I frequently get phone calls regarding common law marriage in Florida. Typically, the caller is a woman, has lived with a man for several years, and either he has died recently or they have split up. She wants to know what her rights are in Florida as a common law wife.
The short answer is, she probably doesn’t have many rights. With a couple of very limited exceptions, Florida does not recognize common law marriages. The two exceptions are if you formed a common law marriage in a state that recognizes common law marriage, and then moved to Florida, or if you formed a common law marriage in Florida on or before 1968. In the overwhelming majority of cases neither exception applies; nearly always the relationship started here in Florida and started after 1968.
In a nutshell, unless the other person has made some sort of legal provision for the other partner, such as putting their name on a deed, putting them on a bank account, or making them beneficiary of an insurance policy or put the woman in a will, or such, it is going to be very difficult to enforce any sort of rights against them or their estate. If the man died and left his house to his children in his will, or even if he died without a will, the woman is very likely to be at the mercy of the surviving children. The children can demand the woman immediately vacate the house and turn over any property to them. Unless there is either some sort of legal documentation in place, or unless the woman is actually, legally, married to the man, she basically has no rights.
Theoretically, depending on the exact facts, there may be a possibility of recovering some property under several different legal theories, such as quantum meruit, or seeking the imposition of an equitable lien on some real property, or putting in a claim against the estate; but these are very fact dependent, and usually kind of shaky theories; last ditch salvage operations as it were. And, they clearly involve lawsuits, which means that it isn’t likely to be cheap to try to do this.
I see this all the time; typically the man and the woman are living together, acting as husband and wife, and the man promises to ‘take care’ of the woman after his death. But he never actually gets around to it. There are a number of things that he could do; I discuss some of the options here Estate Planning for Unmarried Couples, Part 1
here, Estate Planning for Unmarried Couples, Part 2 , and here, Estate Planning for Unmarried Couples, Part 3 , but for whatever reason, they aren’t done. Then the man dies, and the children come in and kick the woman out of the house.
From the woman’s’ perspective, the best thing she can do to protect herself is to insist on marriage. Marriage gives you very definite rights in Florida; if there are concerns about one person getting all of the estate of the other person and depriving one set of children of property, then a properly drafted pre nuptial agreement can set out exactly who gets what, which I discuss here Prenuptial Agreements in Florida .
.
If he or she is unable or unwilling to marry, then they need to make sure the other partner follows through with planning.
If you don’t look after this during both partners lifetimes, then the surviving partner is likely to be stuck after the first partner dies.
If you have questions about your rights, you need to talk to lawyer, before someone dies.
-
Recent Posts
- Terminating rental agreements and Evictions for violations of rules and leases
- Sumter County, Florida, Commissioners Defamation Lawsuit
- Mobile homes, manufactured homes, modular homes, and mobile home parks in Florida
- Florida Do Not Resuscitate Orders or DNRs’
- Advice to the New Law Student, or One L.
Recent Comments
- Admin on When you should not talk to the police
- Elisa S. Worthington on Advice to the New Law Student, or One L.
- admin on Florida does not register guns
- admin on Florida does not register guns
- Barbara Dixon on Florida does not register guns
Archives
- October 2020
- June 2018
- May 2018
- February 2018
- May 2016
- February 2014
- January 2014
- December 2013
- November 2013
- October 2013
- September 2013
- August 2013
- July 2013
- June 2013
- May 2013
- April 2013
- March 2013
- February 2013
- January 2013
- December 2012
- November 2012
- October 2012
- September 2012
- August 2012
- July 2012
- December 2011
- November 2011
Categories
- Asset Protection
- Business Law
- Co-Owners
- Contracts
- Criminal
- Death and Taxes
- Divorce
- Elective Share
- Estate Planning
- Fees and Costs
- Funerals
- Guardianships
- Health Care Surrogacies
- Homestead
- Insurance
- Landlord Tenant
- Partition
- Personal Injury
- Powers of Attorney
- Prenuptial Agreements
- Probate
- Real Estate
- Scams
- Uncategorized
- Will Contest
- Wills
Meta