• Rose M. James

Marriage: What are the legal consequences?

Groucho Marx once said, “Marriage is a wonderful institution, but who wants to live in an institution?” When we think of marriage, we tend to think of a partnership between two individuals who love each other. What we cannot forget is that marriage is also a legal institution which provides special protections to each spouse. Marriage has become an important topic in the office over the past couple months as both myself and another attorney in our office, Sean Morrison married our spouses, Austin and Sam, this summer.


While marriage is an ancient practice, it is still subject to change throughout the years. The most recent change occurred in 2015, when the United States Supreme Court legalized same-sex marriage in Obergefell v. Hodges. Previously, Montana had prohibited same-sex marriages.


Legal marriage in Montana can occur in two ways. First, marriage can occur when a ceremony is performed, by a licensed officiant, between two individuals who have obtained a marriage license. To obtain a marriage license, the individuals must be over the age of 18, not already married, and have the capacity to get married (which means not being intoxicated, mentally ill, etc.). In addition, a woman under the age of 50 must submit a blood test for rubella. However, the legislature made the blood test requirement optional in the 2019 legislative session.


The second way marriage can occur is through common law marriage. In order to have a common law marriage, the spouses must be over the age of 18, not already married, and have the capacity to get married. In addition, the spouses must agree to be married, cohabitate, and hold themselves out to the public as married. The couple can complete a “Declaration of Marriage without Solemnization” form and file this with the Clerk of District Court to serve as an official record of the marriage.


Marriage provides special protections to fathers. When a child is born to a married woman, her husband is presumed to be the father. If an unmarried couple has a child, the father must jump over hurdles to have the same rights over his child as a married father. An unmarried father must either sign documentation acknowledging the child as his own and file it with the state or initiate an action in district court. Without these actions, the biological father has no legal rights to control the care and custody of his child.


Being married also gives the spouses special priorities under the law. This includes the priority to serve as your spouse’s conservator or guardian. For a spouse to be bypassed as a conservator or guardian, the spouse must either sign a waiver, or the person applying to be a fiduciary must explain why the spouse is unfit to serve. A spouse also has priority to serve as personal representative for the estate of their deceased husband or wife.


A husband or wife is given special financial protections after their spouse dies. A spouse can take what are called special allowances from the estate before it is distributed. These special allowances are the homestead allowance, the personal property allowance, and the exempt property allowance. A spouse is also the primary beneficiary if an individual passes away without a will. Finally, a spouse also has the option of taking against a decedent’s will if they are unhappy with the portion given to them. The spouse’s percentage of the estate is calculated based on how many years the marriage lasted.


The federal government provides special protections to married couples as well as the state. Under federal rules, a spouse must be named as the beneficiary of government regulated retirement plans including 401Ks and IRAs unless the spouse signs a waiver allowing the account holder to name another as the beneficiary. Married couples also receive lower tax rates than individuals filing alone. In addition, there are increased exempt amounts for gift and estate taxes for married couples.


As marriage rates go down, and more people have committed relationships outside of marriage, many people believe these special protections should be extended outside of married relationships. However, the legislature is often unwilling to extend these benefits to relationships outside of marriage. Since ,marriage is a legal relationship in addition to being a romantic relationship, individuals entering a marriage, leaving a marriage, or deciding to forgo marriage should consult an attorney to ensure their loved ones are cared for.

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