My Common-Law
Spouse Died. What Do I Do?

A popular myth maintains that, if two people live together for seven years, they have then entered into what is called a “common law” marriage. In truth, no state recognizes marriage as resulting from just cohabitation, and most states do not recognize common-law marriages at all.

Texas is one of a handful of states that do recognize common-law marriages. So what happens if one spouse in a common-law marriage passes away? Does the other spouse have inheritance rights?

The answer is yes, provided you can prove the existence of the common law bonds. If you find yourself in this situation in Corpus Christi, South Texas, or the Coastal Bend area, call me — Russell Manning Attorney at Law. I have more than 30 years of experience in probate proceedings and estate litigation, and I am ready to help you in your time of personal loss and uncertainty.

Defining Common-Law
Marriage in Texas

Texas Family Code Section 2.401 governs common law marriage in the state, which it refers to as Marriage Without Formalities or Informal Marriage. The applicable section states that a common-law marriage exists when “the man and woman agreed to be married and after the agreement, they lived together in this state as husband and wife and there [sic] represented to others that they were married.”

Note: Though the language of the text (written in 1977) refers to “man and woman,” same-sex marriage is now legal in all states following the Supreme Court’s 2015 decision called Obergefell v. Hodges.

To be precise, the three elements of common law marriage in Texas are:

  • You both agreed to be married
  • You lived in Texas as a married couple
  • You represented to others that you were married (called “holding out to others”)

Of course, at the time of marriage, both of you must have been at least 18 years of age and not married to anyone else.

An alternative way to declare a common law marriage is to show that “a declaration of their marriage has been signed as provided by this subchapter.” The document is called a Declaration and Registration of Informal Marriage and must be jointly signed and then certified by the clerk in the county in which the oath of marriage was exchanged.

Common-Law Marriage
Inheritance Rights

Your inheritance rights are the same as those belonging to people who are formally married. Here again, unless there’s a will naming you as the beneficiary, you will no doubt have to prove in probate court that a legal common law marriage existed.

In the absence of having filed a declaration of marriage, proving the existence of your marriage hinges in large part on the third requirement of “holding out to others” that the two of you were married. This could require you to bring in verified statements or friends themselves to testify in order to show that you did indeed represent to others that you were married.

You can also show that you were married by doing something jointly that would make people think you are married, such as taking out a credit card, a lease, a home loan, or another obligation jointly.

If a Common Law Spouse
Dies Without a Will

If your spouse in a common-law marriage dies intestate (without a will), you will no doubt have to prove that you were indeed married. In addition, other relatives of the decedent could be in line to inherit assets as well, especially if there are any children left behind by the spouse. Parents and even a former spouse may have a claim as well.

The important point here is that anyone who dies without a will is going to have issues of inheritance decided by probate proceedings. Probate proceedings also are mandated if the decedent dies with a will, but in that case, the distribution of assets will have been specified in the will, not left up to the decision of the court.

It’s also important to remember that many assets pass directly to heirs and beneficiaries outside of a will. A life insurance policy or retirement plan naming a beneficiary will go directly to that named beneficiary. Property held jointly with the right of survivorship also transfers directly.

How an Experienced
Attorney Can Help

If your common-law spouse passes away, and his or her estate ends up in probate court, problems and obstacles can quickly arise, often in the form of challenges and opposition from family members. I can help mediate and resolve any disputes that threaten the probate process. I will fight for your rights with compassion and understanding.

If you’re in Corpus Christi, South Texas, or the Coastal Bend area, contact me — Russell Manning Attorney at Law — for a personalized consultation about your issues concerning inheritance and probate court.


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