Massachusetts does not allow you to create a common law marriage within the state, no matter how long you’ve lived together — but Massachusetts will recognize a valid common law marriage that was established in a state where common law marriage is allowed. This distinction matters enormously for unmarried couples, particularly when one partner dies, becomes incapacitated, or wants to plan for the future.
This is one of the most common misconceptions we see in our office. Couples assume that after seven years (or ten, or twenty) of living together, the law treats them as married. In Massachusetts, it doesn’t.
The Massachusetts Rule, Stated Plainly
To be legally married in Massachusetts, a couple must:
- Obtain a marriage license from a city or town clerk
- Have the marriage solemnized by an authorized officiant
- File the completed certificate
Cohabitation alone — even for decades — does not create a marriage in Massachusetts. There is no “after seven years you’re married” rule. There is no “we held ourselves out as married” rule. There is no presumption of marriage from raising children together or merging finances.
Massachusetts abolished the ability to create a common law marriage long ago and has never restored it. The only way to be legally married here is to formally marry.
But Massachusetts Will Honor Common Law Marriages from Other States
This is where it gets interesting. The U.S. Constitution’s Full Faith and Credit Clause requires Massachusetts to recognize valid marriages established in other states. So if a couple established a valid common law marriage in a state that still allows them — and only a small number of states do, including Colorado, Iowa, Kansas, Montana, New Hampshire (limited to inheritance only), Rhode Island, South Carolina (for relationships before July 2019), Texas, and Utah — and then moved to Massachusetts, Massachusetts will treat them as legally married.
The trick is proving the marriage. There’s no certificate. The couple has to demonstrate that under the laws of the other state, they actually established a common law marriage there. The typical elements include:
- Capacity to marry (both parties of legal age, neither already married)
- Present intent to be married (not “we’ll get married someday”)
- Cohabitation in the state where common law marriage is allowed
- Holding themselves out publicly as a married couple
If you can document that you and your partner met those requirements while living in, say, Texas — and then moved to Massachusetts — you can be legally married in Massachusetts even though you never had a ceremony.
Why This Matters for Your Estate
The consequences for unmarried partners under Massachusetts law are significant. If you live with your partner for thirty years in Boston without marrying:
- You are not a “spouse” for inheritance purposes. If your partner dies without a will, you inherit nothing under Massachusetts intestacy rules. The estate goes to your partner’s children, parents, or siblings — not to you. Probate without a will in Massachusetts covers exactly how the intestate distribution works.
- You are not entitled to the spousal elective share. Massachusetts gives a surviving spouse the right to “elect against” the will if it leaves them too little. Unmarried partners have no such right.
- You are not entitled to homestead protection as a spouse. The Massachusetts Homestead Act (recently increased to $1 million for declared homesteads after the August 2024 legislation) is structured around married couples and family members.
- You are not entitled to the marital deduction for federal or Massachusetts estate tax purposes. Married couples can leave unlimited assets to each other tax-free; unmarried partners cannot.
- You have no automatic priority to be appointed personal representative. Under the Massachusetts Uniform Probate Code, the surviving spouse has near-top priority. Unmarried partners are far down the list, often behind biological family members the deceased may not have spoken to in years.
- You may not be allowed to make medical decisions without a properly executed health care proxy.
If you and your partner have a valid common law marriage from another state, all of those protections snap back into place in Massachusetts. If you don’t, the gap is enormous.
What Unmarried Partners in Massachusetts Should Do
If you’re not married — common law or otherwise — and you want your partner to be protected, you need to do the work that the marriage license would have done automatically.
At a minimum, every unmarried couple in Massachusetts should have:
- A will for each partner. If you want your partner to inherit, you have to say so. Massachusetts intestacy will not give them anything.
- A revocable living trust, in many cases. This avoids probate, keeps the transfer private, and protects against challenges from blood relatives who might object to a partner inheriting.
- A Massachusetts health care proxy. Without it, your partner has no authority to make medical decisions for you, and Massachusetts hospitals will turn to next-of-kin (which doesn’t include unmarried partners).
- A durable power of attorney. Without it, your partner cannot pay your bills, manage your accounts, or handle property if you become incapacitated.
- Properly aligned beneficiary designations. 401(k)s, IRAs, life insurance policies, and TOD/POD accounts pass directly to named beneficiaries — but only if the designations are current.
- Title to jointly used property in a way that reflects your wishes. Joint tenancy with right of survivorship, tenants in common, or trust ownership all produce different outcomes. We cover this in detail in our overview of joint tenancy vs tenants in common for unmarried couples.
- Coordinated documentation if you have children together. This includes second-parent adoption for non-biological parents — see why second-parent adoption matters.
The protection is real. It just requires deliberate planning rather than automatic legal recognition.
A Note on “Domestic Partnerships”
Some Massachusetts municipalities — Boston, Cambridge, Northampton, and others — allow couples to register as domestic partners. These local registrations can carry employment-benefit consequences (some employers extend health coverage to domestic partners) and certain limited municipal benefits. They do not create a marriage and do not provide inheritance, tax, or probate rights under state law.
A domestic partnership registration is a useful piece of evidence, but it is not a substitute for marriage or for a properly drafted estate plan.
Massachusetts and the New Hampshire “Inheritance-Only” Rule
New Hampshire has an unusual rule: it does not allow living couples to claim common law marriage status, but it permits a kind of common law marriage solely for inheritance purposes after one partner dies. If a couple lived in New Hampshire for at least three years, cohabited as spouses, and were generally regarded as married, the survivor may be treated as a spouse for inheritance.
If a couple meets that New Hampshire threshold and then moves to Massachusetts — or one partner dies during a Massachusetts visit — there’s a real legal question about whether Massachusetts will honor the New Hampshire status. The answer depends on facts and timing. If you have a complicated cross-border history, you need a probate attorney to look at the specifics.
Frequently Asked Questions
How long do you have to live together to be common law married in Massachusetts? There is no length of time that creates a common law marriage in Massachusetts. Cohabitation, even for decades, does not produce a legal marriage here.
If we got common law married in Texas and moved to Massachusetts, are we still married? Yes, if you met all of Texas’s requirements for common law marriage before the move. You’ll need to be able to prove it.
Can I file a joint Massachusetts tax return with my long-term partner? Only if you’re legally married. Massachusetts follows federal rules for filing status. Long-term cohabitation alone does not qualify.
If my partner dies without a will, what do I get? Without a valid common law marriage, you receive nothing under Massachusetts intestacy. The estate passes to the decedent’s children, parents, or other blood relatives.
Does the length of our relationship matter at all? For legal marriage purposes in Massachusetts, no. For practical purposes — proving the nature of the relationship in a will contest, a beneficiary dispute, or a healthcare decision — yes, length and integration of lives are evidence. But evidence is no substitute for proper documents.
What if we’re engaged? Engagement creates no legal rights. The marriage license and ceremony do.
For Massachusetts marriage information, see the Massachusetts marriage and divorce records overview on Mass.gov.
Talk to a Massachusetts Estate Planning Attorney
The legal vulnerability of unmarried couples in Massachusetts is real — but it’s also entirely solvable with the right planning. We’ve helped many long-term partners build estate plans that protect them as fully as marriage would, often more flexibly.
The Law Offices of Kimberly Butler Rainen serves families and couples across Andover, North Andover, Reading, North Reading, Middleton, Georgetown, and the surrounding Merrimack Valley. Call or reach out through our contact page to schedule a conversation. Our estate planning services cover what working with us looks like.