While common law marriage is not recognized as a legal way of marrying in the State of New York for inheritance and other legal purposes if the marriage is valid in a state that does recognize common law marriage, New York law would then recognize that marriage as valid in accordance with the “full faith and credit” clause of the U.S. Constitution.
In other words, if a couple can establish their common law marriage relationship in a state that recognizes common law marriage such as Pennsylvania, Alabama, Colorado, District of Columbia, Georgia (if common law marriage created prior to 1/1/97), Iowa, Kansas, Montana, New Hampshire (for probate purposes), Oklahoma, Rhode Island, South Carolina, Texas, Utah, Ohio, and Florida (if common law marriage was entered into before 1968), then New York would recognize that marriage and the couple’s inheritance right to each other’s estate should one pass away.
However, the criteria for establishing common law marriage varies depending upon which state the couple is claiming recognizes their common law marriage. For example, let’s say the couple resides in Manhattan. However, they visited the State of Pennsylvania for a week last year while on vacation. Because Pennsylvania law does not require any specific period of time that the couple must reside in the State to establish their common law marriage, even spending a vacation and producing a hotel receipt might be construed as a legal common law marriage. If the couple then returns to their residence in New York, and one of them dies six months later, New York law may possibly recognize the common law marriage and the inheritance rights of the surviving partner similar to those of a legally married New York spouse.
Since New York inheritance and estate laws are complex, it is always recommended that you consult with a New York probate and estate attorney regarding estate and inheritance issues.
For couples who choose to cohabitate and not legally marry in New York, a better way to ensure inheritance rights is for each person to make a will and/or trust and name the other partner as a beneficiary. This will avoid a legal battle later among other family members of the decedent or other heirs and beneficiaries, providing the will and/or trust are deemed valid under New York law. Also, by establishing joint bank accounts and other joint financial accounts, owning property jointly and naming the other person as a beneficiary under a life insurance policy or pension plan, title to the asset will automatically pass to the surviving beneficiary/cohabitating partner. So even though there is no Common Law Marriage in New York, a couple would still have inheritance rights to each other’s estate.
A New York probate and estate attorney can prepare the will and/or trust and advise the cohabitating couple of other estate planning measures that they can take to ensure that they are legally able to inherit the other’s assets after one of them passes away without having to rely on the concept of common law marriage.
If you wish to speak to a New York estate attorney, call the Law Offices of Albert Goodwin at (212) 233-1233.