Does Georgia Recognize Common Law Marriage?

Many people believe they are protected under the concept of common law marriage. However, in 1997, Georgia law stopped allowing the formation of common law marriage. This means that if you and your partner did not form a legal common law marriage before January 1, 1997, you and your partner do not have the same rights as married couples.

Without a plan, you could lose your home and financial stability if circumstances plan. Without the right legal tools, you can’t help each other effectively in an emergency.

You do not have to figure this out alone. With the right legal protections, you can secure your future just as effectively as a married couple.

Passing Away Without an Estate Plan in Georgia

If you pass away without an estate plan in Georgia, the state gives priority to:

• Your children
• Your parents
• Your siblings
• Other relatives

Your partner of 20 years? They receive nothing under Georgia law.

We’ve seen cases right here in Atlanta where surviving partners were forced out of homes they helped pay for because they had no legal right to stay or inherit any of your assets.

Wills and Trusts: Building a Legal Foundation for Your Partnership

Without a plan, Georgia law decides who gets your hard-earned assets, from your home to your furniture. The only way to ensure your partner receives what you want is to put the right legal protections in place.

A properly structured estate plan allows you to:

• Ensure your partner either keeps your shared home or can stay in it instead of being forced out by family members Prevent legal battles over your money and property
• Allow your partner to live in the home for a set period while ensuring that proceeds from a sale go to your children or other family members
  Control how your assets are distributed instead of letting the state decide
• Keep everything private and avoid court involvement

Some couples need a last will and testament. Others benefit from a revocable living trust that keeps everything seamless and private. The right estate plan for you depends on your situation, assets, and goals.

You do not need to figure this out alone. We make it easy by guiding you through every step and handling the details.

Protecting Your Home

If you own Georgia real estate with someone else, how you hold title determines what happens when one of you passes away. The wrong setup can leave the surviving partner with no legal right to stay.

Consider these options:

• Joint Tenancy with Rights of Survivorship: Automatically transfers the deceased partner’s share to the surviving partner, bypassing probate. Georgia deeds must include specific language to provide this protection.
• Tenancy in Common: Allows unequal ownership shares but does not include automatic survivorship rights. This means the deceased partner’s share passes according to their estate plan or according to state law if they don’t have an estate plan. Failing to plan means you might co-own your property with their family members or leave you without a place to live.
• Revocable Living Trust Ownership: Ensures that the surviving partner can stay in the home without legal battles and allows you to direct where the money goes when the home is eventually sold.
• Limited Liability Company Ownership: Ideal for rental and investment properties, a limited liability company structure with a well drafted operating agreement gives asset protection, allows clear ownership percentages, and ensures automatic transfer of ownership.

Many couples assume that they are protected if both names are on the deed. In Georgia, that’s not always the case. Without the right structure, your partner may end up co-owning the home with your family instead of receiving full ownership.

Planning for Incapacity

Financial institutions and hospitals follow Georgia law, not personal relationships. The only way to guarantee your partner can act on your behalf when you want them to is to put legal protections in place before you need them.

Georgia Advance Healthcare Directive

If your partner is hospitalized, you will likely have no right to make medical decisions or even receive updates about their condition. Without the proper legal authority, Georgia law defers to family members, no matter how long you have been together.

Georgia’s Advance Directive for Health Care combines two crucial protections:

• Healthcare Power of Attorney: Allows you to name your partner as your healthcare agent. Without it, hospitals may exclude your partner from visiting you or participating in medical decisions, deferring instead to biological family members (even estranged ones).
• Living Will: Specifies your treatment preferences for certain end-of-life situations if you can’t communicate with your healthcare provider.

Georgia Durable Power of Attorney

If you become incapacitated, Georgia law does not allow your domestic partner to manage your finances unless you have a financial power of attorney.

A Georgia durable power of attorney allows a person of your choosing to step in when needed while letting you decide what they can and cannot do.

This can include, but is not limited to:

• Paying bills from your accounts so nothing falls behind
• Ensuring your taxes get filed on time
• Managing investments and handling financial decisions
• Dealing with insurance claims or unexpected expenses
• Running your business in your absence, including signing contracts or managing payroll
• Applying for government benefits like Social Security or Medicare
• Resolving banking issues, such as disputing charges or transferring funds
• Handling a lawsuit on your behalf, including working with your attorney, approving settlements, or meeting court deadlines

You can set it up however you want, and if your circumstances change, you can revoke it at any time. Without this, your partner may have to go to court to access accounts or pay basic bills.

Don’t Leave Yourself or Your Partner Vulnerable!

You have worked hard to build a life together. Now it is time to protect it. At Thrift McLemore, we help unmarried couples in Atlanta and across Georgia create estate plans that provide the same security as marriage.

We understand the unique challenges of domestic partners and can create a customized solution that meets your needs.

Call us today at (678) 882-0830 to schedule a consultation with one of our experienced Atlanta estate planning attorneys.