Contrary to popular belief, Texas does not require a minimum number of days of living together to be considered common law married. This is just one of the few misconceptions that exist around common law marriage. The reality is that common law marriage isn’t as easy as living together for a certain amount of time. By law, there are certain requirements that must be met for a common law marriage.
What is a Common Law Marriage?
Essentially, a common law marriage is a marriage that exists without going through the formal process. An informal marriage, or common law marriage, is a marriage that may be proved by the existence of certain facts, and which was not formalized by way a valid and executed marriage license.
A common law marriage may be evidenced by a couple that:
- Agrees to be married
- Lives together
- Holds themselves out as married
Additionally, you must be of sound mind and at least 18 years old. Last, but certainly not least, you must not be married to anyone else or have a familial relation by blood or adoption to your intended spouse.
How long do you have to live together to be common law married?
There is no minimum amount of time a couple needs to live together to be considered common law married. For example, a couple could live together for one day and be considered common law married if they agree to be married and hold themselves out as such. It is important that couples understand these requirements of common law marriage in order to protect their rights.
While there is no time limit on the amount of a time a couple lives together, the law does require that a couple cohabitate for two years. Should the couple break up before two years and live apart, it would be assumed that the couple did not enter into an agreement to be married.
The date of your marriage is important in Texas to establish because of the state’s community property laws. In short, if you believe you are, or were, in a common law marriage and that relationship ends, it is important to seek legal advice as quickly as possible to protect your legal interests that may have existed within that common law marriage.
What is the difference between common law marriage and marriage?
Marriage is the legal union between two people. In most states, a marriage requires a license and ceremony. Getting married, in most jurisdictions, requires being wed by an ordained minister or another person who has been granted the authority to carry out a legal marriage. Most U.S. states require a legal marriage in order for spousal benefits such a joint tax return or sharing financial accounts.
In a common law marriage, on the other hand, a couple who has never said vows in a civil or religious ceremony can be recognized as the legal equivalent to a licensed married couple. There are many reasons that people may choose a common law marriage over a formal marriage. Long-term couples may fall into one of the following categories:
- Have concerns about the costs of a formal marriage.
- Dislike the formalities of a ceremonial wedding.
- Simply just not have the time to complete the legal procedures for a formal marriage.
What rights do common law marriage couples have?
A common law marriage receives the same rights as a formal marriage—provided that they live in a state that recognizes common law marriage. Couples in a common law marriage will get marital benefits such as:
- Eligibility to receive Social Security benefits
- Qualifying employer benefits through their spouse such as health insurance
- Exemption from gift tax
- Unlimited marital exemptions for their estate
- Claiming mortgage interest deduction
- Inheritance of their spouse’s property, as long there is a valid will
- Hospital visitation rights
- The right to make emergency medical decisions
- Child custody rights
- The right to spousal supports
- Rights to property or other assets
- Other tax deductions and exemptions
If I get all the same rights in a common law marriage, why should I have a formal marriage?
A valid, formal marriage gives couples the presumption of marriage, along with all the rights and duties of that marriage. Additionally, with a formal marriage, you go through the process of formalizing your marriage through ceremony and paperwork. As a result, you end up with significant documentation of your marriage that immediately entitles you to certain rights.
If you did not have a valid, formal marriage, and if you are unable to prove the common law marriage exists, you may not be entitled to the benefits of that marriage, or subsequent divorce, if you are unable to prove that it existed as a matter of law.
What happens if my common law spouse dies?
Girlfriends and boyfriends do not inherit in the event of a loved one’s death in the state of Texas. However, because Texas does recognize common law marriage, a common law spouse has inheritance rights. But you will need to meet the informal marriage requirements set forth by the Texas Family Code.
It’s important to have, at minimum, a will to ensure your spouse will receive what you want them to have.
What is a Declaration (and Registration) of Informal Marriage?
A declaration of marriage may be used to validate or prove a common law marriage is in existence. The declaration also allows the parties to identify on what date the couple agrees to the marriage. A declaration of marriage can help make your common law marriage “official” in Texas.
Will I need to dissolve my informal marriage if we break up?
It depends. The state of Texas requires a divorce to dissolve a marriage. If you believe you were in a common-law marriage and that you may have property rights that are affected by any subsequent separation, you should seek the advice of an attorney as soon as possible.
Do I need an estate plan?
Because of the misinformation prevalent on the internet, determining whether or not you need an estate plan can be a challenge. We’ve created a quiz to help you determine the best course of action for your situation.
The Carlson Law Firm Can help
A common law marriage entitles spouses to all the same rights in Texas as a formal marriage. Still, it’s important to have a plan in place to protect your loved ones should an accident or other tragedy strikes. A family law lawyer from The Carlson Law Firm with the help of our estate planning attorneys can help you understand how the law affects your family. We can be your guide through Texas’ complex family code to protect your rights. To schedule a free, no-obligation consultation, contact our Killeen, Temple or Round Rock office. Our Central Texas estate planning and family law attorneys are ready to help.
Contact The Carlson Law Firm today to schedule your sitdown with a member of our qualified legal team.