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Common Law Marriage in Probate

Your partner just died.  You and your partner lived together for twenty years.  Are you the surviving spouse?  Does it matter?  If he died with a Will, it may or may not matter.  If he died without a Will, answering this question will be key to determining if you have any interest in his estate.

Common law marriage is a type of informal marriage that is recognized in some states.  In Texas, in order to prove common law marriage, there must be sufficient evidence that both parties: 1) had an agreement to be married; 2) lived together as husband and wife; and 3) held themselves out as being married.

An Agreement to be Married.  An agreement to be married requires evidence that both parties had a present, immediate and permanent martial relationship.  Evidence of intent to be married in the future will not suffice.  Additionally, the evidence must show that both parties, not just one, intended to be married.   Filing joint income tax returns, holding property jointly, raising a family together and establishing joint financial accounts have all been accepted by Texas courts as evidence of an agreement to be married.

Lived Together as Husband and Wife.  The “living together” requirement seems fairly obvious.  However, the key to this analysis is showing that the parties lived together in the State of Texas and at the same time held themselves out as being married.  Contrary to popular belief, there is no minimum amount of time required to satisfy this prong of the test – even one day is sufficient.  Testimony from credible witnesses that the parties lived together and “maintained a household as husband and wife” has been found to meet this element of common law marriage.

Holding Out.  To prove the final element of common law marriage, there must be evidence that both parties consistently held themselves out as being married.  That is, the evidence must show that both parties consistently conducted themselves as husband and wife in the public eye or that the community viewed the parties as a married couple.  A “secret” agreement between the parties to be married will not establish the holding out requirement.  Additionally, if there is evidence that sometimes the parties represented that they were married and other times they didn’t, this could work against a finding of common law marriage.

Typically, the issue of common law marriage comes up in the context of an heirship proceeding in probate.  In that proceeding, the purported surviving spouse will be required to produce witnesses and other evidence to support the common law marriage elements set out above in order to take her share of the estate.   It’s worth noting, there is no common law divorce in Texas.  If you are married under common law and want to part ways, you will need to have your marriage terminated through the judicial process.

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