Texas is one of the few U.S. states that still recognizes common law marriage, known in state law as an “informal marriage.” When it exists, it is just as legally valid as a ceremonial marriage with a license and wedding—but the rules for creating and proving it can be confusing. This guide explains what common law marriage in Texas is, the legal requirements, the rights it creates, how to prove or avoid it, and how it works in 2026.
Important: This article is for general information about Texas law only. It is not legal advice. Laws change, and how they apply depends on your specific facts. If you have questions about your situation, talk to a qualified Texas family law attorney.
What Is Common Law Marriage in Texas?
Under Texas law, common law marriage is called an “informal marriage.” It is a full, legally recognized marriage that may be created without a ceremony or license if specific legal requirements are met. Once established, it is treated exactly the same as a formal marriage for property, divorce, benefits and inheritance.
Featured Snippet Definition – Informal Marriage in One Paragraph
In Texas, a common law marriage (called an “informal marriage”) is a legally valid marriage that exists without a ceremony or license if three conditions are met: both partners agree to be married, they live together in Texas as spouses, and they represent to others that they are married, or they sign a Declaration of Informal Marriage with the county clerk.
Key points:
- There is no minimum number of years you must live together.
- Once established, an informal marriage has the same rights and obligations as a ceremonial marriage.
- It ends only by death or divorce, not just by “breaking up” or moving out.
Informal vs Ceremonial Marriage – Same Legal Status, Different Path
Texas recognizes two main paths to be legally married:
- Ceremonial (formal) marriage – Obtain a license, have a ceremony conducted by an authorized officiant, and file the license.
- Informal (common law) marriage – Either sign a Declaration of Informal Marriage or meet the three-part test by your conduct (agreement, cohabitation in Texas, and holding out as married).
The legal status of spouses is the same under Texas law once a marriage exists, regardless of which path you took.
Two Ways to Create an Informal Marriage in Texas
You can have a common law marriage in Texas in either of two ways:
- Declaration of Informal Marriage
- You and your partner sign a sworn Declaration of Informal Marriage at the county clerk’s office.
- The declaration is filed and becomes strong evidence that a valid marriage exists as of the date you specify.
- By Conduct (Three-Part Test)
Without signing any declaration, an informal marriage may exist if all three are true:- You agreed to be married;
- You lived together in Texas as spouses; and
- You represented to others that you were married (“held out” as married).
Courts decide based on the facts and evidence, not just what partners say later.
Key Facts Box – How Common Law Marriage Works in 2026
- Texas law on informal marriage is primarily in Family Code §2.401–2.405.
- No time requirement: cohabiting for any number of years doesn’t automatically create a marriage.
- Informal marriages carry community property, spousal support and inheritance implications once proven.
- A two-year presumption applies after separation: if no case is filed within two years, the court presumes there was no marriage, but this presumption can be rebutted.
- Same-sex couples can enter informal marriages on the same terms as opposite-sex couples.
Ways to Be Legally Married in Texas
| Path to marriage | Main steps | Primary proof |
|---|---|---|
| Ceremonial (formal) marriage | Get license → ceremony by authorized officiant → file license | Recorded marriage license / certificate |
| Informal marriage by declaration | Sign Declaration of Informal Marriage at county clerk → clerk records it | Recorded declaration |
| Informal marriage by conduct | Meet 3-part test (agreement, cohabitation, holding out) | Evidence such as statements, documents, acts |
Legal Requirements for an Informal (Common Law) Marriage in Texas
To have a valid informal marriage without a declaration, Texas law requires three core elements, plus basic capacity (age and not already married). All three elements must be present at the same time in Texas.
Agreement to Be Married – Present, Immediate Intent
The couple must have a present agreement to be married, not just an intention to marry in the future.
- “We plan to get married someday” is not enough.
- The law looks for an understanding that “we are married now”, even without a ceremony.
- The agreement can be explicit (discussed and acknowledged) or inferred from conduct and statements.
Courts will examine testimony, messages, and behavior to decide whether this agreement existed.
Living Together in Texas as Spouses
The couple must live together in Texas as spouses.
Key points:
- There is no specific time requirement—the law does not require 7 years or any other set period.
- Cohabitation must occur in Texas, not just in another state.
- Short stays or occasional nights together are usually not enough; it should resemble ordinary marital cohabitation.
Holding Yourselves Out as Married
The couple must “hold out” to others that they are married—essentially, they must represent themselves as spouses.
