New Hampshire
Common Law Marriage in New Hampshire: Is It Recognized? (2026)
Independently fact-checked against primary sources (last audited August 18, 2026). · Reviewed by the RecordingLaw editorial team. · Law checked current as of August 18, 2026. · 6 primary sources cited on this page. How we verify our legal content
New Hampshire does not recognize common law marriage for living couples. However, creates a narrow posthumous exception: when one partner in a qualifying cohabiting relationship dies, the survivor may be treated as a legal spouse for inheritance and probate purposes only, if the couple cohabited and mutually acknowledged each other as husband and wife for at least three years prior to the death.
Information last verified on June 2, 2026.
Jurisdiction scope: This article addresses New Hampshire law on common law marriage under and related case law. It does not constitute legal advice. For a state-by-state comparison, see Common Law Marriage by State.
Does New Hampshire Recognize Common Law Marriage?
New Hampshire does not recognize common law marriage for living couples. Two people cannot become legally married in New Hampshire simply by living together, presenting themselves as a couple, or calling each other husband and wife. New Hampshire law requires a marriage license and ceremony for a valid marriage to be formed under RSA 457:1 through .
The absence of a living-couple common law marriage means that a couple in New Hampshire who has never obtained a marriage license is not legally married, regardless of how long they have lived together, how they refer to each other publicly, or what financial ties they have built. Courts in New Hampshire will not treat such a couple as married for purposes of divorce, alimony, health insurance spousal benefits, tax filing, or any other right or obligation that depends on marital status.
However, New Hampshire is unusual among states that do not recognize living common law marriages. RSA 457:39 provides a specific posthumous recognition rule that can apply after one partner dies. That rule is narrow in both its requirements and its scope, and it is examined in detail in the section below.
The RSA 457:39 Posthumous Inheritance Exception
RSA 457:39 states that when one party to a cohabiting relationship dies, the surviving partner may be deemed to have been legally married to the deceased for purposes of inheritance under RSA 457:39's own terms, if four conditions are met:
- The couple cohabited together as husband and wife.
- They mutually acknowledged each other as husband and wife.
- They were generally reputed to be husband and wife in the neighborhood or among acquaintances.
- The cohabitation, mutual acknowledgment, and general repute continued for three years up to the time of the death.
If all four elements are proven, a probate court may recognize the survivor as a legal spouse for inheritance and probate purposes only. This means the survivor could potentially inherit from the deceased partner's estate as a spouse would under New Hampshire's intestacy laws, contest a will that failed to account for the spousal relationship, or assert claims tied to the spousal share of the estate.
What RSA 457:39 does not create is a marriage for any other purpose. The recognition is posthumous, triggered only by a partner's death, and confined to the inheritance and probate context. A couple cannot use RSA 457:39 to file a joint tax return, obtain spousal health insurance coverage, assert a right to alimony after a breakup, or establish any other benefit or obligation that attaches to married status during the couple's lifetime.
What RSA 457:39 Does NOT Cover
The narrow scope of RSA 457:39 means that most of the practical protections that married couples rely on are unavailable to cohabiting couples in New Hampshire, regardless of how long they have lived together. Specifically, RSA 457:39 does not create:
- Divorce rights. If the relationship ends during the couple's lifetime, there is no marriage to dissolve. One partner cannot seek alimony, equitable distribution of property, or any of the financial protections that New Hampshire divorce law provides to spouses.
- Spousal health or life insurance benefits. Insurers and employers are not required to extend spouse-equivalent benefits to a cohabiting partner under RSA 457:39.
- Tax filing status. The IRS and New Hampshire do not permit a cohabiting couple to file as married absent a valid marriage license.
- Social Security spousal benefits. Federal benefits programs use federal law definitions of marriage; RSA 457:39's state-law posthumous exception does not qualify a survivor for federal spousal benefits.
- Hospital visitation or medical decision-making rights. These rights flow from a valid marriage or from a healthcare proxy document, not from RSA 457:39.
- Rights during the couple's lifetime. The statute operates only at and after the moment of death. A living partner cannot invoke RSA 457:39 to establish any right before that point.
How New Hampshire Handles Proof Under RSA 457:39
If a surviving partner seeks to invoke RSA 457:39 in a probate proceeding, they bear the burden of proving each element by a preponderance of the evidence. Courts look at the totality of the circumstances over the three-year period preceding death.
