Because of the important community property and separate property issues that come up in estate planning and probate, I often get asked “What is considered a common law marriage in Texas?” It’s a good and important question, especially since more people than ever are living together before marriage.

First of all, despite the prevalent myth to the contrary, merely living together for a certain amount of time does not by itself make a couple common law married. This goes for Texas as well as any other state that recognizes common law marriages.

In Texas, three elements must exist at the same time in order to establish a common law marriage.

1. Both parties must agree to be married.
2. The couple has to live together as husband and wife while in Texas, i.e. they act like spouses, not like roommates.
3. They represent to others that they are married.

As you can see, this is a fairly high burden of proof compared to just living together for X number of years. Because of this burden of proof, the following additional myths are not true:

Myth: If a couple is engaged and living together, then they are agreeing to be common law married.

Myth: If one person in the relationship is telling everyone that they are married but the other person isn’t, then they are still common law married.

Myth: If a couple agrees to get married in the future while living together, then they are common law married.

Myth: If a couple has kids together and the kids have the father’s last name, then they are common law married.

Myth: If a couple talks about being married but never told anyone, they are common law married.

So although common law marriages of course do exist, they are a lot less ‘common’ (pardon the pun) than most people think.