Texas Courts Give Common Law Marriage Rights to Survivors in Same-Sex Marriages

September 23, 2016 Posted in Our Blog Share

When the U.S. Supreme Court ruled in favor of same-sex marriage in June 2015, it took a huge leap toward ensuring that committed gay couples can move forward with the same rights as traditional married couples. Still, Texas couples can continue to experience significant legal issues that apply to relationships formed before that date.

This Dallas common law attorney applauds the choices made by one Texas Probate Judge last year to extend reasonable inheritance rights to a woman who lost her partner prior to the change in the law. Still, this case probably does not set precedence for any future decisions that might arise under similar circumstances. Other same-sex couples can potentially continue to face similar legal questions.

The Definition of Informal Marriage is at the Heart of This Issue

Although the same-sex couple declared their marriage before a Buddhist Priest in 2008, it was about six years before same-sex marriages became legal in Texas. As reported by the Houston Chronicle, one of the partners died in 2014, which began a battle between her family and the survivor, who was seeking inheritance rights in accordance with the wishes of her partner.

The Probate judge who decided to extend the inheritance rights to the survivor made his decision by defining the relationship as an informal marriage (typically known as common law marriage in other areas of the U.S.). Under Chapter 2 of Texas Family Code, adult couples can potentially address certain legal issues by offering proof of an informal marriage that meets the following basic requirements:

• Providing a signed declaration of marriage
• Living together as spouses for at least two years
• Representing themselves as married to other individuals

As written, however, the law applies to a man and a woman. Unfortunately, the state legislature has no plans to examine gender-specific language within this and other laws until the 2017 legislative session.

When Laws Change, Timing Issues Can Raise Legal Concerns

This is one example of the potentially complex considerations that can arise based primarily on the calendar. While this case resulted in a successful mediated negotiation between the family and the survivor, it could easily have gone the other way. In fact, the state's Attorney General considered filing an appeal in this case.

Just five months after the Supreme Court decision, nearly 100,000 same-sex U.S. couples legally tied the knot. At this rate, it is clear that the legal issues of the past will likely evaporate within a relatively short time period. Nonetheless, many same-sex couples never had the chance to marry before significant life circumstances took hold and affected the basic rights that they have today.

Whether you experience challenges because you believe you have a right to common law divorce, or if you were in a committed relationship before the law changed, it is important to bring your questions to a knowledgeable attorney. Please feel free to contact us to schedule a consultation at your convenience for an assessment of strategies that can help determine the next steps you need to take.