Our director of legal services, Katherine Flores, gave a presentation covering common law marriage and the intersection between family law and probate law. The presentation explored challenges that arise while proving a common law marriage and underscored the critical importance of establishing the elements of a common law marriage in probate cases.
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Common Law vs Ceremonial Marriage
Some states only consider a marriage valid if it is done through the formal marriage process. This process includes applying for and obtaining a marriage license, and having an officiant officiate the wedding. Other states, however, recognize another valid marriage that does not include the formalities—a common law marriage. Texas is among the states that recognize common law marriages. For a Texas court to establish a common law marriage exists the party must assert three elements that must be satisfied simultaneously. These elements are that the parties: 1) have an agreement to be married; 2) live together as a married couple; and 3) hold out to others that they are married. A common law marriage may also be evidenced by a declaration of information marriage filed with the county clerk. In most cases, there is no formal document and couples will instead prove their marriage by providing proof of the three required elements.
In cases where both parties are alive and agree that the elements of a common law marriage have been met, establishing the existence of such a marriage can appear relatively straightforward. By contrast, in probate proceedings where one party is deceased and unavailable to attest to the elements of the relationship, proving the existence of a common law marriage becomes considerably more difficult.
Although Texas law affords common law marriages the same legal standing as formal marriages, the burden of proving the existence of a valid common law marriage becomes critically important during probate. If such a marriage is established, the surviving spouse is entitled to inherit the estate.
Common Law Elements
While proving the elements of a common law marriage may be straightforward when both parties are alive to testify, it becomes significantly more challenging when one party is deceased—especially if others are contesting whether the marriage ever existed.
A couple must have an agreement to be married. Such agreement does not have to be expressed and can be implied through circumstantial evidence, so long as it shows the couple intended to create an immediate, present, and permanent marriage and not just temporary cohabitation. Direct testimony relating to the reasoning behind the union, descriptions of the union, and that such union occurred through informal ceremony is enough to establish the agreement element. Proving that there was an agreement to be married may prove itself challenging in the context of probate. This agreement does not need to be in writing—it can be oral and known only between the two parties. But if one party is deceased and cannot testify, and there is no additional supporting evidence, it becomes much more difficult to convince the court that such an agreement ever existed. It is important to highlight that the agreement to be married can be implied through circumstantial evidence. That being said, it is not impossible to prove there was an agreement to be married in probate proceedings.
The couple must live together. There is no time requirement, and the cohabitation does not need to be continuous. This is generally not hard to prove because there will usually be a witness to the couple physically living together. However, evidence of intent to cohabit at a later date is insufficient to establish this element if the parties concede they never cohabitated.
The expression may also be known as “holding out to the public” so that the public becomes aware of the couple’s status or that they consider themselves in the community as being married. This is another element that is difficult to prove and is often the most disputed. To prove this reputation, the couple must conduct themselves as married in the public eye or represent themselves as such. Simply put, A couple must have a reputation in the community for being married to sufficiently establish that they held themselves out as a married couple. Occasional references as “husband” or “wife” are insufficient to establish a common law marriage. Additionally, both parties are required to represent themselves as married.
Texas Civil Practice and Remedies Code § 37.005
A person claiming to be the surviving spouse should file a claim for declaratory judgment to determine if there was a legal common law marriage. Under section 37.005 of the Texas Civil Practice and Remedies Code, a person interested as an executor or administrator of the estate of a decedent may have a declaration of rights or legal relations in respect to the estate to ascertain any class, to direct the executors or administrators to do or abstain from a particular act, to determine any question arising in the administration of the estate, or to determine the rights or legal relations of an independent executor or administrator regarding fiduciary fees.
Probate
Probate is the process which courts oversee the distribution of people’s assets are their death. In probate proceedings, the central issue typically revolves around determining how the decedent’s estate will be distributed. For a common law spouse who is facing a disputed claim of inheritance rights, the key element is establishing the marriage. The surviving spouse will need to demonstrate each of the three elements to a common law marriage and they bear the burden of proving the existence of the common law marriage in probate court. The probate court has jurisdiction to determine whether a common law marriage existed, especially if the deceased spouse died intestate, meaning without a will. Evidence to support the common law marriage might include testimony from witnesses and documents such as joint bank accounts or tax returns. If the common law marriage is established, the surviving spouse can inherit a portion of the deceased spouse’s estate.
