Common law marriage in New Hampshire

The New Hampshire Supreme Court released an opinion on June 3, In Re Estate of David J. Bourassa that clarified the requirements for Common Law Marriage in New Hampshire. The relevant Statute is RSA 457:39. New Hampshire does not recognize common law marriage. However, what the State may recognize is what can be considered a common law marriage by death. The requirements are in three parts:

  1. Cohabitate for 3 or more years preceding death of one partner; and
  2. Acknowledge one another as husband and wife; and
  3. Generally presumed to be husband and wife in the community

This means that a cohabitating couple who is not legally married who have been together for 3 or more years and hold themselves out to be husband and wife are considered legally married upon the death of one partner. It is the death of one partner which triggers the statute if all other elements are satisfied. A couple who simply cohabitate for 3 or more years is not considered legally married under the law.

In the Bourassa case, the couple, David and Deborah, had cohabitated for 10+ years and had one child together. When David died Deborah filed a petition to be declared David’s common law spouse. The Court determined that Deborah had failed to show that she and the deceased fulfilled the last two prongs of the statute. They had not acknowledged or generally been presumed to be married. On the contrary, they were very vocal in making sure everyone knew they were not married.

Blog Credit: Marisa L. Ulloa, Crusco Law Office Law Clerk

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Comments (3) Read through and enter the discussion with the form at the end
ken ballance - September 3, 2008 8:55 PM

how is it that gay couples that cohabitate have rights to insurance ect. and hetro couples only have rights at death. does this seem to discriminate against hetrosexual couples.

Deborah Collins - October 23, 2011 8:54 AM

I agree with Ken. I am going over my benefits package and see that same sex couples living together for 6 months are eligible to be under the same insurance plan. Heterosexual couple are only eligible if they are considered married under their states common law marriage law. New Hampshire being a state were there is no common law marriage makes this discrimination.

Darlene Jubert - May 29, 2012 8:50 AM

I am gay and have argued this same point. I do not see it as fair, since I have family members who are heterosexual and have been cohabitating with their significant other for many years. For the sake of health insurance it makes sense that the same rules that apply to gay couples should be allowed to heterosexual couples who choose not to marry. I think in this instance common law practices should be allowed and should apply to everyone. Maybe our health insurance dilemma wouldn't be as bad as it is if this were permitted. To take it a step further, if adults are living together and sharing expenses in a household, whether they are in a relationship or not, they should be allowed to cover the members of their household. I'm sure it would cause a paper work nightmare but so what. The fact that people are uninsured creates an even worse nightmare and a significant cost to healthcare facilities, especially ERs who are typically the ones who care for the uninsured. Makes waiting in the ER a nightmare as well!

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