Can a Common Law Spouse Sue for Wrongful Death in AZ?

TL;DR

No, a person cannot sue for wrongful death in Arizona as a common law spouse if the relationship was established within Arizona, because the state does not legally recognize common law marriage. The critical exception to this rule involves portability; if your common law marriage was legally and validly formed in a state that does recognize it (like Colorado or Texas) before you moved to Arizona, then Arizona law will honor that marriage. Under this specific circumstance, you would be considered a “surviving spouse” and have the legal standing to file a wrongful death claim under Arizona Revised Statutes § 12-612.

Key Highlights

Arizona law requires a formal marriage license and ceremony to create a valid marriage within the state.
A wrongful death lawsuit in Arizona is restricted to specific parties, including the “surviving husband or wife.”
The U.S. Constitution’s Full Faith and Credit Clause requires Arizona to recognize valid common law marriages from other states.
To file a claim, you must provide substantial evidence that your out-of-state common law marriage met all legal requirements of that state.
The statute of limitations for filing a wrongful death claim in Arizona is two years from the date of death.

The loss of a partner is a profound and life-altering event, made even more difficult when that loss is caused by someone else’s negligence or wrongful act. In Arizona, statistics from the Department of Health Services consistently show that unintentional injuries, such as those from motor vehicle collisions and falls, are a leading cause of death. When such a tragedy occurs, surviving family members often seek accountability and financial stability through a wrongful death claim. This legal action allows them to recover damages for the financial and emotional losses they have suffered.

The legal framework for these claims in Arizona is highly specific. Arizona Revised Statutes (A.R.S.) § 12-611 defines a wrongful death as one caused by a “wrongful act, neglect or default” that would have entitled the person to file a personal injury lawsuit had they survived. Following this definition, A.R.S. § 12-612 explicitly lists who is permitted to bring such a claim. The list includes the surviving husband or wife, children, parents, or the personal representative of the deceased’s estate. This strict statutory language creates a significant legal question for couples in long-term, committed relationships without a formal marriage certificate.

For partners in a common law marriage, the ability to seek justice hinges on a complex interaction between state laws. While Arizona itself does not permit the formation of common law marriages, it does not operate in a vacuum. The state’s legal system must respect the laws of other states, creating a critical pathway for some surviving partners. Understanding whether your relationship qualifies under this exception is the first and most important step in determining your rights after an unthinkable loss. This analysis will clarify Arizona’s position, detail the proof required to validate an out-of-state marriage, and outline the process for seeking compensation.

Protect your rights, consult Life Justice Law Group now.

Understanding Arizona’s Stance on Common Law Marriage

To determine if a common law spouse can file a wrongful death lawsuit, one must first grasp Arizona’s fundamental position on marriage. The state has a clear and traditional view of how a legal marital union is formed, which directly impacts the rights of unmarried partners.

Why Arizona Does Not Recognize In-State Common Law Marriage

Arizona law is unambiguous when it comes to creating a marriage within its borders. According to A.R.S. § 25-111, for a marriage to be valid, two things are required: a marriage license issued by the state and solemnization. Solemnization is the formal ceremony conducted by an authorized individual, such as a judge, a justice of the peace, or a licensed or ordained member of the clergy.

This means that no matter how long a couple lives together in Arizona, they cannot form a common law marriage. You could cohabitate for decades, share a last name, have children together, file joint financial applications, and present yourselves to the world as a married couple, but without that license and ceremony, Arizona law will not recognize you as spouses. This distinction is crucial because many legal rights and protections, including the right to file a wrongful death claim, are exclusively reserved for legally recognized spouses.

The Full Faith and Credit Clause: The Critical Exception

While Arizona controls how marriages are formed within its jurisdiction, it must respect the laws of other states. This principle is enshrined in Article IV, Section 1 of the U.S. Constitution, known as the Full Faith and Credit Clause. This clause mandates that states must recognize the “public Acts, Records, and judicial Proceedings of every other State.”

In practice, this means if a couple forms a legally valid common law marriage in a state that permits them, and then later moves to Arizona, Arizona must recognize that marriage as valid. The marriage does not dissolve simply by crossing state lines. This concept of “portability” is the only way a common law spouse can gain the legal standing of a “surviving husband or wife” in an Arizona courtroom. The key is that the marriage had to be fully and legally established before the couple moved to Arizona.

