Common-Law Wives: Can They Inherit From Their Partners?

Many people assume that common-law spouses have the same inheritance rights as those in a formal or traditional marriage. However, this is not the case. In Texas, a common-law spouse can inherit from a decedent's estate, but in England, the estate of a person who dies without a will is distributed in accordance with intestacy rules, which do not provide for the survivor of a cohabiting couple.

Common-law spouses and inheritance

In law, there is no such thing as a common-law wife or husband and cohabiting couples are not recognised, no matter how long you have lived together. However, it is possible for your partner to make a claim on the estate, but this is a lengthy and costly process that can be avoided by making a will. If the home you both live in is in joint names, it will pass automatically to the survivor, provided you are ‘joint tenants’. This is the usual way couples buy a house together. It is, however, possible to purchase a property as ‘tenants in common’.

In Texas, a common-law spouse is afforded the same rights and privileges as those afforded to a spouse in a formal or traditional marriage. These rights include community property, which means that all property acquired during the marriage, except for gifts or inheritances, is considered community property. Upon the decedent’s death, the surviving spouse retains their 50% interest in the community property. Homestead rights mean that the surviving spouse has the right to live in the homestead (primary residence) for the remainder of their life, regardless of whether the decedent’s will bequeathed the property to someone else.

Common-law marriage and misconceptions

There are many misconceptions about common-law marriage, and one of the most common is the idea that a common-law wife will automatically inherit her husband's assets. This is not the case.

In Texas, a common-law spouse can inherit from a decedent's estate whether the decedent died with or without a valid will. However, in English law, if a person does not have a valid will in place when they die, their estate will be distributed in accordance with intestacy rules, which do not provide for the survivor of a cohabiting couple.

Many cohabiting couples are under the misconception that they have legal rights as a so-called "common-law spouse", but this term has no legal meaning and it is not the default outcome for the surviving "common-law spouse" to inherit when one of them dies.

It is important to note that, in general, a common-law wife will not automatically inherit her husband's assets, and it is recommended that couples in this situation seek legal advice to ensure their wishes are carried out.

Common-law spouse rights in Texas

In Texas, a common-law spouse, also known as an informal spouse, enjoys certain legal rights and benefits akin to those of formally married couples. When Texas recognises a common-law marriage, the rights and entitlements of the common-law spouse mirror those of spouses in a formal marriage.

Texas is a community property state, which means that all joint purchases, assets, and marital property acquired during the marriage (with some exceptions for gifts, personal injury settlements, and inheritances) are considered community property and are owned equally by both spouses. If the couple divorces, the assets are divided equally between them. The same is true for debts accumulated during the marriage.

Common-law spouses in Texas also have the right to inherit from one another, even without a formal will. If one partner dies without a will, the surviving spouse may be entitled to a share of the deceased’s estate under Texas’ intestate laws.

Spousal support, or alimony, may be awarded in a common-law marriage if the couple separates or divorces, depending on factors such as the length of the marriage and the financial situations of both partners. Parental rights are also considered, with Texas statutes presuming that if the parties share minor children and end their relationship, they will become joint managing conservators, which is the same as having legal joint custody, making decisions together, and sharing time with the child.

Common-law spouse and intestacy rules

The rules of intestacy vary from state to state, but the common thread is that they all call for the distribution of the deceased’s estate to the “next of kin”. The first in the line of succession is always the spouse of the deceased, the children of the deceased or both. Where the deceased is survived by both spouse and children, some states call for the deceased’s property to be distributed equally among the spouse and children. Other states give the spouse preference over surviving children under the theory that there is more of a moral and cultural obligation to support one’s spouse than to support one’s adult children.

In states that recognise common-law marriage (most do not), common-law married couples have full spousal inheritance rights. Common-law spouses are not treated the same as married spouses under the law and do not automatically have the same common-law property division rights. In Ontario, if a common-law spouse dies intestate, the surviving spouse will not inherit any part of the estate. They are completely omitted. However, depending on the facts and circumstances, a surviving common-law spouse can file a claim against the estate in two ways: filing a dependency claim or filing a claim for unjust enrichment. If a common-law spouse was dependent on the deceased and the deceased did not adequately provide for them in a Will, the common law spouse could be entitled to file a dependency claim.

Common-law spouse and community property

In the US, the laws of your specific state define community property. In community property states, all assets acquired during a marriage are considered community property, that is, property of both spouses. This includes earnings, all property bought with those earnings, as well as all debts accrued during the marriage.

Community property is simply property that both spouses share equally, just as partnership income is income that all partners share equally, regardless of which partner was responsible for acquiring the income on behalf of the partnership.

In contrast, the common law property system states that property that one member of a married couple acquires belongs solely to that person unless the property is specifically put in the names of both spouses. This becomes important in wealth management and estate management following a divorce or death of a spouse.

In community property states, spouses may not solely act on any whole piece, or 100%, of community property. They must have the other spouse's permission to do so. However, they can manage their own half. In other words, that spouse cannot be alienated from the 50% that belongs to them.

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