Does Florida Recognize Common Law Marriage?

Common law marriage is a legal concept that allows couples to be recognized as married without a formal ceremony or marriage license, provided they meet certain criteria. While some states still recognize common-law marriage, Florida doesn’t. For couples who believe they’re in such a relationship, it’s prudent to consult with an experienced Florida family law attorney to address the legal implications.

Criteria and History of Common Law Marriage

The criteria for common law marriage vary by jurisdiction, but generally, the following elements must be met:

• The couple must cohabitate for a significant period.
• Both partners must have the intent to be married.
• The couple must hold themselves out to the public as married (e.g., using the same last name, filing joint taxes, referring to each other as spouses).

Historically, common law marriage was established to legally recognize couples in rural or frontier areas where access to government officials or religious ceremonies was limited. Over time, as marriage registration became more accessible and standardized, many states moved away from recognizing common-law marriage.

Florida Does Not Recognize New Common Law Marriages

According to Florida Statutes § 741.211, common law marriages aren’t valid if they were entered into after January 1, 1968. This means that, regardless of how long a couple has lived together or whether they consider themselves married, Florida law does not grant them marital rights unless they have legally formalized their union through a marriage license and ceremony.

However, there’s an important exception. Florida recognizes common-law marriages that were legally established in other states. For a common law marriage entered in a state that permits it, Florida will acknowledge it as a legal marriage under the Full Faith and Credit Clause of the U.S. Constitution.

Florida Common-Law Marriage: Historical Context and Changes Over Time

Before the 1968 ban, common-law marriage was recognized in Florida. The elimination of common-law marriage in Florida was driven by several factors, including:

• Legal clarity: Without formal documentation, determining whether a couple was married could lead to complex and costly legal battles.
• Inheritance and property rights disputes: Common law spouses often faced difficulties in proving their rights to inherit property or access marital benefits.
• State interest in regulating marriage: By requiring a formal marriage process, Florida ensured that all marriages were documented and subject to uniform legal standards.

Legal Implications for Couples Who Believe They’re Common Law Married in Florida

Couples who assume they’re married under common law in Florida may face legal challenges.

Property Rights and Division

Unlike legally married couples, common law partners in Florida don’t have automatic legal rights to shared property in the event of separation. If a couple buys a home together but only one partner’s name is on the deed, the other partner may have no legal claim to the property unless they can prove financial contributions through contract law or equitable relief claims.

Inheritance and Estate Planning

Florida’s intestate succession laws (which govern how property is distributed when someone dies without a will) do not recognize common-law spouses. Without a legally valid marriage, a surviving partner has no automatic inheritance rights. To protect their assets and ensure their partner is provided for, unmarried couples should:

• Create wills specifying their intended heirs
• Establish joint ownership of significant assets
• Designate each other as beneficiaries on financial accounts and insurance policies

Healthcare and Medical Decision-Making

In Florida, legally married spouses are granted priority when making medical decisions for an incapacitated partner. Unmarried partners do not have this right unless they have been legally designated as healthcare surrogates through an advance directive or healthcare power of attorney.

Spousal Benefits and Social Security

Since common law marriage isn’t a legally recognized marriage in Florida, unmarried partners are ineligible for spousal benefits such as Social Security survivor benefits, military benefits, or pension rights unless they were in a valid common law marriage in another state before moving to Florida.

Alimony and Spousal Support

If an unmarried couple separates in Florida, there’s no legal entitlement to alimony or spousal support, regardless of how long they were together or whether one partner was financially dependent on the other. A formal marriage is required for alimony claims under the state’s laws.

Alternative Legal Protections for Unmarried Couples in Florida

Couples who want to establish certain legal protections like those of married couples and have the same rights can take the following steps:

• Cohabitation Agreements: These legal agreements outline how assets and debts will be handled in the event of a breakup.
• Estate Planning Documents: Wills, trusts, and powers of attorney can help secure inheritance and decision-making rights.
• Joint Ownership Arrangements: Titling property and financial accounts in both names can ensure equitable division in the event of separation.
• Domestic Partnership Agreements: While not recognized statewide, some Florida counties and cities offer domestic partnership registries that provide limited rights to unmarried couples.

