28 Aug Common Law Marriage in Oklahoma Probate: Debunking Myths and Navigating Legal Challenges
Common Law Marriage in Oklahoma Probate: Debunking Myths and Navigating Legal Challenges
When it comes to probate matters in Oklahoma, few topics cause as much confusion—and potential legal heartache—as common law marriage. Many people believe that if they’ve lived with their partner for a certain amount of time, they are automatically entitled to spousal rights. Unfortunately, that belief can cause significant complications when a loved one passes away.
As an experienced probate attorney, I want to take a few moments to clear up some of the most common misconceptions about common law marriage in Oklahoma and highlight how these issues can affect probate cases.
Oklahoma Recognizes Common Law Marriage—But It’s Not Automatic
Oklahoma is one of the few states that still recognizes common law marriage. However, there is no set period of cohabitation that automatically creates a legal marriage. Simply living together—even for decades—does not establish a marriage in the eyes of the court.
To prove a common law marriage, you generally need to show:
- Mutual agreement between the partners to be married.
- Public representation of the relationship as a marriage (referring to one another as spouses, filing joint tax returns, using the same last name, etc.).
- Cohabitation/living together as a married couple
- Intent to have a present, ongoing marital relationship.
Without these elements—and adequate proof if disputed —a court is unlikely to find that a valid common law marriage existed.
Misconception #1: “We’ve Been Together for 7 Years, So We’re Married.”
One of the most persistent myths is that Oklahoma has a “7-year rule” or similar time-based threshold for common law marriage. There is no such rule. Whether you’ve lived together for one year or twenty, that does not automatically prove a common law marriage existed.
Misconception #2: “We Share Property, So That Makes Us Married.”
Jointly owning property or maintaining joint bank accounts may support a claim of marriage, but by itself, it is not enough. In probate, simply holding joint property won’t automatically entitle a surviving partner to spousal rights (such as an elective share or the right to inherit when there is no Will).
Misconception #3: “Having children together makes us common law married.”
While having children may be one piece of evidence regarding the couple’s relationship, it is not enough on its own to establish a common law marriage. Without an agreement to be married and conduct consistent with marriage (such as filing taxes jointly, using the same last name, or referring to each other as spouses), parenthood alone does not create a marriage.
Misconception #4: “If we tell friends and family we’re married, that’s enough.”
Representing yourselves as married is an important factor, but it must be combined with other evidence of a marital relationship, including an actual mutual agreement to be married. Casual references or jokes about being married are not sufficient.
Misconception #5: “We need to sign something to have a common law marriage.”
Oklahoma law does not require a written contract or license to create a common law marriage. However, the couple must have a mutual present agreement to be married and their actions must demonstrate an ongoing marital relationship.
How Common Law Marriage Issues Impact Probate
When a partner passes away without a Will (intestate) or other estate planning options, the question of whether the surviving partner is legally a spouse becomes critical. If the court finds no valid marriage, the surviving partner may receive nothing—while the deceased’s biological family inherits everything.
Even if there is a Will, an unclear marital status can lead to challenges from family members who dispute the relationship, creating long and costly probate battles.
What You Can Do to Protect Yourself
- Formalize Your Relationship: If you and your partner consider yourselves married, one of the best ways to avoid legal uncertainty is to obtain a marriage license and have a formal ceremony.
- Create a Valid Will: A carefully drafted Will or other estate planning options strongly increases the likelihood that your partner (married or not) will inherit according to your wishes and can help avoid disputes in probate.
- Document Your Intent: If you believe you have a valid common law marriage, gather and preserve documents and testimony that demonstrate mutual agreement and public representation as a married couple.
Conclusion
Common law marriage in Oklahoma can create serious probate challenges if it is not properly understood and documented. If you have questions about your marital status or want to protect your loved ones from future legal uncertainty, consulting with a probate attorney is a wise first step. #probateattorney #probateprocess