In Thomas v. Doolittle, an independent executor of the estate of an alleged husband appealed the sufficiency of the evidence to support the trial court’s order granting appellee’s petition for declaratory judgment, holding that she and the decedent were informally married. No. 03-23-00498-CV, 2024 Tex. App. LEXIS 7161 (Tex. App.—Austin October 4, 2024, no pet.). The court of appeals first addressed the standard for an informal marriage:

“An informal or common-law marriage exists in Texas if the parties (1) agree to be married, (2) live together in Texas as husband and wife after the agreement, and (3) represent to others that they are married.” All three elements must be satisfied concurrently for an informal marriage to exist. The circumstances of each case must be determined from the facts of that case.

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“To establish that the parties agreed to be husband and wife, it must be shown that they intended to create an immediate and permanent marriage relationship, not merely a temporary cohabitation that may be ended by either party.” Proof of an agreement to be married may be made by circumstantial evidence or conduct of the parties. “The testimony of one of the parties to the marriage constitutes some direct evidence that the parties agreed to be married.” Further, evidence of cohabitation and representations of marriage to others are circumstantial evidence of an agreement to be married.

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The second element of an informal marriage is that the parties live together in Texas as husband and wife after the agreement. “Cohabitation need not be continuous for a couple to enter into a common-law marriage.”

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To satisfy this element of informal marriage, “parties must, in Texas, have represented to others that they were married.” The statutory requirement of “represented to others” in subsection 2.401(a)(2) is synonymous with “holding out to the public.” “Whether the evidence is sufficient to establish that a couple held themselves out as husband and wife turns on whether the couple had a reputation in the community for being married.” Proving such a reputation “requires evidence that the couple ‘consistently conducted themselves as husband and wife in the public eye or that the community viewed them as married.'” The element of holding out requires more than occasional references to each other as “wife” and “husband.” However, representation may be proven “by conduct and actions of the parties. Spoken words are not necessary to establish representation as husband and wife.” An informal marriage can be “secret from some persons,” but both parties must represent themselves as married.

Id. (internal citation omitted).

Regarding the first element, the court noted that the appellee testified that she and the decedent agreed to be married in July 2012. “Her testimony is more than a scintilla of direct evidence that the two agreed to be married, and we conclude that evidence of an agreement was therefore legally sufficient.” Id. Additional evidence of an agreement also included testimony that the decedent bought a wedding ring; the couple’s approximately nine-year cohabitation and joint purchase of two homes; a warranty deed that referred to them as “husband and wife”; marital status affidavits swearing that they had been married since 2001; the commingling of their finances; the decedent providing for the appellee in his trust; decedent giving her medical power of attorney and designating her as successor trustee and successor executor; her serving as his primary end-of-life caregiver; and testimony from multiple witnesses that decedent referred to her as his wife.

Regarding cohabitation, the court held: “Having concluded above that there was sufficient evidence of an agreement to be married as early as 2011, however, we conclude that the uncontradicted evidence of their subsequent cohabitation until Thomas’s death was legally and factually sufficient to support the trial court’s finding that the second element of informal marriage was satisfied.” Id. Regarding the holding out element, the court held that the record contained ample evidence that the parties represented themselves as married. The appellee testified that they called each other husband and wife, and other witnesses testified to that as well. There was other evidence of the couple representing themselves as married via documents and other conduct. The court affirmed the trial court’s declaratory relief for the appellee.