Keith Mack
Texas is one of the few states that still allows common-law marriages, which are also referred to as informal marriages. A common-law marriage is a legal marriage without a ceremony or other formalities. It is created only if certain specific legal requirements are met, and it has the same validity as a formal marriage. This includes the same property and inheritance rights, as well as the requirement to file for divorce in order to terminate the marriage.
| Characteristics | Values |
|---|---|
| Legal recognition | Common-law marriages are legally recognised in Texas. |
| Same-sex marriages | Same-sex common-law marriages are recognised in Texas. |
| Time requirements | There is no minimum time requirement for common-law marriages in Texas. |
| Proof of marriage | Couples can sign a Declaration of Informal Marriage and file it with the county clerk to prove their common-law marriage. |
| Property rights | Common-law spouses have the same property and inheritance rights as formally married couples in Texas. |
| Divorce | Common-law marriages must be terminated through a formal divorce process. |
| Parental rights | Texas statutes presume that both parents will become joint managing conservators of their minor children in the event of a separation. |
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What You'll Learn
Inheritance rights
In Texas, common-law marriages are treated the same as formal marriages. This means that common-law spouses have the same inheritance rights as spouses in formal marriages.
If a spouse dies without a will (intestate), their common-law spouse is entitled to inherit from them. In Texas, all property acquired during the marriage, except for gifts or inheritances, is considered community property. Upon the death of one spouse, the surviving spouse retains their 50% interest in the community property. They also have homestead rights, which means they can live in the primary residence for the rest of their life, regardless of what the will says.
To prove a common-law marriage, the couple must meet certain requirements. They must agree to be married, live together as husband and wife, and hold themselves out to others as married. Evidence of this can include a signed declaration of informal marriage, joint tax returns, filing joint loan applications, and having children together.
It is important to note that Texas does not recognize common-law marriages that were established in other states. If a couple satisfies the requirements for a common-law marriage in another state and then moves to Texas, they may need to take additional steps to clarify their marital status.
Additionally, if someone is not named in their loved one's will, they are generally not entitled to an inheritance in Texas. However, spouses and pretermitted children have special rights, and a putative spouse (someone who believed they were legally married to the deceased) may also have inheritance rights.
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Property rights
Texas law recognises two categories of property: separate property and community property. Property acquired before the start of a marriage is considered separate property, and a spouse may protect this property by proving sole ownership through deeds, purchase agreements, transfer agreements, and separate property agreements. Inheritances, gifts from spouses, and compensation from personal injury settlements are also considered separate property. On the other hand, property acquired during a marriage is generally considered community property, under the management and control of both spouses.
In the event of a divorce, marital assets are divided according to community property laws. While community property is typically split evenly between the two spouses, they may agree to change this division through a post-marital agreement if the standard division does not fit their situation.
In the context of common-law marriages, Texas treats these unions the same as formal marriages, including property rights. All income, property, and debt acquired during a common-law marriage are considered community property. To prove a common-law marriage, couples must show that they lived together, agreed they were married, and held themselves out to others as a married couple. This can be evidenced by filing joint tax returns, signing leases as spouses, making joint purchases, including a partner on health insurance, and more.
It is important to note that same-sex common-law marriages are recognised in Texas. Additionally, if planning to move out of Texas, it is advisable to file a Declaration of Informal Marriage to clarify the legal status of the common-law marriage in other states.
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Parental rights
In a joint managing conservatorship, both parents have the right to information about their child's school, health, and other important aspects of their life. If there is family violence or an absent parent, one parent may be named the "sole managing conservator".
Texas law also recognises common-law marriages, which are treated the same as formal marriages. Common-law marriages require couples to live together, agree that they are married, and present themselves as a married couple to others. These marriages have the same property and inheritance rights as formal marriages. To prove a common-law marriage, couples may sign a Declaration of Informal Marriage and file it with the county clerk.
If you have a common-law marriage and are concerned about your parental rights, it is important to seek legal advice. Texas-specific resources are available to help you understand your rights and responsibilities, especially when it comes to child custody and support.
