Is Common Law Marriage Legal in Florida? Expert Insight
Many couples in Florida live together for years, share finances, and present themselves as married without ever obtaining a marriage license. A common question arises: does Florida recognize common law marriage? The short answer is no—Florida does not recognize common law marriages entered into after January 1, 1968. However, the full picture is more nuanced, and understanding the implications is crucial for couples in long-term relationships.
If you’re in a committed relationship in Florida and wondering about your legal status, property rights, and potential inheritance claims, this comprehensive guide will clarify Florida’s stance on common law marriage and what it means for you. Whether you’re concerned about spousal benefits, asset division, or protecting your family’s future, knowing the law helps you make informed decisions about your relationship’s legal framework.
What Is Common Law Marriage?
Common law marriage is a legal arrangement where two people can be considered married without obtaining a formal marriage license or having a ceremonial wedding. Instead, the couple establishes marital status through their conduct and mutual agreement to be married. This practice originated in English common law traditions and is still recognized in several U.S. states and territories.
Typically, jurisdictions that recognize common law marriage require three essential elements: (1) the couple must have the legal capacity to marry, (2) they must have agreed to be married, and (3) they must have lived together and held themselves out to the public as married. The specific requirements vary by state, and the duration of cohabitation required differs significantly across jurisdictions.
Common law marriage offers couples the legal benefits of formal marriage—including spousal benefits, inheritance rights, tax advantages, and simplified property division in divorce—without the formality of a license and ceremony. However, this informal approach creates significant complications when relationships end or one partner dies, as proving the existence of the marriage can become contentious and legally complex.
Florida’s Stance on Common Law Marriage
Florida explicitly does not recognize common law marriage for relationships that began after January 1, 1968. Under Florida Statutes Section 741.211, the state requires a formal marriage license and ceremony to establish a valid marriage. This means that no matter how long you live with a partner, share finances, or introduce them as your spouse, you are not legally married in Florida’s eyes unless you obtain a marriage license and follow proper legal procedures.
This prohibition reflects Florida’s policy preference for formal marriage documentation. The state requires couples to go through an official process to ensure clarity about marital status, which protects both parties and simplifies legal matters related to property, taxes, and inheritance. The formal requirement also creates a clear paper trail for legal and financial purposes.
The implications are substantial. Without legal marriage status, partners lack automatic spousal rights, including survivor benefits, medical decision-making authority, and inheritance claims. If one partner passes away without a will, the surviving partner has no automatic claim to the deceased’s estate, regardless of how long they were together or how intertwined their lives became.
For those seeking legal protection and recognition, consulting with a knowledgeable attorney about how to choose a lawyer in family law matters is essential. An experienced family law attorney can guide you through Florida’s marriage requirements and help you understand your options.
The Pre-1968 Exception
Florida does recognize one critical exception: common law marriages validly established before January 1, 1968. This means if you and your partner entered into a common law marriage in Florida prior to that date, your marriage remains valid and legally recognized, even though no new common law marriages can be created after that cutoff.
This exception creates an interesting legal situation. Couples who established common law marriage status before 1968 enjoy all the rights and protections of formally married couples, including the right to divorce under Florida law. Their marriages are treated identically to ceremonial marriages in all legal respects.
However, proving that a pre-1968 common law marriage existed can be challenging. The burden falls on the person claiming the marriage to demonstrate that the couple had the legal capacity to marry, agreed to be married, and lived together while holding themselves out as married. This typically requires historical evidence such as testimony from witnesses, old documents, newspaper announcements, or other records establishing the couple’s marital status during that era.
If you believe you or a family member entered into a valid pre-1968 common law marriage in Florida, gathering documentation and consulting with an attorney experienced in historical marriage claims is crucial for protecting your legal interests.
Property Rights and Asset Division
One of the most significant consequences of Florida’s rejection of common law marriage is the impact on property rights. When a legally married couple divorces in Florida, the state’s equitable distribution laws apply, requiring fair division of marital property accumulated during the marriage. However, unmarried partners have no automatic claim to each other’s property, regardless of their financial contributions or length of cohabitation.
This creates serious hardships for long-term unmarried partners. If one partner contributed significantly to acquiring real estate, investments, or business assets while the other partner’s name appears on the title, the contributing partner may have no legal recourse to claim a share of that property upon separation. Florida courts have consistently held that without a legal marriage, partners cannot invoke equitable distribution principles.
