| Read Time: 4 minutes | Marriage
Common-Law Marriage Misconceptions

Myths and misconceptions about common-law marriage are everywhere. For example, some people worry that just because they live with someone for a certain amount of time, they’re automatically married under common law. Others assume they’re in a common-law marriage because perhaps they own property together. However, a valid common-law marriage in Texas requires proof that you and your spouse took specific steps to create an informal marital relationship. If those requirements are not met, you are not married.

Understanding the frequent common-law marriage misconceptions in Texas is particularly important when it comes to estate planning. You want to be certain that your family’s future is protected against disinheritance because you misinterpreted the Texas common-law marriage rules. Today, the attorneys at Robbins Estate Law will discuss several myths about common-law marriage so you and your family can preserve your rights. If you have any questions, don’t hesitate to contact us today.

What Is Common-Law Marriage?

Texas law recognizes two types of marriage: formal marriage and marriage without formalities. Formal marriage is what most people imagine as a typical wedding. Generally, there is a ceremony and an officiant, and a marriage license is filed with the state. 

A marriage without formalities is a common-law marriage. You can establish this type of marriage in Texas by either:

  • Filing a Declaration of Informal Marriage with your county clerk’s office, or    
  • Taking actions that demonstrate that you are living in a marital relationship.

A Declaration of Informal Marriage requires both spouses to sign and file the form with the state. Although informal, it still has a measure of formality that makes the intentions of both parties clear.

In the second type of informal marriage, you do not have to file anything with the state. Instead, you must prove the following:

  • The couple agrees between themselves that they are married;
  • The couple expresses to the world that they are married; and
  • The couple lives together as a married couple in Texas. 

You must fulfill all of the above criteria to establish a valid common-law marriage—nothing more or less.

Common Law Marriage Misconceptions

Most common-law marriage misconceptions revolve around this type of informal marriage. Thus, we will focus on examining those misconceptions below.

Myth: Every State Has Legal Common-Law Marriage

Often, people are surprised to learn that many U.S. states do not recognize common-law marriage. Texas is one of the few remaining states that recognize this form of marriage. Thus, if you believe you established your common-law marriage in another state, you must check its laws to ensure you fulfilled its requirements.

If you establish a common-law marriage in Texas, however, other states must recognize it as valid, even those states without common-law marriage. This is because, under the Full Faith and Credit Clause of the U.S. Constitution, states generally recognize judicial decisions and laws of other states. This means that a valid marriage created in one state must be recognized by another state. 

Myth: You Can Establish Common-Law Marriage in Texas Through Cohabitation Alone

One of the top Texas common-law marriage misconceptions is that a couple must live together for a certain amount of time to establish a valid marriage. A common myth is that you are automatically common-law married after seven years of cohabitation. This is incorrect. 

No one is accidentally common-law married simply because they live together. Cohabitation is one element of a Texas common-law marriage, but you must take other actions for a valid marriage. You and your purported spouse must also agree that you are married and express to the world that you are married.

Myth: Common Law Marriage Doesn’t Require a Divorce 

Another common-law marriage misconception is that you can simply break up if you’re common-law married without the formality of divorce. This is a particularly harmful myth, especially in terms of estate planning.

If you have a valid marriage in Texas, formal or informal, you must end it through a divorce. If you do not, you run the risk of someone trying to stake a claim to your estate when you die. This could delay or jeopardize the inheritance rights of those you thought would inherit from your estate. There are some additional risks to not legally ending an informal marriage.

Myth: If a Common-Law Spouse Dies, the Surviving Spouse Automatically Inherits

Many believe that if a common-law spouse dies without a will, their estate will automatically go to the surviving spouse. Unfortunately, this may not be the case. A common-law spouse will typically have to prove to a Texas probate judge that their marriage fulfilled the state’s legal requirements to inherit any of the deceased person’s estate. If they can prove the common-law marriage, they’ll inherit a spousal share as per Texas intestate succession laws

If, however, they do not prove the marriage to the court’s satisfaction, the surviving spouse receives nothing. This is why common-law spouses must prepare wills that clarify their intentions. 

Contact Our Office to Protect Your Spousal Rights in a Common-Law Marriage

As discussed above, understanding common-law marriage myths and facts is critical to your plans for your and your family’s future. However, if you are concerned about the impact of a common-law marriage on your inheritance rights or your future estate in Texas, get in touch with Robbins Estate Law. Our top-notch attorneys will help you create a plan that is right for your needs. Plus, our office can help with other estate-related issues, such as when you’re a surviving common-law spouse. Contact our office today.

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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