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.
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