Turner Padget Insights

Common-Law Marriages Can No Longer Be Formed in South Carolina — and Pre-Existing Ones May Also Be Affected by a Recent South Carolina Supreme Court Ruling

Posted On January 31, 2020

Common-law marriage has existed for centuries in South Carolina. It arose when transportation to the courthouse to obtain a marriage license was difficult and the cost of a marriage license could be burdensome. The State’s recognition of marriages without formal documentation was particularly desirable in order to legitimize children born of the relationship. However, proving that a relationship was a common-law marriage has long caused problems for the parties and the courts, both in divorce and death situations.

Those problems were somewhat resolved by a ruling of the South Carolina Supreme Court last summer. The ruling, issued in a case entitled Stone v. Thompson, prevents a new common-law marriage from being established in South Carolina after July 24, 2019. However, this ruling does not affect a common-law marriage that was entered into prior to that date.

Therefore, the date a couple enters into a marital relationship is now a key consideration for determining spousal rights. If the relationship begins after July 24, 2019, a couple can no longer claim they are in a common-law marriage — they will need a marriage license and to undergo an actual ceremony to be considered married.

The supreme court’s abolition of common-law marriage in South Carolina does not apply to couples who had been living together without a marriage license as a married couple prior to July 24, 2019. Their relationship can still be considered a common-law marriage in South Carolina with the proper proof. In its ruling, the supreme court standardized the proof required to establish a common-law marriage during life or after death.

Proving a Common-Law Marriage

Although there is a frequent misconception that couples will be automatically recognized as being in a common-law marriage after living together for seven years, the length of the relationship is not a determining factor.

A common-law marriage, like any other marriage, is a contract. The parties must agree between themselves to be married. They show their agreement by acting like a married couple: living together, treating each other as a spouse, and holding themselves out in the community as a married couple.

If both parties agree that they are married, then establishing a common-law marriage is relatively simple. The parties can just execute an agreement stating that they are married and when they became married. Having the agreement witnessed or notarized is a good idea.

Issues arise when there is no written agreement; for example, one party says they are married and the other party disputes that fact or is incapacitated or deceased. Then a court must decide if the parties are married.

Generally, the proof would consist of witnesses who state that the couple has consistently presented themselves as married to family, friends and the general public. Documents also provide proof. A court will often look at income tax returns, health care forms, beneficiary designations, birthday and Valentine cards they exchanged, how Christmas cards they sent out were signed, and how they checked into hotels and events.

After July 24, 2019, the proof needed has been standardized for common-law marriages, whether established during the lifetime of both parties or after the death of a party. Rather than just tipping the scales slightly toward married, now the person asserting that the parties are married must prove the marriage by “clear and convincing evidence.” This is not quite as much proof as “beyond a reasonable doubt” but is certainly more than “more likely than not.”

Couples who have told certain people they were married because it was more convenient than explaining that they legally were not may find their marital status called into question.

Marriage’s Advantages

Marriage provides a number of rights:
  • A spouse can be covered by the other spouse’s health insurance.
  • A spouse can make health care decisions for an incapacitated spouse.
  • A spouse has priority to be appointed as guardian or conservator for an incapacitated spouse.
  • A spouse is eligible for financial support during the relationship and for alimony if the relationship ends.
  • On divorce, a spouse is entitled to equitable distribution of assets acquired during the marriage.

If the relationship is not recognized as a marriage, a judge could limit or deny the live-in partner any right to have a say in what happens to the other person’s assets. The marital home could be sold without input from the live-in partner for example. On the other hand, if a couple is married and the home was purchased during the time they were married, even if it is in one spouse’s name, the other spouse would have a claim to it, as the home would be considered marital property to be divided.

