Will You Be My Friend Forever?

Since we’ve been talking about Valentine’s, I’ve been thinking about mine.  I remember when my husband proposed to me.  In his typical fashion, it was meticulously planned, exceptionally romantic and highly rehearsed.  I wonder how many of you believe me.  Actually, it went like this:  He was about to go meet some of his buddies, but had stopped by my house.  He kept playing with something in his pocket.  I noticed the fidgeting and said, “What are you doing?”  He pulled out a ring box and shoved it toward me, and then said he was late and had to leave.  Still makes me smile, and laugh.  I was a little shocked, so when we talked about it later, he said the sweetest thing to me.  “I just want you to be my friend forever.”  I’m glad I married him, but I realize not all friends get married.

Some couples choose to forego marriage for their own reasons, but may be a couple for years.  Often we think of these people as “common law” spouses.  However, “common law marriage” has special considerations with estate planning, which is why Marsha Goetting, MSU Extension Family Economic Specialist has just released the new MontGuide, MontanaCommon Law Marriage and Estate Planning.   A common law marriage is one formed without a license and solemnization by clergy, judge or public official with powers to perform marriages.

Often, we hear that people are common law married if they have lived together a certain number of years, but that is not true.  Most of the time, a person wouldn’t have to prove whether they were common law married or not, but when settling an estate they may have to “prove” they are indeed the “spouse” to receive certain benefits or property.  The first point of proof is that both people were competent to enter a marriage.  Of course, some limitations and exclusions apply, such as not being related to each other and not being married to someone else.  The situation must be mutual.  The two people must express their intent to be married to each other (whether any form or ceremony existed or there are any witnesses).  The Affidavit of Common Law Marriage form found on the Montana State Law Library website.  Also, if they want to declare themselves married, they can file a Declaration of Marriage without Solemnization to officially record the marriage.  In Teton County, the Clerk of Court has samples of the declaration and the filing fee is $53.  (Quite a bit less than a wedding!)

he mutual consent can also be implied by the conduct of the two people.  The last way to confirm a common law marriage is by cohabitation and public repute.  While living together is one element considered by the courts, it is not the determining factor.  There is a list of ways that courts determine whether a couple has represented themselves publicly as married.  Just a few ways include completing forms or documents with a signature line for “spouse,” filing joint taxes or exchanging rings.  If a couple wants to document a common law marriage, they can do so by completing an

You might wonder why verifying a common law marriage matters.  In cases of settling an estate, it can matter a great deal.  We will consider just one example provided in the MontGuide:  John and Mary had lived together for 15 years.  When John died, he had a $2 million ranch.  Let’s say John had the land titled in his name only.  He wrote a will leaving the ranch to his children.  In Montana, a person cannot completely disinherit a spouse.  If Mary proves a common law marriage, she could be entitled to up to half of John’s estate. 

Couples who decide to live together need to understand the ramifications of their decisions.  If they don’t want to be considered married, they should be careful not to represent themselves in such a way that could be legally considered as married.  There are legal implications with how estates are settled involving marriages.  Common law marriages have estate consequences for the couple and any family members. 

As with all situations, people should review their estate planning goals and make sure their contractual arrangements and wills match with their intentions.  As one way to review, you  may want to attend one of several of Goetting’s classes around the Golden Triangle area starting March 9 in Teton County.  Watch for details next week on topics and locations.  When it comes to estates and finances, it seems to me that things tend to work out best when they are planned and well thought out.  Although, every once in a while something less than meticulously planned will work, too.  But maybe you’d better ask my husband about that.