What’s the Difference Between Common Law and Marriage in Texas? Why Legal Status Matters
Common law marriage in Texas IS a legally valid form of marriage that carries identical legal rights and protections as ceremonial marriage. Both are recognized under Texas Family Code § 2.401, and the key difference is procedural—ceremonial marriage requires a license and ceremony, while common law marriage requires meeting three statutory elements without formal documentation. Understanding this distinction is crucial for protecting your legal rights to property, benefits, and spousal protections.
How Common Law Marriage Differs from Ceremonial Marriage in Texas
The primary difference between common law marriage and ceremonial marriage in Texas lies not in legal validity, but in how the marriage is established. Both result in legally binding marriages with identical consequences under Texas law.
What Is Ceremonial Marriage in Texas?
Ceremonial marriage, also called formal or traditional marriage, requires specific procedural steps before the state recognizes your union. You must obtain a marriage license from a county clerk’s office, which involves providing identification, paying a fee, and meeting eligibility requirements like being at least 18 years old and not currently married to someone else.
The ceremony must be conducted by an authorized officiant—a religious leader, judge, justice of the peace, or other person authorized under Texas Family Code § 2.202. The ceremony can be large or small, religious or secular, but it must occur within 90 days of obtaining the marriage license. After the ceremony, the officiant returns the completed marriage license to the county clerk, creating an official public record of your marriage.
What Is Common Law Marriage Under Texas Law?
Common law marriage, legally called informal marriage in Texas, creates a valid marriage without a license or ceremony. Instead, you establish the marriage by meeting three statutory requirements simultaneously under Texas Family Code § 2.401: you must agree to be married, live together in Texas as husband and wife, and represent yourselves to others as a married couple.
The agreement to be married means both partners intend to enter an immediate, present, and permanent marital relationship—not a future engagement or casual understanding. Cohabitation means living together in the same household as spouses would. Holding out as married means publicly representing yourselves as a married couple through actions like introducing each other as spouse, filing joint tax returns, using the same last name, or listing each other as married on insurance policies.
Why Both Types of Marriage Have Equal Legal Status
Once established, both ceremonial and common law marriages carry identical legal weight in Texas. Common law spouses have the same rights to property division under community property law, spousal support eligibility, inheritance rights, healthcare decision-making authority, Social Security benefits, tax filing status, and all other spousal protections as ceremonially married couples.
Texas courts enforce these rights identically regardless of how the marriage was formed. If you divorce from a common law marriage, you go through the same formal divorce proceedings, property division under Texas community property laws, and spousal support considerations as ceremonially married couples.
Legal Rights and Protections for Common Law Spouses in Texas
Understanding that common law marriage is legally valid helps you protect your rights. Once the three statutory requirements are met, you’re entitled to comprehensive spousal protections under Texas law.
Property Rights and Community Property Division
Texas is a community property state, meaning all property acquired during your marriage—whether common law or ceremonial—belongs equally to both spouses. This includes income earned by either spouse, real estate purchases, vehicles, bank accounts, retirement funds, and investment portfolios acquired during the marriage.
Related Article: Did Texas Get Rid of Common Law Marriage? Why the Rumors Persist and What the Law Actually Says
If you separate from a common law spouse, you cannot simply walk away. You must file for divorce and divide community property through formal legal proceedings. The court divides assets and debts accumulated during the marriage equitably, typically on a 50/50 basis, regardless of whose name appears on titles or who earned the income.
Spousal Support and Maintenance Entitlements
Common law spouses are entitled to spousal support on the same basis as ceremonially married spouses. Texas courts consider factors including the length of your marriage, your earning capacity, whether you have sufficient property to meet your needs, and your contributions to the marriage when determining maintenance eligibility and amounts.
There’s no minimum marriage duration requirement specific to common law marriages. Courts evaluate all marriages—formal or informal—using the same statutory factors under Texas Family Code § 8.051.
Inheritance Rights and Estate Protections
If your common law spouse dies without a will, you have inheritance rights under Texas intestate succession laws. You inherit all community property and a portion of your spouse’s separate property depending on whether they had children or other surviving relatives.
