Back to Missives
George F. Bearup, J.D. Senior Legal Trust Advisor

20-Nov-19

Cohabitation, Common Law Marriage and Surviving Spouses- Strange Bedfellows

Take-Away: A Bill is working its way through Lansing that would not make it a crime to cohabit with another person. (Now there is a surprise for some of you!) While Michigan does not acknowledge common-law marriages as it once did, some Michigan residents who cohabit might nonetheless have their relationship classified as a valid common law marriage if their cohabitation started in a state that recognizes common-law marriage. Michigan statutes define who is, and is not, a surviving spouse for inheritance purposes. Who is a spouse may be a lot more complicated than we originally thought.

The Benefit of Marriage: Many laws and legal rights turn on an individual’s marital status. Shortly after the Supreme Court’s 2013 decision in Windsor, and its 2015 decision in Obergefell (which permitted same-sex spouses to marry,) much attention was given in the press to the unique rights and benefits that are derived from a lawful marriage. Some examples of the benefit of participating in a marriage include: (i) the federal estate and gift tax unlimited marital deduction; (ii) FMLA leave rights and corresponding job protection; (iii) a surviving spouse’s right to elect against the decedent spouse’s will and take a portion of the deceased spouse’s estate; (iv) the right to inherit a substantial part of a deceased intestate spouse’s estate; and (v) mandatory joint and survivor benefits under an ERISA qualified retirement plan.

Common-Law States: Most states require that a marriage must be either be solemnized or formally authorized by a license issued by the state. However, a handful of states still recognize a common law marriage, although there is some confusion as to which states actually will authorize, or recognize a common-law marriage. Those states that continue to recognize a common-law marriage include Colorado, District of Columbia, Iowa, Kansas, Montana, South Carolina, Utah (i.e. some undefined ‘non-matrimonial’ relationships will be recognized) and Texas. [Surprisingly not Tennessee, where you can still marry your first cousin!] Georgia recognizes a common law marriage if the relationship was established prior to 1997, and the same with Idaho, if the relationship was established prior to 1996. New Hampshire recognizes a common law marriage (after 3 years cohabitation) but for probate and intestate succession purposes only.

Michigan’s Cohabitation a Crime: Dealing with the ‘surprise’ take-away first, there is a 1931 Michigan statute that makes it a crime for individuals to cohabit. Specifically, the Michigan statute provides that “any unmarried man and woman not being married to each other, who lewdly and lasciviously associates and cohabit together is guilty of a misdemeanor punishable by imprisonment for not more than one year or a fine not more than $1,000.”  Lewdly and lasciviously are not defined in the statute, which may explain why cohabiting individuals are never prosecuted under this statute. Senate Bill 308, which was voted favorably out of the Senate Judiciary Committee [5 to 0] earlier this year, would strike Section 335 of the Michigan Criminal Code which makes lewd and lascivious cohabitation [only in Michigan!] a crime. [Only 3 other states, Mississippi, Florida and Virginia currently have similar anti-cohabitation statutes.]

No Common Law Marriage in Michigan: Common law marriage has not been legal in Michigan since 1957. However, the above identified states continue to recognize some form of common-law marriage. If the cohabitating couple move from one of those common law marriage states to Michigan, their common-law marriage may be respected by Michigan courts.

  •  But Probably Not Full Faith and Credit: Michigan is obligated under rules of comity and established conflict of laws policies to give full legal effect to the laws of other states, including common-law marriages. Consequently, a couple who are in a common-law marriage that is valid in another state, who later move to Michigan, can expect that a Michigan court will respect their common-law marriage. However, the U.S. Constitution’s Full, Faith, and Credit Clause probably does not apply to common-law marriages, because a common law marriage is not a public act (e.g. statutes, ordinances, general laws.) Only a few states have actually enacted statutes that clearly recognize a common-law marriage, and in those few situations, the Full, Faith, and Credit Clause would be extended to those common law marriages established in that other jurisdiction that has a statute that authorizes that marriage.

