Close this search box.

“Common-Law” Marriage Is Recognized In Some States

Print Article


John Ober and Selma Klein lived together in rural northern Montana for a number of years, though they were never formally married. When Mr. Ober died in 2001, he had not made a will. The legal question became: who was entitled to Mr. Ober’s estate?

Montana (unlike Arizona) recognizes “common-law” marriages in at least some circumstances. In the fifteen states recognizing common-law marriages the rules vary, but most are similar to Montana’s. Mr. Ober’s probate case provides some insight into those rules.

Mr. Ober and Ms. Klein never went through a formal wedding ceremony, but Mr. Ober did propose to Ms. Klein in 1987, fourteen years before his death. The couple bought rings and, according to Ms. Klein, she wore hers all the time and Mr. Ober wore his sporadically.

Though Ms. Klein continued to use her former name for most purposes, the couple did have pre-printed address labels on which they were listed as “John or Selma Ober.” Perhaps most importantly, Mr. Ober carried a picture of Ms. Klein in his wallet—and on the back of that picture he had written the words “my wife.”

On the other side of the ledger, Mr. Ober and Ms. Klein had continued to file tax returns as single individuals (though Ms. Klein testified that she had paid no attention to the tax returns, which were prepared by her accountant). Mr. Ober did not tell his employer that Ms. Klein was his wife, and Ms. Klein did not report the marriage to Social Security, from which she continued to receive benefits on her deceased first husband’s account.

Montana law posed three questions for consideration by the court:

1. Were Mr. Ober and Ms. Klein competent to marry?

2. Did they assume a marital relationship “by mutual consent and agreement”?

3. Did they confirm their marriage by “cohabitation and public repute”?

The Probate Court considered all the evidence and determined that there was a valid marriage. The Montana Supreme Court concurred. Noting that the key question in previous cases had been whether the couple “felt married,” the state’s highest court confirmed the validity of the marriage, despite the lack of any formal marriage. In the Matter of the Estate of Ober, January 23, 2003.

A minority of states recognize common-law marriages, though such a marriage entered into in one state will be recognized if the couple moves to another state. Three states (Georgia, Idaho and Ohio) recognize common-law marriages only if they existed before a cut-off date (1997, 1996 and 1991, respectively). Alabama, Colorado, Iowa, Kansas, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, Utah and the District of Columbia all still recognize common-law marriages. New Hampshire recognizes them for inheritance purposes only.

Stay up to date

Subscribe to our Newsletter to get our takes on some of the situations families, seniors, and individuals with disabilities find themselves in. These posts help guide you in the decision making process and point out helpful tips and nuances to take advantage of. Enter your email below to have our entries sent directly to your inbox!

Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.