You’re also entitled to Social Security survivor benefits, pension benefits, life insurance proceeds if named as beneficiary, and the right to continue living in the marital home under Texas homestead protections. These rights mirror those of ceremonially married widows and widowers.
What Happens to Common Law Marriages in Divorce and Death
The absence of a ceremony doesn’t mean you can simply end a common law marriage by separating. Texas law treats the dissolution of common law marriages identically to ceremonial marriages.
Divorcing from a Common Law Marriage in Texas
To end a common law marriage, you must file for divorce through the Texas family court system. There’s no such thing as a “common law divorce”—once legally married, you need formal legal proceedings to dissolve the marriage regardless of how it was formed.
However, there’s an additional step for common law marriages: the party seeking the divorce must first prove that a valid common law marriage existed. This means gathering evidence to satisfy all three statutory requirements before the court can proceed with dividing assets or addressing support.
Texas law creates a presumption that no common law marriage existed if two years pass after you separate and neither party has filed anything to prove the marriage. This makes it significantly harder to establish the marriage in court if you wait too long after separation.
Death of a Common Law Spouse
When a common law spouse dies, the surviving spouse has the same legal protections as a ceremonially married widow or widower. This includes inheritance rights, Social Security survivor benefits starting as early as age 60, and the right to remain in the family home under homestead protections.
However, you must be able to prove the common law marriage existed. If family members or estate beneficiaries challenge your status, you’ll need evidence showing you met all three statutory requirements. This is why documenting your common law marriage is crucial.
Common Misconceptions About Common Law Marriage Validity in Texas
Many myths persist about the legal validity of common law marriage. Understanding the truth protects your rights and helps you make informed decisions about your relationship.
“Common Law Marriage Isn’t a ‘Real’ Marriage”
This is false. Texas law treats common law marriages as fully valid and legally equivalent to ceremonial marriages. Once the three statutory requirements are met, a common law marriage has identical legal consequences, including property rights, spousal support eligibility, inheritance protections, and federal benefit recognition.
The method of marriage formation doesn’t affect legal validity. Whether you walked down an aisle or simply met the three statutory elements, you’re equally married under Texas law.
“You Need to Live Together for Seven Years to Be Common Law Married”
Texas law imposes no minimum time requirement for establishing a common law marriage. You could live together for decades without creating a common law marriage, or establish one within months if all three statutory elements are met simultaneously.
The “seven-year rule” is a persistent myth with no basis in Texas law. Courts evaluate whether you agreed to be married, cohabitated as spouses, and held yourselves out as married—not how long you’ve been together.
“Common Law Spouses Have Fewer Rights Than Ceremonially Married Spouses”
Common law spouses have identical legal rights to ceremonially married spouses under Texas law. This includes equal property division rights in divorce, spousal support eligibility based on the same statutory factors, inheritance rights upon death, Social Security benefits, healthcare decision-making authority, and tax filing status as married.
The only difference is the burden of proof—you must be able to establish that the common law marriage existed by proving all three statutory requirements. Once proven, your rights are identical.
“You Don’t Need a Divorce to End a Common Law Marriage”
To terminate a common law marriage, you must file for divorce through the Texas family court system. Simply separating and considering the relationship over doesn’t legally end your marriage. Without a formal divorce, you remain legally married, which could affect your ability to remarry and create complications with property rights and benefits.
How to Protect Your Legal Status in a Common Law Relationship
If you’re in a common law relationship or believe you may have established a common law marriage, taking proactive steps protects your legal rights and clarifies your status.
Document Evidence of Your Common Law Marriage
File a Declaration of Informal Marriage with your county clerk’s office. This official form creates a public record of your marriage and serves as strong evidence if your status is later questioned. Both partners must sign under oath that you meet all three statutory requirements.
Keep records of joint tax returns filed as married, lease agreements or mortgage documents showing you lived together as spouses, joint bank accounts and credit cards, insurance policies listing each other as spouse or beneficiary, and testimony from friends and family who can confirm you represented yourselves as married.
