Common Law Marriage in New Hampshire

A number of years ago, a local man died after living with a woman for about 25 years.

Although the man asked the woman to marry him – on more than one occasion – she never

assented. Perhaps as a result, during the time he lived the woman, the man referred to her as his

squaw. I guess the man figured close enough.

When the man died, he had no will. Since it wasn’t clear that the man was survived by a

wife, the estate was going to be divided amongst the man’s children of a prior relationship unless

the woman could prove she was the man’s common law wife. Unless the squaw gained common

law spouse status, she would receive no part of her paramour’s estate. Since a squaw is defined

as an American Indian woman or wife, this was an interesting fact pattern.

Here is the law – New Hampshire has taken a limited approach to common law marriages.

Indeed, it has adopted a statute that says the following: “Persons cohabiting and acknowledging

each other as husband and wife, and generally reputed to be such, for the period of 3 years, and

until the decease of one of them, shall thereafter be deemed to have been legally married.”

Back to our story. The couple did cohabit for more than 3 years. He acknowledged the

woman as his squaw, but she didn’t acknowledge him as her husband. The evidence as to

reputation was mixed. Many people knew they weren’t married. Other people assumed they

were married. This was a very close case so reason ultimately prevailed – the case was settled by

agreement of the woman and the man’s children. This was likely a good thing as someone was

going to be hurt.

Please note: common law status is only available when one of the parties dies. While the

couple lives with each other, they cannot become married even though they have been together

for more than 3 years and even though they are generally reputed to be married.

Community reputation is entirely a factual question. In the case of In re Estate of Clifton

R. Buttick, Sr., the couple had staged a mock wedding ceremony, which is a sure way to fool

people into thinking you are married. The man died and the woman prevailed; that is, at death,

she was determined to be a common law wife. Justice Thayer said the following in his dissent:

(The case) should be noted by those unmarried persons who are living with someone in a

‘loving relationship,’ but who do not want their companions to share in their estates.” I agree

with this warning.

These days, many people are creating unwed families. Do so at your peril. But – if you

are going to create such a family, don’t try to fool people into thinking you are married when you

are not. Your intended heirs will likely not be happy with you if you do.