Common Law Marriages


Spouses in Texas have certain inherent rights in an estate. That includes the rights of a spouse to stay in the homestead even if it was the husband’s separate property. A spouse also has a community interest in property acquired during marriage. A spouse also has certain other protections, such as a potential allowance from the estate.

Texas is one of the states that recognizes common law marriages, legally called “informal marriage.” There is a widely held perception that a common law marriage is different than a “real marriage.” That is not true. In effect, a common law marriage is legally no different than a formal marriage. For example, a common law marriage can not be ended up simply “breaking up.” It can only be dissolved through a legal divorce proceeding or death, just like a formal marriage.

The difference is in the proof. A traditional ceremonial marriage is evidenced by a marriage license and a ceremony. A common law marriage can be evidenced by a declaration filed at a county clerk’s office: a Declaration of Informal Marriage. But more often there is no formal document. Instead, the marriage is proven by several required elements of evidence.

Texas Family Code Section 2.401 states the proof necessary to establish an informal marriage in Texas:

  • The man and woman agreed to be married; and

  • after the agreement they lived together in this state as husband and wife; and

  • they represented to others that they were married.

The existence of an informal marriage is a fact question, and the party seeking to establish existence of the marriage bears the burden of proving elements by a preponderance of the evidence. An informal marriage does not exist until the concurrence of all three elements.

Agreement to be Married

In order to establish that the parties agreed to be husband and wife, it must be shown that they intended to create an immediate and permanent marriage relationship, not merely a temporary cohabitation that may be ended by either party. A proponent may prove an agreement to be married by direct or circumstantial evidence. The testimony of one of the parties to the marriage constitutes some direct evidence that the parties agreed to be married. Obviously, the most powerful evidence will come from a disinterested witness or a document reflecting an agreement to be married.

Living Together as Husband and Wife

This is generally not a difficult element to prove. There will generally be witnesses to the couple physically living together. Cohabitation need not be continuous for a couple to enter into a common-law marriage. But evidence of an intent to cohabit at a later date is insufficient to establish an informal or common law marriage, where the parties conceded that they had never cohabited.

Presenting to Others

This is typically the most difficult element to prove and the most disputed. The statutory requirement of “presenting to others” is synonymous with the judicial requirement of “holding out to the public.” “Holding out” may be established by the conduct and actions of the parties. Occasional introductions as husband and wife are not sufficient to establish the element of holding out. For example, evidence that a couple was introduced as husband and wife to a few friends was no evidence that they held themselves out as married.

Whether the evidence is sufficient to establish that a couple held themselves out as husband and wife turns on whether the couple had a reputation in the community for being married. A couple holds themselves out as married when they have a reputation in the community for being married, even though they may keep the marriage secret from a few family members. Proving a reputation for being married requires evidence that the couple “consistently conducted themselves as husband and wife in the public eye or that the community viewed them as married.”

Occasional references to each other as “husband” and “wife” and the like are insufficient to establish an informal marriage. Further, the element of presenting to others requires both parties to have represented themselves as married.

When dealing with a claim of common law marriage in an estate, it is important to review:

1) the assets of the estate;

2) when they were acquired (so inception of title can be applied);

3) whether separate or community funds were used to purchase the asset;

4) whether they are likely separate or community property; and

5) if any other claims for reimbursement or offset exist.

A person claiming to be the surviving spouse should file a claim for declaratory judgment to determine if there was a legal common law marriage. The Texas Civil Practice and Remedies Code Section 37.005. provides that:

A person interested as or through an executor or administrator, including an independent executor or administrator, a trustee, guardian, other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust in the administration of a trust or of the estate of a decedent, an infant, mentally incapacitated person, or insolvent may have a declaration of rights or legal relations in respect to the trust or estate:

(1) to ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others;

(2) to direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity;

(3) to determine any question arising in the administration of the trust or estate, including questions of construction of wills and other writings; or

(4) to determine rights or legal relations of an independent executor or independent administrator regarding fiduciary fees and the settling of accounts.

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