Evidence that New Hampshire probate courts have considered in analogous proceedings includes:
- Joint bank or financial accounts held in both names
- Property deeds or lease agreements listing both parties as co-owners or co-tenants
- Joint federal or state income tax returns filed as married or as qualifying widow/widower
- Shared billing addresses on utility, insurance, or credit accounts
- Affidavits from neighbors, family members, coworkers, or community members who knew the couple as husband and wife in the years before the death
- Statements by the deceased, including correspondence, cards, or social media posts referring to the survivor as a spouse
- Health or life insurance beneficiary designations naming the survivor as a spouse
No single document is conclusive. The court examines the pattern of conduct and reputation over the full three-year window, not merely isolated incidents.
Does New Hampshire Recognize a Common Law Marriage From Another State?
Yes. New Hampshire recognizes a valid common law marriage formed in another state, provided the couple met that state's legal requirements at the time the marriage was created. This follows from the Full Faith and Credit Clause of the U.S. Constitution (Article IV, Section 1) and New Hampshire's conflicts-of-law principles.
Several states continue to allow new common law marriages to be formed as of 2026: Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, Texas (informal marriage under Tex. Fam. Code 2.401), and the District of Columbia. A couple that validly formed a common law marriage in any of those jurisdictions carries that recognized legal marriage with them if they move to New Hampshire.
An out-of-state common law marriage is fully recognized in New Hampshire for all purposes, including divorce, alimony, inheritance, spousal benefits, and tax status. This is a significant distinction from RSA 457:39, which applies only posthumously to in-state cohabiting couples who never had a formal marriage anywhere.
How a Recognized Marriage Ends in New Hampshire
A valid marriage, whether licensed or recognized as a valid out-of-state common law marriage, ends in New Hampshire only through formal divorce or the death of a spouse. New Hampshire does not recognize informal dissolution of a marriage.
Couples seeking to end a recognized marriage in New Hampshire must file for divorce in the New Hampshire Superior Court or Circuit Court under . New Hampshire allows divorce on grounds of irreconcilable differences, and the court has broad authority to divide marital property and award alimony under .
The 7-year myth: There is no rule in any state that seven years of cohabitation creates a marriage or that seven years of separation dissolves one. The three-year period in RSA 457:39 relates only to the posthumous inheritance exception, not to marriage formation. No amount of time living together in New Hampshire creates a common law marriage for living couples.
Practical Protections for Unmarried Couples in New Hampshire
Because New Hampshire does not offer common law marriage rights to living couples, unmarried partners who want legal protections should consider formal legal documents:
- A will that specifically names the partner as a beneficiary, so the RSA 457:39 posthumous exception becomes less critical
- A healthcare proxy (RSA 137-J) designating the partner as agent for medical decisions
- A durable financial power of attorney (RSA 564-E) giving the partner authority over financial matters
- Joint tenancy with right of survivorship on real property, so the surviving partner takes ownership automatically at death
- Beneficiary designations on retirement accounts, life insurance policies, and bank accounts naming the partner directly
A New Hampshire family law or estate planning attorney can assist in drafting documents that provide the protections a couple needs without relying on the narrow RSA 457:39 exception.
Legal disclaimer: This page provides general legal information about New Hampshire common law marriage law. It is not legal advice and does not create an attorney-client relationship. Common law marriage issues are fact-specific and can affect significant rights, including inheritance, property, and benefits. Consult a licensed New Hampshire family law or estate planning attorney for advice on your particular situation. Information verified as of June 2, 2026.
Related New Hampshire Laws
Last updated: June 2, 2026.
More New Hampshire Laws
Frequently Asked Questions
Does New Hampshire recognize common law marriage?
New Hampshire does not recognize common law marriage for living couples. RSA 457:39 creates a narrow posthumous exception: when one partner dies, the survivor may be treated as a spouse for inheritance and probate purposes only, if the couple cohabited and held themselves out as married for at least three years before the death. This is not a living-couple common law marriage.
What is the New Hampshire common law marriage inheritance rule?
RSA 457:39 provides that when one partner in a qualifying cohabiting relationship dies, the surviving partner may be deemed a legal spouse for inheritance and probate purposes if the couple cohabited, mutually acknowledged each other as husband and wife, and were generally reputed to be married for at least three years prior to the death. The rule applies only in the probate context after death, not during the couple's lifetime.