Examples that courts may view as holding out:
- Introducing each other as “husband,” “wife,” or “spouse”
- Using the same last name in social or legal contexts
- Listing each other as “spouse” on beneficiary forms, insurance, or medical records
- Filing joint tax returns or marking “married” on official documents
- Referring to each other as married on social media or in written communications
A private agreement without any outward representation usually does not satisfy this element.
Capacity Requirements – Age, Relationship and Being Legally Single
Even in an informal marriage, each person must be legally able to marry:
- Old enough under Texas law or with the required consents
- Not currently married to someone else
- Not closely related in a way that would invalidate a marriage
If a person lacks capacity (for example, already legally married to another), an informal marriage generally cannot be validly formed.
Requirements for Informal Marriage and Example Evidence
| Requirement | What it means | Examples of evidence |
|---|---|---|
| Agreement to be married | Present intent to be married now | Texts/emails, testimony, joint decisions, declarations |
| Cohabitation in Texas | Living together in Texas as spouses | Shared lease, utilities, mail, witness statements |
| Holding out as married | Representing yourselves as spouses to others | “Spouse” on forms, joint tax returns, introductions |
| Legal capacity | Old enough, single, not too closely related | Prior divorce decrees, no existing marriage records |
Myths vs Reality – What Common Law Marriage in Texas Is Not
Many Texans have heard “rules” about common law marriage that are simply wrong. Believing these myths can lead to serious property, support and inheritance surprises.
Myth 1 – “Seven Years of Living Together Makes You Married”
There is no “seven-year rule” (or any other set number of years) for common law marriage in Texas.
- You could live together 20 years and not be married if the legal elements are missing.
- You could potentially be married after a shorter time if all requirements are met.
The law cares about agreement + cohabitation + holding out, not years alone.
Myth 2 – “Living Together and Having Kids Is Enough”
Simply living together and even having children together does not automatically create a common law marriage.
You still need:
- Agreement to be married
- Cohabitation in Texas as spouses
- Holding yourselves out as married
Parents can share children and still be legally unmarried co-parents.
Myth 3 – “We Can Just ‘Common Law Divorce’ by Separating”
There is no such thing as a “common law divorce” in Texas.
- If a common law marriage exists, it generally must be ended by a formal divorce or by death, just like any other marriage.
- Separation alone does not unwind property rights or marital status.
Myth 4 – “Common Law Marriage Gives Fewer Rights”
Once an informal marriage is proven, spouses generally have the same rights and obligations as spouses in ceremonial marriages.
This includes:
- Community property rights
- Spousal maintenance (in cases where it is available)
- Inheritance rights as a surviving spouse
- Rights in divorce proceedings
Myths vs Reality About Texas Common Law Marriage
| Myth | Reality | Why it matters |
|---|---|---|
| “Seven years together makes you married” | No set time; elements must be proven | Prevents false assumptions about status |
| “Living together and having kids is enough” | Still need agreement, cohabitation as spouses, holding out | Affects property, benefits, and parental planning |
| “We can just ‘common law divorce’ by splitting up” | Legal divorce usually required to end the marriage | Property and debt issues continue without a decree |
| “Common law spouses have fewer rights than ‘real’ spouses” | Rights are generally the same once marriage is proven | Impacts expectations about support and inheritance |
Rights & Obligations in a Texas Common Law Marriage
If an informal marriage exists, Texas treats it like any other marriage. This affects property, debts, support, inheritance and decision-making.
Property Rights – Community vs Separate Property
Texas is a community property state. These basic rules apply to both formal and informal marriages:
- Community property: Most property acquired by either spouse during marriage (with exceptions) is presumed to belong to both spouses.
- Separate property: Property owned before marriage, plus certain gifts, inheritances or personal injury compensation.
In a divorce or death, whether you were informally married affects how assets and debts are divided.
Spousal Support and Divorce Rights
Informal spouses have the same divorce rights and responsibilities as spouses in ceremonial marriages.
- Texas allows both no-fault and certain fault-based grounds for divorce.
- Spousal maintenance (support) is available only when statutory requirements are met, regardless of how the marriage was formed.
If a court finds there was an informal marriage, a divorce case can proceed like any other.
Inheritance and Estate Rights for Common Law Spouses
If a spouse dies without a will, Texas intestacy laws give a surviving spouse specific rights in community and separate property. These rights can be very different from the rights of an unmarried partner.
Recognizing or proving an informal marriage can determine:
- Who inherits which share of property
- Whether the surviving partner has homestead or other protections
Benefits, Insurance and Legal Decision-Making
Being recognized as a spouse may also affect:
- Eligibility for employer benefits (health insurance, pensions)
- Social Security or other federal benefits (subject to federal rules)
- The right to make certain medical decisions as a spouse
- Spousal testimonial privileges in some court proceedings
Different programs and agencies apply their own rules when determining if a marriage is valid for benefit purposes.
