In New Hampshire, marriage is defined by statute, which says that marriage is the legally recognized union of two people. In order to be married in New Hampshire, a couple must fill out a marriage application and file it with a town clerk’s office. The town clerk, in turn, creates and delivers a marriage license conveying the information that was on the application. Once the couple has a marriage license in hand, they can either:
- Be married in a civil ceremony by a Justice of the Peace, a State Supreme Court Justice, a Superior Court Judge, a Circuit Court Judge, or by another judge who meets certain guidelines; or
- Be married in a religious ceremony by a person who is authorized to formalize a marriage.
Many people believe that if they never have a formal marriage ceremony and marriage license filed with the state but they hold themselves out to the public as a married couple for a certain amount of time, they will then be considered married by common law. That is true is some states, but not all.
New Hampshire does not follow this common law marriage rule. If a couple does not have a marriage license, they will not have the rights and responsibilities of a statutorily married couple. Some, but not all, of these rights may include the ability to take their spousal share of their partner’s assets in the event of a separation or divorce, tax deductions, tax free transfers of property between spouses during their lifetimes, the right to receive proceeds of retirement accounts upon their spouse’s death, and access to their spouse’s social security benefits upon their death.
New Hampshire does recognize common law marriage by statute under limited circumstances upon the death of one of the couple. N.H. R.S.A. 457:39 states that “persons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for the period of 3 years, and until the decease of one of them, shall thereafter be deemed to have been legally married.”
In a nutshell, the statute says that if you lived with your partner for at least three years prior to their death, and while you lived together, you and your partner thought of yourselves as married, you held yourself out to everybody that you were married, and you acted as if you were married, then you may qualify as a common law spouse once your partner dies.
One of the reasons a survivor of a couple that do not have a marriage license wants a ruling that there was a common law marriage is to obtain a statutory spousal share of their deceased partner’s assets. Proving this is tough, and if you expect out of the relationship to get certain assets of your partner upon death, you should discuss that with your partner and an estate planning attorney who could assist in creating jointly held assets to achieve your goal. Not planning for the contingencies of a relationship breakup or death can leave you unprotected.
Andrea Nelson is an attorney at Hamblett & Kerrigan who focuses her practice in the area of estate planning, including wills, trusts, health and financial powers of attorney. Attorney Nelson can be reached at [email protected].