Next of Kin
When someone dies without a will, intestacy laws distribute assets to family members according to a set of predetermined rules. In Texas, the surviving spouse is given priority, based on the presumption that they will manage the estate in accordance with the decedent’s wishes and in a manner that benefits the estate and its heirs. If there is no surviving spouse, the decedent’s children are next in line for consideration. Tensions can arise when conflicts exist between the surviving spouse and the children. These disputes are often amplified when the surviving spouse claims to have been in a common law marriage with the decedent rather than a formal one.
Property
For a quick review, community property is property that is generally acquired during the marriage and is owned equally by both spouses. Separate property are the assets that were owned before marriage or received as gifts or inheritances during marriage. When distributing property in probate, distribution depends on whether the deceased spouse is survived by a spouse, children, or other relatives. A surviving spouse does not need to go through probate for assets that have joint ownership.
Some important things to review when dealing with a claim of common law marriage in an estate are the assets of the estate, when they were acquired, whether separate or community funds were used to purchase the asset, whether they are separate or community property, and if any other claims for reimbursement or offset exist.
Distribution – Married
When a married person has children or other descendants, distribution depends on whether the property is personal, real, community, or separate. For the decedent’s separate personal property, one-third will go to the surviving spouse and two-thirds will go to the children. For the decedent’s separate real property, the children take all equally, subject to the surviving spouse’s one-third of the life estate. All separate real property will be owned outright by the decedent’s children or other descendants when the surviving spouse dies. Decedent’s share of community property will go to the surviving spouse when all surviving children and descendants of deceased are also children or descendants of the surviving spouse. When there are children and descendants outside of the existing marriage on the date of death, all the children take equally while the surviving spouse retains their own share.
When a married person has no children or descendants, distribution again first depends on whether the property is personal, real, separate, or community. Separate personal property will all go to the surviving spouse. Separate real property distribution will distribute half to the surviving spouse and the other half follow the next of kin hierarchy and award. Any share of community property will all go to the surviving spouse.
Distribution – Unmarried
Contrast this distribution with an unmarried person. If the unmarried person had children or other descendants, all the children take equally to all property. If the unmarried person had no children or descendants, all property is distributed according to the next of kin hierarchy.
If you noticed in the earlier slide, a domestic partner or boyfriend or girlfriend does not have any claim within the laws governing next of kin. This is why clarifying the marital status of the decedent is essential when moving forward with probate. There is no “second class” marriage, so a spouse resulting from either marriage type has the same legal status. This is why if the existence of the marriage is denied and significant property is owned by one or both parties, it is common procedure to suspend discovery concerning property and first determine whether a marriage exists.
Surviving Spouse and Probate
If the surviving spouse is trying to determine whether they need to go through the probate process, ask the following questions. One. Did the deceased spouse own separate property? Two. Are there any children from a previous relationship? Three. Are the assets solely in the deceased spouse’s name without beneficiary designation? And Four. Excluding the homestead, does the estate’s value exceed seventy-five thousand dollars? If the answer to any of the questions was yes, the surviving spouse may need probate.
Scenario
This conversation came about after our firm experienced firsthand the intersection between family law and probate law. The decedent and client were ceremonially married in 1991. They divorced in 2006. However, after coming back together in 2018, in 2022 the couple agreed to be married and remained married without any formal ceremony or license to memorialize their agreement. When the decedent passed in 2024, the couple had been living as a married pair. When things became contested in 2025, the matter of the estate would be ultimately determined by the question of whether there was an agreement to be married.
Just like any other family law marital dispute, there are different ways to provide evidence of an agreement to be married. While an agreement to marry does not need to be shown by direct evidence in order to establish a common-law marriage, it can be helpful in a case where marital status is disputed. This can look like tax forms, questionnaires including relationship status or beneficiaries, and language that refers to one another as spouses used by third parties.
Court have also examined evidence providing the presence or absence of religious ceremonies, premarital agreements, hotel receipts, photographs of the couple, social media posts, insurance applications, affidavits in connection to home sale, apartment applications, and emergency contact relationship indicators. Other evidence could include the name on a driver’s license, the name on a social security card, bank accounts, utility bills, and other property records.
These cases are fact intensive. There are many possibilities to confirm an agreement and establish a marriage. Establishing a marriage will also establish inheritance rights, community property, and homestead rights.
Questions and Consultation
A properly drafted will can help avoid any disputes as an heir or as to marital status. Estate planning can help with a quick resolution and protect your family even after your death. Reach out to us today if you are needing assistance with a will, probate law, or estate planning.