Responsibilities – Debts, Child Support and Tax Consequences
With marital rights come responsibilities:
- Certain debts incurred during marriage may affect both spouses under community property principles.
- Parents remain responsible for child support and custody issues, whether or not there is a marriage.
- Couples treated as married may face tax filing implications (for example, joint vs separate returns, and how the IRS views your status).
Married (Including Informal) vs Unmarried Partners: Key Legal Differences
| Area | Common law / ceremonial spouse | Unmarried partner |
|---|---|---|
| Property during relationship | Community property system may apply | Each generally owns property in their own name |
| Property on breakup | Divided through divorce rules | No automatic right to division; may need contracts |
| Inheritance (no will) | Statutory rights as surviving spouse | No automatic share; may receive nothing by default |
| Spousal support | Possible if statutory conditions are met | No “spousal” support, though child support may apply |
| Benefits & insurance | May qualify for spousal benefits (program-specific) | Usually treated as non-spouse |
| Medical decisions | Often recognized as next of kin | Limited authority unless designated |
Proving a Common Law Marriage in Texas
If everyone agrees you are married, there may be no dispute. Problems arise when one partner denies the marriage or when rights are contested in divorce, estate or benefits cases.
The Legal Standard – Preponderance of the Evidence
To prove an informal marriage in Texas, the person claiming the marriage must show the elements are met by a “preponderance of the evidence”—meaning it is more likely than not that an informal marriage existed.
Typical Evidence Used to Show Agreement, Cohabitation and Holding Out
Courts may consider a wide range of evidence, such as:
- Testimony from the parties and witnesses
- Joint bank accounts, leases, mortgage documents
- Beneficiary forms listing each other as “spouse”
- Joint tax returns filed as “married”
- Social media posts referring to “husband,” “wife,” or “spouse”
- Mail or bills addressed to “Mr. and Mrs.” at the same address
No single piece of evidence is always decisive; courts look at the overall picture.
How a Declaration of Informal Marriage Works as Proof
A Declaration of Informal Marriage filed with the county clerk is strong evidence that an informal marriage exists as of the date stated on the declaration.
- It functions somewhat like a marriage certificate for an informal marriage.
- It can simplify proof in disputes over property, benefits or inheritance.
However, it also makes it harder for either partner to later argue that there was no marriage.
The Two-Year Presumption After Separation and Why Timing Matters
Texas law includes a two-year presumption relating to informal marriages:
- If a couple separates and no legal action to prove the informal marriage is filed within two years, the law presumes the parties did not agree to be married.
- This is a rebuttable presumption—it can be overcome with sufficient evidence, but it makes the case harder.
Waiting too long to address your status after separation can therefore affect your ability to establish that a marriage existed.
Elements of Informal Marriage and Common Proof Examples
| Element | Typical evidence | Notes |
|---|---|---|
| Agreement to be married | Testimony, written statements, messages | Court looks for present marital intent |
| Cohabitation in Texas | Leases, utility bills, mail at same address | Must occur in Texas, not only another state |
| Holding out as married | Joint tax returns, “spouse” on forms, social media | Private belief alone usually not enough |
| Declaration (if any) | Recorded Declaration of Informal Marriage | Very strong evidence of marriage as of stated date |
Should You File a Declaration of Informal Marriage?
Couples who consider themselves married but don’t want a formal ceremony can choose to formalize their status using a Declaration of Informal Marriage. Whether this is wise depends on your goals and circumstances.
What the Declaration Is and How to File It
A Declaration of Informal Marriage is a sworn form available from the county clerk that:
- Confirms you meet the legal requirements for an informal marriage
- Includes a date on which the marriage began (or is deemed to begin)
- Is signed under oath and recorded
Once filed, it serves as official documentation of your marriage.
Advantages – Clarity, Easier Proof, Benefit Eligibility
Potential benefits of filing a declaration:
- Clear, documented evidence of marital status
- Makes property and inheritance rights more predictable
- May help with benefit programs or employers that require proof of marriage
- Reduces the risk of later disputes where one partner denies the marriage
Possible Downsides – Commitment, Property & Support Consequences
Possible drawbacks:
- Once you are married (by declaration or otherwise), community property and divorce rules apply, which may affect assets and debts.
- Ending the relationship usually requires a divorce, which can be complex or costly.
