TL;DR:
No, a person cannot establish a common law marriage in Arizona to file a wrongful death claim. Arizona law does not recognize common law marriages formed within the state. However, Arizona does recognize legally valid common law marriages established in other states that permit them, such as Colorado or Texas. If you and your partner formed a valid common law marriage in one of those states before moving to Arizona, you may be considered a “surviving spouse” and have the right to file. The success of your claim will depend on your ability to prove the out-of-state marriage was legitimate.
The loss of a loved one is a profound experience, and when that loss is caused by another’s negligence, the search for answers and justice begins. In Arizona, wrongful death claims are a legal tool designed to provide financial stability and accountability for the surviving family members who depended on the deceased. These claims seek compensation for economic losses like lost wages and medical bills, as well as non-economic damages such as the loss of love, care, and companionship.
However, the path to filing such a claim is governed by strict state laws. Arizona Revised Statute § 12-612 explicitly lists who is eligible to bring a wrongful death action. This list of statutory beneficiaries creates a significant hurdle for long-term, unmarried partners. While many couples live together for years, sharing finances, homes, and lives in a way that mirrors a traditional marriage, Arizona law makes a sharp distinction between a formally married spouse and a committed partner, which directly impacts their legal standing after a tragedy.
Understanding Arizona’s Stance on Common Law Marriage
Arizona is one of the majority of states that does not permit the formation of common law marriages. For a marriage to be legally valid in Arizona, it must adhere to the formal requirements outlined in state law. This typically involves obtaining a marriage license and having the marriage solemnized by an authorized individual, such as a judge or clergy member. The idea that simply living together for a specific period, often cited as seven years, automatically creates a marriage is a persistent myth with no legal basis in the state.
This legal position has profound implications for many areas of law, including inheritance, property division, and, most critically for this topic, wrongful death claims. The statutes that grant rights to a “surviving spouse” are interpreted literally. If a couple did not go through the formal process of getting married in Arizona, the surviving partner is not recognized as a spouse under the law, regardless of the length or nature of their relationship.
This can be a difficult reality for couples who considered themselves married in every way but the legal paperwork. They may have shared bank accounts, raised children together, and been known in their community as a married couple. Unfortunately, from a legal standpoint in Arizona, these factors do not create a marital relationship. This means that if one partner is wrongfully killed, the other cannot step forward and file a claim based on their status as a common law spouse if their relationship was established solely within Arizona’s borders.
Who Can File a Wrongful Death Claim in Arizona?
The right to file a wrongful death lawsuit in Arizona is not open to everyone who feels the loss. The law is very specific about who qualifies as a statutory beneficiary. A.R.S. § 12-612 dictates that a claim can be brought by and for the benefit of specific individuals, creating a clear hierarchy of eligibility.
The primary parties who can file a wrongful death claim are:
- The Surviving Spouse: This is the most common filer and is at the top of the statutory hierarchy. The law presumes a deep financial and emotional dependency between spouses.
- The Surviving Children: If there is no surviving spouse or if the spouse is unable to file, the deceased’s biological or legally adopted children can bring a claim.
- A Surviving Parent or Guardian: In cases where the deceased has no spouse or children, their parents or legal guardians are next in line to file.
- The Personal Representative of the Deceased’s Estate: This individual, also known as an executor, can file a claim on behalf of the statutory beneficiaries (spouse, children, or parents). They can also file a claim on behalf of the estate itself to recover damages that the estate suffered, such as medical expenses incurred before death and funeral costs.
The term “surviving spouse” is the critical element here. Because Arizona does not recognize common law marriages formed within the state, an unmarried partner is not considered a surviving spouse. This means they are excluded from the list of individuals who can directly file a claim for their own loss of companionship, comfort, and consortium. While their grief and loss are just as real, the law does not provide them a direct path for recovery under this specific statute.
The “Foreign Common Law Marriage” Exception: How It Works
While Arizona does not allow common law marriages to be created within its borders, it does recognize them if they were validly formed in another state. This principle is rooted in the Full Faith and Credit Clause of the U.S. Constitution, which generally requires states to recognize the laws and judicial decisions of other states. If a couple met all the legal requirements for a common law marriage in a state that permits it, Arizona will treat that marriage as legally valid.
This creates a critical exception for some unmarried partners. If you and your partner established a common law marriage in a state like Colorado, Texas, Iowa, Kansas, or Utah, and then later moved to Arizona, you may be considered legally married in the eyes of Arizona law. The key is not where you lived when your partner passed away, but where your relationship met the legal criteria for a common law marriage.
Scenario Example: Imagine a couple, Sarah and Tom, lived together in Denver, Colorado, for 15 years. During that time, they filed joint tax returns, referred to each other as husband and wife, had joint bank accounts, and listed each other as spouses on insurance forms. They met all of Colorado’s requirements for a common law marriage. They then retired and moved to Scottsdale, Arizona. If Tom is tragically killed by a negligent driver a year later, Sarah would likely have the standing to file a wrongful death claim as his surviving spouse. Her claim would depend on her ability to prove to the Arizona court that a valid common law marriage was established back in Colorado.
Proving a Valid Common Law Marriage from Another State
Simply stating that you had a common law marriage in another state is not enough. The burden of proof rests entirely on the person making the claim. Insurance companies and defense attorneys will almost certainly challenge this status to try and have the case dismissed. To succeed, you must present clear and convincing evidence that your relationship met the specific legal standards of the state where the marriage was formed.
