Texas recognizes common law marriage, legally called informal marriage. If a couple was informally married under Texas law, the surviving spouse may have the same inheritance rights as a formally married spouse.
But there is a catch: after one partner dies, the surviving partner may have to prove the common law marriage before receiving spousal inheritance rights.
That proof can become especially important when there is no will, when adult children disagree, when the home is titled in only one partner’s name, or when family members claim the surviving partner was “just a boyfriend” or “just a girlfriend.”
Quick Answer: Can a Common Law Spouse Inherit in Texas?
Yes. A valid common law spouse can inherit in Texas just like any other surviving spouse.
If the deceased partner had a valid will, the will usually controls who receives probate property. If the deceased partner died without a will, Texas intestacy law determines what the surviving spouse inherits.
The key issue is whether the surviving partner can prove there was a valid informal marriage under Texas law.
What Counts as Common Law Marriage in Texas?
Texas does not require a marriage ceremony for every valid marriage. Under Texas Family Code Section 2.401, an informal marriage can be proved in either of two ways:
- The couple signed a declaration of informal marriage; or
- The couple agreed to be married, lived together in Texas as spouses, and represented to others that they were married.
That second path is where many inheritance disputes arise.
To prove a common law marriage without a signed declaration, the surviving partner generally needs evidence of three things:
- The couple agreed to be married
- After that agreement, they lived together in Texas as spouses
- They represented to other people that they were married
Living together by itself is not enough. Having children together is not enough. Dating for many years is not enough. The legal question is whether the couple actually had a marriage relationship under Texas law.
Is There a Seven-Year Rule for Common Law Marriage in Texas?
No. Texas does not have a “seven-year rule” for common law marriage.
A couple does not become married automatically because they lived together for seven years, ten years, or any other number of years.
Time together can matter as evidence, but it is not the legal test. The legal test focuses on agreement, cohabitation in Texas, and holding out to others as married.
What Happens If a Common Law Spouse Dies Without a Will?
If a person dies without a will, they are said to have died intestate. Texas intestacy law decides who inherits the probate estate.
A surviving common law spouse may inherit if the informal marriage is proven. The amount depends on the type of property and the deceased spouse’s family situation.
Texas inheritance law divides property into two broad categories:
- Community property: property generally acquired during marriage
- Separate property: property owned before marriage, or received during marriage by gift or inheritance
The distinction matters.
Community Property Inheritance Rights
If the deceased spouse died without a will, Texas Estates Code Section 201.003 controls how community property passes.
In many cases, the surviving spouse receives the deceased spouse’s share of community property if:
- The deceased spouse had no children or descendants; or
- All of the deceased spouse’s children or descendants are also children or descendants of the surviving spouse
But if the deceased spouse had a child or descendant from another relationship, the result is different. In that situation, the deceased spouse’s one-half interest in the community estate generally passes to the deceased spouse’s children or descendants.
That rule surprises many surviving partners in blended-family situations.
Separate Property Inheritance Rights
Separate property is treated differently.
Under Texas Estates Code Section 201.002, if a person dies without a will and leaves a surviving spouse and children, the surviving spouse does not simply receive everything.
For separate personal property, the surviving spouse generally receives one-third, while the children or descendants receive the remaining two-thirds.
For separate real property, the surviving spouse may receive a life estate in one-third of the land, with the remainder passing to the children or descendants.
If there are no children or descendants, the surviving spouse may receive more, but parents, siblings, or their descendants may still matter depending on the property type and family tree.
This is why “we were married” is only the first question. The next question is what kind of property is involved and who else survives the deceased partner.
What If the House Was Only in the Deceased Partner’s Name?
This is one of the most common problems.
If the home was titled only in the deceased partner’s name, the surviving partner may still have rights if they can prove a common law marriage. But title, community property rules, separate property rules, homestead rights, probate procedure, and family claims can all become tangled.
Possible issues include:
- Was the home bought before or during the marriage?
- Was it paid for with community funds?
- Did the deceased partner have children from another relationship?
- Was there a will?
- Did the couple ever sign a declaration of informal marriage?
- Did the couple file taxes as married?
- Did they refer to each other as spouses?
- Did the surviving partner contribute to the mortgage, taxes, or improvements?
A surviving common law spouse should not assume they have no rights simply because their name is not on the deed. But they also should not assume they automatically own the home.
What Evidence Helps Prove Common Law Marriage After Death?
After death, the deceased partner cannot testify about the relationship. That makes documentation and witness testimony especially important.
Helpful evidence may include:
- A signed declaration of informal marriage
- Tax returns filed as married
- Insurance forms listing the partner as spouse
- Beneficiary designations
- Joint bank accounts
- Mortgage or lease records
- Medical records identifying the partner as spouse
- Obituaries referring to the partner as spouse
- Social media posts or announcements
- Holiday cards or invitations using married names
- Testimony from friends, relatives, coworkers, or neighbors
- Text messages or emails discussing being married
- Estate planning documents
- Employment or benefits paperwork
No single piece of evidence is always required. Courts often look at the overall picture.
What Evidence Can Hurt a Common Law Marriage Claim?
Evidence can also work against the surviving partner.
A common law marriage claim may be harder if:
- The couple described themselves as unmarried
- They filed tax returns as single
- One partner was legally married to someone else
- They kept finances completely separate
- They referred to each other only as boyfriend/girlfriend
- Family and friends did not believe they were married
- There is no evidence of an agreement to be married
- The claim is made only after death
- The couple separated long before death
Texas law also creates a timing issue. Under Texas Family Code Section 2.401, if a proceeding to prove the informal marriage is not started before the second anniversary of the date the parties separated and stopped living together, there is a rebuttable presumption that they did not agree to be married.
