What Is Common Law Marriage In Texas?

The world around us is constantly changing, growing, and evolving, and this has also had a significant impact on the relationships that we form.

A growing number of people are choosing to eschew traditional marriage in favor of a more informal arrangement – and in many areas, this is referred to as “common law marriage”.

If you are keen to learn more about the nuances of common law marriage or are wondering whether your relationship meets the required criteria, then read on for everything you need to know about common law marriage in the state of Texas.

What Is Common Law Marriage?

In the simplest terms, common law marriage is the practice of two people living together as a couple and presenting themselves to all intents and purposes as being married, but without actually going through the legal ceremony of a wedding, and without possessing a marriage license.

There are a number of states in the USA that fail to recognize common law marriage as a legal entity, but Texas is one of the few states that do, referring to the practice as “informal marriage” in the Texas Family Code.

There are a number of requirements that must be met to prove common law marriage in Texas – it is not enough to simply live with the other person for a specific period of time.

In order to be recognized as a common-law spouse, you must agree to be “married”, both live in Texas, and both represent yourself as husband and wife while living in Texas. If these criteria are met, you are likely to have your common law marriage recognized by law.

Common law marriages are also recognized for same-sex couples, following a change in the law in 2014.

In this year, the US Supreme Court used Obergefell v Hodges to rule that same-sex marriage was lawful, and this resulted in the recognition of common-law marriage being recognized for same-sex couples across Texas.

Couples may recognize different dates for the start of their marriage – or their “wedding day”, with many counting this from the day that they started living with their spouse. This is not a major issue unless you plan to divorce, as assets will be counted from the date of your union. 

When it comes to same-sex relationships and marriages, Texas operates the “Relation Back Doctrine” – this recognizes the legal date of the marriage as being the earliest date at which the couple met all relevant legal requirements for informal marriage in the state of Texas.

This means that any same-sex couples who were legally or ceremonially married in another state prior to 2014 may have their marriage recognized from that date.

As an example, Vermont legalized same-sex marriage in 2009, and so a couple who were married in this state are entitled to have their marriage recognized from this date in Texas, though the law was changed later here.

Spouses in a common law marriage may choose to make their situation more formal and official, and this can be achieved through filing a registration and a declaration of your common law marriage at the local county clerk’s office.

This can help to offer you some protection in the event that you decide to end the relationship at a later date.

What Is the Financial Impact of Common Law Marriage?

In Texas, your common-law marriage will be recognized and treated in exactly the same manner as a traditional, legal marriage.

This allows you and your spouse to enjoy and access the same benefits that would be available to those deemed to be legally married, and this includes the following considerations:

  • You will both be eligible to receive Social Security benefits, provided that you are able to prove the number of years that you have lived together – here the date of your marriage is important, and this can be an incentive to register the union.
  • You may be able to qualify for certain employer benefits, such as health insurance, through your spouse.
  • You will be exempt from any gift tax for gifts made to one another
  • You will have unlimited marital exemptions for your estate, right up to the maximum limit for federal estate tax.
  • You will be entitled to inherit your spouse’s property with the presence of a valid will. In situations where a spouse dies and there is no will, inheritance rights will be assumed by any children and living family members, so it is important to get a will draw up and filed.
  • You will be eligible to claim deductions for mortgage interest on a co-owned house, as well as any children
  • You will have power of attorney, allowing you to make medical decisions if your spouse is incapable, rather than handing this over to another family member.

Do I Need To Get A Common Law Divorce?

Texas recognizes common law marriage, and this means that if your relationship comes to an end, you will need to get a divorce in the same way as a couple who are legally married.

Texas is a community property state, and this means that the legal date of your marriage will be very important – any debts, assets, or retirement accounts that have accumulated from this date can be included for division.

This is why having an agreed date is so important, and why registering for your common law marriage can really help you.

Need More Information?

Common law marriages are, for the most part, relatively straightforward but, as with any discussion over rights, property, relationship, and finances, it is easy to get confused or need clarification.

It is a good idea to contact a legal professional with plenty of experience in dealing with common-law marriages in the state of Texas.

They will be able to offer you sound, reliable, and relevant legal advice to help you know where you stand, and ensure that you and your partner have the information that you need to protect your assets, ensure that your marriage is recognized, and decide on the best next steps for both of you.

Robert Miller
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