Texas is one of eight states that recognize common law or “informal” marriages.  Often a source of lively debate and the cause of many controversies, the Texas legislature has not substantially changed the law surrounding informal marriages since 2005.  While this article is not an opinion piece on the benefits or detriments of Texas’ recognition of informal marriages, it is important to understand that informal marriages exist and if you and your partner satisfy the elements required to create an informal marriage, the implications can be huge especially when one partner passes away.

It is important to recognize how informal marriage comes into existence.  An informal marriage requires that (1) the parties agreed to be married, (2) the parties lived together in Texas as spouses after they agreed to be married, and (3) the parties represented to others that they were married.  Tex. Fam. Code Ann. § 2.401(a)(2).  An informal or common-law marriage does not exist until the concurrence of all three statutory elements for a common-law marriage and all three elements must exist at the same time.  See In Interest of C. M. V., 479 S.W.3d 352 (Tex. App. El Paso 2015).  Each of those elements may be established by circumstantial, as well as direct evidence.  Russell v. Russell, 865 S.W.2d 929 (Tex. 1993).  The existence of the elements of an informal marriage are determined on a case-by-case basis. See Estate of Claveria v. Claveria, 615 S.W.2d 164, 166 (Tex.1981).  Finally, the burden of proof is on the person seeking to establish the existence of an informal marriage by a preponderance of the evidence.  Small v. McMaster, 352 S.W.3d 280, 282–83 (Tex.App.–Houston [14th Dist.] 2011, pet. denied).

Once the elements of an informal marriage are met, the marriage is treated the same as a ceremonial marriage.  As such, if you have entered into an informal marriage and “want out,” the marriage must be terminated through a divorce.  While a divorce terminating an informal marriage is beyond the scope of this article, suffice it to say that the termination of an informal marriage requires intervention by a court just as a ceremonial marriage would.

The second major impact of entering into an informal marriage is the impact of an informal marriage on the descent and distribution of the estate if one of the parties passes away.  Aside from the obvious impact on intestate succession—that is, if the deceased spouse dies without a will—other impacts certainly can arise.  For example, if the deceased spouse dies testate (with a will) the surviving spouse still has rights under the Texas Constitution and the Estates Code.  This would include a surviving spouse’s right to occupy the marital homestead (commonly known as the “homestead right”) until their death or abandonment.  It also includes the right to petition a probate court or the executor for a family allowance or set aside certain exempt personal property.  An informal marriage will also impact the characterization of property—community property exists in an informal marriage just as it does in a ceremonial marriage.

Another often overlooked impact of an informal marriage is its effect on benefits to which a surviving spouse is entitled.  This includes pensions that are only payable to a surviving spouse and social security death benefits.  A surviving spouse’s entitlement to a deceased spouse’s pension may be larger than the remainder of the estate and is oftentimes payable only to a surviving spouse.  Moreover, the beneficiary designation on many retirement accounts and pensions can only be altered with the consent of one’s spouse.  This is equally applicable to informal marriages and ceremonial marriages.  Therefore, it is critical to understand the terms of any retirement accounts and pensions while remaining cognizant of the fact that the existence of an informal marriage may seriously impact the disposition of assets such as these.

As the old saying goes, “An ounce of prevention is better than a pound of cure” and we at Rapp & Krock will gladly assist you in navigating through any potential impacts or complications that an informal marriage may cause on your estate plans.  Additionally, if you are an informal spouse or defending against demands and claims made by someone claiming to be an informal spouse, we would be glad to review the facts and advise you.