When a Fling is a Thing: Informal Marriages in Texas; the Intersection of Family Law and Probate

When a Fling is a Thing:

Informal Marriages in Texas; the Intersection of Family Law and Probate

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Scott Seidl


Two different aspects of Texas law have found themselves on an unintended collision course: informal (or “common law”) marriage and intestate succession.  The obvious way to avoid potential conflict is simple: have a will and keep it updated.  However, a 2021 Gallup poll found that less than half of the adults in the U.S. (46%) had a will.  To complicate matters further, it is neither uncommon nor extremely difficult for a person to enter into an informal marriage prior to his or her passing.  Should this occur, the decedent now has an additional heir and, quite often, a huge fight in an heirship proceeding.  This article will examine how these two areas of law intersect.

An informal marriage is surprisingly easy to enter into under Texas law.  An informal marriage must be proven by evidence 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 marriage does not exist until the concurrence of all three statutory elements for an informal 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 these elements may be established by direct proof, or circumstantial evidence.  Russell v. Russell, 865 S.W.2d 929 (Tex. 1993).  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).  Interestingly, “the testimony of one of the parties to the marriage constitutes direct evidence the parties agreed to be married.”  Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App–Houston [1st Dist.] 2001, pet. denied)

Once the elements of a common-law marriage are proved, the burden is on a party alleging its invalidity.  O’Benar v. O’Benar, 410 S.W.2d 214 (Tex. Civ. App. Dallas 1966), writ dismissed, (Feb. 22, 1967).  Additionally, 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).

The collision course occurs when the elements of an informal marriage are satisfied and one of the parties passes away.  Then what happens?  What court has jurisdiction?  What court can declare that the deceased was married?  The short answer is: the probate court (whether a statutory probate court should one exist, a county court exercising original probate jurisdiction, or, in some limited instances, the district court).  Chapter 32 of the Estates Code discusses this in greater detail; however, the gist is that a probate court’s broad jurisdictional reach brings the issue of whether an informal marriage existed within its purview.

Due to the fact that informal marriages frequently arise as second (or subsequent) marriages and involve blended families, there is fertile ground for conflict between the surviving spouse and the deceased’s other heirs.  Under the laws of intestate succession, a decedent’s community property (which necessarily requires that they were married at the time of their death) devolves one hundred percent to the surviving spouse if the decedent has no children or all of decedent’s children are also children of the surviving spouse.  Estates Code § 201.003(b)(1-2).  This distribution scheme is applicable to both ceremonial and informal marriages.  If the decedent has children from outside the marriage, whether ceremonial or informal, that existed at the time of decedent’s death, decedent’s share of community property passes directly to their children or children’s children.  Estates Code § 201.003(c).

An intestate decedent’s separate property follows a different distribution scheme.  If a marriage, whether ceremonial or informal, existed at the date of death, decedent’s separate real property devolves with a life estate in 1/3rd of decedent’s lands to the surviving spouse and 2/3rds remainder interest to decedent’s children or children’s children.  Estates Code § 201.002(b)(3).  If a marriage, whether ceremonial or informal, existed at the date of death, decedent’s separate personal property follows a one third/two third split between decedent’s surviving spouse and decedent’s children or children’s children.  Estates Code § 201.002(b)(1-2).  Assuming an informal marriage is satisfactorily proved, the characterization (whether community or separate) of a decedent’s property is often a source of contention.

Finally, an informal marriage can often lead to conflict regarding the distribution of the non-probate assets of the decedent.  The distribution of those assets is governed by the terms of those assets or other law that is beyond the scope of this article.

An additional wrinkle exists in with respect to the slight conflict between the proof requirements of an informal marriage and those statutorily required in an heirship.  As noted above, an informal marriage may be established by the testimony of a single party including a party to the marriage.  Eris, 39 S.W.3d at 714.  On the other hand, the Estates Code requires “testimony regarding a decedent ’s heirs and family history must be taken from two disinterested and credible witnesses in open court, by deposition in accordance with Section 51.203, or in accordance with the Texas Rules of Civil Procedure.” Estates Code Sec. § 202.151(b).  What is unclear and has not been the subject of a reported case (to the author’s knowledge), how a court would resolve a situation where only one witness could prove the existence of an informal marriage when two are required for an heirship determination.  The Estates Code seems to provide an opt out and allow a court to accept the testimony of only one witness to establish an heirship; however, in practice this seems unlikely to occur.  If it is shown to the court’s satisfaction in a proceeding to declare heirship that, after a diligent search was made, only one disinterested and credible witness can be found who can make the required proof in the proceeding, the testimony of that witness must be taken in open court, by deposition in accordance with Section 51.203, or in accordance with the Texas Rules of Civil Procedure.  Estates Code Sec. § 202.151(c).

First and foremost, a surviving spouse of an informal marriage could not satisfy requirement of being a disinterested witness proscribed by the Estates Code.  Second, there is often a conflict between a decedent’s surviving spouse and its other heirs.  And when there is a dispute, the disinterested witnesses are frequently aligned with one side—that is either the surviving informal spouse or decedent’s other heirs.  Finally, there is no statute or reported case that specifically addresses the impact of a court’s finding that an informal marriage based on the testimony of a single witness as it pertains to an heirship.  Logically, the finding that an informal marriage existed as of the date of death entitles the surviving spouse to take an heir of the deceased spouse’s estate.  It is unclear, however, what, if any, impact such a finding would have on the final determination of heirship if the informal marriage finding was based on the testimony of a single witness.

Luckily, informal marriages are typically proven up by the testimony of more than one witness and thus, there is no conflict with the heirship provisions contained in the Estates Code.  Should you find yourself in an heirship dispute that also involves an informal marriage (or you would like to avoid one by executing a will), it is important to engage a qualified attorney to assist you.

ABOUT THE AUTHOR: Scott F. Seidl is Counsel at Rapp & Krock, PC in the Litigation group and the Probate, Estates, Elder Law, and Trusts group. He has handles cases concerning informal marriages as well as other probate and property litigation matters.


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