Common law marriage in Indiana is not available to couples today. Indiana Code 31-11-8-5 voids any common law marriage entered into after January 1, 1958, which means living together, sharing finances, and calling each other husband and wife creates no legal marriage in the state.1Indiana General Assembly. Indiana Code 31-11-8-5 – Common Law Marriages Entered Into After January 1, 1958 The only path to a legal marriage in Indiana is a marriage license followed by a ceremony performed by an authorized officiant.
The statute uses the word “void,” and it means what it says. There is no grace period after some number of years together, no judicial workaround, and no partial recognition. A couple who has shared a home in Indiana for three decades has the same legal status as roommates.
The 1958 cutoff has one narrow effect: a common law marriage validly formed in Indiana before that date remains recognized. Nearly seven decades later, that provision touches almost no one.
Common Law Marriages From Other States
Indiana will not let you form a common law marriage inside its borders, but it will honor one you validly formed somewhere else. Indiana courts have consistently recognized marriages lawfully entered into in other states, and case law has specifically held that recognizing an out-of-state common law marriage does not violate Indiana public policy.2Social Security Administration. SSA – POMS: PR 05605.017 – Indiana The Full Faith and Credit Clause of the U.S. Constitution reinforces that outcome by requiring each state to give effect to the public acts of every other state.3Library of Congress. Article IV Section 1 – Constitution Annotated
Only a handful of states still allow 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 of those states sets its own criteria, and the criteria vary. Colorado, for instance, requires both parties to be at least 18.
What You’d Actually Have to Prove
Time spent in a common law marriage state does not, by itself, create a marriage. The couple must have met that state’s specific requirements while they were there. In most states that allow it, that means a mutual agreement to be married in the present tense (not a plan to marry later), living together as spouses, and being known in the community as a married couple.2Social Security Administration. SSA – POMS: PR 05605.017 – Indiana
If a dispute reaches an Indiana court, the burden of proof falls on the person claiming the marriage exists. Useful evidence includes joint bank accounts, shared insurance policies, tax returns filed as married, and testimony from friends and relatives who understood the couple to be spouses. Assumptions that a shared lease in Colorado for a few years automatically created a marriage tend to collapse under this kind of scrutiny.
What Unmarried Couples in Indiana Lose by Default
The practical cost of Indiana’s rule shows up in three places: death, medical crises, and separations. Married couples get automatic legal protections in all three. Unmarried couples get nothing unless they have set up documents in advance.
Inheritance
When someone dies without a will in Indiana, the estate passes to surviving family in a set order: spouse, then children, then parents, then siblings. An unmarried partner appears nowhere on that list. A surviving spouse would receive between one-half and all of the estate depending on which other relatives survive; a surviving unmarried partner receives nothing, regardless of how long the relationship lasted.5Indiana General Assembly. Indiana Code Title 29 Probate 29-1-2-1
Medical Decisions
Hospitals default to legal next of kin when a patient cannot speak for themselves. An unmarried partner has no automatic authority to consent to treatment, review medical records, or make end-of-life decisions. In a crisis, the hospital may look to a parent or adult child instead of the partner who has lived with the patient for years.
Property Division
Divorcing couples in Indiana go through equitable distribution, where a court divides the marital estate. Unmarried couples who separate have no equivalent process. Each person keeps whatever assets sit in their own name. Someone who spent years paying the mortgage on a house titled only to their partner has no automatic claim on the property. Recovery is possible in court, but it requires proving that the partner agreed to reimburse the contributions or that keeping them would be unjust. That is a much harder case than a routine divorce.
How to Get the Protections Without a Marriage License
Every gap above can be closed with paperwork. The documents cost far less than the litigation or the loss that follows when they are missing.
Cohabitation Agreements
A cohabitation agreement is a private contract between partners that sets out who owns what, how shared expenses work, and what happens to jointly acquired property if the relationship ends. Indiana courts enforce express contracts between cohabitants. Without one, a partner asking to be reimbursed for contributions has to prove the other person requested them or agreed to share the cost, which is a much steeper climb.
Estate Planning Documents
A short list of documents can replicate most of what marriage provides automatically:
- A will or revocable living trust naming your partner as a beneficiary, overriding Indiana’s intestate succession rules that would otherwise leave them out.
- 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 for you.
- Updated beneficiary designations on retirement accounts, life insurance, and bank accounts. These designations override a will, so keeping them current matters.
Indiana has specific requirements for valid wills and powers of attorney. A document that fails those requirements offers no protection, so work with an attorney rather than a template.
Children of Unmarried Parents
Indiana’s rule reaches children as well. A married husband is automatically presumed to be the legal father. An unmarried mother holds sole legal custody by default, and the father has no automatic rights to custody or parenting time until paternity is legally established.
The most direct route is a paternity affidavit, usually signed at the hospital within 72 hours of birth. Signing adds the father’s name to the birth certificate and makes him the legal father.6Justia. Indiana Code Title 31, Article 14, Chapter 7 – Presumption of Paternity The affidavit supports child support enforcement, but it does not decide custody or parenting time on its own. A separate court order handles where the child lives, how decisions get made, and when each parent has time with the child.7Indiana Department of Child Services. Judicial Establishment of Paternity
A signed affidavit can be rescinded within 60 days. After that window, challenging it requires a court proceeding, and the bar is high. Unmarried fathers who want a meaningful role should establish paternity promptly and then file for a custody and parenting time order. Signing the birth certificate alone is not enough.