Common-Law Marriage 

Handbook

For Claims Examiners and Hearing 

Representatives

Division of Energy Employees 

Occupational Illness Compensation

June 2023
Common-Law Marriage Handbook 1

Table of Contents

Introduction........................................................................................................... 3

I. Identifying a Potential Common-Law Marriage Issue .................................. 3

Affirmative Claim of Common-Law Marriage or Claim of Lengthy

Cohabitation ..................................................................................................... 3

Allegation of Marriage without Submission of a Valid Marriage

Certificate ......................................................................................................... 4

Proven Marriage of Insufficient Duration........................................................ 4

II. Laws Affecting Common-Law Marriage Determinations in EEOICPA

Claims............................................................................................................... 4

Common-Law Marriage Jurisdictions.............................................................. 5

The Five Basic Elements of Common-Law Marriage....................................... 5

Capacity ...................................................................................................... 5

Agreement ................................................................................................... 7

Cohabitation ............................................................................................... 7

Holding Out ................................................................................................ 8

Reputation................................................................................................... 8

Other Considerations.................................................................................. 8

III. Developing a Common-Law Marriage Issue in an EEOICPA

Claim................................................................................................................ 9 

Developing Two Threshhold Issues.................................................................. 9

Where was the alleged common-law marriage contracted?....................... 9

When was the common-law marriage established?.................................. 10

Developing Evidence of the Five Basic Elements of a Common-Law

Marriage ......................................................................................................... 11

Developing Evidence in a Surviving Spouse Claim........................................ 11

Developing a Capacity Issue .......................................................................... 13

Additional Considerations in Developing the Claim of a Stepchild............... 14

Developing Evidence of a Marriage Under Tribal Law................................. 15

Documents and Supporting Evidence ............................................................. 15

Burdens of Production and Proof................................................................... 18
Common-Law Marriage Handbook 2

Character and Weight of Evidence ................................................................. 19

Submitting a Claim to the National Office...................................................... 20

Endnotes............................................................................................................... 21

Appendix begins after page 23.
Common-Law Marriage Handbook 3

Introduction

This handbook is intended to assist claims examiners with both the identification and 

development of survivor claims filed under the Energy Employees Occupational Illness 

Compensation Program Act of 2000 (EEOICPA) that involve common-law marriages, 

which are marriages that have legal effect without the formal registration with a state or 

tribal authority necessary for traditional civil or ceremonial marriages. To successfully 

adjudicate such a claim, claims examiners will need to reliably identify the existence of a 

common-law marriage issue and also develop the necessary factual evidence so they can 

properly assess the validity of the common-law marriage. This handbook is to be used in 

conjunction with the Federal (EEOICPA) Procedure Manual, including the guidance it 

contains for the routine development of survivor eligibility.

Section I provides information to help claims examiners identify when a common-law 

marriage issue exists in an EEOICPA claim. Section II discusses the federal and state 

laws effecting common-law marriages and contains an explanation of the five standard 

elements required to establish the existence of a common-law marriage. Section III 

provides guidance on developing the factual evidence necessary to adjudicate the issue of 

whether a valid common-law marriage exists. And finally, an Appendix at the end of this 

Handbook contains a brief description of the relevant laws of the 19 jurisdictions that 

currently recognize – or until recently recognized – common-law marriages.

I. Identifying a Potential Common-Law Marriage Issue

Issues of common-law marriage do not arise in the vast majority of EEOICPA claims, 

and when they do, it is not always obvious. However, claims examiners should be aware

that a common-law marriage issue may be involved in some survivor claims and should 

look out for that possibility when developing those claims. Signs of a potential commonlaw marriage issue commonly include: (1) an affirmative assertion by the alleged spouse 

or child of the deceased employee that a valid marriage existed based on common-law 

principles or lengthy cohabitation; (2) an allegation that a marriage existed without the 

submission of a valid marriage license or an allegation of a common-law marriage; or (3) 

the submission of evidence that a licensed marriage took place less than one year before 

the employee died. None of these signs is dispositive that a common-law marriage exists, 

but if a claim presents one or more of them, the claims examiner should consider whether 

development for a potential common-law marriage is necessary.

Affirmative Claim of Common-Law Marriage or Claim of Lengthy Cohabitation

An individual claiming as a surviving spouse or child of a deceased covered employee 

may openly assert that their survivor eligibility is based on a common-law marriage of 

the deceased employee. Alternately, an alleged spouse or child may assert that merely 

lengthy cohabitation supports their eligibility for survivor benefits without providing any 

evidence to show that a common-law marriage existed. However, while states that allow 

for the creation of a common-law marriage all require cohabitation, cohabitation alone is 

not enough to establish a common-law marriage. Despite this, if an alleged spouse or 
Common-Law Marriage Handbook 4

child merely asserts survivor eligibility based on cohabitation, they may be eligible, and 

all of these scenarios should be developed with the principles of common-law marriage in 

mind.

Allegation of Marriage without Submission of a Valid Marriage Certificate

A claimant may allege they are the spouse or child of a deceased employee without 

submitting documentary evidence that a legal marriage occurred (i.e., no marriage 

certificate issued by a state or tribal authority). Absent documentary evidence that 

establishes a legal marriage, the claims examiner should attempt to obtain such evidence

(i.e., a marriage certificate issued by a state or tribal authority). If no documented 

evidence is produced, the claims examiner should consider developing the claim for the 

existence of a common-law marriage.

Proven Marriage of Insufficient Duration

Under EEOICPA, a surviving spouse must prove they were legally married to a deceased 

covered employee for at least one year immediately preceding the employee’s death. If 

evidence proves a valid marriage took place, but such marriage occurred less than one 

year before the employee died, further development may be necessary to determine 

whether a common-law marriage existed prior to the proven marriage that would save the 

claimant’s survivor eligibility.

II. Laws Affecting Common-Law Marriage Determinations in EEOICPA

Claims

In order for a surviving spouse to be eligible under Parts B or E of EEOICPA, they must 

establish a marital relationship with the employee throughout the entire final year of the 

deceased employee’s life, either through a licensed marriage, a common-law marriage or 

an uninterrupted combination of the two. DEEOIC is obligated to determine whether 

marital relationships exist in order to properly adjudicate EEOICPA claims. However, 

because EEOICPA does not define marriage, DEEOIC relies on particular factors set out 

in state, local or tribal law to determine the validity of a marriage.

Once a claims examiner determines that a case may involve a common-law marriage 

issue, it is critical to determine: (1) where the common-law marriage was allegedly 

entered into; and (2) did that state (or other jurisdiction) allow creation of such marriages 

within its borders at the time the marriage was allegedly entered into. If, after fully 

developing the claim, evidence shows the alleged marriage occurred in a state that did not 

allow the creation of such marriages within its borders, and no other state is involved, no 

further development is necessary.

However, if two people made their permanent home in a state that recognizes commonlaw marriage, during the time when such marriages were recognized by that state, and the 

elements of a common-law marriage were established in that state, the marriage is valid 

and the individuals are spouses for the purposes of EEOICPA. If the state where the 
Common-Law Marriage Handbook 5

parties were domiciled does not recognize common-law marriage, but the claimant 

alleges to have contracted a valid marriage in another state that does recognize commonlaw marriage, then the marriage may still be valid, unless the domicile state has a strong 

public policy against common-law marriage and refuses to recognize such marriages.0F

1

Common-Law Marriage Jurisdictions 

At the time this 2023 version of the handbook was issued, the District of Columbia and 

ten states are the jurisdictions in which common-law marriages can still be contracted: 

Colorado; Iowa; Kansas; Montana; New Hampshire; Oklahoma; Rhode Island; South 

Carolina; Texas; and Utah. Also, at least two federally recognized tribes (the Navajo 

Nation and the Pueblo of Acoma) currently recognize common-law marriages.1F

2

 Six other 

states have recently abolished common-law marriage in their jurisdictions: Alabama;

Florida; Georgia; Idaho; Ohio; and Pennsylvania.2F

3 A brief description of the relevant 

statutory provisions and case law of these 19 common-law jurisdictions are set forth in 

the Appendix of this handbook.3F

4

 

While jurisdictions that expressly allow establishment of a common-law marriage are in 

the minority, it is important to note that all states recognize validly contracted “foreign” 

marriages contracted outside a state’s borders by individuals domiciled in that other state, 

and therefore all jurisdictions will recognize validly contracted, out-of-state common-law 

marriages.4F

5

The Five Basic Elements of a Common-Law Marriage

When an alleged surviving spouse or child fails to present clear and uncontradicted 

evidence of survivor eligibility under EEOICPA, further development – including a 

determination of whether a common-law marriage was established – is necessary. The 

descriptions of jurisdictional common-law marriage requirements noted below and in the 

Appendix are designed to assist claims examiners in identifying and understanding the 

elements necessary to prove the existence of a common-law marriage.

