South Carolina is one of the few states where you can be legally married without a ceremony or a marriage license. However, the concept of a common law spouse is not what many people think. You cannot just accidentally become someone’s spouse without any intention to do so. The South Carolina Supreme Court recently abolished common law marriage for all relationships formed after July 2019 and refined the test for common law marriages that formed prior to July 2019.
If your relationship formed prior to July 2019, there are certain criteria your relationship must meet to be deemed a common law marriage. You do not get the status of a common law spouse simply by living together as many people think. While cohabitation is a factor to be considered, other requirements must be met as well. Some of those requirements are:
- The couple has agreed to be married
- The couple has held themselves out to others as husband and wife
- The couple treat each other as spouses
Whether a common law marriage has been established depends on the facts of each situation. There must be intent on the part of both of the spouses to have a common law marriage. If they can prove they were common law married, they are husband and wife in the eyes of the law, regardless of whether they have a marriage license or if someone performed a wedding ceremony. If one person in the relationship died, the other would have the right to inherit property as a spouse.
Common law spouses will have the same exact legal rights as “traditional spouses.” They would need a formal divorce, and their property would be divided if their relationship ended.
South Carolina Estate Planning Attorney
How can a common law spouse assert their rights?
A common law spouse can challenge a Will since they are considered an “interested party” in probate. They can also file for an omitted spouse share or an elective share. If the Decedent did not have a Will, the common law spouse would be entitled to their intestate share.
How can someone contest a will?
They can file a challenge during the probate process.
How can a common law spouse best be heard?
They should hire a probate litigation lawyer to present their case to court.