Cecily Zamora
Texas is one of seven states in the US that fully recognizes common-law marriage. However, there are several misconceptions about common-law marriage in Texas, with one of the most common being that couples have to live together for a certain period of time to qualify. This is not true—relationship duration has zero bearing on whether a couple is in a common-law marriage in Texas. Instead, couples must meet certain requirements, including cohabitation, agreement that they are married, and holding themselves out as a married couple to others.
| Characteristics | Values |
|---|---|
| Time requirement | There is no time requirement for how long a couple must live together to be considered common-law married in Texas. |
| Registration | Couples can register their common-law marriage by filing a "declaration of informal marriage" with the county clerk. |
| Proof | If no declaration was filed, proof of common-law marriage may be established through documents such as lease agreements, tax returns, and insurance policies. |
| Rights | Common-law spouses in Texas hold the same legal rights as couples with a marriage license, including inheritance rights. |
| Divorce | Common-law spouses must obtain a regular divorce, and property and debts are divided in the same way as in a traditional marriage. |
| Residency | At least one party must reside in Texas for at least 6 months to legally marry. |
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What You'll Learn
- There is no time requirement to be considered common-law married in Texas
- Couples can register their common-law marriage by filing a declaration
- Common-law marriages have the same rights as formal marriages
- Common-law marriages can be proven through cohabitation, agreement, and representation
- Common-law spouses have inheritance rights in Texas
There is no time requirement to be considered common-law married in Texas
To be considered common-law married, the couple must cohabit in Texas as spouses. They must maintain a household together and do things associated with being a married couple. The duration of the relationship has no bearing on whether a couple is in a common-law marriage.
There are two ways to establish a common-law marriage in Texas. The first is for the couple to sign a "declaration of informal marriage" with the county clerk's office. Once signed, the couple is considered married for legal purposes. The second way is to prove three elements outlined in Section 2.401 of the Texas Family Code. While a written or verbal agreement in front of witnesses is best, the state does recognize tacit or inferred agreements. The court will consider things such as using a partner's last name, making them a beneficiary on a life insurance policy, filing joint tax returns, or making joint purchases.
If a common-law marriage is established, the spouses hold the same legal rights as a couple with a marriage license. These rights can be important during the marriage and in the event of a death or divorce. However, if a couple with an informal marriage separates, they must go through the same divorce process as traditionally married couples.
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Couples can register their common-law marriage by filing a declaration
Texas law does not require couples to be together for a specific period to enter into a common-law marriage. Couples can register their common-law marriage by filing a declaration with the county clerk. This is known as a "declaration of informal marriage".
To obtain this declaration, couples must visit their county clerk's office. The county clerk will administer an oath where both parties swear to several things, including that they are common-law married to each other and not married to anyone else. Once the form is filed, the common-law marriage is officially registered.
If a couple chooses not to declare their common-law marriage, they may need to provide other documents to prove the marriage. These include lease agreements, tax returns, and insurance policies. If there is a dispute about whether a common-law marriage existed, it may be necessary to go to court to prove the marriage.
To prove a common-law marriage in Texas, couples must show that they agreed they were married and held themselves out to the world as spouses. Evidence of this includes using a partner's last name, making them a beneficiary on a life insurance policy, filing joint tax returns, or making joint purchases. Testimony from friends and family who witnessed the couple representing themselves as married can also be used as proof.
It is important to note that Texas law places a two-year statute of limitations on court proceedings to prove a common-law marriage. If no court proceedings are filed within two years of separation, Texas law presumes that a common-law marriage never existed unless proven otherwise.
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Common-law marriages have the same rights as formal marriages
In Texas, common-law marriages are recognised as valid and legal. However, there are specific requirements that must be met for a couple to be considered married under common law. These requirements do not include the duration of the relationship or marriage. Instead, the focus is on the couple's intent, actions, and conduct.
Firstly, both parties must be at least 18 years old, unrelated, and not currently married to someone else. This ensures that all individuals involved are capable adults who are making an informed decision about their marital status.
