How Common Law Marriage Works When the Deceased Spouse Has No Will

Common law marriage estate planning can help you avoid legal complexities if your spouse dies or becomes terminally ill. Texas is one of the few states that recognize common law marriage.

What Is Common Law Marriage in Texas?

Texas law refers to common law marriage as “informal marriage.” As long as the individuals are older than 18 and are not married to someone else, they can have an informal marriage. It requires that the man and woman have agreed to be married. After the agreement, they must live together as husband and wife and represent themselves to others as married. (Texas Family Code Sec. 2.401)

Obviously, it is easier to prove marriage by showing a marriage license than to provide evidence of a common law marriage. For this reason, one advantage estate planning provides is it eliminates the need to prove your marriage. Estate planning can also bring you peace of mind. Otherwise, you might have to make important decisions during a stressful loss.

How Common Law Marriage Estate Planning Can Simplify Legal Issues

If a devastating accident happens, what are your spouse’s wishes regarding life support? What if a life threatening health crisis occurs and your spouse is unconscious? Can you make medical decisions for your spouse? What decisions would they want made? What if your spouse dies unexpectedly?

The above are situations you can deal with more easily if you have estate planning. A living will or advance healthcare directive states your spouse’s wishes regarding medical care. Individuals can have a “do not resuscitate order” or express wishes regarding the use of feeding tubes and drugs. The hospital does not have to ask you what to do. You would not have to prove you are married. A durable power of attorney would allow you to take financial responsibility. Having a will makes it clear that you are the beneficiary if your spouse dies. You would not have to worry about a legal problem of proving your marital relationship if a relative contested the will.

Ensure Legal Measures Are in Place

If you’re in a common law marriage, it may be time to seek legal advice and put some estate planning measures in effect. Our attorneys at Richardson Brown can help you address your concerns.