Dangers of Common Law Marriage with Estate Planning

Common law marriage, while recognized in some states, can pose significant challenges when it comes to estate planning. Unlike formal marriages, common law marriages often lack clear legal documentation and guidelines, potentially leading to disputes over inheritance, property rights, and financial assets upon the death of a partner.

In the realm of estate planning, the absence of formal recognition can complicate matters, leaving surviving partners vulnerable to legal battles and uncertainties regarding their rightful entitlements. Understanding these risks is crucial for individuals considering common law unions and seeking to protect their interests through comprehensive estate planning strategies.

What is common law marriage

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 must hold yourselves out as married to the public, and you 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, you cannot claim ignorance of your marital status. Two requirements of a common law marriage are publicly holding yourselves out as married and mutually agreeing 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 live with a significant other and pass away without a will, estate planning and end-of-life arrangements can present definitive challenges. In Texas, the law does not permit a girlfriend or boyfriend to inherit property under any circumstances, regardless of the length of the relationship. According to the Texas Estates Code, property would typically pass to children, parents, or other immediate family members if they can be located; otherwise, distant relatives may inherit. This legal framework does not include provisions for long-term girlfriends or boyfriends.

This underscores the importance for cohabitating couples to consider estate planning measures. Creating a will ensures that your partner is protected, allowing you to designate them as a beneficiary. Even in a common-law marriage, where no formal ceremony has taken place, partners are treated similarly to legally married couples under Texas law. This ensures that inheritance rights are secure, providing peace of mind in planning for the future. For tailored guidance on estate planning and common-law marriage issues, consult with the experienced attorneys at the Law Office of Bryan Fagan.

Estate planning requires you to be intentional

Crafting an estate plan that truly reflects your unique circumstances can be challenging yet crucial. The purpose of estate planning is not just to safeguard your own interests but primarily to protect your loved ones after you’re gone. Your legacy hinges on how well you provide for those you care about. In Texas, where common-law marriages are recognized, this adds a layer of complexity and opportunity. Texas law acknowledges both common-law marriages and adheres to community property principles in marital asset division. This means that a common-law spouse can assert a claim to a fair share of your income or property in cases of death or divorce.

When you consult with one of our experienced estate planning attorneys at the Law Office of Bryan Fagan, we delve into understanding your family dynamics. Whether you are married significantly shapes our counsel. For instance, being married influences how your assets are distributed. In Texas, if you have a spouse and children, your estate plan typically ensures your spouse retains certain assets necessary for their ongoing support, even if you designate other assets for your children. Community property laws in Texas protect your spouse’s interests in marital assets, ensuring equitable distribution according to legal standards, regardless of specific bequests in your will. This comprehensive approach not only secures your wishes but also ensures your loved ones are well cared for according to your intentions.

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.

Evidence of common law marriage and cohabitation

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.

Proving cohabitation and holding out as married

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.

Importance of having a will for common law spouses

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.

Benefits of having a will for property distribution

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.

Passing property outside of probate: life insurance benefits

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.

Planning for retirement plans and beneficiaries

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.

In conclusion, navigating the complexities of estate planning within the context of common law marriage requires careful consideration and proactive legal measures. To safeguard against potential disputes and ensure clarity in asset distribution, partners should seek guidance from experienced legal professionals. Establishing formal documentation, such as wills, trusts, and power of attorney, can provide essential protections and help secure the financial future of both partners involved. By addressing these considerations proactively, couples can mitigate risks and foster peace of mind in planning for their estate within the framework of common law marriage.

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Other Articles you may be interested in:

1. Hidden Risks for Couples Ending Common Law Marriages
2. How Do I Separate From My Common Law Partner?
3. What Does Common Law Mean in a Divorce?
4. Common Questions about Texas Prenuptial and Marital Agreements
5. Should I sign a Texas Premarital or Prenuptial Agreement?
6. My Fiancé wants me to sign a Texas Prenup. What should I do?
7. Making Postnuptial Agreements Stick in a Texas Divorce
8. Attacking the Enforceability of a Premarital Agreement in a Texas Divorce
9. Dower Contracts and a Texas Divorce
10. Frequently Asked Questions Regarding Texas Marriage
11. Why do police marriages fail?
12. Can Common Law Marriage be Backdated / Is Obergefell Retroactive?
13. What Makes a Common Law Marriage Valid in Texas?
14. What living arrangements may lead a judge to conclude that you are common law married?
15. Texas Estate Planning, Divorce and Protecting Assets
16. Common Law Marriage and Texas Divorce Guide
17. Preparing for the end and immediate time period after your Texas divorce

Bryan Joseph Fagan( Attorney )

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.