Common Law Marriage - How it Works

New Hampshire law can protect a disinherited spouse.  Such policies are grounded in the institution and the protections that come with marriage.  From a public and social policy standpoint, it makes sense that one should not be able to completely disinherit a spouse.  When that happens, and it does happen, New Hampshire law steps in to protect the surviving partner.  But what if the couple is not married?  With more frequency we see couples in lasting relationships where they have decided not to marry, does the law protect these couples in the same way as married couples?

The short answer is maybe, and only after death.  Under New Hampshire State law, if one unmarried partner is deemed to be a “common law spouse,” that individual will have the same rights as a spouse would at death.  In order to receive this common law spouse status as the surviving partner, the court must determine (1) the couple lived together for at least three years prior to death, (2) the couple held themselves out as a married couple in the community, and (3) the general community understood that the couple was actually married.  Under the governing statute, it is not enough simply to demonstrate a long-term relationship.  Much more must be established.  Evidence such as joint bank accounts, jointly held real estate, jointly held utilities accounts, and other evidence will need to be presented to the court in order to demonstrate ways in which the couple “held themselves” to the community as husband and wife.  It also requires some evidence that the general community in fact believed the couple to be married.  This can be difficult to demonstrate.   

It is ironic that, in order to successfully persuade a court of a common law spouse claim upon death, the surviving partner must essentially show that the couple successfully duped family and friends of their marital status during life.  Nonetheless, if sufficient evidence can be presented, protections do exist.