What happens if you discover that you are not formally married due to a clerical error in a common law marriage state?

UPDATED: Jul 18, 2010

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What happens if you discover that you are not formally married due to a clerical error in a common law marriage state?

When my husband applied for social security in 1999, we discovered the notary who married us never notarized and sent in the license. We signed docs for social security that we have been together since 1983. Now, in 2010, I need to renew my driver’s license in and cannot because I do not have documentation as to my last name change. Although I’m working on that both my husband and I have questions as to our Wills; should something happen are we in a common law marriage and what happens to all our assets.

Asked on July 18, 2010 under Estate Planning, Montana


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

What a mess.  I am so sorry for your troubles.  Yes, Montana is a common law marriage state and recognizes this type of union.  So either way you are married there.  You and your husband have already decided about your assets: you and he have prepared Wills distributing them.  Even if you were not married you could still leave him everything and him vice versa.  Even having a Will does not stop those that are malcontent for not getting anything from contesting it.  But a no contest clause here may be a good idea.  And really, you probably should go and re-consult with an attorney on your Will to make sure that everything still reads properly given the circumstances.  Good luck.

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