When a person passes away, the surviving spouse has a right to claim a part of their estate. If another heir challenges your inheritance rights, the probate court may ask for legal proof of the marriage. Texas law recognizes common-law or “informal” marriage for couples that live as a married couple without formalizing the marriage. Couples in informal marriages have the same rights as formally married couples, including the right to claim an intestate share, spousal exemptions, and allowances.
What Is Common-Law Marriage?
Texas does not require a couple to be together for a certain period of time to be common-law married. Instead, common-law marriage has four legal requirements:
- Both spouses agreed to be married;
- Both spouses were over 18 and unmarried at the time of the agreement;
- You lived together as a married couple; and
- You represented yourself as a married couple.
If you meet the requirements, the State of Texas is legally bound to recognize your marriage. Although the Texas legislature hasn’t updated the code language, Texas recognizes both opposite and same-sex common-law marriages.
How Does Common-Law Marriage Divorce Work?
A common-law marriage is a valid, legal marriage. The common-law marriage continues until the couple legally divorces, with one exception. If the couple stops living together as spouses and stops representing themselves as being married within the first two years of a common law marriage, Texas law presumes they never agreed to be married. Otherwise, you will need to get a formal divorce, just like a formally married couple would.
How To Prove a Common-Law Marriage in Texas
A marriage certificate proves the existence of a formal, ceremonial marriage. However, when asked to provide proof of a common-law marriage, you need proof of the four elements listed above. For example, the purchase agreement for a home signed by both spouses and identifying them as a married couple can show agreement to be married. Bills with the couple’s names can serve as evidence of living together. Mail from friends and family addressed to the spouses, social media accounts, and recognition of the couple in newspapers or the workplace show how the couple represented themselves as being married. If you can produce evidence proving your marriage meets the four requirements, you have a common-law marriage, and your marriage is legally binding.
Formal Declaration and Registration
A couple can also choose to formalize their marriage in the years after forming a common-law marriage. To do so, you must file a Declaration and Registration of Informal Marriage with the county clerk. Filing a declaration serves as legal proof of your marriage in a future legal proceeding, much like a marriage certificate.
Does Texas Recognize Common-Law Marriage Rights at Probate?
When you agree to be married and live together as a married couple in Texas, you have the same rights as a couple that formalized their marriage. You must petition the court to grant you the spousal rights you are asserting against the estate, including:
- Community property rights;
- Homestead rights;
- Right to receive a spousal inheritance under Texas intestate succession laws;
- Preference to act as administrator of the spouse’s estate;
- Securing marital property exempt from seizure by the estate;
- Tax savings, deductions, and exemptions; or
- Taking a spousal allowance payout for reasonable expenses.
Texas’s informal marriage law protects the married couple’s rights, even when they cannot formalize their marriage. Sometimes life gets in the way of completing the marriage ceremony. All married individuals have marital rights and responsibilities, like sharing property and providing for the family. Our law firm helps spouses enforce their rights and protect their spouse’s estate by helping them prove their common-law marriage.
Is Common-Law Marriage Legally Binding in Texas?
Yes, Texas recognizes the marital rights of common-law spouses. There are many reasons a couple might not formalize their marriage, including personal preference, expense, or limited access. For example, the COVID-19 pandemic closed many courthouses for months. If you acted as a married couple during that time, the law will grant you marital rights in divorce, death, and taxes. Neglecting to formalize your marriage does not mean you are out of an inheritance in Texas.
Common-Law Marriage and Probate with The Law Office of Kyle Robbins, PLLC
Going through probate is hard, especially when you have to prove your marriage existed. Our experienced probate attorneys in Texas will guide you through the process so that you receive your share of your spouse’s estate. You and your spouse worked hard to provide your family with a home, car, and other valuable property. Most estates must go to probate, but the process may be more complicated if you need to prove a common-law marriage. We know how to help families collect evidence to prove a common-law marriage existed and secure their interest in an estate. The Law Offices of Kyle Robbins team has the knowledge and experience needed to make the probate process as painless as possible for grieving families. Contact us by phone or online today to schedule an initial consultation.