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Common Law Marriage May Be Valid in Another State

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Common law marriage

We have written several times about common law marriage. It is a topic that generates lots of confusion and discussion. Despite the fact that most states do not recognize common law marriages, the problems continue to crop up. That happens even in the states that do not authorize their own citizens to enter into such arrangements.

Marriage law — and practice

Before we describe the problems, we should start with a bit of definition. Generally, a married couple will have secured a marriage license, undergone some sort of ceremony, and filed their completed license with the appropriate local authority. In Tucson, for example, that means that the couple goes to the Pima County Clerk of the Superior Court, pays $78, and returns the signed license within a year.

That is how couples marry in Tucson, and the process is the same in the rest of Arizona. The now-married couple, two witnesses and the officiant all sign the final license. That document proves the marriage was valid, as well as when it took place.

Common law marriage

In states that permit it, though, common law marriage is an even easier process. Typically, proof of a marriage is not on a license, but in the couple’s actions. If they hold themselves out as married, and actually live together, that may be all they have to do.

Most states, like Arizona, outlawed common law marriage years ago. But if a married couple from, say, South Carolina moved to Tucson, their new state would not even ask about their marriage. If South Carolina considered them married, their new state would go along.

Even if our imaginary couple lived in Tucson for many years, they would remain married. If one spouse died without signing a will, the deceased spouse’s estate would pass at least partially to the surviving spouse. That’s just what happened in Jimmy Smith’s case, though not in Arizona.

Jimmy Smith’s Estate

In 2014, Jimmy Smith died in Tennessee, where he had lived for a number of years. He had never signed a will. That meant the Tennessee law of intestate succession applied. The question for the probate court: was Mr. Smith married at the time of his death?

Debbie Burns had lived with Mr. Smith during his entire time in Tennessee. The couple moved to Tennessee from South Carolina in 1991. Although they had applied for a marriage license in South Carolina, they had never returned it for filing. They each had several prior marriages, and no local minister would give them another chance.

Tennessee does not recognize common law marriages. Were Mr. Smith and Ms. Burns married under South Carolina law? The Tennessee probate court didn’t think so, but Ms. Burns had another idea.

After the probate proceeding was underway, and almost ten months after Mr. Smith’s death, Ms. Burns filed a lawsuit in South Carolina. She sought that court’s approval of the common law marriage. A few months later, the South Carolina judge ruled that the marriage was valid, with or without a license.

Back in Tennessee, the probate judge disagreed. Because Ms. Burns had not clearly shown the couple’s intention, he reasoned that the common law marriage was not valid. Ms. Burns would not be an heir to Mr. Smith’s estate.

The appeal

The Tennessee Court of Appeals upheld the probate judge’s ruling, though on slightly different grounds. First, ruled the appellate court, the U.S. Constitution required the probate judge to accept the South Carolina court’s determination about the common law marriage’s validity.

But that wasn’t the end of the inquiry. The appellate judges looked at South Carolina law, and decided that Ms. Burns’ court ruling was insufficient. Under South Carolina law, Ms. Burns should have filed her court action within eight months of Mr. Smith’s death. She was two months late in filing in South Carolina, according to the Tennessee court.

In other words, the common law marriage of Mr. Smith and Ms. Burns might have been valid under South Carolina law. But Tennessee courts were free to disagree. In re: Estate of Smith, October 4, 2017.

The problem with common law marriages

The court cases involving Mr. Smith’s marital status demonstrate exactly what is wrong with common law marriages. Questions of proof, evidence of decades-old events, and testimony about old intentions dominate the proceedings. Since most states don’t recognize common law marriages at all, that leads to further confusion and more questions.

Of course, the problem was not difficult to avoid. Nothing stopped Mr. Smith and Ms. Burns from completing a new marriage ceremony, and getting a license in either Tennessee or South Carolina.

Or Mr. Smith could have signed a will. Even without a valid marriage, he could have left some, all or none of his estate to Ms. Burns.

Here’s another idea: Mr. Smith could have talked to a lawyer. A whole lot of trouble, and a lot of legal fees, might have been avoidable with simple legal advice.

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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.