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Estate and Probate

Informal Marriage and Texas Probate: What You Should Know

By February 24, 2021
Informal Marriage and Texas Probate: What You Should Know

Probating an estate can be an emotional process.

The last thing people want to think about after a loved one passes away is all the paperwork that comes along with figuring out their affairs and navigating the winding waters of probate. Sometimes it’s easy to get caught up in all the red tape that you miss some important details of the deceased’s past, specifically when it comes to marriages and relationships.

After all, you may know that the deceased never got married and never had a wedding ceremony, so that should be it, right? Unfortunately, in some novel circumstances, it may not be that clear-cut. This can create very confusing scenarios, such as an unknown person coming forward claiming they were the deceased’s spouse, or a live-in significant other claiming spousal status, among others.

Informal Marriage in Texas: Probating an Estate with Informal Marriage | Lovelace Law

Regardless of whether you are trying to prove or disprove an informal relationship with the deceased, it is important to have a basic understanding of how informal marriage occurs and how to deal with it. 

Informal Marriage in Texas

In Texas, couples do not have to have a marriage license, a ceremony, or even a pastor to be married. Texas recognizes what’s called informal marriage (otherwise known as “common-law” marriage). That means that if a couple passes “the Test” and meets certain statutory requirements, they can be considered married without ever walking down the aisle.

3 Requirements for Informal Marriage

There are three statutory requirements laid out by the Texas Family Code that need to be met – all at the same time – in order to qualify for informal marriage status:

  1. the parties must have a present, immediate, and permanent agreement to be married
  2. the parties must live together in Texas
  3. the parties must represent to others that they are married

It is important to reiterate that a couple must meet all three requirements at the same time. If you are unable to prove that all three requirements existed at the same time, no informal marriage can exist. 

Informal Marriage in Texas: The Gray Area

Even though these three requirements may seem easy to understand, there have been many Texas court decisions that have further defined – narrowly and broadly – what these requirements mean and what is needed to meet them. In fact, we could write a whole article on each of these requirements and still have more to say after.

The most important thing to understand about these requirements is that they are generally determined by weighing various factors for each requirement. For example, a couple may have filed their taxes as a  married couple, but if they only held themselves out to the government that they were married and not their community, then chances are that they wouldn’t be able to meet the third requirement.

Likewise, if a couple exchanged wedding rings, but told their families that they were planning on making it “official” later, then that may be evidence that there wasn’t a present, immediate, and permanent agreement to be married at that time. The only seemingly straightforward requirement is “living together” (although I wouldn’t put it past an attorney to make that confusing), but couples must have lived together in Texas. It is also important to note that there is not a bright-line rule regarding how long you have to meet the requirements. Again, the weight of all the different factors determines whether or not an informal marriage existed. 

Common Law Marriage in Texas: Questions When Probating an Estate

What to Do If Your Probate May Have an Informal Marriage

Once you determine that there may be an informal marriage issue in your probate, the next question is how you are going to address it.

Fortunately, the attorneys at Lovelace Law have experience in litigating these tedious details and are well versed in how to bring informal marriage disputes to the court’s attention. The last thing you want to happen is to be caught off-guard by an informal marriage that has the potential to completely turn a probate upside down.

If you think that there may be an informal marriage issue with a deceased loved one, we would be happy to meet with you and discuss your options.