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Common law marriage and now spouse is deceased

Highlands, TX |

can i be made to move if i was in common law marriage for seven years and now spouse is deceased and i have a stepson who is 20 and there is a will that says he gets everything

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Attorney answers 4


First you may want to verify that your "informal marriage" is valid. Then you are entitled to your share of community property. If you did not register at the courthouse, you may need to first prove that you were married by this statute.

Texas: calls it an "informal marriage," rather than a common-law marriage. Under § 2.401 of the Texas Family Code, an informal marriage can be established either by declaration (registering at the county courthouse without having a ceremony), or by meeting a three-prong test showing evidence of (1) an agreement to be married; (2) cohabitation in Texas; and (3) representation to others that the parties are married. A 1995 update adds an evidentiary presumption that there was no marriage if no suit for proof of marriage is filed within two years of the date the parties separated and ceased living together.

Every legal matter is fact specific, and there are often nuances in every case. This is intended for comment only, and does not create an attorney client relationship.


You should hire an attorney that handles probate matters immediately. Under the Texas constitution, the surviving spouse is entitled to a "life estate" in the homestead until the spouse abandons the property. The surviving spouse also has an interest in the couple's other community property. The details of your situation should be discussed with an attorney. Good luck.


Consult with an attorney, licensed in your jurisdiction, who is experienced in this area of law. Many lawyers, in a majority of jurisdictions, provide free initial consultations; see if there are any in your area.

This is not legal advice. This response is provided for general information only, as a public service. It is not to be relied upon as legal advice and does not create an attorney/client relationship; nor is it an attempt to create an attorney/client relationship. Consult with local counsel in your jurisdiction about the specifics of your case, which is the only way to gain true meaningful legal guidance and/or representation.


Are you in Texas? If so, the first question is whether or not the courts will recognize you as common law spouse. There are specific criteria that must be met/proven.
This question is very important because a widowed spouse has a right to remain in the homestead until he/she leaves or dies regardless of any will. However, a long-time boyfriend/girlfriend does not have that right.
You need to speak with an attorney make sure what your rights are and that any rights you have are protected. If you would like to contact our office, I can be reached at or by phone during business hours at 855-945-5750.

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