In Florida, estate planning is used to ensure that a person’s estate is left to his or her loved ones in the way they intended through a will or trust. However, if a person dies without a will, his or her estate will be passed according to intestate succession, which means the estate will be passed out in certain percentages to the spouse and children and other ascertainable beneficiaries according to the rules of the court.
An issue can arise when a spouse is married through common-law marriage. If there is no will or trust a spouse can be left out of the will if he or she was not legally married to the deceased.
How to prove common-law marriage?
First, it is important to note that common-law marriages can no longer be created in Florida. Florida Statute section 741.211 states “no common-law marriage entered into after January 1, 1968, shall be valid, except… and marriage, which… was entered into by the party asserting such marriage in good faith and in substantial compliance with this chapter. This means that a common law marriage cannot exist unless it was created before 1968. However, Florida will recognize a common law marriage that was valid in another state
If the common-law marriage occurred before this year, the couple must then prove some additional elements. Florida and most other states require the couple to prove three requirements:
- The couple had the intent to become married
- The coupled lived together, and
- The couple held themselves out as a married couple.
In Carretta v. Carratta, the Florida court held there must be an agreement to become husband and wife immediately from the time when the mutual consent is given. What this means is that a couple doesn’t become common law married just by living together for a long period of time.
The couple must have actually intended to become married. If a couple was living together and boyfriend and girlfriend, it would not be enough that the couple simply stuck together and lived their lives as married couples would. They would have to actually agree to live life as if they were married. A common law marriage requires more than an implied agreement, the marriage must be discussed and consented to by both parties. A great way to prove intent of a marriage is if a ceremony actually occurred.
In most states, cohabitation is the most important element of proving a common law marriage. The element requires the couple to live in the same home together. Courts want the couple to live like most married couples do, in order to give them the benefit of the doubt as being a married couple. If the couple separated, or moved away from each other, the court may deem the couple to no longer be common law married. It is best if the couple can show they have continuously lived together as a couple since their agreement to be married.
Finally a couple needs to hold themselves out to their local community as a married couple. Courts may often allow evidence of neighbor’s testimony, such as the neighbor heard the two spouses refer to each other as husband and wife. Further, courts wish to see that the couple has performed other actions to signify the marriage. This may include filing a joint tax return, sharing the same last name, or the wearing of wedding rings.
Florida does recognize common-law marriages from other states, even if the marriage occurred after 1968. A valid common-law marriage, which is recognized by Florida, will allow a couple to file their estate-planning documents as a married couple. Contact the Law Office of David Goldman PLLC If you and your spouse are married under common-law and wish to create a will, trust, or other estate-planning document.