Property rights in a Texas common law marriage are identical to those in a ceremonial marriage: once the informal marriage is legally established, community property rules, separate property protections, debt liability, divorce division, and inheritance all apply the same way. The catch is proof. If you cannot show the marriage existed, none of those rights are available to you, and Texas gives you a limited window to establish them after a breakup or a partner’s death.
When a Texas Common Law Marriage Legally Exists
Every property right in this article depends on this threshold question. Under Texas Family Code Section 2.401, an informal marriage requires three elements existing at the same time: both partners agreed to be married, they lived together in Texas as spouses, and they represented to others that they were married.1State of Texas. Texas Family Code 2.401 – Proof of Informal Marriage The agreement has to be a present intent to be married now, not a plan for later.
There is no minimum time requirement. The seven-year rule is a myth; a common law marriage can form in a single day if all three elements line up.2State Bar of Texas. Common-Law Marriage in Texas Both partners must be at least 18, and neither can already be married to someone else.1State of Texas. Texas Family Code 2.401 – Proof of Informal Marriage
The third element, often called holding out, is where most disputes are decided. Courts look at an overall pattern rather than one document: joint tax returns, leases signed as spouses, health insurance enrollments, life insurance beneficiary designations, joint loan applications, introductions as husband or wife, use of a shared last name, and “spouse” listings on benefit forms. The thicker the trail, the easier the marriage is to prove later.
What Belongs to Both Spouses: Community Property
Texas is a community property state, and the default rule is broad. Family Code Section 3.002 defines community property as everything either spouse acquires during the marriage that is not separate property.3State of Texas. Texas Family Code 3.002 – Community Property Wages, salaries, commissions, bonuses, retirement contributions, and interest earned during the marriage all fall into the community estate. If only one partner works, that income still belongs to both.
Section 3.003 layers a presumption on top of the rule: any property either spouse possesses during the marriage or at divorce is presumed to be community property.4State of Texas. Texas Family Code 3.003 – Presumption of Community Property The burden falls on whichever spouse claims something is theirs alone.
Whose name is on the title does not decide the question. A house, car, or brokerage account held in one spouse’s name is still community property if it was purchased with earnings during the marriage. Both partners share equally in what the marriage produces.
Common law marriages complicate this in one specific way: the start date. If the partners disagree about when their informal marriage began, everything either one acquired during that disputed period gets pulled into the community estate unless one of them proves otherwise. A ceremonial marriage has a certificate; a common law marriage often has years of ambiguity.
What Stays Yours: Separate Property
Family Code Section 3.001 protects three categories as separate property: anything a spouse owned before the marriage, anything received during the marriage as a gift or inheritance, and recovery for personal injuries sustained during the marriage.5State of Texas. Texas Family Code 3.001 – Separate Property The personal injury category has an exception most people miss. Compensation for lost earning capacity during the marriage is community property, even though the pain-and-suffering portion of the same settlement is separate.
Keeping separate property separate requires tracing, and the standard is clear and convincing evidence.4State of Texas. Texas Family Code 3.003 – Presumption of Community Property That means bank statements, original purchase records, inheritance paperwork, or gift letters that form an unbroken chain from the separate source to the asset you hold today. Once separate funds land in a joint account and mix with household spending, tracing usually breaks. When the paper trail dies, courts can presume the whole account is community property. Separate accounts and clean records are the only reliable protection.
Debts You Can Be On the Hook For
The rules that share the assets also share the debts. Under Family Code Section 3.202, community property subject to a spouse’s management and control is liable for debts that spouse takes on during the marriage.6State of Texas. Texas Family Code 3.202 – Rules of Marital Property Liability All community property is exposed to either spouse’s tort liability during the marriage. If your common law spouse runs up credit card balances or causes a car accident, your share of the community estate can be pulled in to pay.
Debts from before the marriage are separate obligations, but creditors can still reach community property that the debtor spouse manages. A divorce decree can assign a joint debt to one spouse, but creditors are not bound by that order. If a judge orders your ex to pay a joint credit card and they default, the creditor can still come after you.
