Texas remains in the minority of states that recognize what was traditionally referred to as common law marriage or informal marriage. There are three elements to an informal marriage claim under Texas law. The couple 1) agreed to be married; 2) cohabitated in Texas; and 3) a held themselves out as married. An informal marriage does not exist unless all three of these elements are present and they all exist at the same time. A common myth persists that if parties simply live together for a certain period of time (for example, 7 seven years), they are common law spouses. This is not true in any state.
Agreement to be married
To establish an informal marriage, the person who believes they were married must show that the couple agreed to be married; that is, that they “intended to have a present, immediate, and permanent marital relationship” and that they did, in fact, agree to be spouses. The agreement to be married must be a present agreement; it is not sufficient to agree on present cohabitation and future marriage.
A statutory “declaration of informal marriage” form is available to couples who agree to be married in Texas but elect against a formal marriage. Such a declaration recorded with the county clerk constitutes proof of the marriage of the parties. Other proof showing an agreement to be married includes the filing of joint tax returns by the parties, the introduction of the parties as each other’s spouse or as the stepparent to the other parties’ children and the joint ownership of accounts.
Generally, this is a straightforward question: do you live together? Because there is no time frame required, such as the myth referenced above of seven years, this element is easily met, but MUST be combined with both of the other elements for an informal marriage to exist.
Holding out to the public
Texas’s informal marriage statute requires that the couple “represented to others that they were married.” Occasional introductions as spouses are not sufficient; rather, the question turns on whether the couple had a reputation in the community for being married. There can be no “secret” informal marriage in Texas. This prohibition prevents a situation whereby an unknown, informal spouse might come forward claiming to be the surviving spouse to the detriment of a later spouse. The “holding out” requirement puts the public on notice that the individuals have agreed to be married and are married until dissolution of the marriage.
Why does it matter?
Your marital status as married or single affects many rights and duties. The following list is not exhaustive:
• Homestead Rights;
• Divorce and Property Division;
• Inheritance rights;
• Marital property liability during life;
• Social Security survivor benefits;
• Health, life, auto insurance plan benefits and savings through a spouse’s employer or otherwise;
• Retirement plan and pension benefits;
• Entitlement to the marital deduction from the federal estate and gift tax;
• The ability to file a joint income tax return with the IRS and state taxing authorities;
• Standing to pursue wrongful death and loss of consortium claims;
• Entitlement to the marital communications privilege;
• Standing to make end-of-life and burial decisions;
• Entitlement to immigration protections afforded spouses;
• Entitlement to benefits under the Family Medical Leave Act;
• Ability to serve as a surrogate decision maker or “next of kin” for an incapacitated spouse in the absence of a medical power of attorney.
How To Avoid An Informal Or Common Law Marriage
Do not agree to be informally married. Never agree to be married in any manner other than a formal marriage. Ideally, the lack of an agreement to be married will be publicized to friends, family members (also known as future witnesses) and estate planning attorneys. For example, a statement like the following could be made to your client’s most credible friend: “We are living together but we haven’t agreed to be married, and if we ever do decide to get married, we will have a ceremony.” Dropping this statement into a handwritten letter or email would be even better.
Do not hold out as being married. Even though it may sometimes be easier to “go along” with your friends and neighbors’ assumptions, or your significant other’s assertions, one must diligently correct any references to “husband,” “wife,” “spouse,” etc. It is also important that no documents (for example, leases, deeds, mortgages, credit applications) are completed in a manner that would suggest a marital relationship, and that no badges of marriage (such as wedding rings) be worn or displayed.
Get it in writing. A party who does not want to be “caught” in an informal marriage should ask his or her partner to enter into a written agreement that affirmatively disavows an informal marriage. A copy of any such agreement should be provided to the parties’ named agents under durable powers of attorney, executors and estate planning attorneys.