- Filing a declaration when you’re uncertain may create legal obligations you did not fully consider.
Because of these consequences, many couples discuss the decision with a family law attorney before filing.
Pros and Cons of a Declaration of Informal Marriage
| Aspect | Pros | Possible drawbacks / cautions |
|---|---|---|
| Proof of marriage | Strong, simple documentation | Harder for either partner to later deny marriage |
| Property & inheritance | Clarifies spousal rights | Triggers community property and spousal rights |
| Benefits eligibility | May facilitate spousal benefits | Can affect benefit planning and tax situations |
| Commitment level | Recognizes relationship as legal marriage | Requires divorce to end, not just separation |
Same-Sex Common Law Marriage in Texas (2026)
Following federal decisions and updated state practice, same-sex couples can enter into informal marriages in Texas on the same terms as opposite-sex couples.
How Federal Law Affects Informal Marriages
After the U.S. Supreme Court’s decision recognizing same-sex marriage rights, Texas must treat same-sex and opposite-sex marriages equally, including informal marriages.
- Same-sex couples can meet the same three-part test or file a declaration.
- Courts and agencies generally recognize valid informal marriages for purposes of state rights and some federal benefits (subject to specific program rules).
Requirements Are the Same – Agreement, Cohabitation and Holding Out
There are no special additional elements for same-sex couples:
- Agreement to be married
- Cohabitation in Texas as spouses
- Holding out as married
Evidence and disputes are analyzed under the same standards used for opposite-sex couples.
Backdating Marriage Dates and Property / Benefit Implications
In some cases, courts may consider whether a same-sex couple could have been informally married before statewide recognition, depending on how federal and state rulings interact. This can affect:
- Property characterization (what is community vs separate)
- Eligibility periods for certain benefits or claims
These issues are fact-specific and often require legal advice.
Special Considerations for Estate Planning and Benefits
Because the existence and start date of an informal marriage can affect inheritance, taxes and benefits, same-sex couples often benefit from:
- Written estate plans (wills, beneficiary designations, powers of attorney)
- Clarity on whether—and from when—they consider themselves married
- Professional advice on how state and federal rules apply to their situation
Ending a Common Law Marriage – Divorce, Separation and the Two-Year Rule
There is no separate “common law divorce” in Texas. If an informal marriage exists, it usually must be ended by a regular divorce, or by death.
No Common Law Divorce – You Still Need a Court Decree
To legally end a valid informal marriage:
- One spouse typically files a petition for divorce in a Texas court.
- The court can divide community property and debts, determine spousal maintenance when applicable, and address child-related issues.
Simply moving out or labeling yourselves “separated” does not dissolve the legal marriage.
How Property and Debts Are Divided in a Common Law Divorce
Property division follows the same community property rules used in other Texas divorces.
Key questions include:
- When did the marriage legally begin?
- What assets and debts were acquired during the marriage?
- Are there any marital property agreements (such as pre- or post-marital agreements)?
Disputes often arise over the start date of the informal marriage, which can significantly change the property picture.
The Two-Year Presumption After Separation Explained
Texas law creates a rebuttable presumption about informal marriages:
- If the parties separate and no proceeding to prove the informal marriage is filed within two years, the law presumes the parties did not agree to be married.
- This presumption can be overcome, but it puts extra weight on the person claiming the marriage to bring strong evidence.
Two-Year Presumption Scenarios and Possible Outcomes
| Scenario | Within 2 years? | Possible legal effect |
|---|---|---|
| Partner files suit to prove informal marriage 1 year after separation | Yes | No presumption; court evaluates elements normally |
| Partner files 3 years after separation | No | Court applies presumption against marriage; must be rebutted |
| No one files at all | N/A | Practical difficulty later proving marriage existed |
Because of this rule, it is generally wise to seek legal advice promptly after separation if you believe you were informally married.
How to Avoid an Unintended Common Law Marriage in Texas
Some couples want to live together but not be married. To reduce the risk of accidentally creating an informal marriage, it is important to understand what courts look at and to be clear about your intentions.
Living Together vs Being Married Under Texas Law
Cohabitation by itself does not create a marriage, even after many years. However, cohabitation combined with agreement and holding out can support a finding of informal marriage.
Behaviors That Can Be Used as “Holding Out” Evidence
If you intend not to be married, be cautious about behaviors that look like “holding out”:
- Calling each other “husband,” “wife,” or “spouse” in official contexts
- Listing each other as “spouse” on benefits, insurance or medical forms
- Filing tax returns as “married”
- Signing legal documents that describe your partner as your spouse
These actions can later be used as evidence that you considered yourselves married.
