Leaving Behind a Common Law Spouse in Pennsylvania

Leaving Behind a Common Law Spouse in Pennsylvania

Common law marriages are rare these days. Only nine states still recognize common law marriages. Most states have long abolished common law marriages. For example, in New Jersey, common law marriages were abolished in 1939. Pennsylvania is in an interesting situation, having abolished common law marriages only recently in 2005. In Pennsylvania, no common law marriages coming into existence after 2005 are recognized; however, common law marriages entered into before the abolishment in 2005 are “grandfathered in” and will be recognized.

In Pennsylvania, in order for a valid common law marriage to exist, a couple must exchange words in the present tense of their intent to be married and hold themselves out as husband and wife. The couple must also cohabitate and assume marital duties and obligations. Unlike a ceremonial marriage, however, the couple must prove this by clear and convincing evidence in order for a court to hold that there is a valid common law marriage. Further, given the abolition of common law marriages in 2005, this must have taken place prior to that year.

When it comes to a Decedent’s estate in Pennsylvania, a surviving spouse is given a number of rights. For example, the surviving spouse receives property inheritance tax free, and is automatically given priority to serve as administrator if there is no will naming an executor. Further, the surviving spouse has the right to control the disposition of the remains of the decedent. Finally, the surviving spouse can receive the first $30,000 of the deceased spouse’s estate plus half the balance of the remaining estate. When there is a ceremonial marriage, all of these rights automatically pass to the surviving spouse.

When there is a common law marriage, the surviving spouse does not automatically receive all of these rights. The common law spouse must petition the Register of Wills in the appropriate county and prove the existence of the common law marriage. The Register of Wills will then hold a hearing to make the determination. There are many factors that are taken into account by the Register of Wills in their determination including the length of the relationship, whether the couple had children together, whether the couple owned property jointly as husband and wife, whether the couple filed joint taxes and whether the couple held themselves out in their community and in their family as husband and wife. The Register of Wills has very wide discretion in making their decision.

The process of petitioning the Register of Wills to recognize the common law spouse as the surviving spouse can be costly. Further, the outcome of this process is hard to predict and may not be the desired decision. If the common law spouse is not deemed the surviving spouse, he or she loses the right to control disposition of remains and serve as administrator of the estate. The common law spouse does not automatically inherit from the deceased spouse and any property transferred to the common law spouse either by will or by agreement is subject to a 15% inheritance tax in Pennsylvania.

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