Generally, there are five basic factors that are usually considered when it is necessary to 

determine if parties entered into a valid common-law marriage: capacity; agreement; 

cohabitation; holding out; and reputation. Courts do not all employ the same exact 

calculus in determining whether a common-law marriage has been created within their 

respective borders. Some states use different terminology and some states couple various 

factors together, treating them as one. A state may even determine that proof of one or 

more of these elements may give rise to a presumption that another element is satisfied. 

• Capacity

Each party to a marriage must have the legal capacity to enter into marriage. That is, 

they must have the capacity to consent (i.e., minimum age and mental capacity) and they 

must be free of marital ties to any other person. Capacity to marry is a requirement for 

traditional, ceremonial marriages, just as it is for common-law marriage.
Common-Law Marriage Handbook 6

In determining capacity, claims examiners should note that states may have requirements 

related to a person’s age, consanguinity (degree of relation), whether a prior marriage has 

not yet been dissolved and mental capacity. If an EEOICPA claim involves an alleged 

common-law marriage between parties of close relations (e.g., first cousins) or there is a 

claim of diminished mental capacity of one of the parties, the claims examiner should 

discuss development with their District Director who may decide to seek early direction 

from the Solicitor’s Office regarding the applicable state law.

Similarly, states that allow common-law marriage specify a minimum age requirement 

for any party to common-law marriage. In Kansas, for instance, both parties must be at 

least 18 years of age to establish a valid common-law marriage.5F

6 In Colorado, commonlaw marriages established on or after September 1, 2006 are only valid if each party is at 

least 18 years old, although the parties may be as young as 16 if they have parental 

consent or judicial approval.6F

7 South Carolina allows common-law marriages between 

persons as young as 16.7F

8 States without a statutory age requirement for common-law 

marriages may apply well-recognized common-law ages for marital consent (12 for girls, 

14 for boys) or they may apply the ages listed in the state’s licensing requirements for 

licensed marriages (generally 18, unless parental consent is given for those younger). 

Some states treat marriages involving a party less than the minimum age as void while 

others treat them as merely voidable. Whenever the claimed common-law marriage 

involves a party who was less than 18 years old at the time it was contracted, the claims 

examiner should fully develop the evidence of age and parental consent along with the 

evidence regarding the balance of the required elements.

The common-law marriage jurisdictions also prohibit the creation of a common-law 

marriage if one or both of the parties remains married to a third party. The principal is 

straightforward: plural marriages are always prohibited and an existing marriage is an 

impediment to the formation of a new marriage in every American jurisdiction. Thus, a 

person may not enter into a common-law marriage with another if either of them has an 

existing marriage that has not been extinguished, whether through death, divorce or 

annulment. Nor may a person enter into a licensed marriage if they previously entered

into a common-law marriage and did not extinguish that marriage by death, divorce or 

annulment. Any time there is evidence of multiple marriages or multiple cohabitations, 

either by the deceased employee or a purported common-law spouse, the claims examiner 

should engage in development efforts to uncover the nature and extent of relationships 

that may serve as a legal impediment to the capacity of a party to enter into the claimed 

marriage, whether it be common-law or licensed marriage. This development should 

include gathering a copy of any divorce decree from the appropriate state, if possible.

In the context of tribal marriages, the parties must be members of the tribe. For example, 

membership in the Navajo Tribe is a requirement of a common-law marriage under the 

Navajo Nation Code and if tribal membership is not proven, the party will not have 

established the capacity to enter into a common-law marriage under that law.8F

9

 
Common-Law Marriage Handbook 7

• Agreement

The element of agreement requires that both parties mutually intend, consent and agree to 

have a present, immediate and permanent marital relationship with each other. All 

common-law jurisdictions emphasize that the mutual agreement of the parties must be a 

present agreement to immediately be spouses, not a promise or an agreement that they 

will get married at some time in the future. The common-law jurisdictions also require 

evidence that both parties intended and agreed to the immediate and permanent marital 

status. For purposes of proof, however, the declared intent of the surviving spouse to 

establish an immediate common-law marriage may be coupled with the actions and 

conduct of the deceased employee that are consistent with that intent.9F

10 However, if the 

purported spouse asserts that they considered themselves to be married to the employee 

but there is probative evidence showing that the employee did not intend or agree to such 

a relationship, the claims examiner should develop this element further and should 

specifically ask the claimant for affirmative evidence that the employee intended and 

agreed to be their common-law spouse.

It is typical of common-law marriages that parties may not have evidence of a written 

agreement that clearly pronounced that the parties would go henceforth as spouses. This

may particularly be the case where a substantial amount of time has passed or where one 

of the spouses is now deceased. Common-law marriage jurisdictions allow the element 

of agreement to be proven by either words or conduct and hold that it need not be directly 

proven through production of a written contract or letter evidencing such an agreement. 

When evaluating such an implied agreement, common-law marriage jurisdictions often 

look to the cumulative evidence of the other four elements as establishing or supporting 

the existence of an agreement. However, while most common-law jurisdictions hold that 

evidence of cohabitation may be circumstantial evidence of the required agreement, to a 

greater or lesser extent, evidence of cohabitation by itself is not sufficient evidence of a 

common-law marriage.10F

11 

• Cohabitation

The element of cohabitation requires that the couple live together continuously and 

openly as spouses. Merely residing together under the same roof is not sufficient to meet 

the cohabitation requirement. The character of the cohabitation must be such that it 

shows that the parties mutually and voluntarily assumed the rights, duties and obligations 

of marriage, not that they merely lived together and/or had sexual relations. Only one 

state, New Hampshire, sets a minimum period during which the couple must cohabitate 

in order to satisfy the element of cohabitation.11F

12 All common-law jurisdictions, however, 

require that the cohabitation be open and continuous. For instance, if the parties secretly 

sleep together or periodically stay overnight at one another’s homes, the cohabitation 

element will not be met. At least one state has required “an exclusive relationship” as 

part of their analysis of the cohabitation element.12F

13 Finally, the required cohabitation, 

like the other elements, must take place in a jurisdiction that recognizes common-law 

marriage.13F

14 Cohabitation in a state that does not recognize common-law marriage cannot 

be used to establish this element.14F

15 Thus, cohabitation in Missouri (a state that does not 
Common-Law Marriage Handbook 8

allow common-law marriages to be established within its borders) cannot be used to 

establish a common-law marriage in nearby Kansas (which does allow common-law 

marriages to be established within its borders). 

• Holding Out 

Common-law marriage jurisdictions also require that the parties openly hold themselves 

out in their community as a married couple, which means that they must have represented 

to others that they were married. However, declarations that the woman is a “girlfriend,” 

“better half,” “boss lady” or “housekeeper,” are not sufficient and an “isolated statement” 

that a woman is a man’s “wife” has been found not to be sufficient to meet the holding 

out requirement.15F

16 The fact that a woman does not use a man’s last name weighs against 

an alleged common-law marriage as it undermines the holding-out requirement.16F

17 But

many states have found that a common-law marriage could be established in spite of the 

woman’s occasional or even continuous use of her maiden name.17F

18 

Like the agreement element, the holding-out element may be proven by either documents 

or spoken words, or by the conduct and actions of the parties. A secret relationship 

known only to family or a few friends does not constitute a common-law marriage and 

occasional introductions as husband and wife do not establish the element of holding out. 

At least one of the common-law states, Iowa, holds that continuous cohabitation, coupled 

with holding out in public as spouses, creates a presumption of common-law marriage.18F

19

• Reputation

Finally, the element of reputation requires that evidence establish the existence of a 

reputation in the community that the couple is living together as spouses, not just having 

sexual relations and not just residing together for some other mutual convenience. The 

fact that the relationship is a marriage must be widely known in the community in which 

the couple lives, because there is no such thing as a secret or clandestine common-law 

marriage.19F

20

The parties’ reputation as spouses, however, need not be known to all. Reputation has 

been described as the understanding among the neighbors and acquaintances with whom 

the parties associate in their daily life that they are living together as a married couple.20F

21

However, if the couple’s reputation in the community is divided or is contradicted, the 

purported common-law marriage may be found not to exist.21F

22 Alternately, many of the 

common-law jurisdictions hold that open cohabitation, coupled with a reputation in the 

community as being married, raises a rebuttable presumption that a common-law 

marriage was created.22F

23

• Other Considerations

Because common-law marriage is a way to contract a lawful marriage, the same formal 

judicial proceeding that is required to dissolve any other marriage is required to dissolve 

a common-law marriage. There is no such thing as “common-law divorce.” Although it 
Common-Law Marriage Handbook 9

is possible to be married by common-law in certain jurisdictions, and every state will 

recognize such unions, traditional divorce provisions apply to all marriages in all 

jurisdictions.