Proof of Common Law Marriage: Stating the obvious, there is no marriage certificate or other public record to document that a common-law marriage exists. As such, it can be difficult to prove the existence of a common-law marriage if the validity of the relationship is questioned. As a starting point, to prove that a common-law marriage exists, one of the ‘spouses’ will have to demonstrate that the marriage was validly contracted between those individuals under the laws of the jurisdiction where it is alleged that the common law marriage occurred. After meeting that element of proof, the individual will next have to show that the common law marriage ‘requirements’ of that other jurisdiction were complied with. Each of the common law marriage states has its own set of rules or requirements, often with variations in the minimum duration of the couple’s cohabitation before a common-law marriage will be respected. There is no minimum duration of cohabitation where a couple will automatically be treated as being in a common-law marriage. Generalizing the states’ common law marriage statutes, the usual requirements to establish a common-law marriage include:

  • The present intent and agreement to be married by the couple (contract);
  • Continuous cohabitation by the couple (duration of cohabitation differs from state to state);
  • A public declaration, often demonstrated by the couple’s actions more so than their words, that they are husband and wife (at least until Windsor and Obergefell came along; presumably it is now that the couple hold themselves out as ) Courts often have noted that the public declaration or holding out to the public or the couple being reputed in the community to be husband and wife, is the ‘acid test’ of a common-law marriage.

Divorce: There is no common law divorce of a common-law marriage. If the parties in a common-law marriage wish to end their relationship, they must go through a conventional divorce proceeding (if there ever is one.)

Spouse and Surviving Spouse: While EPIC was amended after the Windsor and Obergefell decisions to convert all references to husband and wife to the non-gender specific spouse, EPIC does not contain a formal definition of spouse. However, surviving spouse is indirectly defined in the negative in EPIC, i.e. who is not a surviving spouse. A surviving spouse will not include:

  • (i) an individual who obtains or consents to a final decree of divorce or annulment which decree or judgment is not recognized as valid in this state, unless they subsequently participate in a marriage ceremony purporting to marry each to the other or live together as a married couple;
  • (ii) a person, following an invalid decree of divorce or annulment, participates in a marriage ceremony with a ‘third individual’;
  • (iii) an individual who was a party to a valid proceeding concluded by an order that purports to terminate all marital property rights; and
  • (iv) an individual who at the time of the decedent’s death is living in a bigamous relationship with another individual.

This definition of surviving spouse is intended to cover both probate and nonprobate transfers such as TOD beneficiary designations. [MCL 700.2801(2)(3).]

Michigan courts have not spent much time addressing who is a surviving spouse except with regard to one other statutory definition describing who is not a surviving spouse. That is when an individual was willfully absent from their decedent spouse for more than one year before the deceased spouse’s death. [MCL 700.2801(2)(e)(i).] In its 2018 decision In re Estate of Erwin, 503 Mich 1 the Michigan Supreme Court held that “willfully absent cannot be defined exclusively by physical separation.” Rather, a willfully absent spouse requires “complete absence, emotionally and physically, that brings about a practical end to the marriage.”

Federal Tax Code: For income tax reporting purposes, the Tax Code provides that an individual will not be treated as a member of another’s household if the relationship is in violation of local law. [IRC 152(f)(3).] Accordingly, a couple who cohabit cannot claim each other as an income tax dependent. Since common law marriage is not valid in Michigan, arguably the cohabiting couple living in Michigan cannot claim to be in a common-law marriage, and thus they cannot claim each other as an income tax dependent. Then again, if the couple entered into a valid common law marriage in another state (probably one that is statutorily authorized), and they then moved to Michigan, arguably they could legally treat each other as a spouse, and thus claim as a tax dependent for income tax reporting purposes.

Conclusion: Cultural relationships and norms are fast evolving in contemporary society. We now have same-sex marriages where individuals will be treated as spouses with all of the rights and entitlements that arise from marriage. Children can be born years after one of their parent’s death through artificial reproductive technologies and still be accorded the legal status of a dependent of that decedent. Cohabitation arrangements (not legal marriage) are on the rise, especially among those individuals in their retirement years, where rights of inheritance and priority in fiduciary roles are assigned to a surviving spouse, but not a cohabitant. All of these trends suggest that more Wills and Trusts need to be reviewed to be assured that the definitions used to identify fiduciaries and beneficiaries by marriage comport with the testator’s intent.