Texas, to my regret, permits common law marriage. Cohabitation is a requirement to create a common law marriage, but it is not the only requirement. There also must be an agreement to marry and the couple must hold themselves out to the public as being married. Therefore, cohabitation alone, for any length of time, does not create a common law marriage.
Cohabitation, however, often leads to the issue of whether a common law marriage exists. Here is my advice to anyone cohabitating: If you believe you are already married, get that marriage certificated as a common law marriage. If you intend to get married, get married with a formal marriage certificate. A marriage certificate of a ceremonial or common law marriage is indisputable evidence of marriage.
Marriage has legal advantages and rights. Here is just one example. Imagine this scenario: You have a medical event and are in a coma. Your closest relative is your brother you have not spoken to for 20 years. Your unmarried partner wants to consult with the physicians to decide on your future, and the hospital and physicians don’t answer the partner but instead ask, “what does his brother think?” Without legal documentation, your partner will have no rights and your closest relative, regardless of your connection or feelings about them, will get to make your life and death decisions.
Accordingly, if you are cohabitating, and you do not intend to be married, then you need legal documents that clearly state your intentions. We include a recital in virtually every will we draft whether a partner is a spouse, or not. Just because you are not married doesn’t mean you don’t care for your partner and you probably want to take financial care of them.
However, since they do not have the rights of marriage, without legal documents, they have no right to make medical decisions for you, lack priority to be appointed guardian, and will not be an heir of your estate. Quality estate planning documents will address these concerns.
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This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, specific tax, legal or accounting advice. We can only give specific advice upon consulting directly with you and reviewing your exact situation.
