Does Texas Recognize Common Law Marriages for Same-Sex Couples?

 Posted on July 15, 2026 in Adoption

Texas is one of the few states that continues to recognize common law marriages, including for same-sex couples. Since the U.S. Supreme Court's 2015 decision in Obergefell v. Hodges, Texas has recognized the same marriage rights for same-sex couples as for opposite-sex couples.

If you and your partner have been living together as a couple in 2026 and want to know whether Texas considers you legally married, a Denton County, TX family law attorney can help.

What Requirements Must a Same-Sex Couple Meet for a Texas Common-Law Marriage?

Texas Family Code § 2.401 outlines two ways for a couple to establish a common-law marriage. They can sign and file a Declaration of Informal Marriage with the county clerk. Both people must sign.

If a declaration is not signed, a couple can meet certain criteria to prove their marriage. All must exist at the same time for the marriage to be valid.

The Couple Agreed to Be Married and Lived Together as Spouses

To establish an informal marriage without filing a declaration, the couple must satisfy the statutory requirements. The couple must live together in Texas and agree that the relationship is a marriage.

The Couple Represented to Others That They Were Married

The couple needs to conduct themselves as if they are a married couple. This is sometimes called "holding out." This could mean introducing each other as spouses, filing joint tax returns, listing each other on insurance or employment records, or signing leases or financial documents together.

Although the text of § 2.401 still uses the phrase "husband and wife," Texas courts apply the provision equally to same-sex couples.

Are There Challenges for Same-Sex Couples Who Want a Common-Law Marriage in Texas?

For many same-sex couples, the hardest element to prove may be the holding out. Couples who were together for years or even decades before same-sex marriage was legalized often kept their relationship private out of genuine safety concerns. Even now, some couples have concerns about how their family or friends will react to their relationship. Introducing a partner as a spouse may be difficult for this reason.

Evidence like private letters, shared financial accounts, mutual beneficiary designations, and testimony from close family or friends who were aware of the relationship can help prove the couple has acted as if they were married.

For these couples, filing a Declaration of Informal Marriage with the Denton County Clerk can be very valuable. A properly filed declaration creates "prima facie" evidence of the marriage. This means it's accepted as proof unless specifically challenged. The declaration also identifies the date the parties claim their informal marriage began, which can be important if the marriage is later questioned.

What Happens if a Texas Common Law Marriage Is Disputed After Separation?

If a couple separates and one party disputes that a common-law marriage ever existed, timing becomes very important. Texas Family Code § 2.401(b) allows for a two-year window for either party to establish the marriage within two years of separation. If no one files within that time, the court presumes no marriage ever existed. After that point, the law presumes no marriage existed. A person claiming there was an informal marriage must overcome that presumption with sufficient evidence.

This is especially important in disputes over property. A common-law marriage in Texas has the same property rights as a more formal marriage. This generally means that property acquired during the marriage is presumed to be community property and subject to division if the couple divorces. If a partner who owns significant property denies that the marriage existed after a separation and the other person doesn’t prove that the marriage existed, they may not get a fair division.

Call a Denton, TX Family Law Attorney Today

If you have questions about how to have your relationship legally recognized in Texas, contact our Denton County, TX family lawyers. We have over 30 years of combined experience practicing Texas family law. As a local mother-daughter team, we bring a personalized approach to every case. Our goal is always to keep cost-effectiveness for our clients in mind.

The Law Office of Linda Risinger offers free consultations. Call us at 972-294-6533 to schedule yours today.