Understand Your Rights and Seek Legal Guidance
Familiarize yourself with Texas Family Code § 2.401 and how courts evaluate common law marriage claims. If you’re separating from a common law spouse, consult a family law attorney to understand your rights to property division and spousal support under Texas community property law.
Don’t wait if you’ve separated. The two-year window for proving the marriage starts from your separation date. After that period passes, Texas law presumes the marriage never existed, making your claim much harder to establish.
If your common law marriage status is questioned or disputed, gather evidence and consult an attorney to establish the marriage through legal proceedings. This is particularly important if you need to claim inheritance rights, Social Security benefits, or divorce-related protections.
Frequently Asked Questions
What’s the main difference between common law marriage and ceremonial marriage in Texas?
The primary difference is procedural, not legal validity. Ceremonial marriage requires obtaining a marriage license and having a ceremony performed by an authorized officiant. Common law marriage requires no license or ceremony—instead, you must meet three statutory requirements: agreeing to be married, living together as spouses, and representing yourselves to others as married. Both result in legally valid marriages with identical rights and protections under Texas law.
Are the legal rights the same for common law spouses and ceremonially married spouses in Texas?
Yes. Common law spouses have identical legal rights to ceremonially married spouses, including equal property division under community property law, spousal support eligibility, inheritance rights, Social Security benefits, healthcare decision-making authority, and tax filing status as married. The only difference is that common law spouses must prove their marriage exists by demonstrating all three statutory requirements were met.
Do I need a marriage license to be legally married in Texas?
Not necessarily. While a marriage license is required for ceremonial marriage, common law marriage is established without a license by meeting the three statutory requirements under Texas Family Code § 2.401. Both types of marriage are legally valid and carry identical legal consequences once established.
How do I prove a common law marriage in Texas?
You must present evidence showing all three statutory requirements were met: agreement to be married, cohabitation in Texas as spouses, and representation to others as a married couple. Strong evidence includes joint tax returns filed as married, lease agreements showing you lived together, joint bank accounts, insurance policies listing each other as spouse, testimony from friends and family, and a filed Declaration of Informal Marriage with your county clerk.
Can I just separate from a common law spouse without getting divorced?
No. To legally end a common law marriage in Texas, you must file for divorce through the family court system. Simply separating doesn’t terminate your legal marriage. Without a formal divorce, you remain legally married, which could affect your ability to remarry and create complications with property rights and benefits.
Does Texas still recognize common law marriage in 2026?
Yes. Texas continues to recognize common law marriage as a valid form of marriage under Texas Family Code § 2.401. As long as you meet the three statutory requirements—agreement to be married, cohabitation as spouses, and holding out as married—your common law marriage is legally valid and carries the same rights and protections as a ceremonial marriage.
Last Updated: January 26, 2026
Disclaimer: This article provides general information about common law marriage and ceremonial marriage in Texas and is not legal advice for your specific situation.
Take Action: If you have questions about whether you’re in a common law marriage, need to establish or dissolve one, or want to protect your legal rights, consult a Texas family law attorney who can evaluate your specific circumstances and provide guidance tailored to your situation.
Stay informed, stay protected. — AllAboutLawyer.com
Sources:
- Texas Family Code § 2.401 (Requirements for Informal Marriage)
- Texas Family Code § 2.202 (Persons Authorized to Conduct Marriage Ceremony)
- Texas Family Code § 8.051 (Spousal Maintenance Eligibility)
- Texas Family Code § 3.002 (Community Property in Texas)
- Texas State Law Library, Common Law Marriage Guide
- Russell v. Russell, 865 S.W.2d 929 (Tex. 1993)
- Obergefell v. Hodges, 576 U.S. 644 (2015)
About the Author
Sarah Klein, JD, is a former family law attorney with over a decade of courtroom and mediation experience. She has represented clients in divorce, custody cases, adoption, Alimony, and domestic violence cases across multiple U.S. jurisdictions.
At All About Lawyer, Sarah now uses her deep legal background to create easy-to-understand guides that help families navigate the legal system with clarity and confidence.
Every article is based on her real-world legal experience and reviewed to reflect current laws.
Read more about Sarah