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Disadvantages of Common-Law Marriage in Texas

Texas law recognizes common-law marriage as valid and enforceable. And although there are a number of pros, there are a few cons of common-law marriage to be aware of as well. 

Entering into any marriage is an important decision. Thus, before moving forward with common-law marriage, make sure you have a basic understanding of both the advantages and disadvantages.

Use our guide below to learn more about common-law marriage disadvantages. If you have questions about common-law marriage and whether and how it might affect you, contact the team at Robbins Estate Law to see how we can help. 

What Is Common-Law Marriage in Texas?

Under Texas law, couples can enter into what’s called common-law marriage. Common-law marriage is an option to enter into a marriage without the need for any formal ceremony or marriage license. 

Because no ceremony or formal paperwork is required, common-law marriage can be an appealing option for those in a committed relationship who are looking for a simple way to establish their marriage. That said, you must be able to satisfy certain requirements to prove that a valid common-law marriage exists. 

Texas Code § 2.401 specifies that proof of an informal, or common-law, marriage requires evidence that: 

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

Additionally, only individuals who are 18 years or older can agree to enter into a common-law marriage. 

It’s also important to note that although the current version of the Texas Code specifies that common-law marriage is between a man and woman who agree to be married, the State of Texas does also recognize same-sex common-law marriages. 

Three Disadvantages of Common-Law Marriage in Texas

While common-law marriage can be an attractive option, this certainly doesn’t mean that it is right for all couples in all scenarios. As such, it’s crucial that you carefully consider the potential drawbacks before deciding whether informal marriage is right for you. Below are three Texas common-law marriage disadvantages that should be considered before moving forward. 

  1. Difficulty Proving the Existence of the Marriage

It may sound simple in theory to prove that you and your partner agreed to marry and held yourself out as married. In reality, however, this is often more difficult to prove than you might expect. 

Simply living together for an extended period of time will not be sufficient. Rather, you must prove that you intended to be married and that you have publicly represented to others outside of your relationship that you are actually a married couple. 

In determining whether there is sufficient proof of common-law marriage, courts will frequently consider evidence such as: 

  • Wearing wedding rings,
  • Filing joint tax returns,
  • Shared bank accounts and property, and
  • Testimony from friends and family members confirming their understanding of your marriage relationship. 

Of course, this is not an exhaustive list, and there are other factors that may be considered in proving the existence of a valid common-law marriage. Thus, be sure to speak with a qualified legal professional regarding the particular facts and circumstances surrounding your case. 

  1. No Automatic Inheritance Rights

Another important disadvantage of common-law marriage to consider is the potential issues that could arise in connection with inheritance rights. 

For example, when an individual dies without a will and, as a result, without any designated beneficiaries, their property will pass according to Texas intestate succession laws. In most cases, where an individual dies intestate, or without a will, the surviving spouse will be entitled to all or a share of the decedent’s estate. However, if you and your common-law spouse didn’t establish your marriage prior to your partner’s passing, this can create complications in determining who is entitled to inherit. 

One way to help prevent such a scenario is to sign a Declaration and Registration of Informal Marriage form and file it with the county clerk to formally establish your common-law marriage during your lifetime. 

  1. No “Common-Law Divorce”

Many couples decide to enter into a common-law marriage due to its relative ease coupled with the benefits that come along with marriage. However, what many people don’t realize is that there is no common-law divorce option for those who decide they want to terminate their common-law marriage. Accordingly, if you and your spouse do choose to end your common-law marriage, you must proceed with a formal divorce to legally terminate the union. 

Divorce can be a timely, costly, and complicated process, especially when there are shared assets or children to consider. Thus, don’t fall victim to the common misconception that it is simple to enter into and dissolve a common-law marriage, as the latter is often not the case. 

Discuss Your Options with an Attorney Today

While common-law marriage is recognized under Texas law, it is nevertheless important to carefully consider the pros and cons before selecting this option. When you have questions about your options and rights under common-law marriage rules in Texas, the attorneys at Robbins Estate Law are here to help. With years of experience and countless positive testimonials from past clients, we are confident that we have the knowledge and experience to help you plan your future and protect your rights. Contact our team today to discuss your concerns and see what our team can do for you.

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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