Common law marriage in Kansas is a legally binding marriage formed without a license or ceremony when a couple meets three requirements: both people have the legal capacity to marry, they presently agree to be married, and they hold themselves out to the public as spouses. Once those elements are satisfied, the marriage carries the same legal weight as any ceremonial one for property, inheritance, taxes, and federal benefits, and ending it requires a formal divorce.
The Three Requirements
The Kansas Supreme Court reaffirmed the test in February 2026 in In re Marriage of Kelley, citing the framework from Driscoll v. Driscoll (1976): “(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. Miss one, and there is no marriage.
Capacity
Both people must be legally eligible 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 Obergefell v. Hodges (2015).
A Present Agreement
Both people must intend to be married now, not eventually. The agreement doesn’t need to be written, but it has to be mutual and it has to be about the current relationship. If one partner thought the relationship was a marriage and the other didn’t, this element fails. Vague plans to marry someday don’t count.
Holding Out as Spouses
The couple has to consistently represent themselves to others as married. Filing joint tax returns, introducing each other as spouses, sharing a last name on legal documents, and listing each other as married on medical or financial forms all serve as evidence. The Driscoll court emphasized that this public representation is what distinguishes a common law marriage from cohabitation.4Justia. Driscoll v. Driscoll, 220 Kan. 225 (1976) Occasional or inconsistent representations aren’t enough. The couple’s behavior has to tell a clear, unified story.
Documenting the Marriage
Kansas has no state registration system for common law marriages, and that is where most problems begin. Without a marriage certificate, couples who later need to prove their marriage to a court, a federal agency, or an insurance company end up assembling circumstantial evidence after the fact. Being deliberate from the start saves enormous trouble later.
The strongest single step is signing a written statement or affidavit declaring intent to be married and having it notarized. An affidavit isn’t required to create the marriage, but it is powerful evidence if the marriage is ever challenged. Kansas is one of ten states with no set maximum notary fee, so cost varies by provider.
Beyond that, build a paper trail over time. Useful documents include joint bank accounts, shared property deeds or leases listing both names, insurance policies naming each other as spouses, joint tax returns, and any correspondence where either person refers to the other as a spouse. When the Social Security Administration evaluates a common law marriage claim, it looks for exactly this kind of corroborating evidence: mortgage or rent receipts, insurance policies, medical records, and 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 the marriage is to dispute.
What Being Married Means
Property
Under K.S.A. 23-2801, all property owned by married persons becomes marital property when one spouse files for divorce, separate maintenance, or annulment.6Justia. Kansas Statutes 23-2801 – Marital Property That includes property either spouse owned before the marriage and property acquired afterward, whether held individually or jointly. Kansas courts apply equitable distribution based on ten factors in K.S.A. 23-2802, including age, marriage duration, earning capacity, how and when the 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.
Inheritance
A surviving common law spouse inherits under Kansas intestate succession the same way a ceremonially married spouse would. Under K.S.A. 59-504, if the deceased has no surviving children, the surviving spouse inherits the entire estate. If there are surviving children, the surviving spouse takes one-half.8Kansas Office of Revisor of Statutes. Kansas Statutes Annotated 59-504 – Surviving Spouse The right applies automatically, though the survivor may still need to prove the marriage existed if relatives contest it.
Federal Taxes and Benefits
The IRS recognizes common law marriages for filing status. Publication 17 says you are considered married if you and your spouse live together in a common law marriage recognized in the state where you currently live or where the marriage began.9Internal Revenue Service. Publication 17, Your Federal Income Tax Common law spouses can file jointly and claim the same tax benefits as ceremonially married couples.
The Social Security Administration recognizes the marriage for survivor benefits, spousal benefits, and Medicare eligibility. When a spouse dies, the SSA typically asks for signed statements from the surviving spouse and blood relatives plus corroborating financial documents.5Social Security Administration. POMS GN 00305.065 – Development of Common-Law (Non-Ceremonial) Marriages Common law spouses also qualify for leave under the Family and Medical Leave Act; the Department of Labor’s rule looks to the law of the place where the marriage was entered into, so a Kansas common law marriage qualifies even after a move to a state that no longer permits new ones.10Federal Register. Definition of Spouse Under the Family and Medical Leave Act
If You Move Out of State
A common law marriage validly formed in Kansas generally remains valid if you leave. Under the Full Faith and Credit Clause, states that don’t allow the creation of new common law marriages typically still recognize those validly formed elsewhere. The Social Security Administration confirms that several non-recognition states, including California, Illinois, Ohio, and Washington, 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 catch is proof. A state that didn’t create the marriage has no reason to take your word for it, so the burden shifts to you. A notarized affidavit, joint tax returns, and other evidence of the marital relationship become essential when enrolling in health insurance, handling estate matters, or dealing with hospitals in your new state. Some couples who relocate obtain a ceremonial marriage license in their new state to eliminate any ambiguity, which is a reasonable belt-and-suspenders 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 through the Kansas district courts. A petition filed 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; a judge can waive it only upon declaring an emergency, which requires specific evidence and advance notice to the other party.13Kansas State Legislature. Kansas Statute 23-2708 – Waiting Period The filing fee for a divorce petition in district court is $195, with waivers available for financial hardship.14Kansas Courts. District Court Filing Fees
Kansas courts may award maintenance to either party. Under K.S.A. 23-2902, the court has broad discretion to set maintenance at whatever amount it finds “fair, just and equitable under all of the circumstances.”15Justia. Kansas Statutes 23-2902 – Maintenance Payments can be a lump sum, periodic, or a percentage of earnings, and the court can make them modifiable or set an end date. If either spouse has an employer-provided retirement plan, dividing that asset requires a Qualified Domestic Relations Order identifying both spouses, naming the specific plan, and specifying the amount or percentage the non-participant spouse receives.16U.S. Department of Labor. QDROs – The Division of Retirement Benefits Through Qualified Domestic Relations Orders Plan administrators reject orders that don’t comply with the technical requirements, so most people use an attorney or specialized preparer.
Assuming that a common law marriage simply dissolves when the couple separates is the most consequential mistake people make. It doesn’t. Without a divorce, both people remain legally married. Neither can legally marry anyone else, any new ceremonial marriage would be void for bigamy, and property acquired after separation may still be marital property. If you believe you may be in a common law marriage and want out, filing for divorce is the only safe path, even if the relationship felt informal.
How People End Up Married by Accident
Because there is no registration requirement, couples sometimes create a common law marriage without realizing it. Two people who live together, share finances, and casually call each other spouses can satisfy all three elements even if neither meant to become legally married. The consequences are real: if the relationship ends, both parties have property claims and may owe maintenance; if one partner dies, the other may have inheritance rights that override the deceased’s estate plan. Couples who want to live together without being married should be deliberate about how they describe the relationship to others and how they structure shared finances.
Disputes over whether a common law marriage existed usually surface during a breakup or after a death, when the person trying to prove it is doing so against family members or an ex with every reason to deny it. Courts assemble the picture from financial records, testimony, and whatever documents the couple created together. Thin documentation shifts the outcome onto witness credibility, and that makes litigation expensive and unpredictable. Kansas family law attorneys typically charge $150 to $500 or more per hour for contested matters. Building a documentary record while the relationship is intact costs almost nothing by comparison.