Divorce, Property Division, and the Two-Year Deadline
Ending a common law marriage takes a formal divorce. Texas does not recognize any “common law divorce.” Under Family Code Section 7.001, the court divides the community estate in a manner it considers just and right, considering the rights of each spouse and any children.7State of Texas. Texas Family Code 7.001 – General Rule of Property Division
Just and right is not automatically 50/50. Judges weigh earning capacity, health, fault in the breakup, custody of children, and the size of each spouse’s separate estate. Adultery or cruelty can shrink one spouse’s share. Disability or a large earnings gap can enlarge the other’s. Discretion is wide, and outcomes vary.
The rule that catches common law spouses off guard sits in Section 2.401. If you do not file a legal proceeding to prove the marriage within two years of separating, Texas presumes no marriage agreement ever existed.1State of Texas. Texas Family Code 2.401 – Proof of Informal Marriage The presumption is rebuttable, so evidence can still overcome it, but the burden shifts to you and the fight gets harder. Wait too long and you can lose your claim to years of community property.
Spousal Maintenance
Common law spouses qualify for spousal maintenance on the same terms as anyone else. A court can order maintenance only when the requesting spouse lacks enough property after divorce to meet minimum reasonable needs and meets one additional condition: the other spouse was convicted of or received deferred adjudication for family violence during the marriage, the requesting spouse has an incapacitating disability, the marriage lasted at least ten years and the requesting spouse cannot earn enough to get by, or the requesting spouse cares for a child of the marriage with a disability requiring substantial care.8State of Texas. Texas Family Code 8.051 – Eligibility for Maintenance
Duration tracks length of marriage. Under ten years with family violence eligibility, or ten to twenty years, allows up to five years of maintenance. Twenty to thirty years allows up to seven. Thirty or more allows up to ten. Monthly payments are capped at the lesser of $5,000 or 20 percent of the paying spouse’s average monthly gross income.9State of Texas. Texas Family Code 8.055 – Amount of Maintenance Because the start date of an informal marriage is often disputed, proving you crossed the ten-year threshold can decide whether you qualify at all.
Inheritance When a Common Law Spouse Dies Without a Will
A surviving common law spouse who can prove the marriage inherits the same as any other surviving spouse. If there is no will, Texas intestacy rules apply.
For community property, the surviving spouse keeps the deceased’s entire half if all of the couple’s children are also children of the survivor, or if there are no children. If the deceased had children from another relationship, the survivor keeps their own half but takes none of the deceased’s half, which passes to those children.10State of Texas. Texas Estates Code 201.003 – Community Estate of an Intestate
Separate property splits differently. If the deceased left children or their descendants, the survivor receives one-third of the personal property outright and a life estate in one-third of the real property, with the rest going to the children. If there are no children, the survivor takes all of the personal property and at least half of the real property, with the other half going to the deceased’s parents or siblings if any survive.11State of Texas. Texas Estates Code 201.002 – Separate Estate of an Intestate The surviving spouse also has a homestead right to remain in the family home for life, even when the home was the deceased’s separate property and was left to someone else by will.
The practical trap is the same as in divorce. A common law spouse who cannot prove the marriage inherits nothing. The deceased’s family can challenge the survivor’s status, and probate courts see this fight often. Without documented proof, the partner walks away with nothing.
File a Declaration of Informal Marriage
Texas offers a clean way to eliminate the proof problem. Both partners can appear at the county clerk’s office, present valid identification and Social Security numbers, pay the filing fee, and sign a Declaration of Informal Marriage. Once filed, the document proves the marriage the same way a license does for a ceremonial one.1State of Texas. Texas Family Code 2.401 – Proof of Informal Marriage
Filing the declaration closes every gap covered above. It removes the two-year presumption after separation, prevents inheritance challenges, and fixes the start date for community property, separate property tracing, and the ten-year maintenance threshold. If you already meet the elements of a common law marriage, filing the declaration is the single most effective step you can take to secure the property rights that Texas law already gives you.