III. Developing a Common-Law Marriage Issue in an EEOICPA Claim

In order to establish the existence and nature of a valid common-law marriage, it is likely 

development efforts will be required beyond the initial submission of supporting factual

evidence from the claimant. It is important that claims examiners who must engage in 

this development examine and analyze the currently available evidence and, using this 

handbook, identify the key issues upon which survivor eligibility determination might 

turn. From this analysis, the claims examiner should distinguish those elements that can 

be decided on the available evidence from those which need further development so that 

development may be more narrowly targeted.

As with any development letter, claims examiners should inform claimants of what facts 

the evidence already submitted supports and identify the evidence or type of evidence 

that will address the remaining weaknesses in their claim. The regulations require that 

DEEOIC “notify the claimant of deficiencies and provide. . .an opportunity for correction 

of the deficiencies.”23F

24 Development letters serve as the vehicle for that required notice

and should ask narrowly tailored questions to elicit new information on those elements. 

While a development letter should not ask for voluminous or duplicative documentation, 

if the evidence in the file is contradictory or unclear, additional evidence may improve 

the quality of the decision and would be useful to the claims examiner.

Developing Two Threshold Issues

Although common-law marriage claims may require different targeted development 

efforts, two threshold issues must always be developed in every case: where the alleged 

marriage was entered into; and when it was entered into.

• Where was the alleged common-law marriage contracted?

It is critical to determine where a common-law marriage was allegedly established 

because state law controls the determination of whether the marriage was legally created. 

Accordingly, the claims examiner must fully develop the evidence establishing where 

each party to the marriage was domiciled during the entire period of the claimed 

common-law marriage, including on the date the marriage was allegedly first established. 

While DEEOIC must have evidence that a common-law marriage was established in a 

common-law jurisdiction at a time when that jurisdiction allowed the creation of such 

marriages, it is not necessary for claimants to prove a common-law marriage was 

established in every state in which the couple lived as spouses. Neither does a claimant 

have to prove that every state in which the couple resided or cohabitated was a commonlaw marriage state. As long as the common-law marriage requirements of one state were 
Common-Law Marriage Handbook 10

met at least one year prior to the employee’s death and not dissolved prior to the 

employee’s death, evidence of that marriage should be sufficient.

If development is necessary in a common-law marriage case, the claims examiner should 

request a narrative statement from the claimant fully describing the nature and duration of 

the marital relationship, including when and where the relationship began. For instance, 

in the case of a claimant who alleges to be a spouse via a common-law marriage but has 

supplied little background information about the relationship, the development letter 

should ask that the claimant supply a narrative statement explaining the circumstances 

surrounding the creation of the common-law marriage and identify specific examples of 

important events about which more detail is needed, such as: where the couple lived;

whether and where the couple relocated and on what dates; any interruptions in periods of 

cohabitation; evidence of the birth of children; and, if applicable, divorce. A properly 

crafted development letter should also request any documents that might tend to establish

the claimed relationship.

• When was the common-law marriage established?

The date on which the purported common-law marriage was established is important for 

several reasons. The first is the requirement under EEOICPA that a surviving spouse be 

married to the employee for one year prior to the employee’s death. If development of 

the evidence elicits a statement from the claimant that the alleged common-law marriage 

was entered into only six months prior to the employee’s death, the claims examiner may 

quickly determine that survivor eligibility has not been established. The claimed date of 

creation of the common-law marriage also sets the point in time at which the parties’ 

domicile should initially be determined. Furthermore, it sets the point in time at which 

the parties must have the capacity to enter into a common-law marriage; because of this,

the parties’ ages on that date are important. The establishment date must also fall during 

a period of time that the domicile state allowed the creation of common-law marriages. 

As shown above, many states have abolished common-law marriages established within 

their borders, some fairly recently, but none of these laws have retroactive effect, so if the 

claimed common-law marriage was validly established prior to the date of abolishment, it 

will be recognized.

• Examples:

In any case where development is necessary, a development letter must be sent to the 

claimant. The letter should ask the claimant to submit a narrative statement and then 

identify specific information and documents to support their claim. For example:

It is important that your statement include as much information as possible that 

supports your claim that you and the employee entered into a common-law 

marriage. Your statement should include a narrative that describes your 

relationship with the employee and, additionally, provides the following 

information:
Common-Law Marriage Handbook 11

• The date on which you and the employee entered into a common-law 

marriage and a description of the surrounding circumstances and why you 

believe your common-law marriage began on that date. 

• The state which you and the employee treated as your permanent home on

the date you provided in response to the above question, and a narrative 

description or list of any residential moves or relocations that you and the 

employee made after that date. Please identify the time frame (start and end 

dates) during which you and the employee resided together in each location

as spouses.

Developing Evidence of the Five Basic Elements of a Common-Law Marriage

Even though common-law jurisdictions may treat evidence of one of the five elements as 

circumstantial evidence of the existence of other elements, development letters should be 

designed to elicit sufficient evidence of all five common-law marriage elements unless

there is already sufficient evidence of some of these elements in the file. Below are 

sample questions designed to elicit evidence of the five standard elements: 

State the ages of both you and the employee on the date you began your commonlaw marriage and whether you or the employee had any marital ties to any other 

person on that date.

Identify the state which you and the employee treated as your permanent home as of 

the date you began a common-law marriage. Provide a narrative description of all 

locations where you and the employee lived after that date. For each location, 

identify the time frame (start and end dates) during which you and the employee

lived together as a married couple.

Provide a narrative description of when you and the employee agreed to have a 

present, immediate and permanent marital relationship as spouses and describe the 

timing and circumstances surrounding that agreement.

Provide a narrative description of whether you and the employee held yourselves 

out to the public as a married couple and describe, to the extent possible, times, 

places and circumstances in which you made those representations.

Provide a narrative description of whether you and the employee had a reputation 

in the general community as being a married couple and identify any persons 

submitting affidavits or statements describing such a reputation. 

Developing Evidence in a Surviving Spouse Claim

Even apparently simple, straightforward common-law marriage claims, such as where a 

claimant asserts that they are the deceased employee’s surviving spouse via a commonlaw marriage and the evidence proves that neither party was ever married to another 
Common-Law Marriage Handbook 12

person, require close attention. These claims may present themselves in various forms, 

for example:

• Scenario A: The employee and the claimant were not married in a licensed or 

traditional marriage and the claimant asserts they contracted a common-law 

marriage.

• Scenario B: The employee and the claimant were married in a licensed or 

traditional marriage and the claimant asserts that they divorced, reconciled and 

entered into a common-law marriage prior to the employee’s death.

• Scenario C: The employee and the claimant entered into a licensed or traditional 

marriage less than a year prior to the employee’s death and the claimant asserts 

that they established a common-law marriage prior to the licensed marriage.

In each scenario, the claimant must prove they were legally married to the employee and 

that the marriage was continuous for at least 365 days prior to the employee’s death.

In Scenario A, the primary issues that need to be developed are: (1) whether a commonlaw marriage existed between the claimant and the employee; (2) if so, was it established 

at least one year prior to the employee’s death; and (3) if both (1) and (2) are found to be 

true, was the common-law marriage dissolved prior to the employee’s death. In order to 

make the determinations relating to these three primary issues, the claims examiner needs 

to develop the two threshold issues of “when” and “where” the claimed common-law 

marriage was initially entered into, and needs to develop the evidence on each of the five

standard elements of a common-law marriage as described previously in this section. In 

addition, the claims examiner needs to develop evidence to determine if the common-law 

marriage was ever dissolved and, if so, when.

 

Scenario B differs from Scenario A and the issues that need to be developed are: (1) was 

a common-law marriage established between the claimant and the employee; (2) if the 

divorce occurred more than one year prior to the employee’s death, was the common-law 

marriage established at least one year prior to the employee’s death and did it continue to 

the employee’s death; and (3) if the divorce was made final during the last year of the 

employee’s life, was there any interruption between the divorce and the creation of the 

common-law marriage.

