19 Mar Common-law Marriage Proof Paramount in Inheritance, Divorce and Other Legal Rights
Although a common-law spouse has the same protections and rights as a traditional ceremonial marriage, proof is often required of marriage to be afforded such marital rights, protections and privileges under Texas law. Therefore, if the proof is precarious, the legal rights (ranging from inheritance, retirement, and community property rights to surrogate decision-making to even who is in charge of bodily remains after death) are in jeopardy. This makes estate planning particularly important for those who are common-law married. Living together for years does not mean a couple is married (although that was the law decades ago). However, cohabitation is one of the 3 requirements of common law marriage in Texas along with an agreement that you are married and holding yourselves out as a married couple.
Proof of a common-law marriage can be accomplished with evidence of the following:
- Both spouses stating they are married – If others testify that both spouses declared they are married to each other, this could be determinative evidence.
- Informal marriage declaration – Although this is rare, some couples sign an informal marriage declaration document that states they are common-law married. The document is filed with the county clerk, similar to a marriage certificate.
- Income reporting – If the federal income tax filing shows a couple is married, this would be evidence of marriage. The tax return should be joint.
- Living together as a married couple – Although many live together as a couple, it does not mean they are married. The couple must hold themselves out as married and live together. So, if the couple signs a lease and both have the same last name, this could be an indication of marriage. Joint utility bills could be helpful proof as well. If there are 2 leases, in two names, this would be proof that a couple is not married.
- Deeds and deeds of trust – If real estate is purchased, then if the deed states the couple is married, it could be evidence of marriage. Similarly, if there is a loan to purchase the property, if the deed of trust (which is the document that secures the payment) indicates the couple is married, this would also support the claim of marriage.
- Employer records – If an employer has health insurance, a 401(k) or gives a pension after retirement, or other benefits, these benefits often list if there is a spouse who could potentially benefit.
- Joint bank accounts – Joint bank accounts and credit cards could be evidentiary as to marriage.
- Life insurance, mortgage insurance, accidental death insurance, etc. – There are numerous types of insurance policies where a spouse could be listed as a beneficiary that could also be evidence of marriage.
- Celebration of marriage – If there is a party announcing marriage or the couples anniversary of marriage, this would be indicative of marriage.
- Wedding rings – If the couple tells or shows others they have a wedding band or ring representing their marriage as a couple, this would be proof of marriage.
Since common-law marriages require proof as to validity of the marriage, it is even more important that common-law married have some basic estate planning documents that could include, but are not limited to, the following:
1) Last Will and Testament or a Living Trust
If there is inadequate proof of a common-law marriage and there is no will or trust, the closest relative (and even children) may argue that they should inherit under Texas laws of intestate succession. Even if a spouse is disinherited under the will, there are certain protections such as the right to live in the deceased spouse’s homestead for the remainder of the surviving spouse’s life. A revocable living trust might even make it easier for the surviving spouse since the probate process is avoided. In addition, guardianship of the estate of the incompetent spouse could be avoided for assets held in the trust.
2) Financial Power of Attorney
If the spouse is named as an agent, then financial affairs of a disabled spouse could be handled (ranging from signing a lease or selling real estate to having access to the retirement account of the incompetent, disabled or incapacitated spouse). If there is no financial power of attorney, then closest family members could seek guardianship to say they should be in control of the assets instead of the alleged spouse.
3) Medical Power of Attorney
Would you prefer your “spouse” or your closest relative to make medical decisions as to your health if you are unable to do so? You could choose the person you want to make health care decisions for you instead of leaving it up to the court to decide. For those who do not have a medical power of attorney, sometimes there is surrogate decision-making authority based on the relationship with the disabled individual.
4) Declaration of Guardian in the Event of Later Incompetence or Need
Since guardianship supersedes powers of attorney, this document could give guidance to a judge as to whom you want to take care of you and your assets.
5) Directive to Physicians
This permits the doctor to discuss with the spouse about end of life. Do you want quality of life or quantity of life?
6) HIPPA
You may want your spouse to have access to your medical records (if you are incompetent or even after your passing). This is in response to the federal privacy laws.
7) Disposition of Bodily Remains
There could be disagreements ranging from where a funeral service is to be held to whether there is cremation or traditional burial (if arrangements have not already been made). If you have not taken care of your funeral, etc., this document will say who is in charge of this decision instead of going by Texas law.
Common-law marriages are seemingly more common than in the past. However, this could be a trap for the unwary due to the proof needed to substantiate the marriage.
If interested in learning more about this article or other estate planning, Medicaid and public benefits planning, probate, etc., attend one of our free upcoming Estate Planning Essentials workshops by clicking here or calling 214-720-0102. We make it simple to attend and it is without obligation.