Common Law Marriage in Alabama: Inheritance Rights Explained

Guidance from a Birmingham, Alabama estate planning attorney.

Many couples in Alabama live together for years, sharing a home, finances, and a life—often believing that long-term cohabitation creates the same rights as marriage. Under current Alabama law, however, living together does not create spousal or inheritance rights.

Although Alabama no longer recognizes new common law marriages, couples who entered into a valid common law marriage before January 1, 2017, may still have the right to inherit as a spouse. This situation may lead to costly probate litigation and family disputes over whether a common law marriage existed.

Does Alabama Recognize Common Law Marriage?

Alabama does not recognize new common law marriages.

As of January 1, 2017, Alabama abolished common law marriage. This means:

• Couples can no longer create a common law marriage in Alabama

• Cohabitation alone does not create spousal rights

• Length of the relationship does not matter

  
  

However, common law marriages that were fully established before January 1, 2017, may still be legally valid. These claims may be raised during probate proceedings and may be disputed.

How Alabama Courts Determine Whether a Common Law Marriage Existed

When a surviving partner claims to be a common law spouse, Alabama probate courts carefully review the facts. The burden of proof is high, and these cases may be contested by family members.

Courts typically consider whether, before January 1, 2017, the couple had:

1. Legal Capacity to Marry

Both individuals must have been unmarried, of legal age, and mentally competent.

2. A Present Agreement to Be Married

There must have been a mutual understanding that the couple was married—not merely planning to marry in the future.

3. Public Recognition of the Marriage, Public Assumption of Marital Duties, and Cohabitation

Courts may look at evidence such as:

• Referring to each other as spouses

• Filing joint tax returns

• Shared last names

• Listing each other as spouses on legal or financial documents

• Testimony from friends, family, or coworkers

  
  

Courts require clear and convincing evidence.

Inheritance Rights of a Common Law Spouse in Alabama

If a court determines that a valid common law marriage existed, the surviving partner is treated as a legal spouse under Alabama law.

A recognized common law spouse may have rights to:

• Inherit under Alabama intestacy laws if there is no will

• Receive statutory spousal allowances

• Assert homestead rights

• Serve as personal representative of the estate

• Claim an elective share, depending on the circumstances

  
  

These rights can significantly affect the distribution of an estate.

Can an Unmarried Partner Inherit in Alabama Without a Will?

If the court does not find a valid marriage, the surviving partner is not an heir under Alabama law.

Without a will, trust, joint ownership with right of survivorship, or beneficiary designation:

• An unmarried partner inherits nothing

• Assets pass to children, parents, or other relatives

• The surviving partner may lose the home or assets they shared

  
  

Alabama does not provide automatic inheritance rights for unmarried or domestic partners.

How Unmarried Couples in Alabama Can Provide for Each Other

Unmarried couples must rely on estate planning—not marital status—to provide for each other.

Effective planning options include:

• A legally valid will

• A revocable living trust to control asset distribution and avoid probate

• Updated beneficiary designations on life insurance and retirement accounts

• Payable-on-death or transfer-on-death designations on checking, savings, and money market accounts

• Durable powers of attorney and healthcare directives

• Real estate owned as joint tenants with right of survivorship

  
  

These tools provide certainty and help prevent family disputes, delays, and litigation.

Why Estate Planning Matters for Unmarried Couples

Relying on a presumed common law marriage is risky in Alabama. Planning ahead:

• Protects your partner

• Prevents court battles

• Reduces legal expenses

• Ensures your wishes are honored

  
  

If you are unmarried and want to provide for your partner, estate planning is essential.

Your Next Step

If you are unmarried and living with a long-term partner in Alabama—or if your family situation could give rise to a common law marriage claim—the safest step you can take is to put a clear estate plan in place now.

A properly drafted will or trust and updated beneficiary designations can eliminate uncertainty, protect the person you care about, and prevent costly legal disputes after your death. At Provident Law / Estate Planning LLC, we help clients put clear, legally sound plans in place so their wishes are documented properly and their estate plans reflect current Alabama law—not outdated assumptions.

About the Author

Colin McMichen is an experienced attorney and the founder of Provident Law / Estate Planning LLC, a Birmingham, Alabama-based firm. With a focus on estate planning and probate law, Colin is dedicated to helping individuals and families in Alabama and Florida navigate complex legal matters with confidence.