Scenario C is slightly different from the other scenarios and the development issues are: 

(1) was a common-law marriage established between the claimant and the employee; (2) 

was it established at least one year prior to the employee’s death; (3) did the common-law 

marriage continue up to the date of the licensed marriage; and (4) was the licensed

marriage dissolved prior to the date of the employee’s death. 
Common-Law Marriage Handbook 13

Developing a Capacity Issue

Development efforts may be complicated if the evidence suggests that a claimed marital 

relationship was never created because one or both alleged spouses lacked the capacity to 

marry. Examples of evidence that can give rise to a question of capacity include: 

• Either alleged spouse was underage at the time they attempted to establish a

common-law marriage.

• Either alleged spouse had a prior legal marriage with another person before they 

attempted to establish a common-law marriage and that prior marriage was not 

dissolved prior to the date the common-law marriage was alleged to have 

occurred.

• Either alleged spouse established a common-law marriage with another person 

before they entered into a licensed marriage and the common-law marriage was 

not dissolved prior to the date of the licensed marriage.

If the main issue of capacity involves the age of one or both parties to the marriage, the 

claims examiner may need to ask for proof of the parties’ ages on the date the commonlaw marriage was allegedly entered into. Depending on state law, a claims examiner may 

also need to develop evidence of parental or judicial consent.

If there is indirect evidence that one party to a marriage was not free to marry the other 

(i.e., a medical record refers to a previous spouse), the claims examiner may use a generic 

development question to address the issue. For example: 

Provide a narrative description of whether you or the employee have been legally 

married to any other persons, have children by any other relationship or have 

cohabitated with another person for a length of time such that a common-law 

marriage may have been established with that other person. For each situation, 

please identify the parties and/or children involved, the places and dates of the 

marriage, relationship or cohabitation and the date and manner in which each 

marriage, relationship or cohabitation was terminated, dissolved or annulled, 

either by death, court order or otherwise.

If the file contains evidence or an allegation that either the employee or the claimant was 

previously married and that that marriage may not have been dissolved, the development 

questions may need to be more direct. For example: 

You claim that you are the eligible surviving spouse of [employee] by virtue of a 

common-law marriage that began in Oklahoma two years prior to [employee’s] 

death. However, there is evidence in your case file (a marriage certificate) that 

suggests that you were legally married to another person prior to that time.

Please provide a narrative description of your relationship with your prior spouse 
Common-Law Marriage Handbook 14

and provide documents to support your description of how and when that prior

relationship ended (e.g., a divorce decree or death certificate). 

Or:

You claim to be the eligible surviving spouse of [employee] and have provided a 

copy of your marriage certificate in support. However, there is evidence in your 

case file (a marriage certificate) that the employee was married to [name of prior 

spouse] prior to your marriage. Additionally, there is no evidence in the case file 

that [employee] was ever divorced from [name of prior spouse]. Please provide a 

narrative description of your understanding of whether [employee’s] marriage to 

[name of prior spouse] was ever dissolved by court order or otherwise and 

provide documents or other evidence to support your description of how and

when that prior relationship ended (e.g., a divorce decree, death certificate, 

affidavit from witnesses).

The development letter in such a complicated case should be targeted narrowly. It should 

inform the claimant of the nature and extent of the evidence currently in the case file (or 

the lack thereof) that led to the additional questions and should provide a very specific 

request for additional evidence. Like all development letters, such a letter should always 

request documentation to support all aspects of eligibility that the evidence does not yet 

support. The letter should also make very clear to the claimant the key issue behind the 

additional request for information and how that issue affects the claimant’s eligibility 

under EEOICPA. 

 

Additional Considerations in Developing the Claim of a Stepchild

In the context of common-law marriage cases, a stepchild claim is presented when the 

claimant asserts that they are an eligible survivor by virtue of the fact that they are the 

child of a parent who was married to the employee via a common-law marriage and that 

they lived with the employee in a regular parent-child relationship. In such a case, the 

primary survivor-eligibility issues that must be determined are: (1) did a common-law 

marriage exist between the claimant’s biological parent and the employee; and (2) if so, 

did the claimant live with the employee in a regular parent-child relationship during the 

common-law marriage.

It is important to note that in the stepchild case, it does not matter whether the commonlaw marriage between the employee and the claimant’s parent endured for at least one 

year immediately prior to the employee’s death, so development need not address that 

factor. Rather, the timing issues that must be developed in such a case are: (1) whether

the alleged common-law marriage was created in a jurisdiction during a time when that 

jurisdiction allowed common-law marriages; and (2) did the claimant live with the 

employee in a regular parent-child relationship after the common-law marriage had been 

established and before it was dissolved (if ever). If, for instance, the child-claimant lived 

with the employee during a time when the employee was only dating the child-claimant’s 

parent, then the child left for college prior to the creation of the common-law marriage 
Common-Law Marriage Handbook 15

between their parent and the employee, the child-claimant is likely not an eligible 

stepchild. In a stepchild claim where a common-law marriage is alleged, the claims 

examiner should flesh out evidence of these other details in addition to developing the 

threshold evidence of “when” and “where” the common-law marriage was established 

and the five standard elements of such a marriage.

Developing Evidence of a Marriage Under Tribal Law

As set forth above, the domestic relations laws of both the Navajo Nation and the Pueblo 

of Acoma only apply when both parties of an alleged tribal marriage are members of the 

tribe, so the claims examiner should always develop this capacity issue in every tribal 

marriage case. The development of additional elements depends on the law of the tribe at 

issue. Notably, the Navajo Nation Code explicitly provides that Navajo “Peacemaker 

Courts” may enter an order, even after the fact, validating a common-law marriage 

between tribe members.24F

25 On occasion, such orders have been entered after the death of 

one or both of the parties and such orders are generally accepted as sufficient proof of the 

existence of a marital relationship. Therefore, in any case in which a claimant asserts that 

a common-law marriage was created under Navajo tribal law, the claims examiner should 

develop the two threshold issues of “when” and “where” along with the five standard 

elements of a common-law marriage and should also inquire as to whether an order (often 

referred to as a “Peacemaking Judgment”) has been entered by the Navajo Courts 

validating the alleged marriage.

The domestic relations laws of the Pueblo of Acoma differ significantly from those of the 

Navajo Nation. The Pueblo of Acoma Laws (2003) simply state that marriage involving 

members of their Tribe “shall be recognized if performed according to the laws of the 

state of their residence or according to tribal custom.”25F

26 Those same laws also state that 

“[r]ecognition of a marriage by the Pueblo of Acoma will be shown on a certificate of 

marriage” and that a “marriage registry shall be maintained in the Acoma Tribal Offices.”

Therefore, in a Pueblo of Acoma case, the claims examiner should develop the issue of 

capacity (including tribal membership) and also whether there is a “certificate of 

marriage” and a written entry in the “marriage registry” maintained by the offices of the 

Tribal Court. If either the certificate or registry entry exists, it may not be necessary to 

develop the five standard elements of a common-law marriage depending on the 

circumstances of the case, i.e., if the evidence of the timing of the marriage is sufficient 

to establish survivor eligibility in the particular case.

Documents and Supporting Evidence 

Development letters should not only ask for written statements of certain facts but, as has 

been repeated throughout this handbook, should also request that the claimant submit any 

pertinent documents to corroborate and support the factual allegations relating to survivor 

eligibility. The regulations explicitly address the evidentiary limitations of written 

statements and the need for documented evidence:
Common-Law Marriage Handbook 16

Written affidavits or declarations, subject to penalty of perjury, by the 

employee, survivor or any other person, will be accepted as evidence of [a] 

survivor relationship for purposes of establishing eligibility and may be 

relied on in determining whether a claim meets the requirements of the Act 

for benefits if, and only if, such person attests that due diligence was used to 

obtain records in support of the claim, but that no records exist.

20 C.F.R. § 30.111(c) (2023). The “if, and only if” language makes clear that written 

statements alone (even those that are notarized) cannot be used to establish elements of 

survivor eligibility unless either supporting documents (“records”) are submitted or the 

written statement contains the attestation required by the regulation.

