even something as simple as the right to talk with their partner's doctor in the event of a medical emergency. From a legal perspective, unmarried couples are no more connected than two strangers.

If you are in a committed, non-married relationship, the good news is that there are affirmative legal steps you can take to protect one another and secure some of the benefits married couples enjoy. Here are a few of the most important issues you should consider and discuss with your estate planning attorney:
  • Who will get to make your health care decisions if you are incapacitated? It's not uncommon for a patient's children and partner to lock horns over those decisions; emergency room waiting areas are frequently where such battles begin. If you want your partner to make your decisions, to participate in the decision-making with other family members, or even have the right to talk to your health care providers, you need to make your wishes clear with the appropriate written documents, such as a health care power of attorney.
  • Unmarried couples often live in a home owned by just one of them. Unlike a married couple, the survivor has no legal right to stay in the home after the owner passes away, and could be forced out - unless the appropriate arrangements have been made to prevent that from happening. These arrangements should be carefully built into your will or trust.
  • Take a look at your IRA, 401K, life insurance, etc. People tend to forget about these items as the years go by. Make sure your beneficiary designations reflect your wishes and are up-to-date.
To discuss your options, contact The Karp Law Firm and we will be happy to talk with you.

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