States That Currently Recognize Common Law Marriage

Knowing which states allow for the formation of common law marriages is essential. If you and your partner lived together in one of these states and met its requirements for a common law union, your marriage may be recognized in Arizona. The states that currently permit the creation of common law marriages are:

Colorado
Iowa
Kansas
Montana
Oklahoma
Rhode Island
South Carolina
Texas
Utah
The District of Columbia

Additionally, New Hampshire recognizes common law marriage for inheritance purposes only. Several other states, including Pennsylvania, Ohio, Georgia, and Idaho, previously allowed common law marriages and will still recognize unions that were formed before they abolished the practice. For example, if you established a common law marriage in Pennsylvania before January 1, 2005, that marriage remains valid.

Who Can File a Wrongful Death Claim in Arizona? A Breakdown of A.R.S. § 12-612

Arizona law does not permit just anyone who was close to the deceased to file a wrongful death lawsuit. The statute is very precise, naming a specific list of individuals who have the legal right, or “standing,” to bring the action. This is designed to prevent a flood of claims and ensure that the primary beneficiaries receive compensation.

The Statutory Beneficiaries

A.R.S. § 12-612 outlines that a wrongful death action can be brought by and for the benefit of certain surviving family members. The claim is typically filed by one person on behalf of all statutory beneficiaries. The eligible parties are, in order:

The surviving husband or wife: This is the most direct route for a spouse.
The deceased’s child or children: If there is no surviving spouse, or in conjunction with the spouse, the children can bring the claim.
The deceased’s parent or guardian: If the deceased has no spouse or children, their parents or legal guardians may file.
The personal representative of the deceased person’s estate: This individual, also known as an executor or administrator, can file the claim on behalf of the estate and all beneficiaries.

It is important to understand that even if one person files the lawsuit (for example, the surviving spouse), any damages recovered are for the benefit of all statutory beneficiaries. The court will later determine how the settlement or award is divided among the spouse, children, and parents based on their respective losses.

The Role of the “Surviving Spouse”

For a common law partner, the goal is to be legally recognized as the “surviving husband or wife.” If you can successfully prove that you had a valid common law marriage from a state like Texas or Colorado, an Arizona court will grant you the same rights as a ceremonially married spouse. This gives you the direct authority to initiate the wrongful death lawsuit. This status is powerful because it places you at the top of the hierarchy of claimants and acknowledges the unique nature of the spousal relationship and its associated losses, such as loss of companionship and consortium.

What if You Don’t Qualify as a Spouse?

If you cannot prove the existence of a valid out-of-state common law marriage, you cannot file a wrongful death claim as a spouse. However, there may be another path. If your deceased partner created a will and named you as the personal representative (or executor) of their estate, you could then file the wrongful death lawsuit in that capacity.

When filing as a personal representative, you are not suing for your own personal losses but rather on behalf of the estate and all the statutory beneficiaries (like the deceased’s parents or children, if any exist). While you would not be able to claim damages for your own grief or loss of companionship in this scenario, you would be the one controlling the litigation. Any recovery would be distributed among the other legal beneficiaries according to law. This is a vital alternative for partners who may not meet the strict criteria for a common law marriage but were entrusted by their deceased partner to manage their final affairs.

Proving Your Out-of-State Common Law Marriage in an Arizona Court

Simply stating that you were in a common law marriage is not enough. When you file a wrongful death claim in Arizona as a surviving common law spouse, the defense attorneys for the at-fault party will almost certainly challenge your marital status. Their goal is to have your case dismissed by proving you lack the legal standing to sue. Therefore, you must be prepared to present clear and convincing evidence to an Arizona judge that your marriage was valid in the state where it was formed.

The Three Core Elements of a Common Law Marriage

While the specific requirements can vary slightly from state to state, most jurisdictions that recognize common law marriage look for three fundamental elements. All three of these elements must have been present simultaneously while you and your partner were living in that specific state.

A Present Intent and Agreement to be Married: You and your partner must have mutually agreed to be married at that moment. It cannot be an agreement to get married in the future. This is a “meeting of the minds” where you both considered yourselves a married couple from that point forward.
Publicly Holding Out as Married: You must have presented yourselves to your community, family, and friends as a married couple. This is the “public” component. It involves acting in a way that would lead others to believe you were married.
Cohabitation: You must have lived together in the state that recognizes common law marriage. While cohabitation alone is not enough, it is a necessary component of the public presentation of your relationship.

You must prove that these conditions were met in, for example, Colorado, before you moved to Arizona. Your actions in Arizona, while potentially supportive, cannot create the marriage itself.

Gathering Essential Evidence

Building a strong case for your common law marriage requires extensive documentation and testimony. The more evidence you can provide, the stronger your position will be. An experienced attorney can help you gather and organize these materials.