Depending on the situation and the extent of documented evidence of eligibility already 

submitted, the claims examiner may decide to provide the claimant with a list of 

examples of the types of documents that might support eligibility. For example:

In addition to the narrative description provided in your statement, please provide 

evidence to support the factual assertions in your statement. Be aware that the time 

frame of events is important. Accordingly, documents that bear dates may be 

particularly helpful to your claim. Also, make sure to address dates and time 

frames in any affidavit you submit. In the event no records exist to support your 

assertions, include in your affidavit a statement that you have used due diligence in 

attempting to obtain supporting records but that no such records exist. Examples of 

documents that may support a claim of common law-marriage include:

• Affidavits – Affidavits are signed, narrative statements submitted by you or any 

other person who has personal knowledge of the information included in 

statement itself. You should submit a written affidavit describing the basis of your 

claim that you are or were the employee’s common-law spouse, as described 

above. You may want to ask other people to prepare affidavits also if you think 

others may have relevant information to provide. You can submit their affidavits 

to us along with your own or anyone making the affidavit may submit them to 

DEEOIC directly. Any such submission needs to clearly show your case number.

• Marriage and Divorce Documents – Marriage licenses and certificates may 

provide information relevant to your status as a common-law spouse. If you or 

the employee were married to other persons, you should submit marriage 

certificates and dissolution decrees regarding those other marriages. You should 

also submit any declaratory judgments or court orders which officially recognize 

the claimed marriage between you and the employee.

 

• Other Court Documents – If you or the employee ever filed a civil lawsuit 

regarding the employee’s occupational exposure or were involved in any other 

type of court action or workers’ compensation claim, documents from such cases 

may include information relevant to your common-law marriage claim.
Common-Law Marriage Handbook 17

• Death Certificates – The employee’s death certificate may supply information 

relevant to your common-law marriage claim. Additionally, if you or the 

employee was a widow or widower at the time of your common-law marriage to 

each other, you may want to submit the death certificate of the former spouse.

• Children’s Records – Birth or death certificates of any children which you and 

the employee had together may provide relevant evidence of your relationship 

with the employee.

• Real Estate Documents – Deeds, rental and lease agreements may provide 

relevant information.

• Tax Documents – Federal and state tax returns may supply information relevant 

to your common-law marriage claim.

• Banking and Loan Documents – Relevant information may be found in dated 

statements from checking and savings accounts, car loan documents, promissory 

notes, security agreements and mortgage documents.

• Contracts or Insurance Documents – Any written contract or other standard 

insurance document may include information relevant to your claim as being the 

employee’s common-law spouse.

• Employment Documents – Employment documents such as beneficiary 

designation forms for employer-provided life insurance or health insurance 

applications may include information that is relevant to your common-law 

marriage claim.

• Medical Records – Records from doctors or hospitals may contain relevant 

information.

• Vehicle Registration Documents – If you and the employee owned any vehicles 

together, license and registration documents may show relevant information.

• Tribal Documents – If you and the employee are members of a federally 

recognized tribe and you claim a common-law marriage under tribal law, you 

should submit documents that show membership and any tribal court declarations 

concerning your claimed relationship.

• Wills, Trusts and Power of Attorney Documents – Testamentary documents such 

as wills and trusts may include information relevant to your claim to be the 

employee’s common-law spouse.

• Utility Bills – Utility bills may reveal relevant information.
Common-Law Marriage Handbook 18

• Letters – Letters in which you and the employee referred to each other as spouses 

may be relevant to your claimed status. Also, letters to or from others that refer 

to your relationship with the employee may be relevant.

• Other Documents – You should submit any other formal or informal documents 

that may support your claim to be the employee’s common-law spouse. For 

instance, any document which shows your use of the employee’s last name as your 

own last name or that shows that your children from another marriage used the 

employee’s last name as their last name would be relevant. Any form that the 

employee ever completed wherein you were listed as spouse would be relevant.

Burdens of Production and Proof

EEOICPA and its implementing regulations place the burden on claimants to produce all 

evidence necessary to establish their eligibility to EEOICPA benefits.26F

27 Similarly, the 

regulations require survivor-claimants to exercise due diligence in gathering evidence to 

support their eligibility in any type of case, including claims of survivor eligibility based 

on a claimed common-law marriage. If a claimant is responding to ongoing development 

efforts, the claims examiner should continue to develop any common-law marriage issues 

until sufficient evidence to support a determination of eligibility has been gathered. If the 

claimant repeatedly fails to respond to development letters sent to the claimant’s 

confirmed residence address, the claims examiner should note that fact in the case file 

and seek guidance from the District Director on whether the case is ripe to be sent to the 

National Office for review, or whether additional efforts should be made to gather further 

evidence before submission to the National Office.

In addition to their burden of production, the regulations also provide that claimants carry 

the burden of proof on each element of their eligibility for EEOICPA benefits.27F

28 Thus, if 

a claimant asserts that they are the surviving spouse of a covered employee by way of a 

common-law marriage, it is the claimant’s burden to prove that a valid common-law 

marriage was created. On the other hand, if a claimant’s eligibility depends on the 

invalidity of a common-law marriage, the burden of proof falls on the claimant alleging 

the invalidity of the marriage. For example, if a claimant asserts that they are the sole, 

surviving, eligible child of a deceased covered employee because there is no living, 

eligible surviving spouse, then that claimant carries the burden to prove that there is no 

eligible surviving spouse, which may require proof that there was no valid common-law 

marriage between the employee and a third party who claims to be a surviving spouse.

In certain circumstances, legal presumptions effectively reduce the number of elements 

that a claimant must prove in order to establish eligibility. For example, Pennsylvania 

law recognizes a rebuttable presumption of common-law marriage when only the two 

elements of cohabitation and reputation are established.28F

29 This means that if the claimant 

proves that they were domiciled in Pennsylvania prior to January 2, 2005 (the date after 

which no common-law marriage can be established in that state) and: (1) cohabitated 

with the employee; and (2) had a reputation in their community as being spouses, it is 

presumed that they contracted a common-law marriage. In the event of a competing 
Common-Law Marriage Handbook 19

claim, the burden would then fall on the other claimant to prove that the marriage was not 

validly established. If there is no competing claimant but probative evidence exists that 

contradicts the existence of one of the required elements, that contradictory evidence may 

rebut the presumption and support a finding against the claimed common-law marriage.

All United States jurisdictions recognize such rebuttable presumptions in favor of 

marriage, but while such presumptions may ultimately reduce the elements necessary for 

eligibility, claims examiners should develop all of the five standard elements of a 

common-law marriage if possible.

Character and Weight of Evidence

In developing an EEOICPA claim, it should be understood that it is well-established 

among common-law states that circumstantial evidence may be relied upon to 

demonstrate a common-law marriage.29F

30

There are different types of evidence. Direct evidence is evidence based on personal 

knowledge or observation and, if true, proves a fact without resort to inference or 

presumption. Circumstantial evidence, on the other hand, is generally described as 

evidence based on inference and not on personal knowledge or observation; that is, it is 

evidence of minor facts or circumstances from which the existence or nonexistence of a 

fact at issue may be inferred.30F

31

While direct proof of a fact is generally considered the most probative and compelling 

evidence of that fact, claimants are not required by state law, EEOICPA or its regulations

to provide direct proof of every element of a claimed common-law marriage. Thus, a 

claimed common-law marriage should not be denied simply for lack of direct evidence of 

one of the required elements if probative evidence of the other elements has been 

produced and the missing element is supported by circumstantial evidence. While 

development efforts should seek direct evidence of the required elements of a commonlaw marriage, claims examiners should inform claimants that any proof that tends to 

support their claimed eligibility will be received and considered.

Finally, contradictions in evidence do not always preclude a finding that a common-law 

marriage was created. Contradictions and inconsistencies in evidence go to the weight 

and probative value to be given individual pieces of evidence by the fact finder; the mere 

existence of contradictory or inconsistent evidence does not require a finding of 

insufficiency of the evidence on any particular element of eligibility. If, for example, the 

employee’s death certificate reports that the employee was widowed at the time of his 

death but sworn affidavits of disinterested witnesses are submitted and sufficiently 

establish that the employee was in a common-law marriage at the time of his death, the 

documented evidence in the death certificate may be outweighed by the witnesses’

statements. Depending on the character and source of information, it may be reasonable 

to assign greater weight to certain evidence even if it is contradicted by other, albeit less 

probative, information.
Common-Law Marriage Handbook 20

Submitting a Claim to the National Office

The Policy Branch does not need to review each common-law marriage determination 

made by a claims examiner. If all development efforts are complete and questions or 

other issues remain that require additional guidance beyond what is available in this 

handbook, then the case file may be forwarded to the Policy Branch for guidance. It is 

important that the claim not be sent to the National Office until it has been as fully 

developed as possible consistent with the procedure manual and the guidance in this 

handbook.
Common-Law Marriage Handbook 21

Endnotes

1

 See, e.g., Lynch v. Bowen, 681 F.Supp. 506 (N.D. Ill. 1988); Metropolitan Life Ins. Co. v. 