That does not always end the case, but it can make proof harder.
What If the Family Disputes the Common Law Marriage?
Family disputes are common in these cases.
Children, siblings, parents, or other heirs may challenge the surviving partner’s claim because recognition of the marriage may reduce their inheritance.
Common arguments include:
- “They only lived together.”
- “They never had a wedding.”
- “He always said he was single.”
- “She was not listed on the deed.”
- “They filed separate tax returns.”
- “They broke up before he died.”
- “There was no agreement to be married.”
The surviving partner may need to file or participate in a probate proceeding to establish spousal status. The court may then decide whether the informal marriage existed and what inheritance rights follow.
Does a Common Law Spouse Override a Will?
Not necessarily.
If the deceased partner had a valid will, the will usually controls the distribution of probate property. A surviving common law spouse may still have certain rights, but the outcome depends on the will, the type of property, whether the property is community or separate, and whether other protections apply.
A will can create a very different result than intestacy.
For example:
- A will may leave property to the surviving spouse
- A will may leave property to children from a prior relationship
- A will may create a trust
- A will may omit the surviving partner
- A will may cause disputes about community property
If there is a will, the question is not only whether the surviving partner was a spouse. The question is also what rights the spouse has under the will and Texas law.
Can a Common Law Spouse Receive Benefits Outside Probate?
Sometimes. A surviving common law spouse may have rights involving assets or benefits outside the probate estate, depending on the facts.
These may include:
- Life insurance
- Retirement accounts
- Employment benefits
- Social Security survivor benefits
- Workers’ compensation benefits
- Bank accounts with beneficiary designations
- Joint accounts
- Real estate with survivorship language
Each asset has its own rules. Some depend on beneficiary designations. Others may require proof of marriage.
What If One Partner Was Still Married to Someone Else?
A person generally cannot enter into a valid common law marriage in Texas if they are already married to someone else.
This issue can be painful in inheritance disputes. A surviving partner may believe they were in a marriage, only to discover that the deceased partner was never divorced from a prior spouse.
If a prior marriage existed, the surviving partner should get legal advice quickly. The timeline, divorce status, good-faith beliefs, and property facts may all matter.
How to Protect a Common Law Spouse’s Inheritance Rights
The best way to avoid a dispute is to document the relationship and create an estate plan before anyone dies.
Couples can reduce risk by:
- Signing a declaration of informal marriage
- Creating wills
- Considering a revocable living trust
- Updating beneficiary designations
- Signing powers of attorney
- Clarifying home ownership
- Reviewing community and separate property
- Documenting intent in writing
- Avoiding inconsistent tax and legal filings
If the goal is for a partner to inherit, do not rely on informal marriage alone. A valid estate plan is usually clearer, faster, and less expensive than a court fight after death.
What Should a Surviving Partner Do After Death?
If your partner died and you believe you were common law married, take these steps:
- Gather documents showing you lived as spouses.
- Look for a will, trust, beneficiary designations, and property records.
- Save texts, emails, photos, tax records, insurance records, and account statements.
- Identify witnesses who knew you as a married couple.
- Avoid signing away rights before speaking with a lawyer.
- Talk to a Texas probate attorney as soon as possible.
Do not wait until the estate is already distributed. Probate deadlines and evidentiary issues can affect your rights.
Frequently Asked Questions
Does Texas recognize common law marriage for inheritance?
Yes. If a common law marriage is valid under Texas law, the surviving spouse may have inheritance rights like any other spouse.
Can a girlfriend or boyfriend inherit in Texas?
A girlfriend or boyfriend does not inherit under Texas intestacy law simply because of the relationship. They may inherit if there is a valid will, beneficiary designation, joint ownership arrangement, or if they can prove a valid common law marriage.
How long do you have to live together to be common law married in Texas?
There is no minimum time period. Texas does not have a seven-year rule. The couple must meet the legal requirements for informal marriage.
Do common law spouses get community property rights?
If there is a valid informal marriage, community property rules can apply. The date the marriage began may become important.
Can children from a prior relationship inherit instead of the surviving common law spouse?
Yes, especially with community property and separate property rules. In blended-family situations, children from another relationship can significantly affect what the surviving spouse receives if there is no will.
What if the deceased partner’s family says we were not married?
The surviving partner may need to prove the informal marriage in probate court using documents, witness testimony, and other evidence.
Is a declaration of informal marriage required?
No. A declaration is one way to prove informal marriage, but it is not the only way. A couple may also prove marriage through agreement, living together in Texas as spouses, and representing to others that they were married.
Can same-sex couples have a common law marriage in Texas?
Yes. Texas State Law Library notes that common law marriage is available to same-sex couples because of U.S. Supreme Court precedent, even though the Texas statute still uses older “husband and wife” wording.
Bottom Line
A common law spouse can inherit in Texas, but only if the marriage is legally established.
If there is no will, the surviving spouse’s inheritance depends on Texas intestacy law, the type of property, and whether the deceased partner had children or descendants. If family members dispute the marriage, the surviving partner may need strong evidence and legal help.
For couples, the safest approach is simple: do not leave inheritance rights to chance. If you want your partner to inherit, put it in writing with a proper Texas estate plan.
If your partner died and their family is disputing your rights, or if you want to make sure your partner is protected, Massingill can help with Texas probate, common law marriage inheritance issues, and estate planning. Schedule a consultation to discuss your options.
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