Austin, TX asked in Probate for Texas

Q: Common law marriage and property question


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1 Lawyer Answer
Terry Lynn Garrett
Terry Lynn Garrett
  • Probate Lawyer
  • Austin, TX
  • Licensed in Texas

A: "Common law" marriage does not exist. Your mother may apply for a determination of heirship and attempt to prove an informal marriage (1) registered with the county clerk without benefit of ceremony or (2) based on evidence tending to prove that (a) both parties intended to be married; (b) while intending to be married they lived together as spouses; and (3) both parties held themselves out as married and were known by the community as married. If your mother and the man with whom she lived filed their tax returns as "married, filing jointly," that is a good place to start. Please note that if your mother succeeds in proving an informal marriage, her husband's 50% share will still pass to his child(ren). She will retain a lifetime right of occupancy.

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