Chase, 294 F.2d 500, 503-04 (3rd Cir. 1961). 

2

 The two Indian tribes mentioned only recognize marriages established between registered 

members of their respective tribes. The Navajo Nation is situated within the exterior boundaries 

of Arizona, New Mexico and Utah; thus, common-law marriage claims dealing with Navajo 

tribal law generally arise in claims involving those states. The Pueblo of Acoma tribal 

boundaries are located entirely within the state of New Mexico.

3

 The following states relatively recently prohibited common-law marriages, so common-law 

marriages are valid in these states if they were entered into up to, and including, the indicated 

dates:

Alabama..........January 1, 2017

Florida.............January 1, 1968

Georgia............January 1, 1997

Idaho................December 31, 1996

Ohio.................October 9, 1991

Pennsylvania....January 1, 2005

4

 In addition to the 19 common-law jurisdictions addressed in detail in the Appendix to this 

handbook, the rest of the jurisdictions of the United States either abolished common-law 

marriages earlier than 1968 or never allowed them, and therefore it is unlikely that a claims 

examiner will encounter a situation involving an alleged common-law marriage in those other 

jurisdictions. However, should one arise, any claimed common-law marriage in one of these 

other jurisdictions should be fully developed using the guidance in this handbook and the 

Solicitor’s Office will then research the state law and provide an opinion on a case-by-case basis. 

5

 See, e.g., Knight v. Superior Court, 128 Cal. App.4th 14, 19-20, 26 Cal.Rptr.3d 687, 690-

691 (Cal. App. 3 Dist. 2005); Craig v. Carrigo, 121 S.W.3d 154, 159-160 (Ark. 2003); Estate of 

Lamb, 655 P.2d 1001, 1002-1003 (N.M. 1982). Additionally, the United States Supreme Court 

recognizes the validity of common-law marriages, as long as no local statutory provision 

prohibits their creation. Meister v. Moore, 96 U.S. 76, 79 (1877).

6

 See Kan. Stat. Ann. § 23-2502 (2016). Prior to this recent legislation in Kansas, the requisite 

age for common-law marriage in that state was twelve for girls and fourteen for boys. 

7

 See Colo. Rev. Stat. Ann. §§ 14-2-104, 14-2-109.5 (2016). Common-law marriages 

established in Colorado prior to September 2006 may be valid even if the parties are as young as 

twelve for girls and fourteen for boys. See In re Marriage of J.M.H. and Rouse, 143 P.3d 1116, 

1119 (Colo. App. 2006) (recognizing a common-law marriage involving a 15-year-old girl). 

8

 See S.C. Code 1976 § 20-1-100 (2016) (providing that effective June 11, 1997, parties must be 

at least 16 years old to enter into a common-law marriage in South Carolina).
Common-Law Marriage Handbook 22

9

 See 9 N.N.C. §§ 8-9 (1993); see also United States v. Jarvison, 409 F.3d 1221, 1225 (10th Cir. 

2005).

10 See, e.g., In re Marriage of Martin, 681 N.W.2d 612, 617 (Iowa 2004).

11 See, e.g., Smith v. Smith, 966 A.2d 109, 114 (R.I. 2009); Torres v. Com. Dept. of Public 

Welfare, 393 A.2d 1079, 1080 (Pa. Cmwlth. 1978).

12 In re Estate of Bourassa, 949 A.2d 704, 706 (N.H. 2008) (holding that New Hampshire law 

requires a minimum 3-year period of cohabitation). See also N.H. Rev. Stat. § 457:39 (2016).

13 Davis v. State, 103 P.3d 70, 82 (Okla. Cr. App. 2004) (requiring “a permanent relationship, an

exclusive relationship”).

14 See, e.g., Winfield v. Renfro, 821 S.W.2d 640, 646-648 (Tex. App. 1991).

15 See, e.g., In re Estate of Burroughs, 486 N.W.2d 113, 116 (Mich. App. 1992) (applying Texas 

law, holding that “[l]iving together in Michigan does not satisfy the Texas cohabitation 

element”). 

16 See Quinonez-Saa v. State, 860 S.W.2d 704, 710 (Tex. App. 1993); In re Trope’s Estate, 124 

P.2d 733, 735, 737 (Okla. 1942).

17 See Bolash v. Heid, 733 S.W.2d 698, 699 (Tex. Civ. App. 1987); In re Marriage of Grother, 

242 N.W.2d 1, 2 (Iowa 1976); State v. Johnson, 532 P.2d 1325, 1329 (Kan. 1975).

18 See, e.g., Welch v. State, 908 S.W.2d 258, 265 (Tex. App. 1995); In re Marriage of Gebhardt, 

426 N.W.2d 651, 652-653 (Iowa App. 1988); Coleman v. Aubert, 531 So.2d 881, 882-883 (Ala. 

1988). 

19 See In re Marriage of Winegard, 257 N.W.2d 609, 617 (Iowa 1977). See also Mont. Code 

Ann. § 26-1-602(30) (2015) (a rebuttable presumption exists that a man and woman “deporting 

themselves as husband and wife have entered into a lawful contract of marriage”).

 

20 See, e.g., Sulfridge v. Kindle, 2005 WL 1806482, *4 (Ohio. App. 2005); Matter of Estate of 

Vandenhook, 855 P.2d 518, 520 (Mont. 1993); Nestor v. Nestor, 472 N.E.2d 1091, 1095 (Ohio 

1984); In re Marriage of Winegard, 257 N.W.2d 609, 617 (Iowa 1977).

21 See, e.g., Brown v. Brown, 215 S.E.2d 671, 672-673 (Ga. 1975).

22 See, e.g., In re Gholson’s Estate, 361 P.2d 791, 792-793 (Idaho 1961); McArthur v. Hall, 169 

S.W.2d 724, 728 (Tex. Civ. App. 1943); In re Trope’s Estate, 124 P.2d 733, 736-737 (Okla. 

1942). 
Common-Law Marriage Handbook 23

23 See, e.g., Callen v. Callen, 620 S.E.2d 59, 62 (S.C. 2005); Staudenmayer v. Staudenmayer, 

714 A.2d 1016, 1020-1021 (Pa. 1998); In re Bragg’s Estate, 334 So.2d 271, 272 (Fla. App. 

1976) (common-law marriage was recognized in Florida prior to January 2, 1968).

24 See 20 C.F.R. § 30.111(b).

25 See 9 N.N.C. § 8 (2009).

26 Pueblo of Acoma Laws § 4-2-2 (2003).

27 See 20 C.F.R. § 30.111(a).

28 See 20 C.F.R. § 30.111(a).

29 Commonwealth v. McLean, 564 A.2d 216, 221 (Pa.Super. 1989) (“there is a rebuttable 

presumption of marriage where two essential elements exist: constant, not irregular or inconstant, 

cohabitation plus a broad and general, not partial or divided, reputation of marriage”)

30 See, e.g., In re Marriage of Winegard, 257 N.W.2d 609, 617 (Iowa 1977); Young v. General 

Baking Co., 12 N.E.2d 1016, 1018 (Ind. 1938).

31 Black’s Law Dictionary, Tenth Edition (2014).
Appendix

The following summaries note the contractability of common-law marriage in the state 

and tribal jurisdictions where such marriages may still be entered into as of 2023, as well 

as in the states that only recently prohibited common-law marriages. Claims examiners 

are not expected to be experts in applying state or tribal laws, and these brief summaries 

do not address every complexity of common-law marriage.

Alabama

In 2016, the Alabama legislature passed a law banning recognition of newly contracted 

common-law marriages. The state continues to recognize common-law marriages that 

were established prior to January 1, 2017. To establish a valid common-law marriage in 

Alabama prior to 2017, individuals must establish that they: (1) had the legal capacity to

marry; (2) intended to marry; and (3) held themselves out as married. Ala. Code § 30-1-

20 (2022).

Colorado

Recently, the Supreme Court of Colorado explained that rather than a strict set of factors, 

“common[-]law marriage may be established by the mutual consent or agreement of the 

couple to enter the legal and social institution of marriage, followed by conduct 

manifesting that mutual agreement.” Hogsett v. Neale, 478 P.3d 713, 714 (Colo. 2021). 

Such conduct may be evidenced by factors including, but not limited to, cohabitation, 

reputation, joint bank accounts or ownership of property, joint tax returns, use of 

another’s surname and the couple’s behavior when the relationship ended.

