Spousal Beneficiary Requirements and Common Law Spouse?

[cheersmate]

Does the primary beneficiary requirement that a spouse must be named unless spousal consent is provided also apply to "common law marriage" or common law spouse?  The particular participant resides in CA as does the Plan.  

Thank you

[MoJo]

Legally, there is no difference between a "common law" marriage and a "regular" one.  If one is "married" the rules apply.  The problem is that it may be difficult to ascertain whether or not a "common law" marriage exists.  The rules varied state by state, but usually included a "present intention" to be married, cohabitation as spouses, and holding oneself out to the community as married (and in many places, the "time" was not a factor - registering in a hotel as "Mr. & Mrs." may qualify, as long as the other attributes also existed).  In many places, "common law" marriages are no longer possible (Ohio did away with them a number of years ago, as have many other states) - BUT any common law marriage that existed (or is created, depending on the jurisdiction) is STILL valid.

Like I said, the problem is in determining if one exists, and that usually becomes an issue when one dies, and the other "claims" that status.

[jpod]

I have had some success in dealing with claims of a "common law" spouse situation by asking for a copy of the couple's tax return(s).  If they've filed as single that should pretty much nip this in the bud. 

[cheersmate]

1 hour ago, MoJo said:

Legally, there is no difference between a "common law" marriage and a "regular" one.  If one is "married" the rules apply.  The problem is that it may be difficult to ascertain whether or not a "common law" marriage exists.  The rules varied state by state, but usually included a "present intention" to be married, cohabitation as spouses, and holding oneself out to the community as married (and in many places, the "time" was not a factor - registering in a hotel as "Mr. & Mrs." may qualify, as long as the other attributes also existed).  In many places, "common law" marriages are no longer possible (Ohio did away with them a number of years ago, as have many other states) - BUT any common law marriage that existed (or is created, depending on the jurisdiction) is STILL valid.

Like I said, the problem is in determining if one exists, and that usually becomes an issue when one dies, and the other "claims" that status.

MoJo -  do you know if California still recognizes "common law" marriage?

The plan is a Relius document and it defines Spouse as per federal law.

Either way... My concern is your final sentence, of course. To be honest, I do not yet have the details in support of "present intention" or duration (it is my understanding duration is only 1 of the several factors to be considered). But assuming they meet these requirements, is the significant other a "Spouse" for Plan beneficiary purposes, have legal standing upon death of Participant?

MoJo, would you agree with JPod that if the 2 parties are filing "single" tax returns (not married filing jointly or married) that should be sufficient grounds for the Plan to rely on and deem the significant other not a "Spouse"?

My only other thought is to have the Participant designate whomever they choose and if it is not the significant other, have the significant other sign the "Spousal Consent" portion on the Beneficiary Designation Form.

thank you!

[MoJo]

You posit some very good questions.  First, from my very basic research, it appears as though California has never recognized a common law marriage (as having been created in CA).  If the common law marriage was created outside of CA, in a state that allows them (or did allow them at the time) then if MUST be recognized in CA under the federal Constitution privileges and immunities clause (and others).  I haven't researched that though to see to what extent the courts have ruled on this issue.

Filing tax returns as "single" (not married filing separately") is evidence of them not having a present intention (at some point in time) to being married.  But it doesn't mean that they didn't have a present intention at some time, and then it becomes evidence of committing tax fraud.  ?

IF these people are residents of CA, have always been residents of CA, then I think it would be safe to say they are not in a common law marriage.  Beyond that, it becomes a more difficult situation.

FYI, I found this - not "authoritative", but provides some answers:  https://www.cadivorce.com/news/common-law-marriage-myths/

[jpod]

The person claiming to be a spouse, or surviving spouse, tends to drop that claim when confronted with the fact that the claim is completely inconsistent with what he/she has been telling Treasury every year under penalties of perjury.  That was my only point.  If he/she does not drop the claim, then you go on to the next step in the analysis.    

[cheersmate]

Thank you MoJo and JPod for all of your insight with this matter. It is very much appreciated. If I learn of any additional information, I will be sure to share it here. 

Many thanks, again!

 

[cheersmate]

5 hours ago, MoJo said:

IF these people are residents of CA, have always been residents of CA, then I think it would be safe to say they are not in a common law marriage.  Beyond that, it becomes a more difficult situation.

FYI, I found this - not "authoritative", but provides some answers:  https://www.cadivorce.com/news/common-law-marriage-myths/

Hello MoJo and JPod -

I do have an update... the Participant is a resident of Washington state and has been living with her boyfriend for 7 years, currently looking into establishing themselves as "common law" spouses. They would like to get married however one of the party's families is prohibiting it -- so looking into alternatives.

Do either of you know if WA recognizes "common law" unions and if so the parameters beyond tax filings, holding each other out in the public as spouses, cohabitation?

Again, much appreciated.

[david rigby]

Where is the burden of proof?  If a PA requires a copy of the marriage certificate to document a retiring employee's claim of marriage (as some do), would it be consistent to require some analogous proof from anyone claiming marriage thru common law status? 

[cheersmate]

Hello David -

Based on what the above posters have shared with me, it seems the joint tax return filings (or married filing separately)... hopefully one of them will comment to you.

[MoJo]

52 minutes ago, cheersmate said:

Hello MoJo and JPod -

I do have an update... the Participant is a resident of Washington state and has been living with her boyfriend for 7 years, currently looking into establishing themselves as "common law" spouses. They would like to get married however one of the party's families is prohibiting it -- so looking into alternatives.

Do either of you know if WA recognizes "common law" unions and if so the parameters beyond tax filings, holding each other out in the public as spouses, cohabitation?

Again, much appreciated.

Again, not "authority" but... https://www.mckinleyirvin.com/family-law-blog/2013/september/5-misconceptions-about-common-law-marriage/

p.s. - what does it mean one of their families is prohibiting it?  Not that I'm advising anyone, but they can get married without anyone else's permission - or even knowledge.  The alternative is to simply name the other as the beneficiary....

 

[cheersmate]

3 hours ago, MoJo said:

p.s. - what does it mean one of their families is prohibiting it?  Not that I'm advising anyone, but they can get married without anyone else's permission - or even knowledge.  The alternative is to simply name the other as the beneficiary....

 

Umm... so I believe not everyone has caught up to 2018, or left the stone age. I was astonished to be honest when that was told to me today. The participant is a professional but will not go against her parents wishes. Sad really.

I suggested she name whomever she wanted as her beneficiary. If not the boyfriend, she could always ask him to sign the spousal waiver.