Secondly, the couple must cohabit in Texas as spouses. This involves more than just sharing a residence; it means maintaining a household together and engaging in activities typically associated with married couples. This could include filing joint tax returns, making joint purchases, or including each other in important decisions and documentation, such as insurance policies or credit applications.
Thirdly, the couple must "hold out" to others as married. This means they must represent themselves as married to their community, including friends and family. This can be achieved through various actions and declarations, such as introducing each other as spouses, wearing rings on their ring fingers, or including their partner in significant aspects of their lives, like family memberships or Christmas card addresses.
If a couple meets these three requirements, they are considered married for all legal purposes in Texas. This means that they have the same rights as couples who have obtained a marriage license. These rights are significant during the marriage, as well as in the event of a death or divorce. For example, in the case of a divorce, the couple would go through the same legal process as formally married couples, dividing community property and addressing issues like child support or spousal maintenance.
Therefore, in Texas, common-law marriages are given the same legal recognition and protection as formal marriages, provided that the three requirements are met. It is important to note that while Texas does recognise common-law marriages, there is no such thing as a "common-law divorce". Once a couple's common-law marriage is legally recognised, they must follow the same divorce procedures as traditionally married couples.
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Common-law marriages can be proven through cohabitation, agreement, and representation
In Texas, a common-law marriage is a valid and legal way for a couple to marry without a formal ceremony. There are two ways to establish a common-law marriage in Texas. Firstly, the couple can sign a "declaration of informal marriage" with the county clerk's office. Secondly, they can prove the three elements outlined in Section 2.401 of the Texas Family Code.
The three elements that prove a common-law marriage in Texas are cohabitation, agreement, and representation. Firstly, the couple must cohabit in Texas as spouses. There is no requirement for how long the couple must live together, but they must maintain a household together and do things associated with being a married couple.
Secondly, the couple must agree that they are married. This agreement can be written or verbalized in front of witnesses, but the State of Texas also recognizes tacit or inferred agreements. For example, using your partner's last name, making them a beneficiary on a life insurance policy, filing joint tax returns, or making joint purchases can all indicate an agreement to be married.
Finally, the couple must hold themselves out to others as husband and wife. This can be achieved through reputation and declaration. The couple's community, including friends and family, must believe that the couple is married. Declarations made by the couple, such as filing joint tax returns or signing a lease agreement, can also help prove that they represented themselves as a married couple to others.
It is important to note that proving a common-law marriage in Texas does not depend on how long the couple has been living together or whether they have children together. Once a common-law marriage is proven, it has the same legal status as a formal marriage. If a couple with a common-law marriage separates, they must file for divorce, and any property or debts acquired during the marriage must be divided equally.
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Common-law spouses have inheritance rights in Texas
Texas is one of the nine states in the US that fully recognizes common-law marriage. There are two ways to establish a common-law marriage in Texas. The first is for the couple to sign a "declaration of informal marriage" with the county clerk's office. Once signed, the couple is considered married for legal purposes. The second way is to prove the three elements outlined in Section 2.401 of the Texas Family Code. The couple must:
- Agree to be married
- Live together as husband and wife
- Hold themselves out to others as married
If a common-law marriage is contested, the person claiming its existence may need to provide evidence to support their claim. This evidence can include a signed declaration of informal marriage, employer records, mail, bills, or other correspondence addressed to the couple using a shared last name or referring to them as a married couple.
In Texas, common-law spouses have inheritance rights. Surviving spouses of a common-law marriage have the same inheritance rights as a spouse in a formal marriage. These rights include:
- Community property: In Texas, 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: 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.
- Exempt property: Texas law allows a surviving spouse to claim certain personal property as exempt from creditors' claims and estate administration expenses.
- Family allowance: During the estate administration process, the court may grant the surviving spouse a family allowance, which is a reasonable amount of money for the spouse's maintenance and support. The family allowance is typically granted for up to one year following the decedent's death.
It is important to note that the existence of a common-law marriage may be contested, and it is crucial to work with an estate planning attorney to document your wishes and protect your loved ones' inheritance rights.
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