Common-law marriages entered into in Colorado on or after September 1, 2006 will not 

be recognized as valid unless, at the time the common-law marriage was entered into, 

each party was 18 year of age or older and the marriage was not otherwise prohibited

(i.e., bigamous or incestuous). Colo. Rev. Stat. §§ 14-2-104, 14-2-109.5 (2020). 

District of Columbia

The District of Columbia has long recognized common-law marriages. Coates v. Watts, 

622 A.2d 25, 27 (D.C. 1993); Hoage v. Murch Bros. Constr. Co., 50 F.2d 983 (1931). 

Because ceremonial marriage is readily available within the District, claims of commonlaw marriage are closely scrutinized and proponents of such marriages bear the burden of 

proving the parties cohabitated as spouses following a mutual agreement to presently 

enter into marriage. East v. East, 536 A.2d 1103, 1105 (D.C. 1988).

Florida

In 1967, the Florida state legislature abolished common-law marriage providing no 

common-law marriage entered into after January 1, 1968, shall be valid. Florida Stat. § 

741.211 (2022). Prior to 1968, establishing a valid common-law marriage in Florida 
Appendix 2

required: (1) present assent to become man and wife; (2) general reputation of marriage 

in the community; and (3) continuous cohabitation. Carretta v. Carretta, 58 So.2d 439, 

441 (Fla. 1952); Marden v. Marden, 276 So.2d 493, 494 (Fla. App. 1973). Common-law 

marriage under Florida law could be established by the testimony of the contracting 

parties or those present when they mutually agreed to take each other as man and wife or, 

in the absence of such evidence, by evidence of habit or repute. In re Bragg’s Estate, 334 

So.2d 271, 272 (Fla. App. 1976), citing LeBlanc v. Yawn, 126 So. 789, 790 (Fla. 1930); 

Carter v. Carter, 309 So.2d 625, 628 (Fla. App. 1975).

Georgia

In 1996, the Georgia state legislature abolished common-law marriage providing no 

common-law marriage shall be entered into in Georgia on or after January 1, 1997. Ga. 

Code § 19-3-1.1 (2022) (“Otherwise valid common-law marriages entered into prior to 

January 1, 1997, shall not be affected by this Code section and shall continue to be 

recognized in this state”). Prior to that law, a party attempting to prove the existence of a 

common-law marriage in Georgia was required to prove the parties’ capacity to contract 

marriage, agreement to live together as spouses and consummation of that agreement. In 

re Estate of Smith, 2009 WL 1532555, *1 (Ga. App. 2009); Brown v. Brown, 215 S.E.2d 

671, 672 (Ga. 1975). 

Idaho

In 1995, the Idaho abolished common-law marriage, providing “[c]onsent alone will not 

constitute marriage; it must be followed by the issuance of a license and a solemnization 

as authorized and provided by law.” Idaho Code § 32-201 (2020). However, commonlaw marriages established in the state prior to January 1, 1996 are recognized. Wilkins v. 

Wilkins, 48 P.3d 644, 649 (Idaho 2002) (requiring evidence of capacity, consent or 

agreement to marry and assumption of the rights, duties and obligations of marriage).

Iowa

Iowa has long recognized common-law marriage. In re Dallman’s Estate, 228 N.W.2d 

187, 189 (Iowa 1975); In re Marriage of O’Connor-Sherrets and Sherrets, 2008 WL 

4877763, *1 (Iowa App. 2008). Certain elements are required to establish the existence 

of a common-law marriage in Iowa and the burden of proof is on the person or persons 

asserting the claim to establish evidence of a present intent and agreement by both 

individuals to marry along with evidence of continuous cohabitation and a public 

declaration of the marital relationship.

Kansas

While Kansas has long recognized common-law marriage, state law requires both parties 

must be at least 18 years of age at the time the marriage is established. Kan. Stat. Ann. § 

23-2502 (2021) (“The state of Kansas shall not recognize a common-law marriage 

contract if either party to the marriage contract is under 18 years of age”); Flora v. State, 
Appendix 3

197 P.3d 904 (Kan. Ct. App. 2008). The basic elements required to prove the existence 

of a common-law marriage in Kansas are: (1) the capacity of the parties to marry; (2) a 

present marriage agreement; and (3) a holding out of each other as [spouses] to the 

public.” Sullivan v. Sullivan, 413 P.2d 988, 992 (Kan. 1966); Chandler v. Central Oil 

Corp., Inc., 853 P.2d 649, 652 (Kan. 1993).

Montana

Montana recognizes common-law marriages. Mont. Code Ann. 40-1-403 (2021)

(“Common-law marriages are not invalidated by this chapter”). In Montana, a party 

asserting the existence of a common-law marriage must prove that: (1) the parties were 

competent to enter into a marriage; (2) the parties assumed a marital relationship by 

mutual consent and agreement; and (3) the parties confirmed their marriage by 

cohabitation and public repute. In re Estate of Ober, 62 P.3d 1114, 1115 (Mont. 2003);

Snetsinger v. Montana University System, 104 P.3d 445, 451 (Mont. 2004). The Montana 

Supreme Court has also held that “[a] common-law marriage cannot exist if the parties 

have kept their marital relationship a secret. That is, to establish a valid common-law 

marriage, the couple must hold themselves out to the community as [married].” In re 

Estate of Ober, 62 P.3d at 1117.

Navajo Nation

Title 9 of the Navajo Nation Code governs the validity of marriages between tribal 

members and states that “[m]arriages may be validly contracted within Navajo Indian 

Country by meeting the requirements of 9 N.N.C. §§ 3 and 4.” 9 N.N.C. § 1B (2005). 

Section 3 of Title 9 of the Navajo Nation Code sets out five methods by which two 

parties may contract a valid marriage: (1) by signing a Navajo Nation marriage license in 

the presence of two witnesses; (2) by engaging in a licensed religious marriage ceremony 

in the presence of two witnesses; (3) by engaging in a licensed civil marriage ceremony 

conducted by any judge of the Navajo Nation Courts; (4) by engaging in a “traditional 

Navajo wedding ceremony” (sometimes referred to as a “traditional basket ceremony”) 

that consists of six specific elements; or (5) by contracting a common-law marriage. 9 

N.N.C. § 3A-E. In order to contract a valid common-law marriage under the Navajo 

Nation Code, four elements must be established: 

1. Present intention of the parties to be husband and wife;

2. Present consent between the parties to be husband and wife;

3. Actual cohabitation; [and]

4. Actual holding out of the parties within their community to be married. 

9 N.N.C. § 3E. Section 4 of the same Title requires that the parties be unmarried at the 

time of the marriage, that they be at least 18 years of age, and that they not be of the same 

clan or related within a certain degree of consanguinity. 9 N.N.C. § 4. See also United 

States v. Jarvison, 409 F.3d 1221, 1225-1228 (10th Cir. 2005); Beller v. United States, 

221 F.R.D. 679, 682 (D.N.M. 2003); Navajo Nation v. Murphy, 6 Nav. R. 10 (Nav. Sup. 

Ct. 1988).
Appendix 4

New Hampshire

New Hampshire recognizes the validity of common-law marriages. N.H. Rev. Stat. Ann. 

§ 457:39 (2022) provides: “Persons cohabitating and acknowledging each other as 

husband and wife, and generally reputed to be such, for the period of 3 years, and until 

the decease of one of them, shall thereafter be deemed to have been legally married.” See 

also In re Munson, 168 A.3d 153 (N.H. 2016); In re Estate of Bourassa, 949 A.2d 704, 

706 (N.H. 2008); Delisle v. Smalley, 96 N.H. 58, 59, 69 A.2d 868 (1949).

Ohio

Ohio law recognizes common-law marriages contracted in that state prior to October 10, 

1991. Gearhart v. Gearhart, 2008 WL 62286, *2 (Ohio App. 2008); State v. Phelps, 652 

N.E.2d 1032, 1035 (Ohio App. 1995). See also Ohio Rev. Code Ann. § 3105.12 (2020). 

The elements of a common-law marriage in Ohio are: (1) a present agreement to enter 

into a mutual contract to marry, made by parties competent to so contract; (2) followed 

and accompanied by cohabitation as husband and wife; and (3) a holding out by the 

parties to those with whom they normally come into contact, resulting in a reputation as a 

married couple in the community. Phelps, 652 N.E.2d at 1035; Nestor v. Nestor, 472 

N.E.2d 1091, 1094 (Ohio 1984).

Oklahoma

Oklahoma recognizes common-law marriages established within its borders. See 

Standefer v. Standefer, 26 P.3d 104, 107 (Okla. 2001); Davis v. State, 70 (Okla. Crim. 

