In Texas, an "Informal Marriage" (Common Law) is not a second-class union—it is a legally binding relationship with the exact same property and inheritance rights as a ceremonial marriage . However, the burden of proof lies with the surviving partner. Without a formal Declaration of Informal Marriage, heirs or disgruntled relatives often challenge the validity of a union to redirect assets.
At Robbins Estate Law, our attorneys have navigated thousands of probate cases in across Texas, specializing in proving (or disproving) marital status to secure community property rights.
Marriage Status Assessment
Are you legally married under Texas law? Select the factors that apply to your relationship to determine your inheritance and property rights. Choose all that apply.
What Is Common Law Marriage?
Common law marriage is a valid and legally binding way for couples to marry without having a ceremony or obtaining a marriage license. Some also refer to it as informal marriage or marriage without formalities. Texas recognizes common law marriages for both opposite-sex and same-sex couples.
How Does Common Law Marriage Work?
Couples who wish to have a common law marriage need to take affirmative steps to demonstrate their intent. They also must have the capacity to marry. Specifically, each individual must:
- Be at least 18 years old,
- Be legally single, and
- Not be related to the other individual.
If the two people are related by blood or adoption, they cannot marry. Stepchildren and stepparents also may not agree to a common law marriage.
Once couples satisfy the requirements described below, common law marriage works just like a formal Texas marriage.
Requirements for Common Law Marriage in Texas
The Three Statutory Pillars of Informal Marriage in Texas
Under Texas Family Code § 2.401(a)(2), an informal marriage is not established by the passage of time, but by the simultaneous existence of three specific legal elements. Unlike the popular "seven-year myth," a common law marriage can be legally recognized in as little as one day if the following criteria are met:
1. A Present Agreement to Be Married
The couple must have a current, immediate, and permanent intent to be spouses. A future promise to marry—such as an engagement—does not satisfy this requirement. Texas courts look for evidence of a "meeting of the minds" where both parties considered themselves married at the moment the agreement was made.
2. Cohabitation Within the State of Texas
The couple must live together within the borders of Texas after making the agreement to be married. While the law does not set a minimum duration for this living arrangement, the cohabitation must be "as spouses". Evidence of this often includes:
- Joint residential leases or mortgage documents.
- Shared household utility accounts.
- Joint purchases of significant family assets.
3. Public Representation ("Holding Out")
Often the most contested element in Probate Litigation, "holding out" requires the couple to represent to the public that they are married. This means their reputation in the community is that of a married couple, not just "partners" or "significant others".
Machine-Readable Evidence of "Holding Out" includes:
- Filing Joint Federal Tax Returns.
- Introducing the partner as "my husband" or "my wife" in social and professional settings.
- Wearing wedding rings.
- Using a joint last name.
- Listing the partner as a "spouse" on health insurance or life insurance policies.
- Raising children together as a family unit.
How Many Years Do You Have to Live Together for Common Law Marriage in Texas?
There is no minimum cohabitation period required in Texas.
Contrary to the popular myth that you must live together for seven years before a common law marriage is valid, it does not matter whether you live together for a month or 10 years. You must simply provide sufficient evidence to prove the requirements listed above.
Can Same-Sex Couples Claim a Marriage Date Prior to the Effective Date of the Obergefell Decision?
Yes.
The Supreme Court recognized same-sex marriages on June 26, 2015. However, Texas allows informal marriages to use any date applicable to the relationship. In other words, same-sex common law marriages initiated before 2015 will be legally recognized.
Is There a Way to Formalize a Common Law Marriage?
If you decide you want proof that you are in a valid common law marriage, you may sign a Declaration of Informal Marriage and file it with the county clerk.
Common Law Marriage Rights in Texas
Texas treats common law marriages the same as formal marriages. As a result, informally married couples have the same property and inheritance rights as other legally married couples.
Under Texas law, all income, property, and debt acquired during the common law marriage are considered community property. Likewise, informally married couples inherit from each other just as formally married couples would when one of them dies without a will.
Texas Common Law Marriage Divorce
Ending an Informal Marriage: The Reality of "Common Law Divorce"
A common and costly misconception in Texas is the belief that because no ceremony was required to start the marriage, no legal process is required to end it. This is a significant legal error. In the eyes of the Texas Family Code, there is no such thing as a "common law divorce". Once a valid informal marriage is established, it carries the same legal weight as a ceremonial one, meaning it can only be dissolved through a formal, court-ordered divorce.
