Common law marriage is a type of marriage that occurs because of three conditions being present simultaneously. Those conditions are:
-you and your spouse must live together (cohabitate)
-you and your spouse must hold yourselves out as being married to the public
-you and your spouse must agree that you are married
If these three conditions are in place you are common law married in Texas. There is no marriage ceremony, exchanging of vows, or any other formality that needs to be in place for a common law marriage. All you need to do to be in a common-law marriage is to fulfill these three conditions concurrently. In Texas, a common law marriage is treated the same as a ceremonial marriage.
If you are in a common law marriage, then it cannot be said that you did not know that you were common law married. Two of the requirements of a common law marriage are that you must hold yourselves out as being married to the public and must also agree to be married. The word “marriage” is a key part of both of those conditions. Marriage is not only an important relationship when you are raising children and building a family but also for estate planning.
Common law marriage and estate planning
If you were living with a significant other and died without a will then there would be definitive issues when it comes to estate planning and end-of-life planning. For one, a girlfriend does not inherit property from her boyfriend- under any circumstances. Check out the Texas Estates Code. There is no language in the code book that allows a significant other to inherit property. Children, parents, and immediate family would all stand to inherit property from you if you pass away. If those people cannot be located or do not exist, then distant relatives would have the opportunity to inherit property from you. The longtime girlfriend does not figure into this equation.
Let this be a warning to those of you who are cohabitating with a significant other. The law will not protect your rights to inherit property from your longtime boyfriend or girlfriend. As more people forego marriage and instead live in an exclusive relationship with a long-term partner this is a dangerous spot to be in for inheritance and estate planning purposes. To protect your significant other, a will is a great document to have. You and your significant other can create mirror-image wills that leave property to the other when you pass away. In the future, if you decide to get married you can create a new will and then destroy the old will without any problems. The attorneys at the Law Office of Bryan Fagan can help you map out a course of action to take regarding this subject matter.
When you are in a common-law marriage that changes. Even though you did not go through with a formal marriage ceremony to kick off your marriage, you and your common-law spouse are treated under the law as any couple would be who just got married. Your ability to inherit property from your spouse would be just as firm as it would be had you gotten married the old-fashioned way.
Estate planning requires you to be intentional
It is difficult to near impossible for you to wander into a situation where your estate plan conforms perfectly to your specific situation. You should be intentional with how you craft an estate plan so that your life and circumstances are considered. All of this is done not to protect you, but to protect your loved ones. When you die, obviously you no longer have any skin in the game. Your legacy, however, will be determined by how well you take care of those that you love. This is one way to look at estate planning and why it is so important to understand your goals associated with it.
As we just mentioned, Texas honors common-law marriages. It is one of the relatively few states that continue to do so. The situation here in Texas is interesting because not only do we honor common law marriages, but we also subscribe to the theory of community property as it relates to marital property division. This allows a common-law spouse to make an argument, whether at death or divorce, that she is entitled to half of your income or property as a result of a just and right division of the community estate.
When you come to speak with one of the experienced estate planning attorneys with the Law Office of Bryan Fagan, we will talk to you about your family and the makeup of that family. Whether you are married is one of the most important questions that we can ask you. This will determine the type of advice we provide and the type of information that we share with you when it comes to learning more about estate planning in Texas. Being married means that you will account for your spouse when you are drafting a will. Having a spouse and children means that the kids will receive some property at your passing while your spouse will retain other items which belong to her, as well. It would not make sense to pass down the house in a will to your children when your spouse needs someplace to live. Not only that, but the community property laws of Texas protect your spouse and her interest in the home even if you were to promise the house to your children or anyone else, for that matter.
What to do if your common-law spouse passes away
If you were in a common-law marriage and your spouse recently passed away, then please accept our office’s sincere condolences. We work with and on behalf of people going through difficult emotional circumstances and we know how hard this is for you and your family. On a practical level, it is important to be able to focus on what you need to do now as far as protecting your rights and learning as much as you can in the furtherance of that goal.
The first issue that you should concern yourself with is proving that you were in a common-law marriage. Whereas people married ceremonially can point towards a marriage certificate to show their marriage existed, you will not have that card to play. Rather, if the nature of your relationship with your spouse is challenged, you will need to muster the evidence necessary to prove that you were common law married and not merely in a dating or other “committed” relationship.
Proof of agreeing to be married could be something written and signed by you and your spouse wherein you state that you agree to be married. However, it is unlikely that you two signed what amounts to a marriage contract. What you may need to do is provide evidence of you and your spouse having a discussion where you agree to be married. Rings may have been exchanged, other people may have been present who can be called upon to testify to the agreement and other evidence specific to your circumstances may exist that can be used to prove or substantiate that you all are involved in a common law marriage.
