Common law marriage in Indiana is not an option for any couple today. Indiana Code 31-11-8-5 declares void every common law marriage entered into in the state after January 1, 1958, no matter how long a couple has lived together, shared finances, or introduced each other as spouses.1Indiana General Assembly. Indiana Code 31-11-8-5 – Common Law Marriages Entered Into After January 1, 1958 The only way to become legally married in Indiana is to obtain a marriage license and have the ceremony performed by an authorized officiant.
“Void” is a strong word. The state treats the relationship as if no marriage ever existed. There is no grace period, no partial recognition for long-term couples, and no judicial route to convert cohabitation into marriage. A couple that has lived together in Indiana for 30 years, filed joint tax returns, worn rings, and raised children together is legally two single people.
A common law marriage validly formed in Indiana before January 1, 1958, remains recognized. Nearly seven decades later, few of those marriages still involve living spouses.
Common Law Marriages Formed in Another State
Indiana will not let you create a common law marriage within its borders, but it will honor one that was validly formed somewhere that still allows them. Indiana courts have held that recognizing an out-of-state common law marriage does not violate the state’s public policy, and the U.S. Constitution’s Full Faith and Credit Clause reinforces that result.2Social Security Administration. SSA – POMS: PR 05605.017 – Indiana3Library of Congress. Article IV Section 1 – Constitution Annotated
Only a handful of states still permit new common law marriages: Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), South Carolina, Texas, and Utah. Rhode Island and Oklahoma recognize them through case law rather than statute.4National Conference of State Legislatures. Common Law Marriage by State Each state sets its own requirements. Colorado, for instance, requires both parties to be at least 18.
What You Have to Prove
If you believe you formed a common law marriage in another state and later moved to Indiana, the burden of proving it falls on you. The typical elements are a present mutual agreement to be married (not a plan to marry someday), living together as spouses, and being known in your community as a married couple.2Social Security Administration. SSA – POMS: PR 05605.017 – Indiana Simply having lived in a state that allows common law marriage is not enough. You must have met that state’s specific criteria while you were there.
This is where most claims collapse. A couple assumes that a few years sharing an apartment in Colorado created a marriage. It did not, unless they also intended to be married and held themselves out as such. If a dispute reaches an Indiana court, the person asserting the marriage must produce evidence: joint bank accounts, shared insurance policies, tax returns filed as married, and testimony from friends and relatives who understood them to be spouses.
What Unmarried Couples Lose by Default
The practical cost of Indiana’s rule hits hardest when something goes wrong: a death, a medical emergency, or a breakup. Married couples get automatic protections in all three situations. Unmarried couples get nothing by default, no matter how long they’ve been together.
Inheritance
When someone dies without a will in Indiana, the estate passes to surviving relatives in a fixed order: spouse first, then children, then parents, then siblings. An unmarried partner is not on that list. A surviving spouse would normally receive between one-half and all of the estate depending on who else survives; an unmarried partner receives nothing from intestate succession.5Indiana General Assembly. Indiana Code Title 29 Probate 29-1-2-1 A partner of 30 years is treated the same as a stranger.
Medical Decisions
Indiana hospitals default to legal next of kin when a patient cannot make their own medical decisions. An unmarried partner has no automatic authority to consent to treatment, access records, or make end-of-life choices. In a crisis, a parent or adult child the patient barely sees may be given decision-making power over the partner who has been there for years.
Property If You Separate
When married couples divorce in Indiana, the court divides marital property through equitable distribution. Unmarried couples who split up have no equivalent process. Each person keeps what is titled in their own name, regardless of who actually paid for it. If you spent years making mortgage payments on a house titled only to your partner, you have no automatic right to a share. Recovery is possible but hard: you would have to prove your partner agreed to reimburse you or that keeping the benefit of your payments would be unjust.
