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Employers Beware: SC Abolishes Common-Law Marriage

On July 24, 2019, South Carolina joined the ranks of Alabama, Pennsylvania, and others in abolishing future recognition of common law marriages in the state.  The state will continue to recognize all common law marriages in effect before this date, but they will be subject to a higher standard of proof.  On and after July 25, 2019, all South Carolina marriages will require the issuance of a marriage license.

This ruling from the South Carolina Supreme Court came after many legislative attempts at abolishing common law marriage failed.  The court determined the paternalistic reasons behind the original recognition of a common law marriage, e.g., the stigma of unwed mothers, children out of wedlock, and the logistics of the “circuit minister” or other official required to cover a large territory, no longer apply.  With the elimination of future common law marriage recognition, the court also handed down a new standard of proof parties must meet to continue to be considered married under common law.  Probate cases in South Carolina use the “clear and convincing evidence” standard to prove marriage, and now this standard applies to the living too.

Our workforce is transient.  Employees residing in South Carolina often move across state lines for work and personal reasons.  And many companies with principal offices outside South Carolina choose to open locations in South Carolina.  For that reason, this ruling reaches beyond state lines, and it is important for all employers to understand its implications upon benefit plans and leaves of absence.

After July 24, 2019, it no longer is enough for employees claiming an employee is a “spouse” for employee benefit plan purposes simply to establish they were married under the common law of South Carolina.  Now, the critical factor is the date as of which that marriage was established.  The documents submitted to prove the marriage (e.g., tax returns, documents filed under penalty of perjury, introductions in public, contracts, and checking accounts) must also reflect this timing.

This Court decision will also have implications for employees in South Carolina seeking to take a leave of absence under the Family and Medical Leave Act to care for a spouse with a serious health condition.  Before July 25, 2019, eligible employees could take a leave of absence under the FMLA to care for a common law spouse with a serious health condition.  Yet after this Court ruling, employees can only take FMLA leave to care for a common law spouse if that common law marriage was established on or before July 24, 2019.  Employers should remember that under the Department of Labor’s FMLA Regulations, employees can be required to provide reasonable documentation evidencing the existence of a valid marriage.

Jackson Lewis P.C. © 2020National Law Review, Volume IX, Number 210


About this Author

Suzanne Odom, Employment lawyer, Jackson Lewis

Suzanne G. Odom is a Principal in the Greenville, South Carolina, office of Jackson Lewis P.C. She focuses her practice on ERISA plans, employee benefits, and executive compensation matters.

Ms. Odom has worked extensively with all types of employer-sponsored retirement and welfare benefit plans, including pension, profit sharing, 401(k), 403(b), and 457(b) plans, ESOPs, and health, accident, disability, Section 125, flexible spending, and other welfare plans. Her clients include large and small for-profit companies across all industry sectors, non-profit...

Ellison McCoy, Jackson Lewis Law Firm, Litigation Attorney

Mr. McCoy has represented employers in litigation matters before state and federal administrative agencies and various state and federal trial and appellate courts. During his legal career, Mr. McCoy has handled a wide-variety of employment matters involving claims such as discrimination based on race, sex, national origin, age and disability; sexual and racial harassment; wrongful discharge; retaliation; breach of contract; defamation; covenants not to compete and trade secret violations; and violations of the Family Medical Leave Act. In addition, he has extensive experience counseling clients on compliance issues and litigation avoidance strategies and regularly conducts management training programs on various employment-related topics. Mr. McCoy devotes a significant amount of his practice to assisting employers with disability practice management, particularly including issues arising under the Americans with Disabilities Act and Family and Medical Leave Act.