Common law marriage (or informal marriage) is a legal mechanism for a couple to access marital rights without a formal ceremony. Both heterosexual and homosexual couples may have a common law marriage. In Texas, the two parties must:
- Agree to be a married couple,
- Live together in Texas as a married couple, and
- Represent to others that they are married.
The law does not require you to live together for a set time before you can have a common law marriage. Instead, you must act like you are married. In other words, other people need to witness you acting like a married couple. Or, you could share bills and property and receive mail as “Mr. and Mrs.” In essence, if you hold yourself out as married and make decisions as a married couple—you are married in Texas. However, there are limitations. You cannot be a party to a common law marriage if you are under 18 or already married to someone else.
Common Law Marriage Advantages in Texas
If you are living together, you could take advantage of the benefits of common law marriage in Texas. Getting married (formally or informally) means you:
- Are eligible to receive spousal and survivor Social Security benefits;
- Can qualify for employer benefits through your spouse (like health insurance);
- Are exempt from the gift tax;
- May make unlimited marital exemptions for your estate (no inheritance tax);
- Can inherit property under your spouse’s will;
- May claim a mortgage interest deduction on your tax return;
- Have hospital visitation rights and the right to make emergency medical decisions for one another;
- Have child custody rights;
- Have rights to property or other assets acquired during the marriage; and
- Can take advantage of other tax deductions or exemptions available to married people.
When you exercise your marital rights, you may need to show legal proof of the marriage. For ceremonial marriages, the couple has the marriage license with the officiant’s signature. That document serves as conclusive proof of the marriage. For couples who never formalized their marriage, you will have to provide evidence that you are married. Testimony from friends and family can help. Documents that show you share a household are compelling, like lease agreements, tax returns, and insurance policies. You also have the option to file a Declaration and Registration of Informal Marriage to record your marriage with the county clerk. Any outside evidence that helps prove the legal elements above will reinforce the existence of your marriage.
Downsides to Common Law Marriage
There are plenty of advantages of common law marriage in Texas. However, even if you want to get married, you need to consider the legal implications of the practice. A common law marriage uses the same divorce process as a formalized marriage (with exceptions for separations within two years). Also, Texas follows community property laws, meaning each party to the marriage has rights to marital property when you divorce. You may have to split property and child custody or pay spousal support. If you find yourself in this situation, an attorney experienced with common law divorces can help you understand your rights.
Robbins Estate Law: Helping Families Prepare for the Future
Common law marriage can protect your family and assets. Even if you never formalize your marriage, Texas law states that you deserve the same property and custody rights as married couples. If someone questions your marital status, you might lack a marriage license—but under Texas law, you are still married if you fulfill the requirements. But you will need evidence. Unfortunately, collecting that evidence in the face of a validity challenge might be difficult for some couples. If you need to defend or enforce your common law marriage rights, contact the attorneys at Robbins Estate Law or call us today. We have been supporting the interests of Texans and their families since 2017. You can expect knowledgeable and dedicated service focused on meeting your legal goals.
Kyle Robbins
Kyle Robbins is the founder and sole owner of The Law
Offices of Kyle Robbins. He received his J.D. with honors from the University of Texas School of Law and his B.S. in Food Chemistry and Microbiology from Oklahoma State University.
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