Does Pennsylvania Recognize Common Law Marriage?
Only if the marriage was formed on or before January 1, 2005. Under 23 Pa.C.S. § 1103, "No common-law marriage contracted after January 1, 2005, shall be valid," but a common law marriage that was otherwise lawful and contracted on or before that date is not made invalid.
A Western Pennsylvania case shows that the old marriages still matter today. In In re Estate of Carter (2017), an appeal from Beaver County, the Pennsylvania Superior Court held that same-sex couples have the same right as opposite-sex couples to prove a common law marriage formed before January 1, 2005, and it restated how hard that proof is: words in the present tense, spoken for the specific purpose of creating a marriage, established by clear and convincing evidence. For couples who never married, the stakes show up in tax as well as property. The Pennsylvania Department of Revenue taxes transfers to a surviving spouse at 0 percent, while friends and other unrelated heirs pay 15 percent. This guide explains the cutoff, how a pre-2005 marriage is proved, and what unmarried partners can do instead. It describes how the law generally works and is not legal advice.
What Does Pennsylvania Law Say About Common Law Marriage?
A common law marriage is a marriage created by the couple's own exchange of present-tense words agreeing to be married, without a license or a ceremony. Pennsylvania once recognized them, then closed the door by statute.
The statute is 23 Pa.C.S. § 1103, added by Act 144 of 2004, which was enacted November 23, 2004. It does two things. It bars any common law marriage contracted after January 1, 2005, and it protects common law marriages that were otherwise lawful and contracted on or before that date.
So the question for any couple claiming a common law marriage in Pennsylvania is whether they created one by the required words on or before January 1, 2005.
What Was the Stamos Decision?
Before the legislature acted, a court moved first. In PNC Bank Corp. v. Workers' Compensation Appeal Board (Stamos), decided September 17, 2003, the Commonwealth Court said that "henceforth, this court will recognize as valid only those Pennsylvania marriages entered into pursuant to the Marriage Law procedures," and gave that ruling purely prospective effect.
The legislature then set its own line in § 1103. When the Superior Court decided Estate of Carter in 2017, it cited Stamos for the abolition of the doctrine and treated January 1, 2005, as the date that matters for recognizing earlier common law marriages.
How Do You Prove a Common Law Marriage Formed Before 2005?
The burden is on the person claiming the marriage, and it is heavy. The Carter court explained that a common law marriage can only be created by an exchange of words in the present tense, spoken with the specific purpose of creating the legal relationship of marriage. The standard of proof is clear and convincing evidence.
When the words themselves cannot be proved, the court recognized a fallback: a rebuttable presumption of marriage based on constant cohabitation and a reputation of being married. A presumption can be rebutted, though, so couples relying on it should be ready for a contest if money or property is at stake.
Proof problems tend to surface after a death or during a breakup, when one partner may no longer be available to testify. Reputation evidence then has to come from family, friends and neighbors describing how the couple presented themselves over the years.
Can Same-Sex Couples Claim a Pre-2005 Common Law Marriage?
Yes. The trial court in Carter had ruled it was legally impossible for a same-sex couple to marry before 2005. The Superior Court rejected that reasoning as inconsistent with the U.S. Supreme Court's decisions in Windsor and Obergefell and the federal court decision in Whitewood, and held that same-sex couples must have the same right to establish a pre-2005 common law marriage.
The same proof standard applies. A same-sex couple still needs clear and convincing evidence of present-tense words creating a marriage on or before January 1, 2005.
What Rights Do Unmarried Partners Have in Pennsylvania?
Far fewer than spouses, especially at death. Pennsylvania's intestacy statute gives shares to a surviving spouse under 20 Pa.C.S. § 2102 and then to relatives such as children, parents and siblings under § 2103. An unmarried partner is not on either list, so a partner who dies without a will leaves nothing to the survivor by default. Our post on what happens if you die without a will in Pennsylvania walks through who does inherit.
The tax gap is just as sharp. The Department of Revenue lists inheritance tax at 0 percent for a surviving spouse and 15 percent for collateral heirs, a group that includes friends. On a $200,000 house left to an unmarried partner, that is $30,000 of Pennsylvania inheritance tax that a spouse would not owe.
What Should Unmarried Couples Do Instead?
Plan on paper. The tools are the same ones married couples use, but for unmarried partners they do all of the work because the law supplies nothing by default:
A will that names your partner and an executor you trust.
Beneficiary designations on life insurance and retirement accounts. Our post on whether beneficiary designations override a will explains how they interact.
A durable power of attorney and a health care power of attorney, so your partner has authority to act if you cannot.
A clear decision about how a shared home is titled, made with an attorney who can explain the tax and creditor consequences.
If you are in a relationship that began before 2005 and you believe you may be married at common law, talk with a family law attorney before making assumptions either way. The answer affects divorce, support, inheritance and benefits. Our posts on how to file for divorce in Pennsylvania and what legal separation means in Pennsylvania cover the next steps if the relationship is ending.
FAQ
Can you still enter a common law marriage in Pennsylvania?
No. Under 23 Pa.C.S. § 1103, no common law marriage contracted after January 1, 2005, is valid.
We have lived together for 20 years. Are we married?
Not because of the time alone. You would need clear and convincing proof that you exchanged present-tense words creating a marriage on or before January 1, 2005.
Does a valid pre-2005 common law marriage still count today?
Yes. Section 1103 says it does not make an otherwise lawful common law marriage contracted on or before January 1, 2005, invalid.
Can same-sex couples prove a common law marriage from before 2005?
Yes. The Superior Court held in Estate of Carter (2017) that they have the same right as opposite-sex couples.
What inheritance tax does an unmarried partner pay in Pennsylvania?
Generally 15 percent, the collateral rate that the Department of Revenue applies to friends and other unrelated heirs. A surviving spouse pays 0 percent.
How do I end a common law marriage?
Talk with a family law attorney. Whether you need a divorce depends on whether a valid marriage was formed before 2005, which is a fact-specific question.
Family Law and Estate Planning at David K. Lucas & Associates
David K. Lucas & Associates PLLC, at 140 South Main Street, Suite 301, in Greensburg, handles family law and estate planning, which is useful when a relationship question also affects a will or an inheritance. Attorney Brittney E. Reay is the lead attorney on the firm's domestic relations matters, including divorce, custody, support and equitable distribution, and Attorney David K. Lucas prepares wills, powers of attorney and living wills. Learn more about our divorce representation and will preparation.
Visit David K. Lucas & Associates or call 724-836-3300 today. Contact us for more information.
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