Byron R. Berry

Several times over the years, I have probated estates in which the “significant other” to the decedent came forth stating that she (for some reason, every time I had a case like this the deceased was a man) was the common law wife of the decedent and that she, therefore, had a right to half of the estate.

I have never lost one of these cases probably for a couple of reasons. Number one, I am a pretty good attorney but more importantly, it’s very hard to prove up a common law marriage in the great state of Texas when one of the parties is deceased.

Although Texas law does provide for common law marriage, but prefers to call it “informal marriage,” it’s basically a marriage that the State legally recognizes without the parties having acquired a marriage license or performed a marriage ceremony. Why would anyone not get a license? It probably goes back to when the early settlers just jumped over a broom and couldn’t get to a courthouse without fighting off Comanches, or maybe some folks like the Republic of Texas group just do not want the State to be in their business, or give the State money.

At any rate, we have common law marriages in Texas as do about 11 other states (and by the way California is NOT one of those states). But what about the famous Lee Marvin case you say? Well, that was actually a case involving palimony and no division of an estate due to divorce or probate proceedings.

So why do we not hear about it more often in Texas? When people live together aren’t they common law married?

Not necessarily. I get calls quite often from individuals that begin by telling me their common law spouse died and they can’t get to the money left behind. Texas has a three-pronged test to determine if there is a common law marriage:

  1. There must be an agreement to marry
  2. They must live together after they agree to marry and
  3. They must hold themselves out as husband and wife.

The “and’ just at the end of the second prong means that all of this must occur at the same time.

In probate court, proving the second and third prong is fairly easy. To show you lived together, take a video of the home showing all your dirty clothes scattered around the house along with the deceased person’s stuff and your mail coming to that address along with the deceased. And by the way, the home better be in Texas or it doesn’t count. You can make all the promises you want and go around telling folks you are married every day of the week but if the only time you lived together was that week in Vegas, it doesn’t count as a common law marriage in Texas.

For the third prong show joint tax returns and have friends state that you introduced yourselves at public functions as husband and wife. I’ve heard testimony of “my old lady” and “the old ball and chain” and neither of those worked. Regardless, I’m sure your friends memory will come around before trial.

Now the first prong is the tough one. This prong says, “there must be an agreement to marry” but it really should say “there must be an agreement you ARE married” because that’s the way Texas case law has interpreted that phrase. And like I said earlier it all has to occur at the same time. In short you have to agree you are married, then in line with that agreement live together and during that time hold yourselves out as husband and wife all while in Texas.

Promising to marry in the future won’t get you there. I had a case where the lady contending to be the wife had apparently been given the three prong test by her attorney to look over before her testimony – as casual reading of course, certainly not to color her testimony. She testified for over two hours about their living arrangements and why she kept her own apartment even though they were “married.” And I had to live through her rendition of every party they ever went to where amazingly the deceased uttered the exact words “this is (her name) and we are husband and wife”, as if people really talk like that. Then at the end of the testimony she said these immortal words “and your honor, he even gave me this ring – his senior ring by the way – and said “honey I’m giving you this ring as an agreement that we are GOING TO GET MARRIED.” Oooops..

I would guess that the issue of common law marriages comes up more in probate court more than divorce court for a couple of reasons. First the second and third prong of the test were probably going on at the time of death.   In other words, the parties were still living together. If they were both alive and the issue came up, they probably had split the sheets so to speak. Also in probate court the deceased obviously can’t be there to deny anything. The first prong is still a problem since any agreement to marry is probably verbal unless the parties were far-sighted enough to actually write down their agreement – which is a great idea even for people that get married through normal channels. Most people know this as a prenuptial agreement.

So what’s to keep the living partner from getting on the stand and testifying that the deceased agreed to being married and counting off terms and benefits? If the attorney on the other side understands hearsay rules of evidence they can prohibit testimony from a party that puts words in the deceased person’s mouth. It’s sometimes called the Deadman’s Statute. So unless there is an agreement in writing, or a third party that can testify to the existence of an agreement, proving up the first prong can be hard to get done.

The bottom line is that Texas law frowns on Common Law Marriage even in Probate court and so the State makes it more trouble to have one than just paying the money to get a marriage license.