Steps to Legally Formalize a Marriage in Florida

Here are the essential steps to legally marry in Florida:

Meet the Legal Requirements

Before applying for a marriage license, both partners must meet Florida’s legal requirements for marriage:

• Age Requirement: Both parties must be at least 18 years old. However, individuals aged 17 may marry with parental consent, provided their spouse is no more than two years older.
• No Existing Marriage: Neither party can already be legally married to someone else.
• Mental Competency: Both individuals must have the mental capacity to consent to the marriage.

Apply for a Marriage License

A marriage license is required before a couple can legally marry in Florida. To obtain a Florida marriage license:

• Both partners must appear in person at a county clerk’s office.
• Each person must provide valid identification, such as a driver’s license, state ID, or passport.
• If either party was previously married, they must disclose the date of divorce, annulment, or the former spouse’s death. Documentation may be required in some cases.
• Pay the marriage license fee, which typically ranges from $86 to $93, depending on the county. The fee is reduced to around $61 if the couple completes a state-approved premarital preparation course.

Observe the Waiting Period (If Applicable)

• Florida imposes a three-day waiting period after obtaining a marriage license before the ceremony can take place.
• This waiting period is waived if both parties are Florida residents and have completed a premarital education course. Non-residents of Florida aren’t subject to the waiting period.

Hold a Marriage Ceremony

Once the waiting period (if applicable) has passed, the couple must participate in a ceremony officiated by a legally recognized individual. In Florida, the following individuals are authorized to officiate a marriage:

• A judge or clerk of the court
• A notary public
• An ordained or licensed minister, priest, rabbi, or other religious officiant
• Judges from federal or state courts

During the ceremony, the couple must express their intent to marry, and the officiant must declare them legally wed.

Register the Marriage License

After the ceremony, the officiant must sign the marriage license and return it to the county clerk’s office within 10 days of the ceremony.

• Once recorded by the clerk, the marriage becomes legally recognized.
• The couple can then request an official certified copy of the marriage certificate as proof of their legal union.

How Our Family Law Attorneys at Veliz Katz Law Can Assist You

For over 30 years, Veliz Katz Law has been a trusted name in family law, throughout Central Florida. Our attorneys bring a combined 60+ years of legal experience to help individuals and families navigate complex legal issues with compassion and skill. 

Whether you need guidance on marriage-related legal status issues or require strong advocacy in divorce cases, we’re here to protect your rights and interests.

Marriage-Related Legal Advice

• Prenuptial and Postnuptial Agreements: Our attorneys assist couples in drafting legally binding agreements that protect their assets, finances, and future interests. Whether you’re entering a marriage or seeking to modify existing agreements, we ensure your rights are safeguarded.
• Legal Recognition of Marriage: Since Florida does not recognize common law marriage, we help couples understand their legal standing and take necessary steps to formalize their union through a valid marriage license and ceremony.
• Paternity Issues: Establishing paternity is important for child custody, visitation, and support rights. We guide clients through legal paternity actions to secure their parental rights and responsibilities.

Divorce and Family Law Representation

• Divorce Proceedings: From uncontested divorces to high-conflict cases, we provide personalized legal strategies to address property division, alimony, and spousal support concerns.
• Child Custody & Support: We fight to protect children’s best interests, ensuring fair parenting plans, child support arrangements, and visitation rights.
• Alimony & Property Division: We advocate for fair financial settlements that reflect our clients' needs and contributions during the marriage.

At Veliz Katz Law, we help families resolve their legal matters with confidence and peace of mind. To schedule your free consultation with our family law and divorce lawyers, call us at 407-634-1835 or contact us online.