App. 2004). The elements necessary to establish a common-law marriage in Oklahoma 

are: (1) a mutual agreement or declaration of intent to marry; (2) consummation of that 

agreement by cohabitation; and (3) the individuals publicly holding themselves out as 

spouses. Stinchcomb v. Stinchcomb, 674 P.2d 26, 28-29 (Okla. 1983); Estate of Phifer,

629 P.2d 808, 809 (Okla. App. Ct. 1981). Open and notorious cohabitation is evidence of 

a marriage agreement, other elements being present, while lack of such open cohabitation 

may be evidence tending to discredit the alleged agreement, thus casting upon the 

alleging party a greater burden in the actual proof of the agreement. Quinton v. Webb, 

248 P.2d 586, 589 (Okla. 1952).

Pennsylvania

The Pennsylvania legislature abolished common-law marriages contracted after January 

1, 2005. 23 Pa. Cons. Stat. Ann. § 1103 (2022). Thus, such marriages established in 

Pennsylvania on or before January 1, 2005 are valid and recognized. Generally, a 

common-law marriage is created under Pennsylvania law by words in the present tense, 

spoken with the specific purpose of creating a legal relationship of husband and wife. 

Staudenmayer v. Staudenmayer, 714 A.2d 1018, 1020 (Pa. 1998). 
Appendix 5

Pueblo of Acoma

The Pueblo of Acoma, like the Navajo Nation, is a federally recognized tribe that allows 

the creation of common-law marriages among tribe members. “All marriages [of] a 

Pueblo of Acoma member shall be recognized if performed according to the laws of the 

state of their residence or according to tribal custom.” Section 4-7-2 .A. (Pueblo of 

Acoma Laws 2003 (2019 Replacement)). Also, § 4-7-2.B states that “[r]ecognition of a 

marriage by the Pueblo of Acoma will be shown on a certificate of marriage.” “A 

certificate by a [Tribal Sheriff], that the marriage occurred, satisfies this requirement. 

The marriage registry shall be maintained by the Court.” Id.

Rhode Island

“This state recognizes common-law marriage.” Smith v. Smith, 966 A.2d 109, 114 (R.I. 

2009) (citing Souza v. O’Hara, 395 A.2d 1060, 1062 (1978)). “[T]o establish a commonlaw marriage, we have adopted the clear and convincing standard of proof.” Smith, 966 

A.2d at 114. “A common-law marriage requires evidence that the parties seriously 

intended to enter into the husband-wife relationship.” Id. (internal quotations omitted). 

“In addition, the conduct of the parties must be of such a character as to lead to a belief in 

the community that they were married.” Id. (internal quotations omitted). “The elements 

of intent and belief are demonstrated by inference from cohabitation, declarations, 

reputation among kindred and friends, and other competent circumstantial evidence.” Id.

(internal quotations omitted). “Although intent may be inferred from cohabitation, 

declarations, reputation, and other competent evidence. . .cohabitation alone is not 

conclusive of intent to be husband and wife, and such evidence may be rebutted by 

counter-proof.” Id. “Furthermore, it is required that the parties must mutually and 

presently intend to be husband and wife rather than merely become engaged to be 

husband and wife at some point in the future.” Id. (emphasis in original). 

South Carolina

South Carolina currently recognizes common-law marriages. S.C. Code 1976 § 20-1-360 

(2021) (“Nothing contained in this article shall render illegal any marriage contracted 

without the issuance of a license.”); Callen v. Callen, 620 S.E.2d 59, 62 (S.C. 2005). A 

common-law marriage in South Carolina must be proven by a preponderance of the 

evidence. Kirby v. Kirby, 241 S.E.2d 415, 416 (S.C. 1978). “A common-law marriage is 

formed when two parties contract to be married.” Callen, 620 S.E.2d at 62. “No express 

contract is necessary; the agreement may be inferred from the circumstances.” Id. “The 

fact finder is to look for mutual assent: the intent of each party to be married to the other 

and a mutual understanding of each party’s intent.” Id. Courts have held that the facts 

and circumstances must show an intention on the part of both parties to enter into a 

marriage contract, and is usually evidenced by a public and unequivocal declaration by 

the parties. Owens v. Owens, 466 S.E. 2d 373, 375 (S.C. Ct. App. 1996). “Further, when 

the proponent proves that the parties participated in ‘apparently matrimonial’

cohabitation, and that while cohabiting the parties had a reputation in the community as 

being married, a rebuttable presumption arises that a common-law marriage was created.” 
Appendix 6

Callen, 620 S.E.2d at 62. The intent to be married is usually evidenced by a public and 

equivocal declaration of the parties, but that is not necessary; the necessary intent may 

exist without ever being publicly and formally declared. Tarnowski v. Liberman, 560 

S.E.2d 438, 440 (S.C. Ct. App. 2002) (citations omitted). Therefore, the existence of a 

common-law marriage is often proved by circumstantial evidence. Barker v. Baker, 499 

S.E.2d 503, 507 (S.C. Ct. App. 1998). Effective June 11, 1997, parties must be at least 

16 years old to enter into a common-law marriage in South Carolina. S.C. Code 1976 § 

20-1-100.

Texas 

Texas recognizes common-law marriages contracted within the state and there are three 

elements of a Texas common-law marriage: (1) the parties agreed to be married; (2) after 

the agreement, they lived together in Texas as a married couple; and (3) while they were 

living together in Texas they represented to others in Texas that they were married.

Lewis v. Anderson, 173 S.W.3d 556, 559 (Tex. App. 2005); Winfield v. Renfro, 821 

S.W.2d 640, 643-645, 648 (Tex. App. 1991). See also Tex. Fam. Code Ann. § 

2.401(a)(2) (2019). All three required elements must occur concurrently and must coexist, i.e., although they may initially arise at different times, they must all exist at the 

same time in order to establish a common-law marriage under Texas law. Winfield, 821 

S.W.2d at 645-646, 648, 653. To establish the first element, “the evidence must show 

[that] the parties intended to have a present, immediate and permanent marital 

relationship and that they did in fact agree to be husband and wife.” Winfield, 821 

S.W.2d at 645; Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App. 2001). However, the 

existence of this agreement may be inferred from evidence of the cohabitation and 

representations of the parties. Winfield, 821 S.W.2d at 646. Also, an agreement to be 

married may be proved by direct or circumstantial evidence. Russell v. Russell, 865 

S.W.2d 929, 933 (Tex. 1993). To establish the second element, the evidence must show 

that the parties lived together in Texas as a married couple; cohabitation in another state 

is insufficient to establish the second element. Winfield, 821 S.W.2d at 646-648. To 

establish the third element, the parties must represent to others in Texas that they are 

married; representing to others in another state that they are married does not establish 

this element. Winfield, 821 S.W.2d at 648-651. Spoken words are not required to 

establish the third element; it can be established by conduct and actions of the parties.

Winfield, 821 S.W.2d at 648; Eris, 39 S.W.3d at 715. However, the marriage must be 

“widely known in the community” and “occasional introductions as husband and wife do 

not establish the element of holding out.” Winfield, 821 S.W.2d at 651 (citations 

omitted). Proof of cohabitation and representations to others in Texas that they were 

married may constitute circumstantial evidence of an agreement to be married. Eris, 39 

S.W.3d at 714. Finally, if the parties have been separated and ceased living together for a 

period of two years, “it is rebuttably presumed that the parties did not enter into an 

agreement to be married.” Tex. Fam. Code Ann. § 2.401.
Appendix 7

Utah

Utah recognizes common-law marriages under very limited circumstances. Utah first 

repealed the doctrine of common-law marriage in 1888, only to later readopt it with the 

enactment of Utah Code Ann. § 30-1-4.5. The current version of the statute provides that 

a marriage that has not been solemnized is legal if either a court or administrative order 

establishes that the marriage arises out of a contract between a man and a woman who: 

(1) are of legal age and capable of giving consent; (2) are legally capable of entering a 

solemnized marriage; (3) have cohabitated; (4) mutually assume marital rights, duties and 

obligations; and (5) hold themselves out as – and have acquired a uniform and general 

reputation as – husband and wife. Utah Code Ann. § 30-1-4.5 (2021); In re Marriage of 

Kunz, 136 P.3d 1278, 1282 (Utah App. 2006); State v. Green, 99 P.3d 820, 823 (Utah 

2004). If there is no order establishing that a common-law marriage exists, the State of 

Utah will not recognize the relationship as a legal and valid marriage. See Kunz, 136 

P.3d at 1282; Behrman v. Behrman, 139 P.3d 307, 310-311 (Utah App. 2006).