M21-1 Manual / Part VII, Subpart i, Chapter 2, Section B

Establishing Common Law Marriages

M21-1, Part VII, Subpart i, Chapter 2, Section B

Overview

In this Section

This section contains the following topics:

Topic	Topic Name
1	Common Law Marriage Requirements
2	Development to Establish a Common Law Marriage
3	Validity of Common Law Marriages By State
4	Validity of Common Law Marriages Outside the U.S.
5	Establishing a Common Law Marriage for a Claimant Not Living in a State Recognizing Common Law Marriages
6	Establishing a Common Law Marriage Against the Claimant’s Will
7	Administrative Decision Required to Recognize or Reject a Common Law Marriage

1. Common Law Marriage Requirements

Introduction

This topic contains information on common law marriage requirements, including

how a common law marriage is contracted
registration of informal marriages
terminating an established common law marriage
elements required when establishing a common law marriage
establishing that parties held themselves out to the public as married
evidence to prove parties held themselves out to the public as married
secondary evidence in jurisdictions where other than ceremonial marriages are recognized, and
supplemental evidence in jurisdictions where other than ceremonial marriages are recognized.

Change Date

March 18, 2015

VII.i.2.B.1.a. How a Common Law Marriage Is Contracted

In some jurisdictions it is possible to contract a marriage without a ceremony and without registration of the marriage.Common law marriages are entered into by agreement of the parties and do not require a formal ceremony.Note: The Department of Veterans Affairs (VA) recognizes common law marriages between individuals of the same sex if the marriage was established in a jurisdiction that recognizes common law marriages. References: For more information on
the states that recognize common law marriages, see M21-1, Part VII, Subpart i, 2.B.3.a, and
determining the proper effective date for granting entitlement to additional
disability compensation based on a same-sex marriage, see M21-1, Part VII, Subpart i, 1.C.2.h, and
Veterans Pension based on a same-sex marriage, see
38 CFR 3.114(a), and
38 CFR 3.401(b).

VII.i.2.B.1.b. Registration of Informal Marriages

Although some jurisdictions provide for registration of informal marriages, a common law marriage can usually be established without registering with any governmental entity.A copy of the document registering the informal marriage may be accepted to establish the marriage from the date it was registered.Reference: For more information on establishing common law marriages, see
M21-1, Part VII, Subpart i, 2.B.1.d, and
M21-1, Part VII, Subpart i, 2.B.2.

VII.i.2.B.1.c. Terminating an Established Common Law Marriage

Once a common law marriage has been established in a jurisdiction recognizing common law marriages, it is a valid marriage in all respects, and is no different from a ceremonial marriage.The marriage cannot be terminated except through

divorce
the death of one of the marriage partners, or
annulment.

Notes:
There is no such thing as a “common law divorce.”
A valid common law marriage established in a jurisdiction recognizing such marriages continues to be valid if the parties later move to a jurisdiction not recognizing common law marriages.

VII.i.2.B.1.d. Elements Required When Establishing a Common Law Marriage

The legal requirements for establishing a common law marriage vary from jurisdiction to jurisdiction. Per Burden and Coleman v. Shinseki, 727 F.3d 1161 (Fed. Cir. 2013), VA must use the evidentiary standard of the state in which a common law marriage took place in order to determine the validity of a common law marriage.Typically, all of the elements listed below must be present before a common law marriage may be established.
Element Description
An agreement between the parties to be married Often this agreement is explicit, but it can be inferred from the conduct of the parties. The statement of one of the parties that there was no agreement to be married is not necessarily conclusive, especially when
the statement is self-serving, and
there is evidence that the parties held themselves out as married.
Cohabitation The parties actually lived together for some period of time.
Holding out to the public as married The parties represented themselves to members of the community as spouses. It is not necessary to have used the same last name.
Reference: For the procedure for developing for evidence of a common law marriage, see M21-1, Part VII, Subpart i, 2.B.2.b.

VII.i.2.B.1.e. Establishing That Parties Held Themselves Out to the Public as Married

Establishing that the parties held themselves out to the public as married is probably the most important element in the development process. This may be established by

statements of persons in the community who knew the parties as spouses, and
documents which show that the parties represented themselves as married.

