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Can Same-Sex Couples Be Married Under Common Law in Texas

Yes, under Texas law, same-sex common law marriage is permitted. That said, before you move forward with entering into a common law marriage, there are a few things you should know. 

In this blog post, we will discuss the history of and requirements for same-sex common law marriage in Texas. When you have questions about common law marriage and how it might impact you as a same-sex couple, contact the team at Robbins Estate Law.

What Is Common Law Marriage? 

Most marriages in the United States are entered into after a couple obtains a marriage license and subsequently solemnizes their union through a formal marriage ceremony. However, this is not the only way in which a couple can get married. 

Common law marriage is another valid and legally recognized way for two people to get married without the need for a marriage license or ceremony. Notably, common law marriage is only available in certain circumstances and is not permitted in all states.

Common Law Marriage Requirements in Texas

Texas is one of the few remaining states that still permit common law marriage. Nevertheless, common law marriage, also known as informal marriage in Texas, is permitted only if certain requirements are met. 

A common misconception is that a couple will be considered married under the common law if they have been together for at least seven years. However, this is not true. In fact, no time requirement exists at all. 

Rather, according to Texas Family Code section 2.401, common law marriage in Texas requires proof that: 

  1. A man and woman agreed to be married; 
  2. After their agreement to be married, they lived together in the State of Texas as husband and wife; and 
  3. They represented to others that they were married. 

So long as sufficient evidence exists to prove all three of these elements, a common law marriage will be considered valid in Texas. 

Alternatively, a common law marriage can also be formed by completing a Declaration and Registration of Informal Marriage that is signed by both parties and filed with the county clerk. 

Can Same-Sex Couples Be Married Under Common Law in Texas? 

As noted above, the current statute governing common law marriage specifies that common law marriage is between a “man” and a “woman” who agree to be married, implying that parties to the marriage must be of the opposite sex. 

Importantly, however, common law marriage between same-sex couples is now legally valid in Texas, although this wasn’t always the case. This is a direct result of the Supreme Court’s landmark 2015 decision in Obergefell v. Hodges, requiring that all states recognize marriages between two people of the same sex. 

Even though the statute has not been officially updated, the ruling in Obergefell means that a common law marriage that meets the statutory requirements must be recognized, regardless of the sex of the two parties to the marriage.

How to Prove Common Law Marriage Between Same-Sex Couples

If a couple does not file a declaration of informal marriage, establishing the existence of the marriage can be somewhat difficult. In determining whether the requirements for common law marriage have been met, courts will often look at factors such as: 

  • Whether the couple shared a residence and maintained a household together,
  • The length of the relationship,
  • Whether the parties publicly referred to each other as spouses,
  • The extent to which the parties share joint assets and liabilities, and
  • Whether the parties filed joint tax returns. 

These and other factors will be taken into consideration regardless of the sex of the respective parties to the relationship. 

Same-Sex Common Law Marriage: How to Better Protect Yourself, Your Family, and Your Assets

One of the benefits of common law marriage is that the marriage can be validly recognized without the need for a formal ceremony or marriage license. However, this doesn’t necessarily mean that proving the existence of the marriage will be easy. 

One of the drawbacks of common law marriage is that you must be able to meet the statutory requirements. If you are unable to do so, this can lead to potential problems later on. 

For example, what if you and your partner agreed to be married and have held yourselves out publicly as spouses for years, when unexpectedly, your partner passes away before any determination has been made regarding the existence and validity of your common law marriage? In this scenario, if a court finds that you and your partner did not meet the requirements of common law marriage in Texas, your partner’s estate may not pass to you automatically. This can be a devastating outcome.

Thus, even if you and your partner believe you have met the requirements of same-sex common law marriage in Texas, it is still strongly recommended that you create an estate plan specifying how you want your assets to be distributed after your passing. Doing so is one of the best ways to protect your family in the event your common law marriage is determined to be invalid. 

Speak to an Attorney at Robbins Estate Law Today

Same-sex couples can certainly be married under common law in Texas. But before you and your partner rely on that law, it’s crucial that you understand the requirements and implications. If you have questions about same-sex common law marriage in Texas and how it might apply to you, we want to help. Contact the attorneys at Robbins Estate Law to discuss your situation and see how we can help.

Author Photo

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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