Does New Hampshire recognize a common law marriage from another state?
Yes. New Hampshire recognizes a valid common law marriage formed in another state, provided the couple met that state's formation requirements. Under the Full Faith and Credit Clause of the U.S. Constitution, a marriage valid where it was created is recognized in New Hampshire for all purposes, including divorce, alimony, and inheritance.
How long do you have to live together to be common law married in New Hampshire?
No period of cohabitation creates a common law marriage for living couples in New Hampshire. The three-year period in RSA 457:39 relates only to the posthumous inheritance exception, not to marriage formation during the couple's lifetime. The idea that seven years of living together creates a marriage is a myth.
Can I get alimony from a common law marriage in New Hampshire?
No. New Hampshire does not recognize common law marriage for living couples, so there is no marriage to dissolve and no right to alimony when the relationship ends. Alimony under RSA 458:19 is available only in a divorce proceeding, which requires a valid marriage. A couple who never obtained a marriage license in New Hampshire has no access to divorce-based financial protections when they separate.
How do I protect my rights as an unmarried partner in New Hampshire?
Because RSA 457:39 applies only after death and only in the probate context, living unmarried partners should use formal legal documents: a will naming the partner as beneficiary, a healthcare proxy under RSA 137-J, a durable power of attorney under RSA 564-E, joint tenancy with right of survivorship on shared property, and direct beneficiary designations on financial accounts and insurance. A New Hampshire estate planning attorney can help structure these documents.
What is the difference between RSA 457:39 and common law marriage?
Traditional common law marriage allows a couple to become legally married during their lifetime without a license, based on mutual agreement and public acknowledgment. RSA 457:39 is different: it operates only after one partner dies, is limited to inheritance and probate rights, and requires three years of cohabitation with mutual acknowledgment before the death. It does not create a marriage while both partners are alive.
Updates
Independently fact-checked against the cited primary sources; governing law re-checked for recent changes
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The Law Behind This Article
This article rests on the statutory provisions below, held in our own legal record and retrieved from the official source. Tap a section to read the operative text.
New Hampshire Revised Statutes Annotated, TITLE XLIII DOMESTIC RELATIONS, CHAPTER 457 MARRIAGES
§ 457:29Marriage License Fee.In force
The fee for the marriage license shall be $50 to be paid by the parties entering into the marriage. The clerk shall forward $43 from each fee to the department of health and human services for the purposes of RSA 173-B:15. The clerk shall retain the remaining $7 as the fee for making the records of notice, issuing the certificate of marriage, and forwarding the $43 portion of the marriage license fee.
Official text (excerpt) · last checked 2026-07-29 · Read the full text in our law library · Verify at gc.nh.gov
Cited in 1 court opinionsMost recently applied by a court: 2006
Leading cases:
- D'Antoni v. Commissioner (Supreme Court of New Hampshire 2006, 153 N.H. 655)“…45 to obtain marriage licenses. This cost is established by RSA 457:29 (2004), which states: The fee fo…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
§ 457:39Cohabitation, etc.In forcecited in 2 of our articles
Persons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for the period of 3 years, and until the decease of one of them, shall thereafter be deemed to have been legally married.
Official text (excerpt) · last checked 2026-07-29 · Read the full text in our law library · Verify at gc.nh.gov
Cited in 12 court opinionsMost recently applied by a court: 2025
Leading cases:
- In re Estate of Buttrick (Supreme Court of New Hampshire 1991, 134 N.H. 675)“…e been legally married” as of the time of Buttrick’s death. RSA 457:39. The question presented is whether ther…”
- In re Mallett (Supreme Court of New Hampshire 2012, 163 N.H. 202)“…is not recognized, except to the limited extent provided in RSA 457:39 (2004). Joan S. v. John S., 121 N.H…”
- JOAN S. v. John S. (Supreme Court of New Hampshire 1981, 121 N.H. 96)“…marriages’ . . . except to the limited extent provided by [RSA 457:39].” Fowler v. Fowler, 96…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
Also relied on in: Common Law Marriage by State: Where It's Recognized (2026)
New Hampshire Revised Statutes Annotated, TITLE XLIII DOMESTIC RELATIONS, CHAPTER 458 ANNULMENT, DIVORCE AND SEPARATION
§ 458:19Alimony; Definitions.In forcecited in 2 of our articles
In RSA 458:19-a and RSA 458:19-aa: I. "Alimony" means one or more payments made to, or for the benefit of, a spouse or former spouse. II. "Effective date" means the date when an order takes effect under court rule. III. "Exclusions from gross income" mean Social Security benefits received on behalf of a minor child; capital gains from property received in the parties' divorce; income of a subsequent spouse, except as provided in RSA 458:19-aa, II; and income from overtime or a second job if the party has a full time job and such overtime or second income began: (a) After the parties separated or a petition for divorce or legal separation was filed, whichever occurred first; or (b) In an action for modification, if such income began after the existing alimony award. IV. "Full retirement age" means the age when the payor is eligible to receive full retirement benefits under the federal Old Age, Survivors, and Disability Insurance Social Security program. V.