Reference: For more information about evidence that may prove parties held themselves out to the public as married, see M21-1, Part VII, Subpart i, 2.B.1.f below.

VII.i.2.B.1.f. Evidence to Prove Parties Held Themselves Out to the Public as Married

Evidence that may prove parties held themselves out to the public as married include

lease agreements
joint bank statements
utility bills
tax returns
insurance forms
employment records, and
any other document requiring the individual to indicate marital status.

VII.i.2.B.1.g. Secondary Evidence in Jurisdictions Where Other Than Ceremonial Marriages Are Recognized

In jurisdictions where marriages other than by ceremony are recognized, affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all the facts and circumstances concerning the alleged marriage are required.The facts and circumstances required include

the agreement between the parties at the beginning of their cohabitation
the period of cohabitation
the places and dates of residences, and
whether children were born as a result of the relationship.

VII.i.2.B.1.h. Supplemental Evidence in Jurisdictions Where Other Than Ceremonial Marriages Are Recognized

Supplement the secondary evidence with affidavits or certified statements from two or more persons who know, as the result of personal observation, the reputed relationship that existed between the parties to the alleged marriage, including

the periods of cohabitation
places of residence
whether the parties held themselves out publicly as spouses, and
whether the parties were generally accepted as such in the communities in which they lived.

2. Development to Establish a Common Law Marriage

Introduction

This topic contains information on development to establish common law marriages, including

when to undertake development to establish a common law marriage, and
how to develop for evidence of a common law marriage.

Change Date

November 6, 2015

VII.i.2.B.2.a. When to Undertake Development to Establish a Common Law Marriage

Develop to establish a common law marriage if

the claimant alleges a common law marriage, or
the evidence
- does not establish a claimed ceremonial marriage, but
- does support that the parties lived together in a jurisdiction recognizing common law marriages.

Reference: For information, on which states recognize common law marriages, see M21-1, Part VII, Subpart i, 2.B.3.

VII.i.2.B.2.b. How to Develop for Evidence of a Common Law Marriage

Use the table below to develop for common law marriage.

If the case being developed is a …

Then send the …

live case

Veteran
- VA Form 21-4170, Statement of Marital Relationship, to request a statement concerning the claimed marital relationship
- two copies of VA Form 21P-4171, Supporting Statement Regarding Marriage, to be completed by two persons who know, as the result of personal observation, the relationship that exists or existed between the parties, and
- a request for a copy of each child’s birth certificate if children were born from the marriage, and
claimed spouse VA Form 21-4170.

death case

the claimant

VA Form 21-4170 for completion
two copies of VA Form 21P-4171 to be completed by two persons who know, as the result of personal observation, the relationship that existed between the parties, and
a request for a copy of each child’s birth certificate if children were born from the marriage.

Notes: Upon receipt of birth certificates, confirm that the names of both parties of the claimed common law marriage are on each birth certificate.Reference: For information on development procedures using the Veterans Benefits Management System (VBMS), see the VBMS Core User Guide.

3. Validity of Common Law Marriages By State

Change Date

December 2, 2021

VII.i.2.B.3.a. Recognition of Common Law Marriages by State

Use the table below to check the validity of common law marriages by State.

State	Status of Common Law	State	Status of Common Law
Alabama	01/01/2017	Montana	recognized
Alaska	08/01/1917	Nebraska	08/03/1923
Arizona	10/01/1913	Nevada	03/29/1943
Arkansas	not recognized	New Hampshire	recognized only upon the death of one of the partners, per New Hampshire RSA 457:39
California	not recognized	New Jersey	12/01/1939
Colorado	recognized	New Mexico	not recognized
Connecticut	not recognized	New York	04/29/1933
Delaware	not recognized	North Carolina	not recognized
District of Columbia	recognized	North Dakota	not recognized
Florida	01/02/1968	Ohio	10/10/1991
Georgia	01/01/1997	Oklahoma	recognized
Hawaii	not recognized	Oregon	not recognized
Idaho	01/01/1996	Pennsylvania	01/01/2005
Illinois	07/01/1905	Puerto Rico	not recognized
Indiana	01/01/1958	Rhode Island	recognized
Iowa	recognized	South Carolina	07/24/2019
Kansas	recognized	South Dakota	07/01/1959
Kentucky	not recognized	Tennessee	not recognized
Louisiana	not recognized	Texas	recognized
Maine	not recognized	Utah	recognized under limited circumstances per Utah Code Section 30-1-4.5
Maryland	not recognized	Vermont	not recognized
Massachusetts	not recognized	Virginia	not recognized
Michigan	01/01/1957	Washington	not recognized
Minnesota	04/27/1941	West Virginia	not recognized
Mississippi	04/05/1956	Wisconsin	01/01/1918
Missouri	06/20/1921	Wyoming	not recognized

