Can a family cut out a common-law spouseif there was no Will?

UPDATED: Sep 25, 2010

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Can a family cut out a common-law spouseif there was no Will?

We lived together in Iowa for 16 years; he passed away in February. He had been disabled and had to roll over his 401K to an IRA. I was listed as beneficiary on the 401K, but when they rolled it over to the IRA the investment company didn’t ask him and he assumed that the beneficiary would roll over with it. It didn’t. They all agreed that everything would go to me, but I’m starting to get a little nervous. It’s been 7 months now and I’m beginning to think that maybe a couple of his siblings are helping themselves to some of it. Should I do anything or just wait it out?

Asked on September 25, 2010 under Estate Planning, Iowa


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

First of all, were you legally common law married? IA is one of the few jurisdictions that recognize the "common law" marriage.  In order to have a such a valid marriage all 3 of the following must be proven:

  1. Present intent and agreement to be married.  Eexpress intent is not required; implied intent can be enough (even the implied intent of one party may be enough);
  2. Continuous cohabitation (although no minimum length of time is required); and
  3. General and substantial public declaration that the parties are husband and wife (ie there can be no secret common law marraige).  Examples include: use of the other party's last name, referring to each other as husband and wifefailing to correct people who refer to them as husband and wife, filing joint bank atax returens, having joint bank accounts or joint crdit , and, naming each other as beneficiaries in life insurance policies or the like, etc.

If you meet the test for a common law marriage in IA, a surving spouse who is not the parent of any surviving children of the deceased, shall generally inherit as follows:

  1. 1/2 of all real property possessed by the decedent at any time during the marriage;
  2. All personal property that, at the time of death, was in the hands of the decedent as the head of a family, exempt from execution;
  3. 1/2 of all other personal property of the decedent (after payment of debts);
  4. If the property received by the surviving spouse under either 1, 2 and 3 of this section is not equal in value to $50,000, then so much additional of any remaining homestead interest and of the remaining real and personal property (after payment of debts) as necessary to make the amount $50,000.

Since your case presents a rather complicated set of facts, you should consult with a local estate/probate attorney in your area.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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