Official text (excerpt) · last checked 2026-07-29 · Read the full text in our law library · Verify at gc.nh.gov
Cited in 141 court opinionsMost recently applied by a court: 2025
Leading cases:
- In Re Hampers (Supreme Court of New Hampshire 2006, 154 N.H. 275)“…y We next review the trial court’s alimony award. RSA 458:19, I (Supp. 2005) authorizes the trial co…”
- LeClair v. LeClair (Supreme Court of New Hampshire 1993, 137 N.H. 213)“…orced adults without minor children in alimony scheme under RSA 458:19 considered under rational basis test);…”
- In the Matter of Robert Kempton and Peggy Kempton (Supreme Court of New Hampshire 2015, 167 N.H. 785)“…ed fault grounds. Upon considering the factors set forth in RSA 458:19 (Supp. 2014), the court ordered the pet…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
Also relied on in: New Hampshire Alimony Laws: The 2019 Formula and How It Works (2026)
§ 458:7Absolute Divorce, Generally.In force
A divorce from the bonds of matrimony shall be decreed in favor of the innocent party for any of the following causes: I. Impotency of either party. II. Adultery of either party. III. Extreme cruelty of either party to the other. IV. Conviction of either party, in any state or federal district, of a crime punishable with imprisonment for more than one year and actual imprisonment under such conviction. V. When either party has so treated the other as seriously to injure health or endanger reason. VI. When either party has been absent 2 years together, and has not been heard of. VII. When either party habitually abuses alcohol or drugs and has been doing so for 2 or more years together. VIII. When either party has joined any religious sect or society which professes to believe the relation of husband and wife unlawful, and has refused to cohabit with the other for 6 months together. IX. When either party, without sufficient cause, and without the consent of the other, has abandoned and refused, for 2 years together, to cohabit with the other. X-XIII. [Repealed.]
Official text (excerpt) · last checked 2026-07-29 · Read the full text in our law library · Verify at gc.nh.gov
Cited in 52 court opinionsMost recently applied by a court: 2024
Leading cases:
- In the Matter of Robert Kempton and Peggy Kempton (Supreme Court of New Hampshire 2015, 167 N.H. 785)“…ound of a spouse’s imprisonment for more than one year. See RSA 458:7, IV (2004). The final hearing o…”
- In Re Sarvela (Supreme Court of New Hampshire 2006, 154 N.H. 426)“…respondent’s abuse of prescription drugs. See RSA 458:7, VII (2004). Following a two-day hearin…”
- Baker v. Baker (Supreme Court of New Hampshire 1980, 120 N.H. 645)“…ndant filed a cross-libel on grounds of refusal to cohabit (RSA 458:7 IX). The master dismissed the defendant…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
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Sources and References
- Common Law Marriage(law.cornell.edu)
- RSA 457:39: Cohabitation as Marriage. New Hampshire Legislature(gc.nh.gov).gov
- RSA 457:1 through RSA 457:29: Marriage Requirements. New Hampshire Legislature(gc.nh.gov).gov
- RSA 458:7: Grounds for Divorce. New Hampshire Legislature(gc.nh.gov).gov
- RSA 458:19: Alimony. New Hampshire Legislature(gc.nh.gov).gov
- RSA 137-J: Healthcare Proxy. New Hampshire Legislature(gc.nh.gov).gov
- RSA 564-E: Uniform Power of Attorney Act. New Hampshire Legislature(gc.nh.gov).gov