[vskrvc]

What is the law on common law living in New York state
Living like husband and wife for 12 years

[vskrvc]

Do you know what rights a common law marriage has

[JudyKayTee]

There is no common law marriage in NYS; therefore, there are no common law marriage rights in NYS.

[Fr_Chuck]

Yes, most states do not reconise common law marriage any longer.
So for 12 years they have been shackingup and if they want to be married, need to get a license.

[sideoutshu]

what is the law on common law living in new york state
living like husban and wife for 12 years

Well depending on your situation, there are ways to have a common law marriage recognized by NYS even though they are not recognized in general. The problem is, it is a lengthy process that probably isn't worth it in most circumstances.

I have successfully had common law marriages recognized in NY by showing that the couple spent significant time living as husband and wife in a state that did recognize common law marriage, and then moved back to NY. But it involved significant legwork, numerous affidavits of family members, etc.

What are your circumstances?

[JudyKayTee]

Well depending on your situation, there are ways to have a common law marriage recognized by NYS even though they are not recognized in general. The problem is, it is a lengthy process that probably isn't worth it in most circumstances.

I have successfully had common law marriages recognized in NY by showing that the couple spent significant time living as husband and wife in a state that did recognize common law marraige, and then moved back to NY. But it involved significant legwork, numerous affidavits of family members, etc.

What are your circumstances?

What year were you successful? I can't find any case law. (I realize NYS is, in theory, liberal about recognizing common law marriages in other States but can find nothing recent.)

[sideoutshu]

What year were you successful? I can't find any case law. (I realize NYS is, in theory, liberal about recognizing common law marriages in other States but can find nothing recent.)

Well, the thing is, the individual Surrogates Court Judges have a lot of discretion in this type of thing. Also, in the situations where I have incorporated it, there hasn't been an incentive for anyone to challenge the application.

The most recent (4-5 years ago) was a Wrongful death case where a woman died and the proposed administrator was the "common law husband". Now she died without a will, which means that the laws of intestate administration kick in, entitling him to a substantial portion of the estate. The only other distributees (and the only people with standing to object) were the daughters who were in agreement.

What we did was make an application to the surrogates court (Westchester County) based upon the fact that (believe it or not) the couple had taken a one month vacation to Pennsylvania several years earlier where they had held themselves out as husband and wife. Included were the affidavits of family members and people who were on the vacation with them. The it is basically an argument that their time in PA established a CLM under PA law, which in turn had to be recognized by NY.

It is much easier where the couple spends significant time living in a state that recognizes CLM, and it is FAR from a common occurrence. I have dealt with it only a few times in my career.

[Fr_Chuck]

But in general it would be easier for a couple to merely get married, than spend 1000's with attorneys and courts to "maybe" get it approved.

[sideoutshu]

But in general it would be easier for a couple to merely get married, than spend 1000's with attorneys and courts to "maybe" get it approved.

Of course... but the problem is that if someone is trying to prove the existence of a CLM, it is probably because marriage is no longer an option (death or split up).

Either way, my example above is good for about .001% of circumstances.

[JudyKayTee]

Well, the thing is, the individual Surrogates Court Judges have a lot of discretion in this type of thing. Also, in the situations where I have incorporated it, there hasn't been an incentive for anyone to challenge the application.

The most recent (4-5 years ago) was a Wrongful death case where a woman died and the proposed administrator was the "common law husband". Now she died without a will, which means that the laws of intestate administration kick in, entitling him to a substantial portion of the estate. The only other distributees (and the only people with standing to object) were the daughters who were in agreement.

What we did was make an application to the surrogates court (Westchester County) based upon the fact that (believe it or not) the couple had taken a one month vacation to Pennsylvania several years earlier where they had held themselves out as husband and wife. Included were the affidavits of family members and people who were on the vacation with them. The it is basically an argument that their time in PA established a CLM under PA law, which in turn had to be recognized by NY.

It is much easier where the couple spends significant time living in a state that recognizes CLM, and it is FAR from a common occurence. I have dealt with it only a few times in my career.

I have a very similar case involving my best friend - live in significant other died 5 years ago after 10 years together, his children took everything because Court ruled no marriage - common law or other - in NYS. His children even "banned" her from his funeral! However, they did live together in Texas for about three years (which is where they met before moving to NYS and which I see recognizes common law marriage). She was told she was not entitled to SS or pension benefits, also, because there was no marriage. She pretty much lost everything. Would this be malpractice on the part of her Attorney - I don't think she pursued the common law marriage possibility at all. I was at the various Surrogate's Court hearings for support and I never heard any argument other than "no." (I never understood the arrangement but he had a terrible divorce and said never again and she loved him and so... )

[sideoutshu]

I have a very similar case involving my best friend - live in significant other died 5 years ago after 10 years together, his children took everything because Court ruled no marriage - common law or other - in NYS. His children even "banned" her from his funeral! However, they did live together in Texas for about three years (which is where they met before moving to NYS and which I see recognizes common law marriage). She was told she was not entitled to SS or pension benefits, also, because there was no marriage. She pretty much lost everything. Would this be malpractice on the part of her Attorney - I don't think she pursued the common law marriage possibility at all. I was at the various Surrogate's Court hearings for support and I never heard any argument other than "no." (I never understood the arrangement but he had a terrible divorce and said never again and she loved him and so ...)

Well I think it would be very tough to call that malpractice. I think that I was fortunate in my circumstance to be at a firm where the 4 partners had about 120 years of experience between them. It was more creative lawyering on our part and I doubt that 90% of attorneys out there would even consider it. I know it never would have occurred to me if it hadn't been suggested by the managing partner of the firm.

I think if you get into a position where the recognition is going to be challenged, it will be a real battle. But if it were me, I would have at least given it a shot.

[JudyKayTee]

I think if you get into a position where the recognition is going to be challenged, it will be a real battle. But if it were me, I would have at least given it a shot.

I talked to her today - she's out a LOT of money and benefits - and she's going back to the Estate Attorney and asking that the Estate be reopened. I don't know if that's possible but she's going to see if she can make a case for common law marriage.

This could make an amazing difference in her life - of course, that's assuming his kids haven't blown through the money but the pension is still in play, SS, I would think his IRA accounts.

Good advice. Thanks.