Heirship determinations provide Texas family members with inheritance rights, as we discussed in our last post on the inheritance rights provided by heirship determinations to families in Dallas, Texas. They also identify the people who count as a family member. For Texas common law spouses, an heirship determination provides an entire package of benefits plus inheritance rights. In this post, we will help you identify the requirements for being a common law spouse, then identify some of the valuable benefits this status provides in a probate case.
Texas Common Law Spouses Must Meet These Three Requirements in Heirship Determinations to Claim an Inheritance and Other Benefits
Texas is one of the few states that recognize common law marriage. In fact, Texas common law spouses enjoy the same rights and benefits as traditionally married couples. To be legally recognized, the couple must meet the three requirements below. During heirship determinations, these requirements must be proven to a Texas probate court.
–Marriage Agreement. To become a common law spouse, the first requirement is that the couple must have an agreement to be married. This is something more than a promise to be married in the future, like an engagement. Instead, the couple must agree “we are now married.” There are no magic words needed to establish this agreement, but it does require that both spouses agree that they are presently married. To prove this requirement after the death of a spouse, the other spouse will usually testify to the circumstances of this agreement. If the agreement is in writing, that is even better.
–Holding Out to Others. As a second requirement, a common law spouse must prove that the couple presented themselves to others as a married couple. In Texas heirship determinations, many different types of evidence can establish this requirement. Written documents are often the best evidence, for example jointly filed tax returns, life insurance policies specifically naming someone as a spouse, or even a gym membership application showing a spousal relationship. Oral testimony is also important. For example, a neighbor’s testimony that the deceased person introduced herself as the deceased person’s wife. Even conduct, like wearing a wedding band, can establish this requirement.
–Cohabitation. The third requirement is that the couple lived together as a married couple in Texas as a married couple. This is usually the easiest requirement to prove. There is no specific amount of time required. Theoretically, a couple could establish this requirement by living together for just a few months.
The Inheritance Rights and Other Benefits of Proving a Texas Common Law Marriage in an Heirship Proceeding
Common law spouses in Dallas and throughout Texas enjoy many different benefits. As described below, heirship determinations can provide numerous advantages to the common law spouse of a deceased person.
–Inheritance Rights. First and foremost, in intestate estates, the common law spouse stands to inherit a significant portion of the deceased person’s estate, regardless of how many other close family members the deceased person left behind.
– Community Property Rights. Generally, income earned by either spouse during marriage and property purchased with that income counts as “community property” in Texas. Each spouse is entitled to 50% of that community property, even if it is held in the name of only one spouse. For example, if a deceased person purchased a house during a common law marriage, the common law spouse is the actual owner of 50% of that house, regardless of whether the deceased person left a will. In other words, even if the deceased person’s will gifted the house to a child, the deceased person’s common law spouse would still be a 50% owner of the house.
–Homestead Rights and Spousal Allowance. Texas heirship determinations can provide homestead rights to common law spouses. This means that a surviving common law spouse has the legal right to continue living at the couple’s shared residence and using certain property for basic needs. This benefit applies even if the house was owned separately by the deceased person and was not community property. If the deceased person did not own a homestead, then the common law spouse may be entitled to an allowance of up to $45,000 from the deceased person’s estate, even if those funds were not community property.
–Military and Other Death Benefits. Common law spouses may be entitled to various death benefits. Military servicemembers often pass on death benefits to spouses. The deceased person may also receive a pension from their employer, which is sometimes transferred to their spouse following their death. Texas heirship determinations can provide a common law spouse with access to these benefits, even if they would not otherwise receive an inheritance.
We strongly encourage common law spouses to seek the advice of a Texas probate attorney in Texas heirship determinations. Often, the common law spousal benefits described above will come at the expense of the deceased person’s children or other relatives, who may be hostile toward the common law spouse. Proving a common law marriage requires careful planning and sound strategy. Our Dallas probate lawyers tackle common law marriage issues across Texas. Whether you are seeking or opposing a common law marriage claim, we will lend our skills to your cause.
In our next post, we will address adoption by estoppel, a little-known concept that can provide common law inheritance rights to those treated as children, even if they were not biologically related to the deceased. Our offices also service Plano, Frisco, McKinney, Denton, Fort Worth, Garland, Irving, Austin, Houston, San Antonio, Nacogdoches, Lufkin, and Center.