Living together as a married couple with your spouse can be somewhat easier to prove. Utility bills in both of your names, both of your names appearing on a lease agreement or deed, as well as both of you having photos or other memorabilia in the home is a way to show that you are cohabitating. However, it can also be tricky to prove cohabitation if there is nothing in writing that states you both are residents of the home. It would not be difficult for your spouse to argue that he or she was living elsewhere when you are arguing that he or she is living with you in the home. If at all possible, it would be good to get their name with yours on a rental application or lease agreement. If your spouse has another apartment or place to stay it may be worthwhile to ask him or her why that is and if that needs to continue.
Representing to others that you are married can be proven in a variety of ways. Sometimes people will have celebrations after agreeing to a common-law marriage. If you and your spouse invited over people to your home to celebrate your informal marriage, then this would be proof of holding out to others that you are married. Referring to your spouse as your husband or wife in casual conversation, email, or in other settings is also an indication that you are husband and wife.
What rights to inherit property does a common law spouse have in Texas?
Inheritance rights of a common-law spouse are equivalent to those of a spouse married in a traditional ceremony. Keep in mind that you will need to prove the common law marriage which can take some effort to do. This is why we just spent a few paragraphs discussing how you can prove a common-law marriage and what evidence may be helpful if you are attempting to do this. There is much less of an effort for a person married via a traditional ceremony when it comes to asserting the rights of a spouse in inheriting property. It is simply easier to have a will than to try and prove that you were validly married via the common law.
If your common-law spouse dies without a will then you will need to prove that the two of you were married. Keep in mind that while you are attempting to marshal the necessary evidence to prove that you were common law married to your deceased spouse, there will be other family members who will be attempting to contract your position. This includes the children of your spouse (if they are not also your children) as well as your spouse’s immediate family. This is why the estate planning attorneys with the Law Office of Bryan Fagan will always recommend that you have a will.
This is not just an issue that is limited to common-law spouses. Anyone who dies without a will runs the risk of having a judge be the ultimate determiner of where their property ends up after they pass away. If you are someone who is common law married, then it should be twice as much of a concern for you. The reason is that not only are you leaving yourself susceptible to harming yourself, your spouse, and even your extended family and others by not having a will.
What a will can do for you is to give you authority and autonomy to make decisions for yourself when it comes to determining where your property is going to go after you pass away. Not having a will either put someone in your family in the position to make those decisions (if your estate is small) or a probate court judge (if you have debt or have a large estate). Your family may end up fighting over your property. Your common-law spouse, who may not be on the best terms with your kids, family, or other relatives, could be caught in the middle of this entire scene. Not quite the legacy that you would want to leave.
Otherwise, your estate would need to go through probate. Heirs will need to be located. This will take time. Creditors of yours will need to be allowed to make appearances in the case and try to get back the money that is owed to them. This will also take time. Time equals money in a probate situation. While these details are hammered out the estate is going to be leaking money to pay for the court case. That means less for your heirs. Your common-law spouse will have to fight for their right to inherit property from you. This can be made easier if your family agrees that he or she is your spouse. However, in many cases, the family of a person who has passed away does not have a good relationship with the common-law spouse. If this sounds familiar to you then you should take precautions while you still can to avoid this outcome.
What you can also keep in mind is that some property will be able to pass outside of a will and outside of the probate process. Life insurance is a good example of this. Life insurance can help you to protect another person or persons who rely upon your income. Your spouse and children are people that immediately come to mind as it pertains to people who may rely upon your income. If you want to provide for your family even after you have passed away, then a life insurance policy is something good to purchase. You can perform some basic research into the types of life insurance to determine which type is best for you and your family.
When you pass away, life insurance is not something that needs to be probated. When you purchase the policy you will list a beneficiary. That beneficiary will be able to contact the life insurance company after your passing and provide your death certificate to receive the money guaranteed by the policy. This can be a great advantage for people who need money immediately. Life insurance can typically be paid out much faster than money that needs to go through probate first. Imagine your spouse or children who are struggling to get by after you pass away. Getting a big check from a life insurance company may be just what they need to keep their heads above water while your spouse figures out what to do next. The probate process can tie money up for an extended period, by comparison.
The same general concept applies to retirement plans. If you have a retirement plan like a 401K or Individual Retirement Account (IRA), then these are also financial instruments that will require you to list a beneficiary. If you were to pass away, then those retirement plans would go to your beneficiary without first having to go through probate. Better for your beneficiary to get the money sooner rather than later.
This is a lot to think about and plan for, I grant you. Nobody enjoys having to go through these sorts of situations and plan for an end-of-life situation. However, it is the responsible thing to do and is part of your legacy. The more intentional you can be in this regard, the better off your family will be in the short and long term.
If you want to know more about what you can do, CLICK the button below to get your FREE E-book: “16 Steps to Help You Plan & Prepare for Your Texas Divorce”
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- Frequently Asked Questions Regarding Texas Marriage
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- Can Common Law Marriage be Backdated / Is Obergefell Retroactive?
- What Makes a Common Law Marriage Valid in Texas?
- What living arrangements may lead a judge to conclude that you are common law married?
- Texas Estate Planning, Divorce and Protecting Assets
- Common Law Marriage and Texas Divorce Guide
- Preparing for the end and immediate time period after your Texas divorce
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.