Legend:Date= Marriage recognized only if established before that date. Example: A common law marriage in Florida is recognized only if it was established before January 2, 1968.

4. Validity of Common Law Marriages Outside the U.S.

Change Date

September 12, 2019

VII.i.2.B.4.a. Determining the Validity of Common Law Marriages Outside the U.S.

Follow the steps in the table below to determine the validity of common law marriages outside the U.S.

Step	Action
1	Check the Social Security Administration’s (SSA’s) Program Operations Manual System to determine whether its Office of General Counsel has made a determination regarding the validity of common law marriages in the country in question.
2	Was the country in question listed on the website? If yes, apply the finding of SSA’s Office of General Counsel in determining whether the common law marriage in question is valid, and disregard the remaining steps in this table. If no, go to the next step.
3	Use reputable (government-hosted, if locatable) websites to determine whether the country in question recognizes common law marriages. *Example: USEmbassy.gov lists the countries in which the U.S. has an embassy. Each embassy has its own website. Typing marriage* in the search box of these websites will result in the retrieval of articles that may indicate whether the host country recognizes common law marriages.
4	Did the action taken in Step 3 reveal whether the country in question recognizes common law marriages? If yes, save a copy of the search results in the claims folder, and disregard the remaining steps in this table. If no, go to the next step.
5	Ask District Counsel for assistance in determining whether the country in question recognizes common law marriages.
6	Document District Counsel’s findings on VA Form 27-0820, Report of General Information. Save a copy of the form in the claims folder.

5. Establishing a Common Law Marriage for a Claimant Not Living in a State Recognizing Common Law Marriages

Introduction

This topic contains information on how to establish a common law marriage for a claimant not living in a jurisdiction recognizing common law marriages, including

action to take when parties live in jurisdictions not recognizing common law marriages
deeming a surviving spouse’s common law marriage valid if the state doesn’t recognize common law marriages, and
establishing a common law marriage for a surviving spouse claimant.

Change Date

February 19, 2019

VII.i.2.B.5.a. Action to Take When Parties Live in Jurisdictions Not Recognizing Common Law Marriages

Follow the steps in the table below if the parties to a claimed common law marriage have lived only in jurisdictions that

do not currently recognize common law marriages, and
have not recognized common law marriages since the time of the inception of the parties’ cohabitation.

Step	Action
1	Is the claimant a surviving spouse alleging a common law marriage to the Veteran? If yes, go to M21-1, Part VII, Subpart i, 2.B.5.b. If no, deny the claim based on the lack of a marital relationship without submission for a legal opinion, and go to Step 2.
2	Follow the instructions in M21-1, Part VII, Subpart i, 2.B.7.

VII.i.2.B.5.b. Deeming a Surviving Spouse’s Common Law Marriage Valid if the State Doesn’t Recognize Common Law Marriages

In VAOPGCPREC 58-1991, the General Counsel held that lack of residence in a jurisdiction recognizing common law marriages is not a bar to establishing a common law marriage for a surviving spouse claimant.Rationale: The common law marriage could be “deemed valid” under 38 CFR 3.52 on the theory that the surviving spouse could have entered into the purported common law marriage without knowledge of the fact that there was an impediment to the marriage. The impediment would be the jurisdiction’s non-recognition of common law marriages.Reference: For more information on establishing common law status for a surviving spouse who did not reside in a jurisdiction recognizing common law marriages, see M21-1, Part VII, Subpart i, 2.B.5.c.

