Texas is one of a relatively few states that continues to recognize common law marriage. Because marital status determines division of property upon death, whether you and your partner are in a common law marriage will impact your estate plan and the division of assets upon death.
What is Common Law Marriage?
There is a lot of confusion and misconceptions about common law marriage, also referred to as “informal marriage.” Formal marriage is the process by which a couple first obtains a marriage license and goes through a marriage ceremony. Common law marriage, or informal marriage, occurs in one of two ways:
- Filing a declaration of informal marriage in the county of residence; or
- Showing the couple meets all three of the following elements:
- The couple agreed to be married;
- After agreeing to be married, the couple lived together in Texas as spouses; and
- The couple represents themselves to others in Texas as married.
Relatedly, if a couple is married by common law, the only way to terminate the marriage is in the same manner as a couple who has a formal marriage – the couple must divorce.
Why Does Common Law Marriage Matter?
Whether a marriage exists and the beginning date of the marriage matters for the purpose of estate planning and probate because it impacts the division of property upon death. Under Texas law, a surviving spouse has the right to inherit from her deceased spouse. In addition, marriage changes a couples’ relationship to each other’s property. For example, Texas law presumes all assets acquired during marriage by either spouse is community property. Property that is community belongs to both spouses. On the other hand, property acquired before marriage or by gift or inheritance, for example, is separate property. Because marriage impacts ownership of property, whether an individual is married will determine the assets in that individual’s estate.
In addition to the right to inherit from a spouse, there are a multitude of federal and state benefits bestowed on a surviving spouse. These benefits include protections from estate creditors , the right to social security benefits, the right to reside in the homestead of your spouse for your lifetime, the right to a family allowance, entitlement to retirement benefits, and much more.
An individual who never formally married his deceased partner may be entitled to all the rights of a surviving spouse if he can show the relationship met the requirements of common law marriage. Because of the recognition of marriage equality across the country, this right extends to the same-sex couples. The many same-sex couples who have not had a formal marriage — either because it was prohibited at the time or they simply chose not to formally marry — may still be entitled to the rights of a surviving spouse upon a showing of a common law marriage.