When a marriage doesn’t work out, the couple that wishes to become “un-married” must undergo the legal process of divorce. When a legal separation and divorce can sever the legal ties that bind a couple, very often couples neglect to tidy up this loose end. In that case, says The Pasadena / San Gabriel Valley Journal’s article “Ties that Bind,” they are still married.

The couple may be married in name only, or even estranged from each other, but legally, they are still married.

Surprisingly, there are many instances where a person dies and after the funeral, when the estate is being settled, it is revealed that the couple was still married. The decedent may have separated from his or her spouse years ago, but they never got legally divorced.

Sometimes this is because neither party really wants to bring things to a conclusion. In other instances, they may not want to devote the time or resources to the divorce process, which can be both expensive and painful.

Many of us have also heard of cases where the couple was contemplating divorce, recognizing that the marriage was no longer working and one of the spouses died before the legal separation or divorce was obtained.

And in Texas, a common-law marriage state, things can get even more complicated.  Common law marriage, also known as marriage without formalities or informal marriage, is a valid and legal way for a couple to marry in Texas. Section 2.401 of the Texas Family Code states that a common law marriage may be proved by evidence that the couple:

  • agreed to be married”; and
  • after the agreement they lived together in this state as husband and wife”; and they
  • represented to others that they were married


Marriage is a key factor when it comes to inheritance rights.  And in Texas, the argument is often that, although the couple was never legally married, they were common-law married as per the terms of Section 2.401 of the Texas Family Code.

The law does not make a distinction between couples who been have separated for decades and those who are happy married.   Texas law does not make a distinction between a legal marriage and a common-law marriage.  The only question that matters in the eyes of the courts is what the deceased spouse’s status was on the day that she or he died. There are only three answers to that question:

  • Married
  • Divorced
  • Legally Separated (which is not recognized in Texas)

Unless a person has done estate planning and has a will and trusts, the spouse is entitled to receive a certain amount of their property. If the decedent lived in a state with community property, like Texas, the spouse may be entitled to receive some or all the community property and a portion of the separate property.

One of the first things a couple contemplating divorce should do immediately, is have their estate plan redone, especially in a community property state. This will allow them to make decisions about inheritance, just in case one of them dies before the proceedings are completed.

Marital status is also something that matters in the case of life and death decisions. If a person has a serious accident or becomes ill, a not-yet-divorced spouse may be the only person that the medical team will speak with. When divorce is on the horizon, part of estate plan concerning incapacity must also be addressed: an Advanced Care Directive, also known as a Living Will.

Unless you want your estranged spouse or someday-to-be ex-spouse making decisions and sharing property with you, sit down with an estate planning attorney to outline your wishes and make sure you are protected. It often takes years to complete a divorce, and many things can happen in the interim.

Reference: The Pasadena / San Gabriel Valley Journal (Aug. 7, 2019) “Ties that Bind”