When a person passes away, the surviving spouse has a right to claim a part of their estate. However, If another heir challenges your inheritance rights, the probate court may ask for legal proof of the marriage. If the marriage is “common-law” and not traditional, proving the marriage existed can be extremely expensive, difficult, and time consuming.
Texas law recognizes common-law or “informal” marriage for couples who act and live as married but did not formalize the marriage in a traditional sense. Couples who are informally married retain the same rights as traditionally married couples, including those afforded in the distribution of a decedent’s assets such as intestate share, spousal exemptions, and allowances.
If you have questions about common law marriage in Texas, don’t hesitate to contact Robbins Estate Law.
Covered in this Blog:
- What is Common-Law Marriage?
- How Does Common-Law Marriage Divorce Work?
- How To Prove a Common-Law Marriage in Texas
- Does Texas Recognize Common-Law Marriage Rights at Probate?
- Is Common-Law Marriage Legally Binding in Texas?
- Common-Law Marriage and Probate with Robbins Estate Law.
What Is Common-Law Marriage?
Texas does not require a couple to be together for a certain period of time to be common-law married. Instead, common-law marriage arises when the following four legal requirements are present:
- Both spouses agreed to be married;
- Both spouses were over 18 and unmarried at the time of the agreement;
- They lived in Texas together as a married couple; and
- They represented to others they were married.
If you can prove these requirements are met, which can be difficult to do, the State of Texas is legally bound to recognize your marriage. Although the Texas legislature hasn’t updated the code language, Texas recognizes both opposite and same-sex common-law marriages.
How Does Common-Law Marriage Divorce Work?
A common-law marriage is a valid, legal marriage. The common-law marriage continues until the couple legally divorces, with one exception. If more than 2 years passes from the date of when a couple separates and stops living together to the date upon which the common law marriage is sought to be proven, Texas law presumes they never agreed to be married. Apart from this, you will need to get a formal divorce, just like a formally married couple would.
How To Prove a Common-Law Marriage in Texas
A marriage certificate proves the existence of a formal, ceremonial marriage. A common-law marriage on the other hand, requires proof that the four elements listed above are met. For example, the purchase agreement for a home signed by both spouses and identifying them as a married couple can show agreement to be married. Bills with the couple’s names can serve as evidence of living together. Mail from friends and family addressed to the spouses, social media accounts, and recognition of the couple in news articles or the workplace show how the couple represented themselves as being married. If you can provide proof your marriage meets the four requirements, you have a common-law marriage, and your marriage is legally binding.
Formal Declaration and Registration
A couple can also choose to formalize their marriage in the years after forming a common-law marriage. To do so, you must file a Declaration and Registration of Informal Marriage with the county clerk. Filing a declaration serves as legal proof of your marriage in a future legal proceeding, much like a marriage certificate.
Does Texas Recognize Common-Law Marriage Rights at Probate?
When you agree to be married and live together as a married couple in Texas, you have the same rights as a couple that formalized their marriage. You must petition the court to grant you the spousal rights you are asserting against the estate, including:
- Community property rights;
- Homestead rights;
- Right to receive a spousal inheritance under Texas intestate succession laws;
- Preference to act as administrator of the spouse’s estate;
- Securing marital property exempt from seizure by the estate;
- Tax savings, deductions, and exemptions; or
- Taking a spousal allowance payout for reasonable expenses.
Texas’s informal marriage law protects the married couple’s rights, even when they cannot formalize their marriage. Sometimes life gets busy and a couple that intends to be married never gets around to having a ceremony or simply chooses not to. These couples can still have state recognized marital rights and responsibilities, like sharing property and providing for the family. Our law firm helps spouses enforce their rights and protect their spouse’s estate by helping them prove their common-law marriage.
Is Common-Law Marriage Legally Binding in Texas?
Yes, in Texas a common law marriage legally binds the individuals to the same extent as a traditional marriage. Nevertheless, there are many reasons a couple might not formalize their marriage, including personal preference, expense, or limited access. For example, during the COVID-19 pandemic many courthouses were closed for months. If you acted as a married couple during that time to the extent that the elements discussed above are met, the law will grant you marital rights in divorce, death, and taxes. Neglecting to formalize your marriage does not mean you are out of an inheritance in Texas.
Common-Law Marriage and Probate with Robbins Estate Law.
Going through probate is hard, especially when you have to prove your marriage existed. Our experienced probate attorneys in Texas will guide you through the process so that you receive your share of your spouse’s estate. You and your spouse worked hard to provide your family with a home, car, and other valuable property. Most estates must go to probate, but the process may be more complicated if you need to prove a common-law marriage. We know how to help families collect evidence to prove a common-law marriage existed and secure their interest in an estate. Our team at Robbins Estate Law has the knowledge and experience needed to make the probate process as painless as possible for grieving families. Contact us by phone or online today to schedule an initial consultation.
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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