I want to debunk a myth I hear all the time: common law marriage is legal in Arizona. Only seven states and the District of Columbia currently recognize common law marriage—but Arizona never has!

 

What happens if you live together for 15 or even 20 years and you are not legally married? Well, your partner cannot make any healthcare decisions for you in an emergency. And when you die, your partner has no legal rights to assets distributed through the probate process or to any assets that are not held jointly.   

 

For example, Bob and Sue have been together for 15 years and incorrectly assume they have a common law marriage. Bob is the only person listed on the house deed and Bob did not record a Beneficiary Deed before he died. Bob also never created a Will.   Sue has no legal rights to that home upon Bob’s death.

 

The house will go through the probate process and will be distributed to Bob’s legal heirs. Sue not only lost her lifetime partner, but she also lost the home she had been living in for years.  

 

I have had this exact scenario play out several times during my career. I cannot tell you how heartbreaking it is to have a conversation with the surviving partner to explain they do not have legal rights. In once case, I had to explain that the eviction notice she got from her “husband’s” children was valid and she needed to vacate the home she had been living in for over 20 years within the next 30 days. There was also a fight over personal belongings in the home; what did she buy vs. what did her partner buy. All this started taking place within days of losing the love of her life.

 

You may be asking, “What if we moved here from a state that does recognize common law marriage?” Arizona will recognize other state’s marital laws. You must show, however, that you are holding yourself out as a married couple.

 

As evidence of this, a court looks to see if you filed your tax returns as a married couple. Lack of filing a married tax return is evidence that you do not hold yourself out as a married couple and Arizona would likely not recognize that common law marriage.

 

A strong estate plan will help protect couples who choose to remain in non-legal relationships. Because in Arizona an unmarried couple is just that, unmarried.