Judicial Recognition of Marriage for Inheritance

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Imagine a couple who shares a bank account, purchased a home together, and in most respects lives and acts as though they are married. However, this couple never actually obtained a marriage license or had a marriage ceremony recognized by the State. What happens to their property if one of them dies intestate (without a Will)?

According to the US Census Bureau, marriage rates are declining across the country, including a significant decrease in the state of Utah. This likely means that the scenario described above is becoming more common. However, Utah does not recognize common law marriage. That means there are no legal protections for a surviving partner, even if they have been in a relationship together for many years. When this is the case, a long-term partner may have no legal interest in property held by the other partner unless it is titled jointly or there is estate planning in place, such as a Will or Trust.
There may be circumstances where it would make sense to ask for judicial recognition of marriage to inherit property. This must be requested by either partner or next of kin within 1 year of death. It would require evidence that the partners agree to be married. Some things that can help prove consent are:

  • a written agreement
  • witnesses who testify that they were present when the agreement to assume marital responsibilities was made
  • holding joint banking and credit accounts
  • purchasing and jointly owning real estate together
  • one of the parties using the other party’s last name
  • filing joint tax returns
  • talking about each other in the presence of third parties as being married and
  • declaring the relationship in documents while living together, such as deeds and wills (Whyte v. Blair, 885 P.2d 791, 795 (Utah 1994)).

If the court grants your request to have your past relationship recognized as a marriage, it is the same as getting married. The intestate inheritance laws would then apply to provide for the surviving spouse at death.

If you would like more information about filing for judicial recognition of a marriage for inheritance purposes, or for questions about Wills, Trusts, and other estate planning documents to take care of your loved ones, please don’t hesitate to call me at 801-874-4546 to schedule a free consultation. I am an estate planning attorney in Spanish Fork, Utah. While my office is in Spanish Fork, I provide estate planning services in Utah County and beyond.

1 https://www.census.gov/library/visualizations/interactive/marriage-divorce-rates-by-state-2011-2021.html
2 https://www.utcourts.gov/en/self-help/case-categories/family/marriage/common-law.html#:~:text=Many%20people%20want%20to%20get,never%20had%20a%20marriage%20ceremony (site visited on August 18,2023).

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