Proving a Common Law Marriage in Texas

Common law marriage, also known as informal marriage, is a legal concept that allows a couple to be considered married without going through the formal process of obtaining a marriage license and having a ceremony. In certain states, including Texas, couples can establish a common law marriage if they meet specific requirements and live together as a married couple.

Common law marriage is a unique legal arrangement that can have significant implications, particularly in the event of a partner’s passing. If you and your long-term partner have been living together and holding yourselves out as a married couple, you may be considered a common-law spouse, even without a formal marriage certificate.

Understanding Common Law Marriage in Texas

Texas is one of the few states that still recognize common-law marriages. The state’s laws regarding common-law marriage are outlined in the Texas Family Code, Section 2.401. To establish a common law marriage in Texas, the following three requirements must be met:

  1. Agreement to be Married: You and your partner must have agreed to be married, either explicitly or implicitly, through your words or actions.  This agreement was not made for convenience but to be permanent.
  2. Cohabitation: You and your partner must have lived together in Texas as a married couple.
  3. Holding Out as Married: You and your partner must have represented to others, such as friends, family, or the community, that you are married.
  4. Not Married to Anyone Else: Neither you nor your partner were married to anyone else at the time you are claiming to be common law married. 

It’s important to note that the requirements for common law marriage in Texas are strictly interpreted, and the burden of proof falls on the individual claiming the marriage.

Proving Common Law Marriage in Texas

If your long-term partner has passed away and you believe you were in a common-law marriage, you will need to provide evidence to prove the existence of the marriage. This can be a complex and challenging process, as you will need to gather various forms of documentation and testimony to support your claim.

Documentation Required to Prove Common Law Marriage

To prove a common law marriage in Texas, you will typically need to provide the following types of documentation:

  1. Financial Records: This may include joint bank accounts, shared property ownership, or other financial documents that demonstrate you and your partner were financially intertwined as a married couple.
  2. Testimony from Friends and Family: Statements from individuals who can attest to your relationship and your representation as a married couple can be valuable evidence.
  3. Public Records: This may include documents such as joint tax returns, insurance policies, or other official records that list you and your partner as a married couple.
  4. Proof of Filed Declaration of Marriage: If the parties remain living together at the time of death, a properly executed Declaration of Marriage filed with the County Clerk of your residence is actual proof of a common law marriage.

Steps to Take if your Long-Term Partner Passes Away

If your common-law spouse has passed away, it’s important to take the following steps:

  1. Notify Relevant Parties: Take action to manage the burial arrangements for your spouse.  Inform relevant authorities, such as banks and employers, and immediately file an action with the probate court of your claim as a common law spouse.
  2. Gather Documentation: Collect all the necessary documentation, as outlined in the previous section, to support your claim of a common law marriage.
  3. Seek Legal Assistance: Consult with an experienced estate planning attorney who can guide you through the process of proving your common-law marriage and asserting your rights as a surviving spouse.

Legal Rights and Responsibilities of Common Law Spouses in Texas

If you are able to successfully prove your common-law marriage, you will be entitled to the same legal rights and responsibilities as a spouse in a formal marriage. This includes:

  • Inheritance Rights: As a surviving common-law spouse, you may be entitled to a portion of your spouse’s estate, including any assets, property, or other belongings.
  • Spousal Benefits: You may be eligible for certain spousal benefits, such as Social Security, pension plans, or health insurance coverage.
  • Responsibilities: With the rights of a spouse come certain responsibilities, such as the obligation to provide financial support or make medical decisions on behalf of your partner.

Common Misconceptions About Common Law Marriage in Texas

There are several common misconceptions about common-law marriage in Texas that are important to address:

  1. Cohabitation Alone Does Not Establish a Common Law Marriage: Simply living together for an extended period of time does not automatically create a common law marriage. All three requirements (agreement to be married, cohabitation, and holding out as married) must be met.
  2. Common Law Marriage Can Exist Without Children: Many people believe that having children together is a requirement for a common law marriage, but this is not the case in Texas.
  3. Common Law Marriage Can Be Terminated: Like a formal marriage, a common law marriage can be terminated through divorce or annulment proceedings or failing to live together.

Seeking Legal Assistance for Common Law Marriage Cases

If you believe you were in a common law marriage with your partner and they have passed away, it’s crucial to seek the guidance of an experienced estate planning attorney. They can help you navigate the complex legal process of proving your common-law marriage and asserting your rights as a surviving spouse.

On the other hand, because it is fairly easy to make a claim of common law marriage when one party to the marriage is no longer alive to contest the claim.  Due to the benefits of marriage, many will suddenly confuse the existence of a long term relationship with common law marriage to take advantage of an estate.  

To avoid abuse of the legal process,  it is critically important that you take swift action to refute a false claim of common law marriage. Otherwise, you may risk losing your rights to your loved one’s estate by someone who simply took advantage of your inaction.  To minimize the risk of false claims of common law marriage, it is important that you manage the burial arrangements for your loved one and not allow the creation of a false certificate of death.  Do not allow anyone to be named as “spouse”, husband”, or “wife”, in a funeral program or obituary to save face.  It is appropriate to identify long-term companions as that.  Inform the funeral home and other authorities, such as hospital staff, banks and employers, that your loved one is not married, and immediately file an action with the probate court to establish the proper heirship of your loved one.  If there is a dispute, the party claiming common law has the burden of proving the relationship and should be able to do so willingly.  Keep in mind that a claim of common law marriage can be made for many months after the death of the loved one.  

Whether you have the right to pursue a claim that a common law marriage existed or the right to claim that it did not, it is wise to file an action to probate the estate immediately to protect your interests.

Don’t go through this difficult time alone. Contact us today for a free case evaluation and let our experienced probate attorneys guide you through the process of establishing a proper heirship of an estate and protecting your rights.