Common Law Marriage in Washington State: Regulations and Ramifications

Is Common Law Marriage Allowed in Washington State?

In Washington State, common law marriage has not been recognized since 1905. All relationships that meet the definition of marriage must be formalized by a civil or religious ceremony and a license showing that a marriage occurred must also be obtained. Washington’s legislature in RCW 26.60.060 specifically ended common law marriage in Washington State.
There are a small number of exceptions to this prohibition. Two specific groups of people are exempted from the Washington State law against common law marriages. Active members of the armed forces of the United States are exempted from the licensing requirement (but not the requirement for a certificate showing that they were married) by RCW 26 . 60.050(2). Additionally, the law does not specifically apply to those who contracted a common law marriage before October 1, 1907, as the law was enacted in 1905 and not retropsectively applied to common law marriages entered into in the two years before the law was passed.
The failure to obtain a license or have a marriage ceremony will not invalidate a marriage entered into by a Washington resident in another state that does not have a licensing requirement or that provides a waiver of the licensing requirement.

Washington State’s Definition of Marriage

Marriage, according to the Revised Code of Washington, is defined as "a civil contract in which the parties undertake to live together as husband and wife." The actual definition of marriage under Washington law is a far more technical, and considerably more confusing, legal description. However, it still dramatically differs from the sociological definition. While it has no effect on Washington State’s present to recognize same sex marriages, it does affect parties that believe they were informal common law married under Washington law.
Washington is one of nine states that currently recognizes common law marriage. This means it recognizes a type of relationship where both parties do not have to go through the formality of a marriage ceremony in front of the State. In order for the State to recognize this type of relationship as marriage the following must occur: The parties to an informal marriage under Washington law do not have to go through a marriage ceremony in front of an officiate. An exchange of consents and the actions of both parties, however, must indicate that both intend the parties to be legally married to each other. This agreement does not have to be in writing or oral but only the manifestation of the intent of each party to the other. Other acts of the parties must support the stated intention. "A common law marriage is a marriage that is created by agreement of the parties, without any specific legal formalities," according to Black’s Law Dictionary. In Washington, a common law marriage is considered to have the same legal effect as a marriage ceremony in front of an officiate.

Options Besides Common Law Marriage

Unlike many states that recognize common law marriage, Washington State provides alternatives for couples desiring to establish a legal domestic relationship. Although the state does not recognize civil unions, it provides domestic partnerships as an alternative. Washington’s domestic partnership law has changed over the years. Those who entered into a domestic partnership prior to December 3, 2009, who are not of the same sex and do not have children or who are not over the age of 62, will see their domestic partnership end on June 30, 2014 unless they convert it to a marriage or dissolve the domestic partnership. Prior domestic partners who qualify will be given the option of dissolving their domestic partnership or of entering into a marriage to preserve their legal status beyond June 30, 2014. Those who entered into a domestic partnership prior to July 24, 2009, who are of the same sex and who have children or who are over the age of 62, will not lose their partnership if they have not converted or dissolved it by June 30, 2014. A couple who entered into a domestic partnership prior to June 30, 2014, will have their domestic partnership status thereafter based on the law in effect when they entered into the domestic partnership. Additionally, if a couple registered a domestic partnership prior to July 1, 2007, and terminated their domestic partnership in order to marry or establish a different domestic partnership, that couple will retain their domestic partnership status as it existed prior to the change in law. In other words, that couple is "grandfathered" in for continuing domestic partnership status. Similar to a marriage, when a domestic partnership is dissolved, the property acquired during the partnership is subject to the community property laws of Washington State.
The procedure is similar to applying for a marriage license. A couple must fill out an application to determine whether they qualify. If both applicants meet the requirements, and the application is not signed or completed in the presence of a notary public, then the couple may apply to begin a domestic partnership registration with the Secretary of State’s office. The couple is then required to sign a declaration of domestic partnership. An application fee of $62 must be paid. A copy of the domestic partnership registration form is sent to both partners at their home addresses after the declaration has been registered. Domestic partnership registrations are filed with the Secretary of State’s office. Similar to marriage licenses, domestic partnership applications may not be completed and submitted within 90 days prior to a public presentation of a certificate of domestic partnership, unless authorization to do so is granted in response to an appeal for the waiver. There is a 90-day waiting period from the date of application to presentation unless the couple obtains a waiver. The waiting period is similar to that for applicants who obtain a marriage license. The fee for a domestic partnership registration is $5.
As mentioned before, those who registered a domestic partnership prior to July 24, 2009, and prior to December 3, 2009, do not have to get married or convert their domestic partnership into a marriage in order to preserve their domestic partnership status beyond June 30, 2014. However, if a domestic partnership is registered on or after July 24, 2009, and prior to June 30, 2014, the couple will have six months within which to convert their domestic partnership into a marriage or have their partnership dissolved. Otherwise, their domestic partnership will end on June 30, 2014. Domestic partnerships registered on or after December 3, 2009, are treated like marriages under the law.