Legal Documents That Fill the Gap
None of these problems are unfixable. They just require deliberate paperwork instead of the automatic protections marriage would provide. The cost of a handful of documents is small compared with the cost of litigation or the pain of being locked out of a hospital room.
Cohabitation Agreement
A cohabitation agreement is a private contract between partners that spells out who owns what, how shared expenses are handled, and what happens to jointly acquired property if the relationship ends. Indiana courts enforce express contracts between cohabitants. Without a written agreement, a partner seeking reimbursement later must prove the other person requested or agreed to share the contributions, which is a much harder case.
Estate Planning Documents
Four documents, prepared with an attorney, replicate most of what marriage would give you automatically:
- A will or revocable living trust naming your partner as a beneficiary, so your assets pass to them when you die rather than following Indiana’s intestate succession order.
- A durable power of attorney authorizing your partner to manage your finances if you become incapacitated.
- A healthcare power of attorney or advance directive giving your partner authority to make medical decisions on your behalf.
- Up-to-date beneficiary designations on retirement accounts, life insurance, and bank accounts. These designations override a will, so keeping them current matters.
Indiana has specific statutory requirements for valid wills and powers of attorney. A document that does not meet them offers no protection at all.
Federal Taxes and Social Security
Federal agencies have their own rules, and they do not always match Indiana’s. The IRS recognizes any marriage valid in the state where it was formed. If you entered into a common law marriage in a state that allows one, you remain married for federal tax purposes after moving to Indiana and can file jointly under Section 6013 of the Internal Revenue Code.6Internal Revenue Service. Revenue Ruling 2013-17
Social Security takes a similar approach. If you can prove a valid common law marriage from a state that recognizes them, you may qualify for spousal and survivor benefits, supported by SSA forms and statements from blood relatives, plus documents like mortgage receipts, insurance policies, or bank records showing the couple functioned as spouses.7Social Security Administration. Code of Federal Regulations 404.726 – Evidence of Common-Law Marriage
Couples who have only ever lived together in Indiana get none of this. They cannot file federal taxes as married, and they do not qualify for spousal Social Security benefits, no matter how long they have been a couple.
Children of Unmarried Parents
When a married couple has a child in Indiana, the husband is automatically presumed to be the legal father. When an unmarried couple has a child, the mother has sole legal custody by default, and the father has no automatic rights to custody or parenting time until paternity is legally established.
The simplest route is a paternity affidavit, usually signed at the hospital within 72 hours of birth. Once signed, the father’s name is added to the birth certificate, and he becomes the legal father.8Justia. Indiana Code Title 31, Article 14, Chapter 7 – Presumption of Paternity The affidavit supports child support enforcement, but it does not by itself decide custody or parenting time. A separate court order is still needed to set where the child lives, how decisions are made, and when each parent has time with the child.9Indiana Department of Child Services. Judicial Establishment of Paternity
A paternity affidavit can be rescinded within 60 days. After that, it can only be challenged through a court proceeding, and the bar for overturning it is high. An unmarried father who wants real involvement in his child’s life should establish paternity promptly and then file for a custody and parenting time order. Signing the birth certificate alone is not enough.
If You Want to Be Legally Married in Indiana
Since cohabitation will never create a marriage in Indiana, the only path is a marriage license and a ceremony. Both applicants apply in person at the Clerk of the Circuit Court in the Indiana county where one of them lives, or in the county where the ceremony will take place if both live out of state.10Indiana Judicial Branch. Apply for a Marriage License The license is issued the same day and is valid for 60 days; if the ceremony does not happen within that window, you have to start over. The ceremony itself must be solemnized by someone authorized under Indiana Code 31-11-6-1, which includes clergy, judges, mayors within their county, city or town clerks, the clerk of the circuit court, and certain religious groups following their own traditions.11Indiana General Assembly. Indiana Code 31-11-6-1 – Persons Authorized to Solemnize Marriages An officiated backyard ceremony counts the same as a cathedral wedding, as long as the officiant qualifies and the license is still valid.