How does common law marriage affect health insurance eligibility?

For purposes of health insurance, an employer that offers spousal coverage would include in its insurance contractual definition of “spouse” the spouse of a common law marriage. The employer would therefore have to allow the enrollment of a spouse from a common law marriage the same as the spouse from a traditional marriage. Also, under a common law marriage, children have a presumption of legitimacy and would be considered dependents eligible for health coverage. (Under the Patient Protection and Affordable Care Act, or PPACA, a covered employer does not have to offer spousal coverage but does have to cover eligible dependent children to avoid penalties.)

A common law marriage allows persons who live together as man and wife for a sufficient time and with the intent of having an exclusive relationship similar to a marriage to have the legal rights of formally married persons. Once a common law marriage is established, it must be recognized even in states that do not recognize a common law marriage.

As state laws vary on the criteria for a common law marriage, employers should check or seek legal advice on specific provisions and requirements of the state in which they operate regarding common law marriage recognition.

The Full Faith and Credit clause of the U.S. Constitution requires a state to accept as valid a common law marriage established in a state that recognizes a common law marriage. This clause means that a couple with a common law marriage in a state where it is legally recognized may move to another state and maintain the couple’s common law marriage status even if the new state does not legally recognize common law marriage.

Some employers or insurers require a signed affidavit from an employee to recognize the common law marriage before enrolling a common law spouse on the health plan. Employers may also require proof of the common law marriage with evidence such as joint tax returns, checking accounts, mortgage or lease, or other requirements specified under the state law that recognizes common law marriage.