Categories :: Family Law

What Constitutes Marriage?

For both opposite-sex and same-sex couples residing in Maryland, if the couple entered into a legally recognized marriage, then that marriage is recognized in Maryland, regardless of where it took place.

On January 1, 2013, same sex marriages occurring within Maryland became legal.  A same-sex couple seeking to marry within Maryland should follow the existing process for obtaining a marriage license, etc. 

Death Benefits

If one unmarried cohabitant dies, is the surviving cohabitant entitled to any benefits?  The answer, which differs depending on the controlling law, is especially crucial to a dependent surviving cohabitant who has no independent financial means.

Maryland Workers’ Compensation Act

When a person dies from an injury that arose out of and in the course of his or her employment, that employee’s survivors are entitled to workers’ compensation benefits in Maryland if the act covers the particular situation.  The sole standard for determining survivor’s benefits under the Maryland Workers’ Compensation Act is dependency.[1]  An unmarried cohabitant who can show that he or she was wholly or partly dependent on the deceased employee at the time of the injury resulting in death will receive benefits. Md. LABOR AND EMPLOYMENT Code Ann. § 9-678.

A dependent is one who was receiving in whole or in part the “reasonable necessities of life” from a worker at the time of the work-related injury causing the workers’ death.  The worker must have actually supported the survivor, and the survivor must have in fact relied upon the worker’s earnings for his or her livelihood, in whole or in part. The Workers’ Compensation Commission, in accordance with the facts in each case, determines whether a survivor is dependent.

Worker compensation claims by survivors are generally of two types.  First, dependents claim an award of permanent total or permanent partial disability compensation left unpaid at the death of the employee.  In such a case, the employee has died from causes not related to his or her compensable injury.  An unmarried cohabitant would not be able to take this award unless he or she was designated as the recipient in the deceased cohabitant’s will.  However, the children of unmarried cohabitants may have rights of inheritance.  (See Children of Unmarried Cohabitants for a discussion of a child’s rights to death benefits and inheritance.)

The second type of claim is the case where the death was the result of and occurred within seven years of the compensable work-related injury.  An unmarried cohabitant would receive death benefits in this situation if he or she was a dependent of the deceased.

Federal Statutes

There is a general reluctance in federal statutes, e.g., the Death on the High Seas Act, the Jones Act, the Longshoremen’s and Harbor Workers’ Compensation Act and the Veterans’ Administration Act, to grant death benefits to a surviving unmarried cohabitant, even if one cohabitant believed in good faith that he or she was validly married.  The statutes usually refer to surviving “widows” and “widowers,” terms that have been construed by the courts to exclude unmarried cohabitants.  Refer to the appropriate federal law that covers the specific situation to see if benefits are available.

If the employee cohabitant dies in a jurisdiction that, unlike Maryland, recognizes common-law marriage, the surviving cohabitant may be able to obtain federal benefits.

Same-sex couples who are legally married will receive most benefits provided by federal statutes.   In 2013, the U. S. Supreme Court, in United States v. Windsor, struck down the section of the Defense of Marriage Act that required the federal government to define marriage between a man and a woman.  As a result, most federal benefits are now defined by any marriage that was validly entered into. 

However, because this is an evolving area of law, not all issues have been clearly resolved.  The Defense of Marriage Act still exists and permits each state to determine whether they will recognize a same-sex marriage.   At the same time, many federal courts have struck down this provision as unconstitutional and the number of states that now recognize same-sex marriages has increased dramatically since the Windsor ruling.  Since the Supreme Court has not ruled yet on this section of DOMA, married same-sex couples are still at risk of being considered legal strangers in states that seek to not recognize these legal relationships.

Social Security

An unmarried cohabitant is not entitled to death benefits payable under the Social Security Act, unless he or she qualifies as a common-law spouse in a state that recognizes common-law marriage.  The law of the state where the insured was domiciled at the time of death governs. 

Whether a married same-sex survivor will be considered a spouse is not concretely resolved.  Because of the issues with DOMA explained above, and because Social Security generally considers the state a couple lived in at the time of death versus at the time of marriage as the determining state for recognizing the validity of a marriage. Where a couple is residing at the time of death usually determines whether a same-sex survivor is a spouse or an unmarried cohabitant.  If a married couple is living in Maryland at time of death, then the survivor will be considered a spouse since Maryland has legalized same-sex marriage.  If a married couple is residing in a state that doesn't recognize legal same-sex marriage, then the survivor's ability to be recognized as a spouse is currently unresolved.   


If an automobile liability insurance policy contains a “household exclusion” clause relieving the insurance carrier of liability to members of the insured’s “family” or “household” for their injuries caused by the insured, an unmarried cohabitant is not excluded.  The Maryland Court of Special Appeals has determined that an unmarried cohabitant is a residing relative when that person abandons his or her home, puts his or her belongings into storage, lives in a close family environment and shares meals together with other household members.[2]

On the other hand, if automobile liability insurance coverage is extended in the policy to persons living in the same household, unmarried cohabitants are covered.  If the policy only covers “spouses,” then unmarried cohabitants are not protected.  Read the automobile insurance policy carefully to see what language is used to designate who is excluded from or included in coverage.

With life insurance, one member of either an opposite-sex or same-sex couple is free to designate his or her partner as a beneficiary and to change this designation at a later date.

Wills and Inheritance

An unmarried cohabitant may leave property to his or her surviving partner in a will. He or she may also revoke this devise or bequest later.  In the absence of a will, an unmarried cohabitant will not receive any of the property left by his or her deceased partner.  This is also true for unmarried same-sex couples.

If the unmarried partner has not written a will, state law governs the division of his or her property.  Any part of the estate of the deceased partner that is not disposed of by will shall be distributed to legal relatives of the decedent.

Whether or not there is a will, an unmarried cohabitant may want to prepare a Letter of Instruction.  The purpose of the Letter of Instruction is to guide the family on matters not covered by the will.  Though the Letter cannot be legally enforced, it can be used to provide the surviving partner with the information needed to close the deceased partner’s affairs.  The Letter may include directions for funeral arrangements and indicate family and friends to be notified concerning the death.  Additionally, the Letter may include locations of important documents concerning life insurance, bank accounts, and other personal papers.


The full tax ramifications of living together as opposed to being married are far too complex to be examined in detail here.  Additionally, they are likely to change frequently.  At the very least, unmarried cohabitants should know that, unlike married couples, they can not file joint tax returns.  A simple comparative check of each year’s tax tables for unmarried persons and married couples will reveal the amount of money saved in individual situations. For more information, contact the Internal Revenue Service at

Additional Resources

The following books may be available at a public Circuit Court Law Library or municipal public library.

Fader's Maryland Family Law, LexisNexis (5th ed.  2011), Ch. 18.
American Jurisprudence Legal Forms 2d Volume 9B § 139 (2012)
Living Together: A Legal Guide for Unmarried Couples, Berkeley, Calif. : Nolo Press (14th ed. 2008)


Susan Francis, Maryland Volunteer Lawyers Service

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