Can I Inherit As A Common-Law Spouse In Texas?

by Russell Aldrich | March 1, 2023

A common law spouse can inherit from a decedent’s estate whether the decedent died with or without a valid will.

In Texas estate law, a common-law spouse is afforded the same rights and privileges as those afforded to a spouse in a formal or traditional marriage. These rights include:

• Community property. In Texas, all property acquired during the marriage, except for gifts or inheritances, is considered community property. Upon the decedent’s death, the surviving spouse retains their 50% interest in the community property.
• Homestead rights. The surviving spouse has the right to live in the homestead (primary residence) for the remainder of their life, regardless of whether the decedent’s will bequeathed the property to someone else. This right is known as a homestead life estate.
• Exempt property. Texas law allows a surviving spouse to claim certain personal property as exempt from creditors’ claims and estate administration expenses. The exempt property includes items such as household furnishings, personal effects, and certain vehicles.
• Family allowance. During the estate administration process, the court may grant the surviving spouse a family allowance, which is a reasonable amount of money for the spouse’s maintenance and support. The family allowance is typically granted for up to one year following the decedent’s death.

In Texas, proving a common-law marriage can be critical when it comes to inheritance or other legal matters involving the relationship. To establish the existence of a common-law marriage in Texas, the couple must meet the following three requirements:

1. The couple agrees to be married.
2. The couple lives together as husband and wife.
3. The couple holds themselves out to others as married.

If a common-law marriage is contested, the person claiming the existence of the marriage may need to provide evidence to support their claim. This evidence can include:

• A signed declaration of informal marriage. This is a document that both parties sign and file with the county clerk’s office, stating they meet the requirements for a common-law marriage. This is the strongest evidence to establish a common-law marriage.
• Joint tax returns. Filing joint federal and state income tax returns can provide evidence that the couple has represented themselves as married.
• Shared bank accounts or financial records. Joint bank accounts, credit cards, loans, or other financial records can help demonstrate a marital relationship.
• Property records. If the couple has purchased property together or listed each other as spouses on real estate documents, this can be used as evidence.
• Witness testimony of friends and family. Statements under oath from people who know the couple and can confirm they presented themselves as married are often the strongest evidence of a common-law marriage.
• Insurance policies. If the couple has listed each other as spouses or beneficiaries on life insurance policies or other types of insurance, this can be used as evidence.
• Employer records. If the couple has claimed each other as spouses for employer benefits or on employment records, this can support their claim of a common-law marriage.
• Mail, bills, or other correspondence. Mail or other documents addressed to the couple using a shared last name or referring to them as a married couple can also be used as evidence.

Keep in mind that the specific evidence needed to prove a common-law marriage in Texas may vary depending on the circumstances of each case. Consulting a probate attorney experienced in common-law marriage matters can help you better understand the requirements and gather the necessary evidence to establish your claim.