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Eligibility & Common Law marriages

Guest Nautical

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Guest Nautical

We have an individual that wants to add their common law spouse to the benefit plans. The benefit plan eligibility sections for dependents states that only legally married spouses of the opposite sex/gender can be added to the plan. The word legal is tricky because some states "legally" recognize common law marriages.

Here are a couple of questions I have about Common law marriages:

1) In order to add someone to the plan under a common law marriage, would the individual need to provide us court documents recognizing the common law relationship? Or can they just claim it with out legal documentation?

2) Was there a time in Arizona when Common Law Marriages were considered legal?

3) When did common law marriages stop being recognized in New Mexico? Was that in 1989?

4) Are there certain populations (such as native americans) that recognize common law marriages and therefore are recognized by the government?


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The person claiming to be married should provide the information that is reasonably necessary for the plan administrator to conclude that the person is legally married. The administrator can refuse to enroll until the administrator can conclude that plan standards have be met. The administrator may have to provide an explanation of what the plan means by legally married.

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1) Just as an employee-benefit plan’s procedures should do for any claim or other matter that requires the plan administrator’s decision, inform the participant that he or she is welcome to furnish as much evidence as he or she likes to support his or her claim that there is a marriage.

2&3) Because of how long ago Arizona and New Mexico ended informal marriage, only a very old or foolish claimant would assert that he or she made his or her informal marriage in either of those States. Instead, a claimant will remember (sometimes truthfully) that he or she made the marriage while in a State that then permitted informal marriage. For informal marriage, often there is no residence requirement. Court decisions of States in which informal marriage is not permitted for a marriage made within the State have recognized a present-tense exchange of words and informal marriage made during a weekend, or even one-day, trip into another State.

4) United States law and State law recognize a marriage made according to the law or custom of a Native American Indian tribe.

5) If, from the evidence furnished [see #1], it’s uncertain whether a marriage exists, remember that an ERISA plan’s administrator must act as a prudent expert would. If the plan administrator lacks expertise, ordinarily it must engage an expert.

6) While you’re thinking about informal marriage, think about how much checking the plan administrator does (or neglects) concerning all marriages. What prevents a participant from filling-out a form with a name and saying that it’s his or her spouse? (Does anyone check?) And how does a plan administrator know that people who were married remain so?

7) Consider requiring a participant, if he or she requests coverage for a spouse, to certify the marriage on every year’s re-enrollment.

Peter Gulia PC

Fiduciary Guidance Counsel

Philadelphia, Pennsylvania



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