What Could The Repeal Of Common Law Marriage Laws In Alabama Mean For Your Estate?

Posted on: 30 December 2016

If you're an Alabama resident who has never sought the formality of a marriage ceremony, you may be relying on this state's common law marriage laws to provide your partner with the ability to legally inherit from you upon your death and carry out your end-of-life wishes if you're incapacitated in an accident. However, a change to state law taking effect in 2017 could render your common law marriage void. Read on to learn more about how changes in Alabama's common law marriage laws could affect your final wishes and what you'll need to do to maintain the legal protections you've enjoyed while cohabitating with your partner. 

What changes were made to Alabama's common law marriage laws?

Beginning in 2017, any new common law marriages will no longer be recognized as legal for probate or benefit purposes -- which means that, without a marriage license, spouses won't be able to inherit from each other without a separate will naming each as the other's beneficiary. This change in law is designed to eliminate confusion and expensive posthumous legal battles, as the lack of documentation inherent in common law marriages (which require just an intent and public declaration to share lives as spouses) can make it difficult to determine whether someone actually has the right to inherit from or make important decisions about their partner.

What effect will this change to Alabama law have on an existing common law marriage?

It's not completely clear whether this new law will invalidate common law marriages already in place before 2017. While there are some constitutional issues that come with making a new law retroactive, especially when this retroactive implementation takes away rights that had previously been extended, the relative murkiness of common law marriage as a point of Alabama law can mean that continuing to live without a marriage license does pose some risk.

If you have no desire to make your marriage legal in the eyes of the state but you'd still like to financially protect your spouse, you'll want to visit a probate or estate attorney to have a formal will drawn up. This can ensure that, regardless of whether your marriage is deemed legal under Alabama law, your final wishes will be executed according to plan. This attorney can also assist you with powers of attorney documents that give you the right to make medical and/or financial decisions for your common-law spouse if he or she is incapacitated and unable to communicate on his or her own. 

For further questions about common law marriage, talk to an attorney like those at Wilson Deege Despotovich Riemenschneider & Rittgers.