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Facts You Should Know about Common Law Marriage and Estate Planning in Texas

Posted by Chris Peterson | Jul 14, 2014 | 0 Comments

Facts You Should Know about Common Law Marriage and Estate Planning in Texas

Common law marriage estate planningTexas is one of a handful of U.S. states to recognize common law marriage. This means if you decide to live with your significant other and hold yourselves out to be married, Texas law may deem you to be husband and wife. If something happens to you before you have updated your will to include your spouse, your estate may not be distributed the way you think it should be. In this article, we'll discuss the importance of updating your estate plan for a common law marriage.

What is a common law marriage in Texas?

Though the requirements vary from state to state, Texas has two ways to establish a common law marriage. A couple may either file a Declaration of Informal Marriage or simply meet the informal requirements without any registration. The informal requirements are:

  • The couple agrees they are married
  • The couple lives together in Texas
  • The couple represents to others that they are married

As noted above, registration is not necessary. If one spouse dies, the surviving spouse may prove the existence of the common law marriage fairly easily by showing that they lived together and that the deceased spouse represented to others that they were married — even with something as simple as a hotel registration receipt, a utilities or loan application or a medical record where the deceased named the survivor as his or her spouse. Witness testimony may bolster or be a substitute for documentary evidence.

Is there such a thing as common law divorce?

In short, no. It is always easier to get married than it is to get divorced, even with a common law marriage. A couple who is married under common law rules continues to be married until they get divorced. If the parties go their separate ways without getting divorced and decide to get married to someone else in the future, they may be legally unable to do so because they are technically still married to each other.

A common law marriage can throw a monkey wrench in your estate plan

Consider a few possible scenarios. What if you wanted to leave property to your common law spouse, bet never got around to changing your will? Maybe your adult children don't really get along with your common law spouse. If your surviving spouse can't prove the marriage existed (or can't afford the legal battle to do so), he or she will not be entitled to a spousal election or any part of your estate.

On the other hand, if you've avoided a formal marriage ceremony because you don't want to change your will or trust beneficiaries, think again. If something happens to you and your surviving partner can prove a common law marriage, he or she will most likely be entitled to a portion of your estate, absent a binding prenuptial or premarital agreement that says otherwise.

If you are living with someone and hold yourselves out as husband and wife, but haven't formally said “I do,” odds are good one or both of you have reasons for being reluctant. Whether you are gun shy from a prior bad marriage or worry that your children won't approve of another marriage, think about whether you need to change your estate plan to accommodate your true intentions.

Our lawyers have both family law and estate planning experience

Make an appointment today with one of our experienced Bryan, Texas family law and estate planning attorneys at the Peterson Law Group to get answers to your common law marriage and estate planning questions. Call 979-703-7014 or visit us online to learn more about our firm and the broad range of services we offer.

About the Author

Chris Peterson

Chris Peterson is the owner of Peterson Law Group. He practices primarily in the areas of wills, trusts and estate planning; probate and trust administration; elder law; and business law. Chris is also the owner of Brazos 1031 Exchange Company.


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