Unmarried partners may pursue alternative legal remedies, such as constructive trust claims, unjust enrichment actions, or breach of contract claims, but these remedies are narrower and more difficult to prove than marital property division. The burden of proof is substantially higher, and recovery is uncertain.
To protect your interests, couples should consider executing cohabitation agreements that specify how property will be divided if the relationship ends. These contracts can clarify financial contributions, establish ownership percentages, and provide for fair distribution of assets. Additionally, maintaining clear documentation of financial contributions—such as mortgage payments, home improvements, or business investments—can support future claims if property disputes arise.
Understanding your options under Florida’s Florida divorce laws can help you prepare for various scenarios. Even though unmarried couples cannot use the divorce process, knowing how property division works in formal marriages illustrates the protections you’re missing.
Inheritance and Succession Issues
Without legal marriage status, your partner has absolutely no automatic inheritance rights if you die intestate (without a will). Florida’s intestacy laws, which determine how property passes when someone dies without a will, completely exclude unmarried partners. Your estate would pass to your legal heirs—children, parents, siblings—regardless of your relationship with your partner.
This creates profound consequences for long-term couples who have built lives together. A surviving partner who contributed financially to the household, sacrificed career opportunities, or provided caregiving has no claim to the deceased partner’s property, retirement accounts, or life insurance proceeds unless specifically named as a beneficiary.
To protect your partner, you must take proactive steps:
- Execute a Will: Clearly state that you want your property to pass to your partner. Without a will, Florida’s intestacy laws control distribution regardless of your wishes.
- Name Beneficiaries: Update beneficiary designations on life insurance policies, retirement accounts (401k, IRA), and payable-on-death accounts to name your partner.
- Create a Trust: Consider establishing a living trust that names your partner as beneficiary. Trusts bypass probate and provide clearer control over asset distribution.
- Joint Ownership: For real estate and bank accounts, consider joint ownership with right of survivorship, which automatically passes the asset to the surviving owner upon death.
- Designate Medical Proxies: Execute a healthcare power of attorney naming your partner as your medical decision-maker, ensuring they can make critical health decisions if you become incapacitated.
These planning tools are not substitutes for marriage, but they provide essential protections that unmarried couples cannot obtain any other way. Without them, your partner may face years of probate litigation and significant expense to recover any portion of your estate.
Legal Alternatives for Couples
Since Florida does not recognize common law marriage, couples seeking legal protection and recognition have several alternatives. The most straightforward option is formal marriage—obtaining a marriage license and having the marriage solemnized according to Florida law. This process is relatively simple, affordable, and provides comprehensive legal protection.
For couples who are not ready for formal marriage or prefer to avoid it, several other options exist:
Domestic Partnership Agreements: Also called cohabitation agreements, these contracts allow unmarried partners to specify how property will be divided, how debts will be allocated, and what happens if the relationship ends. While not providing all the benefits of marriage, these agreements offer some legal protection and clarity.
Financial Planning Documents: Powers of attorney, healthcare directives, wills, and trusts allow unmarried partners to designate decision-making authority and control asset distribution. These documents are essential for anyone not in a legal marriage.
Mediation and Alternative Dispute Resolution: If you’re uncertain about the relationship’s future or prefer a flexible approach, understanding mediation vs arbitration options can help you establish agreements about property division if the relationship ends.
Joint Ownership Arrangements: For real estate and accounts, establishing joint ownership with right of survivorship can provide some of the benefits of marriage regarding asset transfer upon death.
Interstate Recognition Concerns
Florida’s refusal to recognize common law marriage creates complications for couples who may move between states or who established a relationship in another state that recognizes common law marriage. The full faith and credit clause of the U.S. Constitution generally requires states to recognize marriages validly entered in other jurisdictions, even if those states wouldn’t permit such marriages within their own borders.
This means that if you and your partner established a valid common law marriage in a state like Colorado, Texas, or South Carolina (which recognize common law marriage), that marriage should be recognized as valid in Florida. However, if you moved to Florida and then separated, you would need to go through Florida’s divorce process, which would apply Florida’s property division laws, not the laws of the state where the common law marriage was created.
The reverse scenario presents problems: if you establish a common law relationship in Florida, it would not be recognized as valid if you later move to another state that recognizes common law marriage. This creates legal uncertainty and potential disputes about your marital status.
Couples with complex interstate situations should consult with family law attorneys in both states to understand how their relationship status will be treated and what documentation they should obtain to protect their interests across state lines.
