Common Law Marriages in Probate Litigation

A trend is growing in our nation.  The number of unmarried partner households has steadily increased since the national census began tracking this category nearly 25 years ago.  Many of these unmarried partners have children together, and an average number of them break up.  It should come as no surprise that probate and inheritance issues can dramatically affect these informal families just as often as they do relationships founded in formal marriages.


Texas recognizes informal, also called “common law” marriages between a man and a woman.  These informal marriages can be proven (by the party claiming that a marriage existed) in one of two ways.  First, the husband and wife can declare and register their informal marriage – making it a little less informal.  Second, the circumstances surrounding the informal marriage can be used to prove it is a legal marriage.


This second method of proof is the one encountered most frequently in probate litigation.  Harry dies at the ripe old age of 100.  Although he leaves no Will, he is survived by his son, Steven and daughter Donna.  And then there’s his girlfriend, Gina.  With just these facts, Gina would have no part of Harry’s Estate.  But, what if Gina claimed that she and Harry were common law spouses?


Common law marriages can be proven and supported through all sorts of evidence.  Witnesses, for example, might testify to a couple always introducing each other as “my husband,” or “my wife.”  Anniversaries might be routinely recognized as significant occasions.  The couple might even file joint tax returns.


If Gina can prove (1) she and Harry agreed to be married, (2) they lived together, and (3) they held themselves out to the public as husband and wife, things are looking up for Gina.  Her status as a spouse, if she can prove it, significantly turns the tide of probate in her favor.  Steven and Donna would then receive far less of the estate left behind by Harry.  With results like this, it is easy to see why these kinds of claims are made.