Common law marriage in Kansas is legally valid and carries the same weight as a ceremonial marriage. The Kansas Supreme Court requires three elements: both people must have the legal capacity to marry, they must presently agree to be married, and they must hold each other out publicly as spouses.1FindLaw. In Re the Common-Law Marriage of Edwin W. Kelley and Mary V. (Gerlt) Kelley (2026) If all three are met, the couple is married under Kansas law — no license, no ceremony, no registration required.
The Three Requirements
The test comes from Driscoll v. Driscoll (1976) and was reaffirmed by the Kansas Supreme Court in February 2026 in In re Marriage of Kelley: “(1) capacity of the parties to marry; (2) a present marriage agreement between the parties; and (3) a holding out of each other as husband and wife to the public.”1FindLaw. In Re the Common-Law Marriage of Edwin W. Kelley and Mary V. (Gerlt) Kelley (2026) All three must be present. Missing any one of them, and there is no marriage.
Capacity to Marry
Both people have to be legally able to marry. Under K.S.A. 23-2502, Kansas will not recognize a common law marriage if either party is under 18.2Kansas State Legislature. Kansas Statute 23-2502 – Common-Law Marriage Neither person can already be married to someone else. K.S.A. 23-2501 defines marriage as a civil contract requiring the consent of both parties.3Kansas Office of Revisor of Statutes. Kansas Statutes Annotated 23-2501 – Nature of Marriage Relation The statute still refers to “two parties who are of opposite sex,” but that language is unenforceable after the U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges.
A Present Agreement to Be Married
Both parties must intend to be married now, not someday. The agreement doesn’t have to be in writing, but it has to be real and mutual. If one person believed the relationship was a marriage and the other didn’t, this element fails. Vague plans to “eventually” marry don’t count. Courts look for concrete signs of present intent: shared finances, jointly owned property, naming each other as beneficiaries, using the same last name.
Holding Out as Married
The couple has to consistently represent themselves to the community as spouses. Filing joint tax returns, introducing each other as husband or wife, sharing a last name on legal documents, listing each other as married on medical and financial forms — this pattern is what separates a common law marriage from simply living together, as the Kansas Supreme Court emphasized in Driscoll.4Justia. Driscoll v. Driscoll, 220 Kan. 225 (1976) Occasional or inconsistent representations won’t satisfy the requirement. The couple’s behavior has to tell one unified story.
Proving the Marriage Later
Kansas has no state registration system for common law marriages, which is where most problems start. If the marriage is ever questioned — in court, by a federal agency, by an insurance company — the couple has to assemble circumstantial evidence after the fact. Being deliberate from the beginning saves enormous trouble.
The strongest single step is a signed, notarized affidavit in which both people declare their intent to be married. It isn’t required to create the marriage, but it’s powerful evidence if the marriage is ever challenged. Kansas is one of ten states with no cap on notary fees, so costs vary.
Beyond that, build a paper trail over time: joint bank accounts, shared deeds or leases with both names, insurance policies naming each other as spouses, joint tax returns, correspondence referring to each other as spouses. When the Social Security Administration evaluates a common law marriage claim, it looks for exactly this kind of corroborating material — mortgage or rent receipts, insurance policies, medical records, bank records.5Social Security Administration. POMS GN 00305.065 – Development of Common-Law (Non-Ceremonial) Marriages The more consistent and overlapping the documentation, the harder it is for anyone to dispute the marriage.
Property and Inheritance Rights
Once a common law marriage exists, both spouses have the same property and inheritance rights as any ceremonially married couple.
Under K.S.A. 23-2801, all property owned by either spouse becomes marital property the moment one spouse files for divorce, separate maintenance, or annulment.6Justia. Kansas Statutes 23-2801 – Marital Property That includes property either person owned before the marriage and anything acquired during it, even vested and unvested military retirement pay. Kansas courts apply equitable distribution under K.S.A. 23-2802, weighing ten statutory factors including the length of the marriage, each spouse’s earning capacity, how property was acquired, dissipation of assets, and tax consequences.7Kansas Office of Revisor of Statutes. Kansas Statutes Annotated 23-2802 – Division of Property Equitable doesn’t necessarily mean equal.
If one spouse dies without a will, the survivor inherits under Kansas intestate succession. Under K.S.A. 59-504, a surviving spouse inherits the entire estate when there are no surviving children, and one-half when there are.8Kansas Office of Revisor of Statutes. Kansas Statutes Annotated 59-504 – Surviving Spouse Those rights apply automatically, but the surviving spouse may still need to prove the marriage existed, especially if other family members contest it.