Financial Documents:
- Joint federal or state tax returns filed as “married filing jointly.”
- Joint bank accounts (checking or savings).
- Joint credit card statements.
- Deeds to real estate or titles to vehicles held in both names as joint tenants with rights of survivorship.
- Loan or mortgage applications where you listed each other as “spouse.”
- Rental agreements listing you as a married couple.
Legal and Official Documents:
- Wills, trusts, or powers of attorney that name each other as “spouse.”
- Health insurance, life insurance, or auto insurance policies where one partner is listed as the other’s spouse.
- Birth certificates of children that list both partners as parents.
- Applications for public benefits where you identified as a married couple.
Testimonial Evidence:
- Affidavits or sworn testimony from friends, family members, neighbors, and coworkers who can state that they knew you as a married couple.
- Testimony about how you introduced each other in social and professional settings (e.g., “my husband” or “my wife”).
Personal and Anecdotal Evidence:
- Photographs or videos from a commitment ceremony or celebration.
- The exchange and wearing of rings.
- Greeting cards, letters, or emails addressed to you as a married couple (e.g., “To Mr. and Mrs. Smith”).
- Evidence of using the same last name.
Proof of Residency:
- Utility bills, driver’s licenses, or lease agreements showing that you lived together in the common law state during the period the marriage was established.

The Legal Process: Filing a Wrongful Death Claim as a Common Law Spouse

Once you and your attorney have gathered the evidence to support your marital status, you can begin the legal process. This journey has several distinct stages, and the first is often the most challenging: proving you have the right to be in court at all.

Step 1: Establishing Your Legal Standing (Locus Standi)

Before a court will even consider the facts of the wrongful death, you must prove you have locus standi, a legal term for the right to bring a lawsuit. In this context, it means proving to the judge that you are the “surviving spouse.” This may require a separate legal action called a “declaratory judgment,” where you ask the court to officially declare your marriage valid. Alternatively, it might be handled in a preliminary hearing as part of the wrongful death case. The defense will argue vigorously against your standing, so this initial phase is critical. If the court rules that your common law marriage is not valid under the laws of the originating state, your wrongful death case as a spouse will be dismissed.

Step 2: The Wrongful Death Lawsuit Itself

If the court recognizes your marriage, the wrongful death claim can proceed like any other. The typical steps include:

Filing the Complaint: Your attorney will file a formal complaint in civil court against the person or entity responsible for your partner’s death. This document outlines the facts of the case and the legal basis for your claim.
The Discovery Process: This is the evidence-gathering phase of the lawsuit. Both sides will exchange information, request documents, take depositions (sworn out-of-court testimony) of witnesses, and hire expert witnesses to analyze the cause of death and calculate economic losses.
Negotiation and Settlement: Most wrongful death cases are resolved through a negotiated settlement rather than a trial. Your attorney will negotiate with the defendant’s insurance company or legal team to reach a fair compensation amount.
Trial: If a settlement cannot be reached, the case will proceed to trial. A jury will hear the evidence from both sides and decide whether the defendant is liable and, if so, the amount of damages to award.

Arizona’s Statute of Limitations for Wrongful Death

Every state places a time limit on how long you have to file a lawsuit, known as the statute of limitations. In Arizona, A.R.S. § 12-542 gives you two years from the date of the person’s death to file a wrongful death claim. This is a strict deadline. If you miss it, you will lose your right to sue forever. Because proving a common law marriage can be a time-consuming process, it is absolutely essential to contact an attorney as soon as possible after your partner’s death to ensure this critical deadline is not missed.

Types of Damages Recoverable in an Arizona Wrongful Death Lawsuit

If your claim is successful, you and the other statutory beneficiaries may be entitled to recover compensation for a wide range of losses. These damages are intended to cover both the measurable financial costs and the profound, intangible human costs resulting from the death.

Economic Damages: Tangible Financial Losses

Economic damages are the quantifiable financial losses that the family has suffered and will continue to suffer. They are calculated based on documents, records, and expert financial analysis. These include:

Lost wages and earning capacity: The income your partner would have earned throughout their expected lifetime.
Loss of benefits: The value of lost health insurance, retirement contributions (like a 401(k) match), and pensions.
Medical expenses: The cost of any medical care your partner received for their injuries between the time of the incident and their death.
Funeral and burial expenses: The reasonable costs associated with the funeral and final arrangements.
Loss of household services: The value of the services your partner provided, such as childcare, home maintenance, cooking, and financial management.

