Common Law Marriage in Florida: What Couples Need to Know
Understand how Florida handles non-marital relationships, legal rights, and protections for long-term cohabiting couples.
Many couples in Florida live together for years, sharing finances and raising families without formalizing their union through marriage. This often leads to questions about the legal standing of these long-term relationships, particularly concerning rights typically associated with marriage.
Understanding how Florida law views unmarried partners is crucial for protecting individual interests, whether planning a shared future or navigating a separation.
Here is a look at the key legal considerations for cohabiting couples in Florida.
Florida Law on Cohabitation
Florida law is clear regarding cohabitation and common law marriage. The state abolished the practice through legislation: Florida Statutes section 741.211 explicitly states that common law marriages entered into after January 1, 1968, are not valid.1FindLaw. Florida Statutes § 741.211: Common-Law Marriages Void This means that for relationships started in Florida after that date, living together does not create a legally recognized marriage, regardless of the duration or how the couple presents themselves publicly.
Before 1968, Florida did recognize common law marriages if specific conditions were met. However, the statute eliminated this possibility going forward. Couples who began cohabiting in Florida on or after January 1, 1968, cannot claim marital rights based solely on their relationship. Legal marriage in Florida now requires obtaining a license and having the marriage solemnized according to state law.
While cohabitation does not establish a marriage, it is no longer illegal in Florida. A law from 1868 criminalizing cohabitation between unmarried men and women was repealed in 2016. Living together without being married carries no criminal penalty, though it does not confer marital rights or responsibilities under current Florida law.
Recognition of Out-of-State Common Law Marriages
Florida law prevents the formation of new common law marriages within the state after January 1, 1968. However, the situation differs for couples who legally established such a marriage in another jurisdiction before moving to Florida. Florida generally recognizes marriages that were validly contracted elsewhere, largely based on the Full Faith and Credit Clause of the U.S. Constitution, which requires states to respect the public acts and judicial proceedings of other states.2Legal Information Institute (Cornell Law School). Full Faith and Credit
If a couple validly entered into a common law marriage in a state that permits them (such as Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, Texas, or the District of Columbia, among others), Florida courts will typically recognize that marriage. The crucial factor is whether the marriage was valid under the laws of the state where it was formed at the time it was formed. Florida courts apply the law of the originating state to determine if the requirements were met before the couple relocated.
Establishing the validity of an out-of-state common law marriage in Florida requires proof, and the burden rests on the party asserting the marriage exists. They must demonstrate to the Florida court that they met the specific criteria for common law marriage under the laws of the originating state. Common elements often include evidence of cohabitation, a present agreement between the partners to be married, and publicly representing themselves as a married couple in that state. Supporting evidence might include joint tax returns, shared financial accounts or property titles, insurance policies listing each other, or testimony from acquaintances. If these elements are proven according to the originating state’s standards, Florida will generally recognize the marriage, granting the couple the same legal standing as formally married couples.
Property and Inheritance Considerations
For unmarried couples living together in Florida, the state’s non-recognition of common law marriage significantly affects property ownership and inheritance. Because cohabitation alone does not create marital status for relationships started after January 1, 1968, partners do not automatically gain rights to each other’s property as legally married spouses do. Asset ownership, especially real estate, depends entirely on how the title is held. If only one partner’s name is on a property deed, that person is generally considered the sole owner, even if the other partner contributed financially.
When unmarried partners buy property together, they typically hold title either as “tenants in common,” where each owns a distinct share that passes according to their will or intestacy laws upon death, or as “joint tenants with rights of survivorship,” where the deceased partner’s share automatically transfers to the survivor.3The Florida Senate. Florida Statutes § 689.15: Estates by Survivorship However, neither form offers the same creditor protections as “tenants by the entireties,” a status available only to legally married couples in Florida.
These distinctions have profound implications for inheritance. Florida’s intestate succession laws, which govern estate distribution without a will, prioritize a surviving spouse and blood relatives. Unmarried partners are not included in this hierarchy. If a partner dies without a will, the surviving partner has no automatic right to inherit assets solely owned by the deceased, regardless of the relationship’s length or commitment. Such assets will pass to the deceased’s legal heirs, potentially excluding the surviving partner.
Estate planning is therefore essential for unmarried couples in Florida. Without the automatic protections of marriage, partners must use legal tools like wills, trusts, beneficiary designations on financial accounts, and appropriately titling property (such as joint tenants with rights of survivorship) to ensure their wishes regarding property distribution and inheritance are fulfilled.
Court Involvement in Relationship Disputes
When unmarried couples in Florida separate, the legal processes for resolving disputes differ from those for married couples. Because Florida does not recognize common law marriages established after January 1, 1968, family law courts handling divorces generally lack jurisdiction over the relationship’s dissolution or asset division based solely on cohabitation. Concepts like alimony and equitable distribution of marital property do not apply.
Property and financial disputes between unmarried partners are typically addressed through the general civil court system. If a couple jointly owns real estate and disagrees on its disposition, either party can file a partition action, asking the court to divide the property or order its sale and distribute the proceeds based on ownership interests and contributions.4Florida Legislature. Florida Statutes Chapter 64: Partition of Property
Disagreements over personal property, debts, or alleged financial promises are also handled in civil court, potentially through claims like breach of contract (if a valid agreement exists), unjust enrichment, or seeking a constructive trust over specific assets. These civil lawsuits proceed without the specific framework of marital law.
While family courts do not handle property division for unmarried partners as in a divorce, they do have jurisdiction over matters concerning the couple’s children. Issues like paternity, child custody (time-sharing and parental responsibility), and child support are determined by family courts regardless of the parents’ marital status. Unmarried parents can petition the court to establish these rights and obligations. Additionally, unmarried partners can seek domestic violence injunctions through the courts, similar to married individuals. Alternative dispute resolution methods like mediation may also be used to resolve disputes outside of trial.
Alternative Legal Arrangements
Since Florida does not recognize common law marriages formed within the state after 1968, unmarried couples seeking mutual rights and responsibilities must rely on alternative legal arrangements. These proactive steps allow partners to define their relationship terms and plan for contingencies like incapacity or death.
A cohabitation agreement (or domestic partnership agreement) is one useful tool. Governed by general contract law, these written agreements allow partners to outline expectations regarding finances, property, debts, and potential support if the relationship ends. Full financial disclosure and independent legal advice for each partner can strengthen enforceability.
Planning for potential incapacity is also critical, as unmarried partners lack the automatic decision-making rights granted to spouses. A Durable Power of Attorney allows one partner to designate the other to manage financial affairs if they become incapacitated. Similarly, Health Care Advance Directives, including designating a Health Care Surrogate and creating a Living Will, allow partners to make medical decisions for each other according to specified wishes. Without these documents, an unmarried partner may lack legal standing to act.
To direct the disposition of assets upon death, unmarried partners must use specific legal instruments, as Florida’s intestacy laws offer no inheritance rights to them. Executing a valid will is essential to name a partner as a beneficiary. Establishing trusts can manage assets during life and distribute them after death, often avoiding probate. Using beneficiary designations on financial accounts and retirement funds, and titling real property as “joint tenants with rights of survivorship,” ensures assets pass directly to the surviving partner. These deliberate planning measures are necessary for unmarried couples to create the property and inheritance rights that marriage automatically provides.