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Same-sex common law marriages
In Texas, common-law marriages are recognized and afford couples who meet the requirements the same legal rights and protections as those who undergo a formal marriage ceremony. This includes same-sex couples, who have only been able to legally marry in Texas since 2015, but who could enter into a common-law marriage prior to that. Here's an overview of what constitutes a common-law marriage in Texas, and the rights afforded to same-sex couples in this situation:
Establishing a Common-Law Marriage in Texas:
Texas has specific requirements that must be met for a common-law marriage to be recognized. Firstly, both parties must be at least 18 years old and consent to the marriage. They must also cohabitate in Texas as spouses, which means living together and representing themselves to the public as a married couple. This includes using the same last name, referring to each other as husband or wife, and filing joint tax returns. The key factor is public perception—if the community views the couple as married, this can help establish a common-law marriage. There is no set time requirement for cohabitation, but it generally needs to be for an extended period, and the couple must act consistently as if they are married.
Rights and Protections of Same-Sex Common-Law Marriages:
Once a common-law marriage is established, same-sex couples have the same legal rights and protections as opposite-sex married couples in Texas. This includes:
- The right to own property together, including joint bank accounts, real estate, and other assets.
- Automatic inheritance rights, meaning that if one spouse passes away without a will, the other is entitled to a share of their estate.
- The ability to make medical decisions for one another if one spouse is incapacitated and unable to consent.
- Potential spousal benefits, such as social security or veteran's benefits, may be available to the spouse of the entitled individual.
- Parental rights and responsibilities for any children born into the marriage or adopted by the couple.
- The right to sue for wrongful death or loss of consortium if one spouse is injured or killed due to another's negligence.
Dissolving a Common-Law Marriage:
If a common-law marriage breaks down, the couple must go through the same legal process as a formally married couple to dissolve the marriage. This includes dividing assets, determining spousal support, and, if applicable, establishing child custody and support arrangements. Same-sex couples in a common-law marriage who wish to end their relationship may also need to take additional steps to ensure their rights are protected, especially if their relationship began before same-sex marriage was legally recognized in Texas. It's important to seek legal advice to understand your rights and obligations in this situation.
While the requirements for establishing a common-law marriage in Texas are specific, it offers an avenue for same-sex couples to have their relationships recognized and afforded the same legal protections as opposite-sex married couples. Same-sex couples in a common-law marriage have the right to enjoy the benefits and protections of marriage, and should be aware of their rights and responsibilities, especially in the event of a relationship breakdown. Understanding these rights can help ensure that same-sex couples in Texas are able to protect themselves and their families.
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Requirements for common law marriage
In Texas, a common-law marriage is a legal marriage without a ceremony or other formalities. It is created only if certain specific legal requirements are met.
To prove a common-law marriage, you must show that you and your partner:
- Lived together
- Agreed that you were married
- Held yourselves out to others as a married couple
Proving a common-law marriage does not depend on how long you have been living together or whether you have children together. Once proven, a common-law marriage has the same status as a formal marriage.
If you want proof of your common-law marriage, you can sign a Declaration of Informal Marriage and file it with the county clerk. This is not a requirement, but it may be important when a relationship is ending (divorce) and in determining inheritance rights.
If you do not file a declaration, you may need to go to court to prove the marriage. Texas law places a two-year statute of limitations on these types of proceedings. If two years pass after a couple separates and neither party has filed anything to prove the marriage, the state presumes that the marriage never existed.
It is important to note that most other states do not recognize common-law marriages. If you have a Texas common-law marriage and plan to move to another state, it is recommended that you file a Declaration of Informal Marriage to clarify your status.
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Frequently asked questions
A common law marriage, also known as an informal marriage, is a legal marriage without a ceremony or other formalities.
The requirements for a common law marriage in Texas are that both parties must be: 1) unmarried, 2) not related by blood, and 3) 18 years of age or older. In addition, both parties must agree that they are married and hold themselves out as a married couple to others.
You can prove a common law marriage in Texas by signing a Declaration of Informal Marriage and filing it with the county clerk. However, this is not required. You can also prove a common law marriage by presenting evidence to a court that shows the three elements required for a common law marriage have been met.
In Texas, a common law marriage is treated the same as a formal marriage. This means that common law spouses have the same property and inheritance rights as formally married couples.
Yes, same-sex common law marriages are recognized in Texas.
