Are you married?
Amazingly, a lot of people cannot correctly answer that question.
In Texas, you can be married formally or informally. The formal way is when you sign a written declaration of marriage. The informal way, also known as a common-law marriage, is when you and another person agree to be married, thereafter live together in Texas as spouses, and represent to others that you are married.
The formal method is typically cut and dried.
It is the informal, common-law method that can get pretty dicey, especially if it comes up after one of the parties dies.
The survivor of a relationship usually has a strong motive to claim that a common-law marriage with the decedent existed: at stake are rights to a family allowance, a life estate, and a portion (or all) of the decedent’s property. To collect this jackpot, all of the survivor has to do is successfully bring a claim of common-law marriage.
A claim, post-death, of a common-law marriage with the decedent usually sets up a spirited battle with the people who would otherwise inherit the decedent’s estate. Such a claim, which is heavily fact-dependent, can embroil relatives, family friends, employers and neighbors in depositions, written discovery and even a jury trial.
How easy is to prove a common-law marriage?
If the couple acted consistently in all of their dealings, then it could be pretty easy. Naming each other as spouse on employment forms, tax filings, and written contracts, verbally referring to each other as a spouse, agreeing in front of other people that they are married – all of this can be relevant. On the other hand if, during the term of the alleged marriage, either person signed documents as “unmarried” or “single,” or denied to others that there was a marriage, then it could be tough to prove.
An interesting tidbit that often trips up a would-be common-law marriage claimant: you can only be married to one person at a time. The alternative arrangement would be bigamy, which is not only disfavored in the law but is actually a crime. Sometimes in a person’s haste to claim a new spouse, an existing spouse (especially one in another state or country is conveniently overlooked. Not only is that bad form, it is fatal to a claim of common-law marriage with someone else.
Another inconvenient truth: it takes two to tango.
Both parties have to agree to be married, live together in Texas, and hold themselves out as spouses. It isn’t enough for one party to claim a marriage and unilaterally list the other party as a spouse on paperwork. Rather, both parties’ actions have to show a marriage.
The state of informal marriages became more complicated after the Obergefell decision, which held that two people of the same sex can be legally married. That set up a whole new legal dynamic that enabled a same-sex roommate to claim a common-law marriage.
So think carefully before you answer this question: Are you married?