VII.i.2.B.5.c. Establishing a Common Law Marriage for a Surviving Spouse Claimant

Follow the steps in the table below to establish a common law marriage for a surviving spouse claimant who did not reside in a jurisdiction recognizing common law marriages.

Step	Action
1	Develop for evidence to establish the common law marriage, and secure the surviving spouse’s statement as to knowledge that common law marriages were not recognized in the jurisdiction where the parties resided, and the reasons for the knowledge. *Reference*: For more information on the development actions to take when a common law marriage is claimed, see M21-1, Part VII, Subpart i, 2.B.2.
2	Determine, as a question of fact, whether the claimant was without knowledge of the impediment to the marriage based on the statement submitted by the claimant, and any other evidence of record.
3	Conduct a full inquiry, if necessary, as required by 38 U.S.C. 103(a).Reference: For more information on VA’s ability to conduct an inquiry, see VAOPGCPREC 58-1991, and Colon v. Brown, 9 Vet.App 104 (1996).
4	Weigh the evidence submitted both as to its value in providing proof and credibility.
5	Determine whether all of the following requirements are met: The claimant did not know of the impediment to the marriage. All other requirements of a deemed valid marriage are satisfied. All the elements of a common law marriage are present.
6	Are all of the requirements referenced in Step 5 met? If yes, recognize the common law marriage. If no, reject the alleged common law marriage.
7	Follow the instructions in M21-1, Part VII, Subpart i, 2.B.7.

6. Establishing a Common Law Marriage Against the Claimant’s Will

Introduction

This topic contains information on establishing a common law marriage against the claimant’s will, including

claimant’s interest in disavowing a common law marriage
considering the claimant’s statement refuting a common law marriage, and
establishing a common law marriage against the claimant’s will.

Change Date

March 18, 2015

VII.i.2.B.6.a. Claimant’s Interest in Disavowing a Common Law Marriage

A claimant and their spouse may

live together in a jurisdiction recognizing common law marriages under circumstances meeting requirements for a common law marriage, and
choose not to recognize or report the marriage because the spouse has income or net worth that would adversely affect entitlement to benefits.

Important: The marriage must be established if it, in fact, exists.

VII.i.2.B.6.b. Considering the Claimant’s Statement Refuting a Common Law Marriage

The claimant’s statement that there is no agreement to be married is one piece of evidence to consider in determining whether a common law marriage exists. However, the statement may be contradicted by other evidence, such as evidence that the claimant held themself out publicly as the spouse of the other person.

VII.i.2.B.6.c. Establishing a Common Law Marriage Against the Claimant’s Will

To determine whether a common law marriage is in force when disavowed by the claimant,

request a field examination, if necessary
initiate complete development if
- evidence is received that a common law marriage exists, and
- establishing the marriage would adversely affect entitlement to benefits, and
- evaluate the evidence received.

Prepare a two-signature administrative decision in accordance with the instructions in M21-1, Part VII, Subpart i, 2.B.7 to recognize or reject a common law marriage on the merits.Reference: For more information on the claimant’s duty to report relationships, see M21-1, Part VII, Subpart i, 1.A.1.i.

7. Administrative Decision Required to Recognize or Reject a Common Law Marriage

Change Date

July 29, 2024

VII.i.2.B.7.a. Preparing the Administrative Decision

Follow the instructions in M21-1, Part X, Subpart v, 1.C.2 for preparing a two-signature administrative decision.Notes:

As directed in Burden and Coleman v. Shinseki, 727 F.3d 1161 (Fed. Cir. 2013),the evidentiary standard of “reasonable doubt” may not always apply to common law marriage.
If the decision establishes a common law marriage, the issue of the decision is Deemed Valid Common Law Marriage.
No administrative decision is required if the claim was denied for failure to furnish requested evidence.

Source: VA M21-1 Adjudication Procedures Manual, M21-1, Part VII, Subpart i, Chapter 2, Section B (U.S. government work, reproduced for reference). Browse all sections →