A spouse also has rights on death:
  • A spouse is preferred to be appointed to administer the deceased spouse’s estate.
  • If there is no Will, a surviving spouse will inherit at least 50% of the spouse’s estate when he or she passes away.
  • A spouse has the right to receive at least 50% of a wrongful death settlement.
  • A surviving spouse is often a beneficiary of life insurance or retirement benefits per the terms of the policy.
  • A surviving spouse can be entitled to Social Security death benefits.
If the marriage was not established during the time the deceased person was alive, then the survivor may not be allowed to determine any funeral or other arrangements when the partner passes away. Family members who were once on a friendly basis with the survivor may not be so accommodating when their loved one is deceased and money is involved.

The survivor who is claiming they were married will need to bring a lawsuit in the probate court to establish the marriage. Other relatives will need to be included and a hearing will be necessary. Even if the fact of marriage is undisputed, obtaining a ruling will take time.

If the issue is not so clear cut, attempting to prove marriage after death can be a challenging, lengthy and costly endeavor. The Stone v. Thompson trial, for instance, lasted more than a week and involved testimony and recorded depositions from more than 40 witnesses and close to 200 exhibits, according to court records. After all that, the trial court and the supreme court differed on whether the couple was legally married.

Proactively Addressing Relationships

If a couple is presently in a relationship and wants to be considered married to ensure they’ll have spousal rights going forward, they may find it easier and more cost-effective to simply obtain a marriage license and participate in a simple ceremony. A notary public or ordained religious leader can perform a marriage ceremony in South Carolina.

Sometimes when rights arise is important. For example, a home acquired prior to the marriage is not marital property to be equitably divided. However, a home acquired during the marriage is marital property and is subject to equitable distribution on divorce. So, in that instance, being married going forward does not provide any rights in a home that is already owned by one of the parties.

Instead of becoming married through normal procedures or trying at some point to prove in court that their relationship achieved common-law marriage status before July 24, 2019, the couple who considers themselves married by common law may want to enter into a formal agreement defining the relationship. Without an actual marriage certificate, partners may find they have fewer rights than they thought.

On the other hand, a couple who wants to ensure their relationship wouldn’t be considered a pre-existing common-law marriage or who enter into a relationship after the July 2019 cutoff date may also want to draw up a formal agreement to define their arrangement to live together and maintain an unmarried status. To prevent potential property ownership disputes and other concerns, couples will want to proactively document how they’d like to handle situations where they won’t be able to take advantage of the privileges granted to married couples. Executing a health care power of attorney (South Carolina has a statutory form) or a financial power of attorney to allow your partner to make decisions on your behalf should you become incapacitated is an option worth considering.

An estate planning lawyer is highly experienced in knowing how to establish a common-law marriage and can help couples identify areas they may need to pre-emptively address. An estate planning attorney can also help draft documents to establish the nature of the relationship and to outline the rights each would like the other to have if the relationship is not a legal marriage.

Catherine H. Kennedy is certified by the SC Supreme Court as a specialist in estate planning and probate. For 12 years, she served as the probate court judge in Columbia, South Carolina, one of the largest probate courts in the state. She has chaired the Probate, Estate and Trust Section of the South Carolina Bar, served on the Board of Governors for the South Carolina Bar and chaired the Probate Code Committee that recommended extensive changes to the SC Probate Code. Ms. Kennedy is currently a member of the American College of Trust and Estate Counsel, a national invitation–only organization recognizing attorneys with exceptional skill and expertise in trust and estate matters. She can be reached at CKennedy@turnerpadget.com or 803-227-4367.

Melody J. E. Breeden focuses her practice in the areas of estate planning and probate law, handling matters ranging from simple wills, durable powers of attorney and health care powers of attorney to revocable and irrevocable trusts. She served as the 2018-2019 Chair of the Probate Estate Planning and Trust Section of the South Carolina Bar. She is a member of the American College of Trust and Estate Counsel. She has been certified by the South Carolina Supreme Court as a specialist in estate planning and probate law and currently serves on the Estate Planning and Probate Law Specialization Advisory Board. She is a certified civil court mediator. She currently serves on the Coastal Educational Foundation Board and is the Chair of the Coastal Planned Giving Advisory Council of Coastal Carolina University. She can be reached at MBreeden@turnerpadget.com or 843-213-5530.