Common law marriages are done, but make sure they aren't causing lingering issues for your estate plan.

For years, our courts have struggled to deal with determining whether people were "common law" married. This was a fairly unique situation for South Carolinians, as we were one of the less than ten states remaining that still had common law marriage. Even worse, there was not a clear rule for when someone was common law married in South Carolina. While you may have heard it takes a certain number of years (seven is the most common belief), in South Carolina, you could be common law married after living together for less than a year if certain criteria were met. Our Supreme Court finally ruled that, as of July 24, 2019, no one could enter into a common law marriage going forward in South Carolina.

Essentially, to be common law married in South Carolina you just had to hold someone out to be your spouse and there had to be substantial proof that both parties intended to be married. With so many couples in modern society deciding to live together without being married, the decision as to whether they had entered into common law marriage was often one for judges that could take days of testimony and exhibits to prove. This especially became an issue when one party died. Often the surviving spouse would be entitled to certain benefits as well as a percentage of the deceased spouse's estate. These rights meant we have had several cases (and continue to litigate some final ones) in which determination of whether someone was common law married at the time of death could cause huge changes in inheritance rights.

Worse still, while we had common law marriage, there is no such thing as a common law divorce. So even if you and the person you were common law married to have split up and not lived together (or seen each other) for decades, and even if you have now remarried someone else, that original common law marriage could still stand AND you could be found to not actually be married to your new spouse since you cannot be married to two people at the same time.

Also, keep in mind that this case only addresses common law marriages moving forward. If someone claimed common law marriage before July 24, 2019, that will still be an issue for the Court. If you have additional questions about common law marriage or are concerned that you may have entered into a common law marriage at some point, we strongly encourage you to discuss this with an estate planning (and possibly a family law) attorney. These situations can cause major issues for your heirs if something happened to you before this was resolved.

P.S. For those interested, click here for the link to the full Supreme Court opinion.

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