Proving a Common-Law Marriage Existed Before 2019 for South Carolina Wrongful Death Claims
South Carolina abolished new common-law marriages in 2019. To claim wrongful death benefits as an unmarried partner today, you must legally prove that your common-law marriage was established before July 2019. Simply living together is not enough to grant you legal standing.
Losing a long-term partner is a devastating tragedy. In South Carolina, the agony is often multiplied when an unmarried partner discovers they have absolutely no legal right to file a wrongful death lawsuit. Unlike married couples, unmarried partners do not automatically qualify as beneficiaries under the state's wrongful death statutes. For decades, long-term partners relied on the concept of "common-law marriage" to protect their rights. However, a massive shift in state law recently changed everything, leaving thousands of couples unprotected. If your partner was killed in an accident, establishing that you were common-law married prior to this legal shift is the only way to recover financial damages for your loss.
Why Unmarried Partners Currently Have No Standing
In a landmark 2019 decision, Stone v. Thompson, 428 S.C. 79 (SC Supreme Court 2019), the South Carolina Supreme Court officially abolished the creation of any new common-law marriages. If you and your partner decided to move in together and act like a married couple in August 2019 or later, you are simply considered roommates under the law. Under the South Carolina Wrongful Death Act, S.C. Code Ann. § 15-51-20, only a legal spouse, child, or parent has the standing to receive settlement funds. Because wrongful death laws are strictly interpreted by judges, an unmarried boyfriend, girlfriend, or fiancé has zero legal standing, meaning you will receive absolutely nothing from the negligent party's insurance company.
Evidence Needed to Prove Common-Law Marriage Pre-2019
The only saving grace in the Stone v. Thompson ruling is that the Supreme Court did not invalidate common-law marriages that were established before July 24, 2019. If you can prove that you and your deceased partner met the strict legal requirements of a common-law marriage before that specific date, you will be legally recognized as a surviving spouse and granted full rights to the wrongful death settlement. To win this in probate court, you must prove two things: that you both had the present intent to be married to each other, and that you openly held yourselves out to the public as husband and wife.
- Joint Tax Returns: Filing federal or state taxes as "Married Filing Jointly" prior to 2019 is the strongest piece of evidence you can present.
- Financial Commingling: Joint bank accounts, shared mortgages, or listing each other as a "spouse" on health insurance policies or life insurance beneficiary forms.
- Public Reputation: Affidavits from friends, family, and coworkers testifying that you introduced each other as "my husband" or "my wife" at public events.
- Anniversary Celebrations: Cards or social media posts celebrating a specific date as your "anniversary" of becoming a married couple.
Appealing Denials of Spousal Status in Probate
If you file to open the wrongful death estate, the deceased partner's parents or siblings may aggressively fight you. If they defeat your claim of a common-law marriage, the settlement money bypasses you entirely and goes to them. This creates bitter battles in probate court. You must be prepared to litigate the existence of your marriage aggressively against your partner's biological family.
Step-by-Step Guide to Claiming Spousal Status
Establishing a pre-2019 common-law marriage requires massive legal proof. You should browse our US Lawyers directory to find a highly skilled South Carolina probate and wrongful death attorney to handle this complex litigation.
Step 1: Petition to Open the Estate
To control the wrongful death lawsuit, you must be appointed as the Personal Representative of the estate. Your lawyer will file Form 300ES, South Carolina, Probate Court, Application (Informal) / Petition (Formal) for Probate of Will or Appointment. You will file this at your local court, such as the Lexington County Probate Court, Lexington or the Spartanburg County Probate Court, Spartanburg.
Step 2: File a Petition for Determination of Heirs
Because your marriage license does not exist, the court must officially declare you a legal surviving spouse. Under S.C. Code Ann. § 62-3-401, your attorney will initiate a formal testacy proceeding by filing a petition to determine heirs accompanied by Form SCCA 401PC, South Carolina, Probate Court, Summons. At this evidentiary hearing, your lawyer will present all your joint bank statements, tax returns, and witness testimonies proving the pre-2019 marriage.
Step 3: Pursue the Wrongful Death Claim
Once the probate judge issues an order declaring you the legal common-law surviving spouse, you have full authority to hire a personal injury lawyer and sue the negligent party (such as a drunk driver or a negligent hospital) for the massive financial damages you are now legally entitled to receive.
Legal Costs and Timelines
While the actual wrongful death lawsuit against the at-fault party is handled on a contingency fee (meaning no upfront costs), litigating a highly contested common-law marriage in probate court often requires you to pay your probate attorney an hourly rate, which typically ranges from $250 to $450 per hour in South Carolina. Proving a contested marriage can take anywhere from 6 to 12 months in probate court before the wrongful death settlement can even be distributed.
Frequently Asked Questions (FAQ)
Does living together for 7 years automatically make us common-law married?
No. There is a massive myth that living together for a specific number of years automatically creates a marriage. Time lived together is irrelevant; the only thing that matters is whether you had a mutual agreement to be married and held yourselves out to the public as spouses before July 2019.
What if we started living together in 2020?
If your relationship began after the 2019 Supreme Court ruling, you absolutely cannot form a common-law marriage in South Carolina. You would have no standing to file a wrongful death claim unless you actually obtained a formal marriage license.
Can the insurance company deny my claim because I don't have a marriage license?
Yes, the at-fault party's insurance company will absolutely refuse to pay you if you do not have a marriage license. You must go to probate court first and get a judge to officially rule that a valid common-law marriage existed before the insurance company will negotiate with you.
Does having a child together prove a common-law marriage?
Not on its own. While having a child together shows a deep commitment, unmarried couples have children every day. You still must prove the specific intent to be married and that you presented yourselves to the community as a married couple.
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