Non-Economic Damages: The Intangible Human Cost

Non-economic damages compensate for the emotional and personal losses that do not have a precise price tag. For a surviving spouse, these are often the most significant part of the claim. They include:

Sorrow, grief, and mental anguish: Compensation for the emotional suffering of the surviving family members.
Loss of love, companionship, comfort, and consortium: This acknowledges the loss of the marital relationship itself, the affection, support, and intimacy that has been taken away.
Loss of guidance and training: If the deceased had children, this compensates them for the loss of their parent’s guidance, education, and nurturing.

Punitive Damages: Punishing Gross Negligence

In rare cases, an Arizona court may award punitive damages. These are not designed to compensate the family but to punish the defendant for extreme or malicious conduct and to deter others from similar behavior. To receive punitive damages, you must prove with “clear and convincing evidence” that the defendant acted with an “evil hand and evil mind,” meaning they knew their actions were wrong and dangerous but proceeded anyway. A classic example would be a drunk driver with a long history of DUI convictions who causes a fatal crash.

Common Challenges and Defenses in These Cases

Filing a wrongful death claim as a common law spouse is a legally intensive process, and you should anticipate a strong challenge from the defense. Understanding their likely strategies can help you and your attorney prepare a more robust case.

The Defendant’s Strategy: Attacking the Marriage

The easiest and most effective way for a defendant to defeat your claim is to invalidate your marriage. The defense’s legal team will meticulously examine your life, looking for any inconsistencies that suggest you were not in a common law marriage. They will search for:

Documents where you or your partner identified as “single,” such as on tax returns, credit applications, or employment forms.
Witnesses who can testify that they did not believe you were married or that you did not present yourselves as a married couple.
Evidence of separation or a lack of cohabitation during the time you claim the marriage was formed.

Any piece of contradictory evidence can be used to undermine your standing as a surviving spouse.

The “Putative Spouse” Doctrine in Arizona

In some situations, Arizona law recognizes a “putative spouse.” This is a person who had a good faith, but mistaken, belief that they were legally married. This most often applies when a person’s spouse had a prior, undissolved marriage they were unaware of, making their own marriage legally void. A putative spouse may be granted some of the rights of a legal spouse, particularly concerning property. Arguing for putative spouse status in a common law context is a complex and uncertain legal strategy. It would require proving that you had a reasonable, good faith belief that your long-term cohabitation in Arizona created a valid marriage, which is a difficult argument to win given Arizona’s clear marriage laws. However, it is a potential avenue that an experienced lawyer might explore in specific circumstances.

Comparative Negligence in Arizona

Another common defense tactic involves shifting blame to the deceased. Arizona follows a “pure comparative negligence” rule under A.R.S. § 12-2505. This means that if the deceased person was partially at fault for the incident that led to their death, the total damages awarded to the family will be reduced by their percentage of fault. For instance, if a jury determines the total damages are $1 million but finds your deceased partner was 10% responsible for the accident, the final award would be reduced by $100,000 to $900,000. The defense will work hard to find any evidence of fault on the part of your partner to reduce their financial liability.

Common law spouse? Get expert help from Life Justice Law Group today.

Conclusion

The path to filing a wrongful death claim in Arizona as a common law spouse is narrow and legally demanding. While the state of Arizona will not recognize a common law relationship formed within its borders, the U.S. Constitution provides a critical opening for those whose marriages were validly established in another state. Success depends entirely on your ability to present clear, consistent, and convincing evidence that you and your partner intended to be married, presented yourselves to the public as a married couple, and lived together in a state that recognizes such unions.

This process requires meticulous preparation and a deep understanding of both Arizona’s wrongful death statutes and the marriage laws of another state. You must be prepared to defend the legitimacy of your relationship against intense scrutiny from opposing counsel, all while grieving an immense personal loss. The two-year statute of limitations adds a pressing deadline to this already difficult situation, making it imperative to act swiftly to preserve your legal rights. Gathering the necessary financial records, legal documents, and witness testimony takes time, and any delay can jeopardize your ability to seek justice.

If you have lost your partner due to someone else’s negligence and believe you had a valid common law marriage, you do not have to face this fight alone. The complexities of these cases demand the guidance of a skilled Arizona wrongful death attorney who has specific experience with intricate marital status issues. An attorney can evaluate the strength of your claim, help you gather the essential evidence, and build a compelling case to establish your legal standing as a surviving spouse. Do not wait. The clock on your right to seek justice is ticking. Contact us for free evaluation today, and let us fight for the justice your family deserves.

Can a Common Law Spouse Sue for Wrongful Death in Arizona?