The "common law" spouse in Texas

An issue that sometimes arises in Texas estate litigation is a claim of common law marriage.  These claims can be very important, as spouses are often entitled to certain rights and benefits not allowed to boyfriends/girlfriends.  Most notably, a spouse has a lifetime estate interest in the homestead, even if it was the separate property of the deceased. Texas recognizes both formal and informal marriages.  Formal marriages are the ones where a marriage license is obtained and a ceremony performed. Informal or "common law" marriages are ones in which the couple live together as husband and wife and hold themselves out to the community as married. The formal elements of a common law marriage include: (1) the man and woman agreed to be married; (2) after the agreement they lived together in this state as husband and wife; and (3) represented to others that they were married. (Texas Family Code - Section 2.401(a)(2). Of course, the proof available for each of these elements will vary by case.  Documents such as tax returns and account applications provide important evidence.  Testimony from witnesses in the community can also be important.  A recent Texas case, In re Marriage of Warren, addresses the proof necessary to meet that third element. In Warren, the Waco Court of Appeals held that references to each other as husband and wife must be consistent:

We find that the element of “holding out” requires more than occasional references to each other as “wife” and “husband.” Flores v. Flores, 847 S.W.2d 648, 653 (Tex.App.-Waco 1993, writ denied);  (no evidence of holding out where woman introduced man as her husband to two or three friends, told a few others that she was married, and wore wedding band given to her by man). . .(“[I]solated references to each other as husband and wife alone do not establish a holding out[.]”). However, a “couple's reputation in the community as being married is a significant factor in determining the holding out element.” (Evidence of four occasions on which wife or her alleged husband introduced each other as husband or wife as well as an AARP enrollment form that showed her as man's wife that the alleged husband admitted signing insufficient to raise fact issue on element of holding out.).

Therefore, isolated representations to others that the couple was married are not sufficient to prove common law marriage. Texas Estate Litigation