Federal Taxes and Benefits
A valid Kansas common law marriage is a marriage for nearly all federal purposes. The IRS treats you as married if you and your spouse are living together in a common law marriage recognized in the state where you currently live or where the marriage began, which allows joint filing and all associated tax benefits.9Internal Revenue Service. Publication 17, Your Federal Income Tax
The Social Security Administration recognizes common law marriages for spousal benefits, survivor benefits, and Medicare eligibility. For a survivor claim, SSA typically asks for signed statements from the surviving spouse and blood relatives along with corroborating documents.5Social Security Administration. POMS GN 00305.065 – Development of Common-Law (Non-Ceremonial) Marriages
Common law spouses also qualify as spouses under the Family and Medical Leave Act. The Department of Labor’s definition looks to the law of the place where the marriage was entered into, so a Kansas common law marriage qualifies for FMLA leave even if the employee later moves to a state that doesn’t allow new common law marriages.10Federal Register. Definition of Spouse Under the Family and Medical Leave Act
If You Move Out of Kansas
A validly formed Kansas common law marriage generally remains valid when you move. Under the Full Faith and Credit Clause, states that no longer allow the creation of new common law marriages still typically recognize those validly formed elsewhere. The Social Security Administration lists several non-recognition states — including California, Illinois, Ohio, and Washington — that recognize common law marriages validly entered into in other states.11Social Security Administration. POMS GN 00305.075 – State Laws on Validity of Common-Law Non-Ceremonial Marriages
The burden of proof shifts to you once you leave. A state that didn’t create the marriage has no reason to take your word for it, which is why that notarized affidavit, joint tax returns, and other documentation matter. Some couples who relocate choose to obtain a ceremonial marriage license in the new state just to eliminate any ambiguity, and there’s nothing wrong with that approach.
Ending a Common Law Marriage
There is no informal way out. Because the marriage carries the same legal status as a ceremonial one, dissolving it requires a formal divorce in Kansas district court. Filing a petition for dissolution under K.S.A. 23-2701 starts the process.12Justia. Kansas Statutes 23-2701 – Grounds for Divorce or Separate Maintenance Kansas imposes a mandatory 60-day waiting period after filing before the court will hear the case, waivable only in a declared emergency.13Kansas State Legislature. Kansas Statute 23-2708 – Waiting Period The filing fee is $195, with waivers available for financial hardship.14Kansas Courts. District Court Filing Fees
The court can award spousal maintenance under K.S.A. 23-2902 in whatever amount it finds “fair, just and equitable under all of the circumstances.”15Justia. Kansas Statutes 23-2902 – Maintenance If either spouse has an employer retirement plan, dividing it requires a Qualified Domestic Relations Order prepared to the plan administrator’s specifications.16U.S. Department of Labor. QDROs – The Division of Retirement Benefits Through Qualified Domestic Relations Orders
Pitfalls to Watch For
Becoming Married Without Meaning To
Because nothing has to be filed, couples sometimes create a common law marriage without realizing it. Two people who live together, share finances, and casually refer to each other as spouses may satisfy all three elements even if neither intended legal marriage. The consequences are real: if the relationship ends, both parties have property claims and possible maintenance exposure; if one dies, the other may have inheritance rights that cut against the deceased’s estate plan. Couples who want to live together without being married should be deliberate about how they present the relationship and how they structure shared finances.
Fighting Over Whether the Marriage Existed
Disputes usually surface during a breakup or after a death — the worst possible time to assemble evidence. The surviving or departing partner has to prove mutual intent and public holding-out, often against family members or an ex with every reason to deny it. Courts piece the picture together from financial records, testimony, and whatever documents the couple created. The less documentation exists, the more the outcome rides on witness credibility, which makes litigation expensive and unpredictable. Kansas family law attorneys typically charge $150 to $500 or more per hour for contested matters.
Assuming Separation Ends It
A common law marriage does not dissolve when the couple separates. Without a formal divorce, both people remain legally married. Neither can legally marry someone else, and any new ceremonial marriage would be void for bigamy. Property acquired after the split can still be considered marital, and either spouse may remain exposed to the other’s debts depending on the circumstances. If you believe you may be in a common law marriage and want to end it, filing for divorce is the only safe path, however informal the relationship felt.