By: Sarah Stewart Legal Group, PLLC

Few states recognize common law marriage.  But, Oklahoma is one of those states.  Because you can have a common law marriage in Oklahoma, you can have the same spousal rights in a probate with a common law marriage as you can with a marriage certificate.

What is Common Law Marriage?

There are no hard and fast rules about common law marriage in Oklahoma.  If you are claiming to be a common law spouse, and someone in the family argues that point, the Court will weigh several factors to determine if your relationship qualified as a common law marriage:

(1) Do you have joint property or debts?

(2) Did you hold yourself out as a married couple? (Did you introduce each other as spouses?  Did you call each other spouse? Etc.)

(3) Was your relationship exclusive?

(4) Did you file tax returns together?

If the Court finds you to be a common law spouse, you are entitled to the same assets a spouse with a marriage license would be entitled to in a probate.

What is a Spouse Entitled to in an Oklahoma Probate?

All property owned jointly with another person, in a trust, or with named beneficiaries will generally pass outside of the probate estate.  Any property titled only in the name of the decedent, or where the deceased owned the property as a tenant in common (equal share with another person), will pass as follows:

No Will or Trust

Spouses can receive property pursuant to Oklahoma statutes if their spouse died without a Will or Trust.  Generally speaking, that amount is 50% of joint industry property (acquired during the marriage) and anywhere from 50% to equal shares with other heirs of any property acquired by the spouse before the marriage, depending on your family situation.

Spouse had a Will or Trust

Also, if there is a Will or Trust, unless you signed that Will, a Trust, or a prenuptial agreement with your spouse that stated otherwise, spouses are usually allowed to take a marital share in property during a probate. A marital share means 50% of the property you and your spouse got while you were married.  There may also be a homestead interest in the home, which will allow you to remain in the home for your life, depending on how the home was titled.

Keep in mind you can only exercise your marital share in a probate action that is open.  You have to make a conscious choice to assert that right while the case is ongoing.  You will not be able to come back and reopen the case years later to try to assert your marital rights, unless there is some sort of fraud or other big error in the case.

Though common law marriage is controversial in Oklahoma, it does exist.  Common law spouses are entitled to the same legal rights as other spouses.  Common law marriages also required real divorces to end legally.

If you have any questions about your legal relationship status, contact a professional.