What Are The Rights Of A “Common Law Spouse” Under NH Trusts and Estates Law?

Recently, a 78 year old client who had been living with his 74 year old girlfriend for several years posed a similar question:  Does my live-in girlfriend “have rights” to a claim against my estate when I die?  The Answer is:  It Depends.  Fortunately New Hampshire has some guidance from the courts on this increasingly common and murky estate planning issue.

New Hampshire law (RSA 457:39) generally has been held to provide that people who cohabitate and acknowledge each other as husband and wife, and are generally reputed to be husband and wife in the community for a period of three years, until one of them dies, shall be considered to have been “legally married.”  Thus, a person who has satisified the provisions of the statute is entitled to a share of the estate of the deceased spouse.  But what does the statute actually mean?

The New Hampshire Supreme Court case of In re Estate of Buttrick 134 N.H. 675 (1991), is helpful to fill in the blanks.  In the Buttrick case, the issue before the Court was whether the parties really were “generally reputed to be” husband and wife. Evidence was introduced in the form of (1) testimony of friends who thought the parties were married, (2) references by one of the parties to the other as husband or “hubby”, (3) references by one of the parties to the other party’s relatives as his “in-laws”, (4) mail received by the parties addressed to them as husband and wife, (5) the performance of a “wedding ceremony” by the couple which, was considered to be a reflection of the “couple’s commitment and devotion” to each other.  The Court found this evidence sufficient to confirm the Probate Court’s decision to award the surviving spouse a spousal interest in the estate.

On the other hand, in a more recent case, In re Estate of Bourassa, no common law marriage existed between domestic partners where witnesses testified that the parties did not acknowledge each other as spouses, held real estate separately, held separate health insurance, and had separate vehicle titles.  In re Estate of Bourass, 157 N.H. 356 (2008).

If you have questions or concerns about the rights of anyone to a share of your estate or if you just want to have the peace of mind that comes with knowing that the right people will inherit your legacy when you die please contact Attorney John S. Polgrean for an estate planning consultation.

Author: John S. Polgrean, Esq.

Welts, White & Fontaine, P.C.

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