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Who is a Common Law Spouse Under New Hampshire Law?

On Behalf of | Mar 30, 2015 | Divorce & Family, Wills, Trusts, Estate Planning and Administration

Common law marriage is recognized under New Hampshire law in very limited circumstances pursuant to a New Hampshire statute, RSA 457:39, and only applies when one of the people in the relationship has died and the other claims their spousal share of the decedent’s assets. In order for the survivor to be successful in a common law spouse claim, he must prove that he and the decedent cohabitated and acknowledged each other as husband and wife and were generally reputed to be such for a period of three years until the decedent’s death. The common law spouse statute requires that the acknowledgement of the other as one’s spouse involves declaration or avowal of the relationship. “Avowal” means an open declaration or frank acknowledgement. This statute was created many years ago when people who were not married, but living together, were often embarrassed to acknowledge that they were sharing a home and a bed, but were not married. These days it is much more common that people will have a boyfriend or girlfriend living with them and sharing a bed and freely acknowledge that they are not married. If two people were living together for 3 years sharing a bed and while acting as husband and wife would acknowledge to friends, relatives, and/or co-workers that they were not married, the common law spouse claim should be found to be invalid. Therefore the survivor would not generally be allowed to collect from his live-in girlfriend’s probate estate. Furthermore, if they had a break in their relationship, even for one month within the last three years during their relationship, resulting in one of them moving out of the home they shared, that break in cohabitation would also render a common law spouse claim invalid.

I have dealt with common law spouse claims, including litigation and mediation and can assist either side of this issue. I have also addressed claims by significant others as to a particular asset such as real estate and there was a constructive trust or de facto partnership claim because both people in the committed relationship had shared the expenses of that real estate.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].