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The marital relationship has wide-ranging impact throughout the legal world. Inheritance, creditor liability, personal liability, tax liability, employment benefits, Medicaid benefits, social security benefits—to name but a few—are all impacted by one's marital status.

Providing appropriate legal advice can depend on knowing the marital status of a client and the beginning date of marriage. The determination is fairly straightforward when the client is in a formal marriage. However, Texas is one of a few remaining states that also recognizes informal or common law marriage. For clients who are or may be in a common law marriage, determining whether there is a marital relationship and the date the relationship began is far more complicated.

For attorneys who represent clients in same-sex relationships, this question has special significance, particularly in the event of death or divorce. Texas was among the few remaining states prohibiting same-sex marriage when the United States Supreme Court declared such prohibitions unconstitutional on June 26, 2015. From that day forward, many same-sex couples formerly not legally married in Texas were suddenly married. But because Texas also recognizes informal marriages, the beginning date of the marriage may extend back to well before 2015.

Informal Marriage

Per the Texas Family Code, section 2.401, the creation of an informal marriage, also known as common law marriage, can occur in one of two ways: by filing a declaration of an informal marriage with the county clerk, or by meeting the elements of an informal marriage outlined in the Texas Family Code.

The filing of a declaration of an informal marriage establishes a legal marriage from the date specified on the document onward. Many counties provide search tools allowing individuals to search for recorded declarations of informal marriages on-line. These documents allow couples to select a beginning date of their marriage; thus, the start of the marriage may be well before the document is signed and recorded.

If no declaration of informal marriage is on file, a party can establish an informal marriage by meeting the three elements outlined in the Texas Family Code: (1) agreeing to be married; (2) after agreeing to be married, living together in Texas as spouses; and (3) representing themselves to others as a married couple.

Agreement to Be Married

In Small v. McMaster, 352 S.W.3d 280, 283 (Tex.App.-Houston [ 14th Dist.] 2011, pet. denied), the court explained that to establish an agreement to be married, both individuals must agree to have a present, immediate and permanent relationship. An express agreement to be married is not necessarily required; rather, an agreement to be married can be established by circumstantial evidence, including that the couple met the two other elements establishing an informal marriage—i.e. that they lived together as spouses and held themselves out as spouses. Humphreys v. Humphreys, 364 S.W.2d 177 (Tex. Sup. 1963); Lee v. Lee, 981 S.W.2d 903, 906 (Tex.App.-Houston [1st Dist.] 1998, no pet.).

Living Together as Spouses

The law requires not just that the couple live together, but that they live together in Texas. While spouses do not have to live together continuously throughout their marriage, per the Texas Family Code, they must live together “as spouses.”  Thus, the statute contemplates that they meet the other two elements of informal marriage—holding out and agreeing to be married—while living together in Texas.

The concept of living together requires “a constancy of dwelling together” as opposed to a regular overnight guest. McArthur v. Hall, 169 S.W.2d 724 (Tex.Civ.App.—Fort Worth 1943, writ ref'd w.o.m.).

Representing to Others As Married

The third and final element constitutes holding out to the public as married. To meet this element, both parties must hold out as married.  Texas Family Code section 2.401; Small v. McMaster, 352 S.W.3d 280, 285 (Tex.App. – Houston [14th Dist] 2011, pet. denied.).

The extent of holding out must be such that the community thought the couple to be married.  Small v. McMaster, 352 S.W.3d 280, 285 (Tex.App. – Houston [14th Dist] 2011, pet. denied.).  Even if the marriage is kept secret from some family members, if a party can establish that the couple had a reputation among their community as married, it is sufficient to establish holding out. See In re Estate of Giessel, 734 S.W.2d 27, 31 (Tex.App. – Houston [1st Dist.] 1987, writ ref'd n.r.e.). On the other hand, if the marriage is largely secret from the community but known only among a few family members, there is no common law marriage. Winfield v. Renfro, 821 S.W.2d 640 (Tex. App.—Houston [1st Dist.] 1991, subsequent mandamus proceeding sub nom.

Holding out doesn't require an express reference to each other has husband or wife. As with an agreement to be married, conduct and actions of the parties can be sufficient. For example, in Rosales v. Rosales, 377 S.W.2d 661, none of the witnesses were able to recall any instance in which the couple referred to each other as husband and wife, but the court nonetheless held the couple held out as married based on witness testimony that they had a reputation for being married and joint charge accounts identifying themselves as husband and wife. The court explained that “actions of the parties… sometimes speak louder than words of introduction.” Id.

Determining whether there is an informal marriage is a fact sensitive inquiry. No matter the area of practice, the ability to identify those clients who may be in an informal marriage as well as the beginning date of the marriage may be key to properly advising a client.

Elizabeth “Liz” Brenner is an attorney with Burns Anderson Jury & Brenner in Austin, where she focuses on probate and trust litigation, probate administration and guardianship. www.bajb.com.