Marriage Laws by State


Under the United States Constitution, the regulation of marriage as a general rule is a matter of state law, not federal. The 10th Amendment to the U.S. Constitution provides that: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” As the U.S. Constitution neither delegates the regulation of marriage to the United States nor prohibits its regulation to the states, its regulation is reserved to the states. However, the states’ power to regulate marriage is not unlimited in at least two regards: first, as to matters delegated to the United States, such as the regulation of interstate commerce, in the event of any conflict between a federal law regulating interstate commerce and a state’s marriage laws, then the federal law controls; second, as to matters within the scope of the Bill of Rights (the first ten amendments to the constitution) or any subsequent amendments applicable to the states, then federal law controls the states’ regulation of marriage. For example, in Loving v. Virginia, 388 U.S. 1 (1967), the United States Supreme Court invalidated a Virginia anti-miscegenation statute that prohibited marriage between persons of different “races” on the grounds that that the Virginia statute (the “Racial Integrity Act of 1924,” which criminalized marriages between white and black persons) violated the equal-protection clause of the Fourteenth Amendment to the U.S. Cdonstitution. The 14th Amendment (Section 1) provides that:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Supreme Court’s decision in Loving v. Virginia ended racial segregation in marriage throughout the nation, for  the Supreme Court’s decisions regarding constitutionality apply to all states, all territories and possessions, and the District of Columbia.

Marriage laws vary from state to state. Each state, as well as the District of Columbia and the territories—Puerto Rico, Guam—makes its own marriage laws, subject to the constraints of its and the U.S. Constitution. One area in which the states differ is in the area of marital property. Most states, the District of Columbia, and the territories are common-law property states. That is to say, each spouse owns his or her personal property outright, and the spouses may own property together—either jointly (with right of survivorship) or as tenants in common (without right of survivorship)—but the marriage does not create a marital community, hence there is no marital property. These states are known as separate property states. In a minority of states, however, a marriage creates a marital community, that is a legal entity in which each spouse has a vested interest and that is marital property separate and apart from each spouse’s individual property interests. The community property states are: Arizona, California, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

Marriage is chiefly regulated by the states. The Supreme Court has held that states are permitted to reasonably regulate the institution by prescribing who is allowed to marry, and how the marriage can be dissolved. Entering into a marriage changes the legal status of both parties and gives both husband and wife new rights and obligations. All states limit people to one living husband or wife at a time and will not issue marriage licenses to anyone with a living spouse. Once an individual is married, the person must be legally released from the relationship by either death, divorce, or annulment before he or she may remarry. Other limitations on individuals include age and close relationship. Limitations that some but not all states prescribe arethe requirements of blood tests, good mental capacity, and being of opposite sexes.

Marriage license is a document that authorizes a couple to get married, usually available from the county clerk’s office in the state where the marriage will take place. Couples pay a small fee for a marriage license, and must often wait a few days before it is issued. In addition, a few states require a short waiting period between the time the license is issued and the time the marriage may take place. Some states still require blood tests for couples before they will issue a marriage license.