Protecting Your Rights Without Marriage
If you’re in a long-term unmarried relationship in Florida and want to protect your rights and interests, several practical steps can help:
1. Document Financial Contributions: Keep clear records of your financial contributions to jointly acquired property. Save receipts, mortgage statements, bank records, and investment documentation. If disputes arise later, this documentation supports claims of ownership interest.
2. Execute a Cohabitation Agreement: Have an attorney draft a comprehensive agreement addressing property ownership, financial responsibilities, and asset division if the relationship ends. This agreement should clearly specify which assets are jointly owned and how they would be divided.
3. Maintain Separate Financial Accounts: While some joint accounts are practical, maintaining separate accounts for individual assets and income helps establish clear ownership and prevents disputes about commingled funds.
4. Create Estate Planning Documents: Execute a will, living trust, and healthcare directives naming your partner where appropriate. These documents ensure your wishes are honored if you become incapacitated or die.
5. Update Beneficiary Designations: Regularly review and update beneficiary designations on life insurance policies, retirement accounts, and payable-on-death accounts. These designations supersede your will and pass directly to named beneficiaries outside of probate.
6. Establish Healthcare Authority: Execute a healthcare power of attorney (also called a healthcare surrogate designation) explicitly naming your partner as your medical decision-maker. This ensures they can make critical health decisions if you cannot.
7. Consider Formal Marriage: If the relationship is committed and long-term, strongly consider formal marriage. The legal protections are comprehensive and far exceed what can be achieved through alternative planning documents.
8. Consult an Attorney: Work with an experienced family law attorney to review your specific situation and ensure your planning documents are comprehensive and legally sound. The cost of proper planning is minimal compared to the expense and heartache of disputes that arise without adequate documentation.
FAQ
Can you get common law married in Florida?
No. Florida does not recognize common law marriages entered into after January 1, 1968, regardless of how long the couple lives together or how they present themselves. To be legally married in Florida, you must obtain a marriage license and have the marriage solemnized.
What if we had a common law marriage before 1968?
Common law marriages validly established in Florida before January 1, 1968, are still recognized and legally valid. However, proving such a marriage requires substantial evidence of the couple’s agreement to marry and their public presentation as married during that period.
Do unmarried partners have inheritance rights in Florida?
No. Without legal marriage status, a surviving partner has no automatic inheritance rights under Florida’s intestacy laws. The deceased partner’s property passes to their legal heirs unless a valid will, trust, or beneficiary designation directs otherwise.
Can unmarried partners claim marital property rights?
No. Florida’s equitable distribution laws apply only to legally married couples. Unmarried partners must pursue alternative legal claims like constructive trust or unjust enrichment, which are more difficult to prove and offer less comprehensive remedies.
What legal documents should unmarried couples have?
Unmarried couples should execute: (1) a cohabitation agreement addressing property division, (2) wills or trusts directing asset distribution, (3) healthcare powers of attorney designating medical decision-makers, (4) financial powers of attorney for financial matters, and (5) updated beneficiary designations on retirement and insurance accounts.
If we move from a common law marriage state to Florida, is our marriage valid?
Yes. If you established a valid common law marriage in a state that recognizes such marriages (like Texas or Colorado), that marriage remains valid in Florida under the full faith and credit clause. However, Florida’s divorce and property division laws would apply if you later separate.
Can a cohabitation agreement replace marriage?
A well-drafted cohabitation agreement provides some protections regarding property division, but it cannot provide all the legal benefits of marriage. It does not establish spousal benefits, inheritance rights, healthcare decision-making authority, or tax advantages that marriage provides. It should be used in conjunction with other planning documents.
How much does a marriage license cost in Florida?
Florida marriage licenses are inexpensive—typically $105 with a three-day waiting period (waivable in some circumstances) or $120 without a waiting period. This minimal cost makes formal marriage an accessible option for most couples.
Can we establish joint ownership of property without marriage?
Yes. You can own property jointly with right of survivorship, which means the surviving owner automatically receives the property upon death. However, joint ownership has tax implications and should be structured carefully with an attorney’s guidance.
What happens if an unmarried partner dies without a will?
Florida’s intestacy laws determine distribution. The deceased’s property passes to their legal heirs (children, parents, siblings) in a specified order. The surviving unmarried partner receives nothing unless specifically named in a will, trust, or beneficiary designation.
