Common Law Marriage in Texas

While most couples have a wedding that formalizes their union, that is not a legal requirement in Texas. This is because Texas is one of about a dozen states that recognizes the concept of common law marriage. Establishing common law marriage in Texas is often necessary in order for a partner to receive certain benefits during their partner’s life or any inheritance upon their partner’s death. At the Houston estate planning law firm of McCulloch & Miller, PLLC, our lawyers help advise and advocate on behalf of those seeking the inheritance that they are entitled to from their common law marriage.

Common law marriage, also known as informal marriage, is a type of marriage that comes about without a ceremony or any other legal formalities, such as a marriage certificate. While there is a common misconception that a couple who lives together for a period of time becomes married under the common law, that is not how common law marriage in Texas operates. Instead, to prove a common law marriage, you must meet each of the following elements:

1. Neither partner is currently married to another person;
2. Both partners were at least 18 at the time the marriage became effective;
3. Both partners agreed to be married;
4. Both partners lived in Texas as a married couple; and
5. The couple held themselves out as a “married couple” to friends, family, and the general public.

One of the requirements of a Texas common law marriage is that both partners agree to be married. One way of accomplishing this is by filling out and submitting a “Declaration of Informal Marriage.” However, courts are also willing to consider other evidence that indicates a couple intended to be married, such as:

• Whether the partners lived together;
• Whether the partners introduced each other as their spouses;
• Whether one partner took the other’s last name;
• Whether the couple filed a joint tax return;
• Whether the couple shared finances;
• Whether one partner was included on the other’s health insurance policy;
• Whether the couple wore wedding rings; and
• Whether one partner was named as the beneficiary on the other’s life insurance policy.

Importantly, no single fact will be determinative as courts look at all the surrounding circumstances when determining if a couple met the criteria for a common law marriage.

There are two reasons why a couple might want to establish that they have a common law marriage. The first is related to the distribution of assets in the event the partners break up and go their separate ways. The second relates to the situation in which one of the partners dies without a will.

Typically, if one partner in a couple dies, the court will first look to their will to determine how to distribute their assets. However, if the deceased partner does not have a will, the court will determine who inherits based on the Texas laws of intestacy. One of the most important aspects that a court will look to in this type of case is whether the decedent was married, either through a formal marriage or through a common law marriage. For example, if a married person who has children from a previous relationship dies, their current spouse keeps half of the couple’s community property, one-third of the deceased’s separate personal property, and the right to use any real estate for life. The deceased’s children receive everything else.

Thus, it can be critical to prove a common law marriage exists because, if a couple is not formally married, the surviving partner may be left with nothing.

If you recently lost your spouse and you were not formally married, proving that you and your late partner had a common law marriage may entitle you to a share of their estate. Alternatively, if you believe that a loved one’s long-term partner is illegitimately claiming a common law marriage, it can jeopardize your family’s inheritance. At the Houston estate planning law firm of McCulloch & Miller, PLLC, we frequently advise individuals and families on issues related to proving common law marriage in Texas. We also handle litigation surrounding proving and disproving common law marriages. To learn more about the services we provide, give us a call to schedule a consultation at (713) 333-8900. You can also reach us through our online contact form.