Using Cohabitation Agreements and Clear Language
Some couples use cohabitation agreements to clarify that:
- They do not intend to be married;
- Property and debts will be handled in specified ways if they separate;
- They will not hold themselves out as spouses.
While not a guarantee, such agreements can help show the couple’s intent if disputes arise.
Checklist – Steps if You Intend to Stay Unmarried While Cohabiting
Practical steps may include:
- Avoid describing each other as spouses in official documents
- Clarify relationship status as “partner” or “significant other,” not “husband/wife,” when accuracy matters
- Consider a written cohabitation agreement drafted or reviewed by a lawyer
- Keep in mind that having children does not automatically marry you, but it does create long-term legal responsibilities
Checklist to Avoid an Unintended Informal Marriage
| Action / choice | Effect | Risk level for creating informal marriage |
|---|---|---|
| Simply living together | Cohabitation only | Low by itself |
| Calling each other “spouse” socially | Some evidence of holding out | Moderate |
| Listing partner as “spouse” on legal forms | Strong evidence of holding out | Higher |
| Filing taxes as “married” | Very strong evidence of marital status | High |
| Signing a cohabitation agreement stating no marriage | Shows intent not to be married | Helps reduce but does not entirely eliminate risk |
FAQs – Common Law Marriage in Texas (Quick Answers)
How many years do you have to live together to be common law married in Texas?
There is no minimum number of years. Texas law does not create a common law marriage based solely on time. Instead, you must show (1) agreement to be married, (2) cohabitation in Texas as spouses and (3) holding yourselves out to others as married.
What are the exact requirements for common law marriage in Texas?
To establish an informal marriage without a declaration, you must prove that you and your partner:
- Agreed to be married;
- Lived together in Texas as spouses; and
- Represented to others that you were married.
These requirements are set out in the Texas Family Code provisions on informal marriage.
Do common law spouses have the same rights as married couples?
Yes. Once an informal marriage is proven, spouses generally have the same legal rights and obligations as those in ceremonial marriages, including community property rights, divorce rights, and certain inheritance and benefit rights.
How do you prove common law marriage if your partner denies it?
You must show the elements of an informal marriage by a preponderance of the evidence. Courts may look at joint accounts, tax returns, leases, beneficiary forms, social media, and witness testimony to determine whether there was agreement, cohabitation and holding out. A Declaration of Informal Marriage, if signed, is strong proof.
Is there a deadline to file for divorce from a common law spouse?
There is no special “expiration date” for divorcing, but there is a two-year presumption that applies to proving an informal marriage. If you separate and no case to prove the marriage is filed within two years, the law presumes you did not agree to be married—though this can sometimes be overcome with evidence.
Can same-sex couples have a common law marriage in Texas?
Yes. Same-sex couples can enter into informal marriages in Texas if they meet the same legal requirements as opposite-sex couples. Once established, the marriage is recognized for state law purposes, and often for federal benefits, subject to each program’s rules.
Should we talk to a lawyer before assuming we are (or aren’t) common law married?
Because informal marriage affects property, debts, support, taxes and inheritance, it is usually wise to consult a Texas family law attorney if there is any doubt about your status or if a dispute is likely. General information cannot replace advice tailored to your specific facts.
Conclusion – How Common Law Marriage in Texas Works in 2026
In 2026, common law (informal) marriage in Texas remains a powerful but often misunderstood legal status. There is no magic number of years that automatically makes you married. Instead, Texas law focuses on agreement, cohabitation in Texas and holding out as married, or on a signed Declaration of Informal Marriage.
Once established, an informal marriage carries all the weight of any other marriage—for community property, support, inheritance and benefits. Failing to understand this can lead to costly disputes during separation, death or financial disagreement.
Whether you want to establish your marriage clearly, protect your rights in a breakup or estate, or avoid unintended marriage while cohabiting, the most reliable step is to speak with a qualified Texas attorney who can analyze your situation and help you choose the right path.
References
This guide is based on Texas statutes, legal commentary and practice-oriented resources available through 2024–2025, including:
- Texas Family Code provisions addressing informal (common law) marriage, declarations and proof requirements.
- Texas legal aid, bar association and law firm explainer materials discussing requirements, myths, the two-year presumption and evidentiary issues in informal marriage cases.
- Practice resources on community property, divorce, estate planning and benefits for married and informal spouses in Texas.
Because law and interpretations can change, always verify current rules and seek personalized legal advice for your specific circumstances.