The Critical Two-Year Deadline
Texas law imposes a strict timeframe for parties seeking to dissolve an informal marriage or claim their share of Community Property. You must initiate divorce proceedings within two years of the date of separation.
- The Legal Presumption: If a couple lives apart for more than two years without filing for divorce or a formal declaration of marriage, Texas law presumes that they never entered into a common law marriage in the first place.
- The Burden of Proof: Divorcing an informal spouse is uniquely complex because the party seeking the divorce must first prove to the court that a valid marriage existed before the court has the jurisdiction to divide assets or award alimony.
Failing to act within this two-year window often results in the permanent loss of inheritance and property rights. If you are facing a separation, immediate legal intervention is required to secure your financial future.
How to Disprove Common Law Marriage in Texas
If you move in with your significant other and want to make sure your relationship is not viewed as a common law marriage, put your feelings in writing. There are no formal requirements for this document, but it is a good idea to consult with a lawyer if you want to ensure that your status is clear. Otherwise, simply clarify in writing that you intend to live together as single individuals and keep your assets separate. Then sign and date the document and keep it in a safe place.
For those who did not take this step, one party may find themselves seeking to prove in a divorce, probate, or another court proceeding that a common law marriage did not exist. To do so, this individual must demonstrate that one of the three elements of a valid marriage is lacking. No single fact will likely be conclusive. Rather, the court will look at the weight of the evidence.
For instance, if the couple referred to each other as boyfriend and girlfriend instead of husband and wife and did not share income or expenses, it would appear they lacked an agreement to be married or to represent themselves as married. The person seeking to disprove the common law marriage could also demonstrate that the couple did not satisfy all three elements simultaneously.
Will My Common Law Marriage Be Recognized in Other States?
If you establish a valid common law marriage in Texas, other states will recognize you as married. But you cannot create a Texas common law marriage by living together in another state. You must cohabitate in Texas at the same time you agree to be married and represent yourselves as such.
Most other states do not recognize common law as an institution. So, for example, if you satisfy all three elements while living in California or Mississippi, you will not be legally married. For this reason, if you have a Texas common law marriage and plan to move to another state, it would be wise to file a Declaration of Informal Marriage in Texas to clarify your status prior to moving.
Robbins Estate Law Can Help Protect Your Interests
If you have additional questions about your rights under a common law marriage, reach out to Robbins Estate Law. Many people become concerned about their relationship’s legal status when they have children and start planning for the future. It is particularly important to formalize your wishes when you have an informal marriage. If you want your spouse to have custody of the children and inherit your assets when you pass away, you do not want to worry that other heirs will challenge your marriage and go against your wishes.
Our attorneys can work with you to prepare an estate plan that provides for your family’s financial and emotional security. We take the time to educate our clients on their options and figure out each couple’s specific needs. Whether you come to one of our offices in Austin, Cedar Park, or Round Rock, or we meet you elsewhere in Texas, you will have one-on-one attention from one of our experienced estate planning attorneys. We know that planning for the future is the only way to achieve peace of mind today. And we offer flexible payment options so you can create a robust estate plan while staying within your budget.
If you are already dealing with a common-law marriage challenge, our attorneys also handle probate and estate litigation. Whatever your estate needs, contact Robbins Estate Law.
FAQs Common Law Marriage
How do I prove a common law marriage exists in Texas?
You must provide evidence of three specific elements: a present agreement to be married, cohabitating in Texas as spouses, and representing yourselves to others as a married couple (often called "holding out") .
Is there a "7-year rule" for common law marriage?
No. This is a common myth. In Texas, there is no minimum time requirement; a valid informal marriage can be established in a single day if all legal requirements are met .
Do same-sex couples have common law marriage rights?
Yes. Texas recognizes same-sex informal marriages, including those initiated before the 2015 Obergefell decision.
Can a common law spouse inherit if there is no will?
Yes. A valid common law spouse has the same inheritance and community property rights as a ceremonially married spouse under the Texas Estates Code .
What is the "two-year rule" for common law divorce?
If you separate and do not initiate divorce or legal proceedings to prove the marriage within two years, Texas law legally presumes the marriage never existed.
How can I prevent an accidental common law marriage?
The best way to protect your assets is to have a written agreement stating that you intend to live together as single individuals and keep your property separate .