Uncommon Law

How about "until death do us unite"?
illustration by gloria diianni

Only in New Hampshire — the live free or die state — is death a legal pathway to marriage, converting a girlfriend to a widow in a final heartbeat. New Hampshire has a unique (if a bit morbid) postmortem matrimony law that allows those who evade marriage in life but live together for more than three years and hold themselves out as a couple to become formally joined at death.

New Hampshire is one of just eight states that still permit common-law marriage, a frontier tradition that joins unmarried couples based on a set period of cohabitation and behaving like husband and wife. New Hampshire doesn’t officially recognize common-law marriage, but does offer a kind of marriage-death benefit for surviving partners, though only for the purposes of deciding an inheritance and settling probate issues. It’s common law with a catch, says Concord attorney Chuck Douglas, a former Supreme Court justice. “The catch is that someone has to be dead — one-half of the marriage.”

Common-law marriage, also known as a “poor man’s marriage,” has deep historical roots in rural places where governments were not well-organized, clerics were hard to come by and Puritan morals were prevalent. In 1563, the Roman Catholic Church required marriages to be “solemnized by a priest.” England permitted marriage without the benefit of clergy in 1753. Any genealogist will confirm that, up until modern times, churches, not the state, were the best keepers of formal records.

“It was really a Western [frontier] phenomenon,” says Concord attorney Joshua Gordon, and a very practical social and legal solution. In those days, living together in a romantic relationship was “such a no-no,” he adds, and common-law marriage gave it kind of an official sanction or “imprimatur of marriage.” But more importantly, he says, “It solved the question of what to do after death.”

In those days (and occasionally today), when someone died “intestate” or without a will, it was the state and local government that hashed out the details. Even today, finding the “next of kin” can be an expensive, daunting and sometimes impossible task. “The name of the game in probate is the predictability of probate,” Gordon says. “You can’t have property without an owner.” That’s one of the reasons why each year the state runs advertisements offering up “unclaimed property.”

Common-law marriage also solved a practical problem of what to do with the “woman in the dead man’s house” and provide her with an alternative to becoming a ward of the state. Remember, it wasn’t until 1846 that New Hampshire allowed married women to own property. Prior to that, females had few legal rights and few opportunities to live independently.

This very likely was “the driving force,” Gordon says, behind RSA 457:39, the state’s common-law marriage law.

It reads: “Persons cohabiting and acknowledging each other as husband and wife and generally reputed to be such for the period of three years and until the decease of one of them, shall thereafter be deemed to have been legally married.”

This law providing a simple remedy for some probate issues has remained mostly unchanged since 1842. But 175 years later, cohabitation is nearly as common and accepted as marriage. On a handful of occasions, the statute was tested to establish a spousal share of an estate or a divorce-like property settlement.

Tina Annis, a Concord lawyer, formerly chair of the NH Bar Association’s Trust and Estate Section, says the incidents are very rare and that there are widespread misconceptions about the law, but ultimately, she says, “It’s about ownership rights.”

The most notable case occurred in 1991 when Charlene Miller challenged the estate of her deceased partner Clifton R. Buttrick Sr. The couple shared a home for 11 years but didn’t exchange rings, share a name or have both names on any official documents. 

While meeting the three-year cohabitation requirement is relatively straightforward, the reputed-to-be-married aspect is tricky, and is based on what others believe to be true, more than on official documents.

In the Buttrick case, close friends and relatives knew they were not married, while the general community thought they were hitched, mostly because of casual comments made by the couple and written communication. The court, in a 3-2 decision, gave deference to the notion that Miller and Buttrick “held out” to the community that they were a married
couple. Miller was rewarded one-half of Buttrick’s estate. In dissent, Justice Stephen Thayer sent a warning to “those unmarried persons living with someone in a ‘loving relationship’ but who do not want their companions to share in their estates.”

Fair warning.