Common law marriages are legally recognized marriages between two partners that have been together for a set amount of time, in many places, for example, seven years. Despite the term, common law marriages are not very common in the United States and are only recognized in a few states. In Florida, the belief that common law marriages are legally recognized is a MYTH.
Does Florida Recognize Common Law Marriages?
According to Florida statute §741.211, any common law marriage entered into after January 1, 1968 is void. Regardless of the duration of a relationship, even if a couple has been together for many years or decades, have children together, or share property and assets, common law marriages are not legally acknowledged or valid in Florida.
Exceptions for Common Law Marriage in Florida
Although common law marriages initiated in Florida are void, Florida does recognize the validity of any marriage, including common law marriages, legally created in another state.
Do Unmarried Couples Have the Same Rights as Married Couples in Florida?
Unmarried couples in Florida have no spousal rights compared to those lawfully married in Florida. In Florida, when one spouse passes away without a Last Will and Testament, the surviving spouse is entitled to, at minimum, a portion of the estate. In contrast, when one partner passes away without a Last Will and Testament, the surviving spouse is not entitled to any part of the estate. The estate, in turn, will be distributed to the decedent’s next of kin as outlined under the Florida Statutes. This type of distribution will very likely cause negative implications on the surviving partner, including financial insecurity and, possibly, even a change in residence.
The Importance of Estate Planning for Unmarried Couples in Florida
It is imperative that all individuals have a sufficient estate plan that meets their needs. It is incredibly important that couples have an estate plan, especially if they are not married, as they are not offered legal protection under Florida laws. Without a Durable Power of Attorney, a partner is unable to manage the assets of the other partner. Without a Health Care Surrogate and Living Will, a partner is unable to make medical decisions, including end-of-life decisions, for the other partner. Without a Last Will and Testament or Revocable Living trust, the surviving partner does not receive any of the deceased partner’s assets that need to go through probate or a trust administration process.
In order to avoid a guardianship case, it is imperative that advanced directives, like a Durable Power of Attorney and Health Care Surrogate and Living Will are properly created and executed. In order to avoid an expensive, and possibly litigated, probate case, subject to the intestacy laws of Florida, it is imperative that a Last Will and Testament and/or Revocable Living Trust are created. “Common law spouses” in Florida are treated no different than individuals’ friends and are provided no funds or assets in probate under the Florida intestacy laws.
A proper estate plan does not address the mystery of how others may live, but it does address individuals’ concerns who want to ensure that they are leaving the best plan for their family when they are incapacitated or when they pass away. It is especially important that long-term partners and couples have proper estate plans created to ensure the surviving partner is properly cared for when one passes away. If you have a long-term partner and would like to create an adequate estate plan to protect yourself, your partner, and your family, please contact our team of experienced estate/probate attorneys to discuss your options and determine what plan is best for you.
About the Author
Attorney Rebecca K. Schultz is a passionate and dedicated attorney specializing in estate planning, guardianships, and adoptions, committed to serving individuals and families in crafting their legacies. She has been helping clients with estate planning needs since 2016, first as a paralegal before attending law school and becoming a licensed Florida attorney.
