When A Fling Is A Thing: Informal Marriages In Texas; The Intersection Of Family Law And Probate

• Published date: 13 March 2023
• Subject Matter: Family and Matrimonial, Family Law, Wills/ Intestacy/ Estate Planning
• Law Firm: Rapp & Krock
• Author: Mr Scott Seidl

Two different aspects of Texas law have found themselves on an unintended collision course: informal (or "common law") marriage and intestate succession. The obvious way to avoid potential conflict is simple: have a will and keep it updated. However, a 2021Gallup pollfound that less than half of the adults in the U.S. (46%) had a will. To complicate matters further, it is neither uncommon nor extremely difficult for a person to enter into an informal marriage prior to his or her passing. Should this occur, the decedent now has an additional heir and, quite often, a huge fight in an heirship proceeding. This article will examine how these two areas of law intersect.

An informal marriage is surprisingly easy to enter into under Texas law. An informal marriage must be proven by evidence that (1) the parties agreed to be married, (2) the parties lived together in Texas as spouses after they agreed to be married, and (3) the parties represented to others that they were married. Tex. Fam. Code Ann. ' 2.401(a)(2). An informal marriage does not exist until the concurrence of all three statutory elements for an informal marriage and all three elements must exist at the same time.See in Interest of C. M. V., 479 S.W.3d 352 (Tex. App. El Paso 2015). Each of these elements may be established by direct proof, or circumstantial evidence.Russell v. Russell, 865 S.W.2d 929 (Tex. 1993). The burden of proof is on the person seeking to establish the existence of an informal marriage by a preponderance of the evidence.Small v. McMaster, 352 S.W.3d 280, 282-83 (Tex.App.-Houston [14th Dist.] 2011, pet. denied). Interestingly, "the testimony of one of the parties to the marriage constitutes direct evidence the parties agreed to be married."Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App-Houston [1st Dist.] 2001, pet. denied)

Once the elements of a common-law marriage are proved, the burden is on a party alleging its invalidity.O'Benar v. O'Benar, 410 S.W.2d 214 (Tex. Civ. App. Dallas 1966), writ dismissed, (Feb. 22, 1967). Additionally, the elements of an informal marriage are determined on a case-by-case basis.See Estate of Claveria v. Claveria, 615 S.W.2d 164, 166 (Tex.1981).

The collision course occurs when the elements of an informal marriage are satisfied and one of the parties passes away. Then what happens? What court has jurisdiction? What court can declare that the deceased was married? The short answer is: the probate court (whether a statutory probate court should...