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We live in a common law marriage state and have lived together for 4 years. I’ve used his last name and we have presented ourself as husband and wife. We bought a house together last year. I’m 31 and he is 27. We both have children from previous marriages. How would our estate be handled if something happened to one of us?
Asked on June 20, 2012 under Estate Planning, Texas
Answered 12 years ago | Contributor
Texas does recognize common law marriages. So, if you were common law married, and there was no will, then the surviving spouse would be entitled to a share of the marital estate along with the other deceased spouse's biological children. However, the division of property could be subject to challenge if the children (or a guardian for the children) could prove that the two of you were not married. A common law marriage requires an agreement to be married, a holding out that you are married, and cohabitation. You seem to meet most of these requirements-- but you still refer to him/her as your fiance in your question-- which creates a possible issue that ya'll were thinking about getting married, but had not agreed to be married. If you want to make sure that the other person is provided for, the best way to leave written instructions (like a will). Another option is to formally get married (even if through a JP), so that you insure the other spouse has inheritance rights. If you are not married, then the other spouse could be denied inheritance rights if the common law marriage was disproven during probate.
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