While the exact requirements vary by state, they generally include three core elements:
- A Present Agreement to be Married: Both partners must have intended to be married at that moment, not at some point in the future.
- Holding Yourselves Out to the Public as Married: You must have consistently presented yourselves to your community, family, and business associates as a married couple.
- Cohabitation: The couple must have lived together in the state that recognizes common law marriage.
To prove these elements, you will need to gather substantial documentation and testimony. Evidence that can be used to establish a valid out-of-state common law marriage includes:
- Financial Records: Joint tax returns filed as “married filing jointly” are extremely powerful evidence. Joint bank accounts, credit cards, and loan applications where you are listed as spouses are also vital.
- Legal and Official Documents: Deeds to property held as “husband and wife” or “joint tenants with right of survivorship,” car titles, and insurance policies (health, life, auto) that list the other person as a spouse.
- Witness Testimony: Affidavits or live testimony from friends, family members, and colleagues who can confirm that you introduced yourselves and were known as a married couple.
- Other Evidence: Greeting cards, letters, or emails where you refer to each other as husband or wife. Evidence of using the same last name can also be supportive.
Building this case requires meticulous record-keeping and a strategic legal approach. An attorney experienced in these matters can help you identify and organize the necessary proof to establish your standing as a surviving spouse.
What Happens if You Cannot Prove a Common Law Marriage?
For the many long-term partners whose relationship was formed and existed entirely within Arizona, the inability to file a wrongful death claim as a spouse can feel like a devastating finality. However, there may be other legal avenues to pursue justice, although they are indirect and do not compensate the surviving partner for their personal loss of companionship.
Claims Brought by Other Eligible Parties
Even if you cannot file the claim yourself, another statutory beneficiary may be able to.
- Claim by Children: If you and your partner had biological or legally adopted children together, those children have a direct legal right to file a wrongful death claim. If the children are minors, the surviving partner can often be appointed as their legal guardian or “next friend” to file the lawsuit on their behalf. The compensation recovered would belong to the children, but it would help provide for their financial future.
- Claim by Parents: If the deceased has no children but has surviving parents, they may be eligible to file a claim.
The Role of the Personal Representative
Another important possibility involves the deceased’s estate. If your partner had a valid will and named you as the personal representative (executor), you would have the legal authority to file a wrongful death claim. However, it is crucial to understand the distinction here. You would be filing the lawsuit in your capacity as the representative of the estate, not as an individual.
The damages recovered in a lawsuit filed by the personal representative are distributed to the statutory beneficiaries (spouse, children, parents) or, in some cases, to the estate itself. If you are also named as a beneficiary in your partner’s will, you could ultimately receive a portion of the estate’s recovery. This is an indirect route that depends entirely on proper estate planning. Without a will, the state’s intestacy laws will determine who inherits from the estate, and an unmarried partner is typically not included.
Steps to Take if Your Partner Died and You Believe You Have a Claim
If your partner has passed away due to someone else’s actions and you are facing this complex legal situation, taking prompt and deliberate steps is essential to protect any rights you may have.
- Preserve All Documentation: Immediately begin gathering any and all documents that could support your relationship status, especially if you believe you have a valid out-of-state common law marriage. This includes tax returns, bank statements, deeds, insurance policies, and correspondence. Do not discard anything that could be used as evidence.
- Obtain Official Records: Secure multiple certified copies of the death certificate and any police or incident reports related to the death. These documents are foundational to any legal action.
- Do Not Speak with Insurance Adjusters: The at-fault party’s insurance company may contact you quickly. It is critical that you do not give a recorded statement or accept any offers without legal counsel. Adjusters are trained to protect their company’s financial interests, and anything you say can be used to weaken your claim.
- Understand the Statute of Limitations: In Arizona, a wrongful death lawsuit must generally be filed within two years of the date of death, as stated in A.R.S. § 12-542. This is a strict deadline, and if you miss it, you will lose your right to file a claim forever.
- Consult with an Experienced Arizona Wrongful Death Attorney: This is the most important step. The legal questions surrounding marital status, beneficiary rights, and estate law are incredibly complex. An attorney can analyze the specific facts of your case, determine if you can prove an out-of-state common law marriage, and advise you on all available legal options.
Conclusion
The question of whether a common law spouse can file a wrongful death claim in Arizona comes down to a clear but often harsh legal distinction. Because Arizona does not permit the formation of common law marriages, a surviving partner in a long-term relationship established within the state does not have the legal standing of a “surviving spouse.” The primary exception to this rule is for couples who formed a legally valid common law marriage in another state before moving to Arizona. For these individuals, the ability to file a claim hinges on their capacity to provide substantial evidence proving their marital status.
For those who cannot meet this standard, the available legal paths are more indirect, often running through surviving children or the deceased’s estate. These options may provide a measure of financial recovery but do not directly address the surviving partner’s personal loss. The legal framework is rigid, and the timeline for action is short. Given the complexities and the high stakes involved, the most critical step you can take is to seek guidance from a qualified attorney. A legal professional can provide a clear assessment of your rights and help you determine the best course of action during an incredibly difficult time. Contact us for free evaluation today.