Consequences of Leaving Another State as a Common Law Couple

The concept of common law marriage is not exclusive to Washington. Prior to 2013, Washington did recognize common law marriages, however the legislature eliminated that option and now couples who had a valid common law marriage outside the state are considered "registered domestic partners" in Washington. Therefore, a married couple moving to Washington in which at least one spouse has lived in a common law marriage state will still be considered legally married and will retain all the same rights as those who obtain marriage licenses through the state.
Washington has not made an effort to recognize common law marriages which have been terminated . Therefore, if you and your ex-spouse were living together in a common law marriage state and separated, Washington will not legally consider the relationship terminated and may even determine that the separation took place on the date of relocation to Washington.
If you had a legal separation or divorce in another state and subsequently moved to Washington, assuming the residency requirements were met at the time of filing the separation/divorce, Washington will most likely give full faith and credit to the ultimate dissolution of marriage entered by the other state.

Waiving Common Law Marriage to Protect Your Rights

While Washington State no longer recognizes common law marriage, it does allow couples to contractually agree to protect their rights and interests. Washington State no longer recognizes common law marriages after the Legislature, in 2013 with the passage of RCW 26.60.210, affirmed "the public policy of this state [was] that a common law marriage is not recognized."
However, without a legal marriage, parties lose the many benefits and protections that arise by law when a couple is married. When certain legal protections do not arise by law because the parties are not legally married, they may arise by contract. The following options are available to legally protect your rights without being married:
Cohabitation Agreements: A cohabitation agreement is an agreement by both parties to a committed relationship to contract away the default rules of Washington. While living under such agreement, the parties may make decisions, in writing, affirmatively contracting for rights and duties arising out of their relationship. Contractual duties can include division of income, support obligations, property division upon the end of the relationship, and/or allocation of assets in the event of death. Courts differ on whether such agreements should be recognized and enforced and will consider the merits of each case.
Last Will & Testament: If a person dies with a Will, a judge (probate court) should direct the distribution of the decedent’s property in accordance with the terms of a valid Will. Without a Will, the decedent’s property is distributed by the probate court in accordance with RCW 11.04.015, which recognizes a surviving spouse and children of the decedent as the heirs. A surviving spouse is defined as a legally married spouse. The existence of a Will leads to a different outcome than if the decedent had died intestate. For example, a decedent who died in 2019 with a valid Will and no children could distribute his or her property as follows:
Therefore, to have the right to inherit from your partner, it is critical to have a valid Will that specifically names him or her as a beneficiary of your estate, otherwise, upon your death, he or she gets nothing.
Power of Attorney: The power of attorney is a situation in which one person (the principal) may give another person (the agent) the authority to act on behalf of the principal with respect to his or her property and finances. A power of attorney not only allows a spouse to act for the other spouse, but it also allows an individual to act for another individual who is not married. A properly drafted power of attorney should contain the legal authority (or "powers") the principal is granting to the agent. One benefit of a power of attorney is that it allows you to choose your agent (or agents) versus allowing the court to appoint one for you. Ideally, you should appoint the individual or individuals whom you trust most to be your agent.
Living Will: A Living Will is a legal document that gives your health care providers and loved ones instructions concerning your future medical care. Wills can be extremely specific, detailing the extent of your desires as they relate to particular situations or conditions. Living wills also tend to be general in nature and may address issues that are yet unknown. A Living Will may also indicate your wishes concerning the organs and tissues you desire to donate at death.
Without a legal marriage, there may be no default protection afforded by Washington State law. Contractual remedies, however, may afford you peace of mind or guidance in the unfortunate event that you or your partner become incapacitated or pass away.

Common Questions and Recent Legal Changes

The growth of common law marriage in Washington has been recently driven by two developments that have changed the outlook.
The first included an early May 2019 decision from the Washington Court of Appeals that ruled the lower circuit court did not need to rely on First Amendment grounds, but rather solely on issues of family law, in deciding a case involving whether a religious "informal marriage" meeting the requirements of the Texas Family Code could be recognized in Washington.
Secondly, and most importantly, was the April 22, 2019 Washington Supreme Court decision Hernandez v. Lopez a controversy dating back to 2011 over whether "cohabitation" was still a consideration in determining whether common law marriage existed.
The Washington Supreme Court found that the State had intentionally repealed the previous statute on common law relationship, and has clearly taken the position that the Washington statute now only requires the acknowledgment of union through cohabitation "and other circumstances."
The winding path of the law recognizes that even where common law marriage is legally binding in some instances , the recognition may still not be favorable or advisable.
In fact, the decision recognizably overturns 2017 legislation which had applied the six-year statute of limitations to community property property which included property acquired through common law marriage.
The 2019 Washington legislature permitted community property acquired after January 1, 2019, but prior 2017 laws would have overridden the statute of limitations. In reality, a couple claiming that they were living together 50 years earlier and that their estate belonged to their heirs would be difficult to confirm.
The Washington Supreme Court also considered avoiding any indication that the judiciary was trying to force any change to the law. As concluded in a 2016 case State v. Lim, "[t]he legislature created this situation and the can resolve it."
The current status of the law is that if a couple really intends to marry, why not make a legal commitment? Indeed, particularly for aging couples who do not have children, the legacy may be reconsidered.
There are a number of examples around the country of couples who have opted for a common law marriage simply to keep assets.