Does Obergefell apply to determine whether a common law marriage exists?
In re Estate of Whetstone, (Dallas 2019) (No. 05-18-00165-CV)
Facts: In this heirship proceeding, the applicant asserted that she and decedent (also a woman) were married by common law. Decedent's sister asserted that there was no common law marriage, and the trial court agreed that there was no marriage. Applicant appealed.
Result: The court of appeals affirmed. Applicant argues she established all elements of an informal marriage, including (1) she and decedent agreed to be married; (2) after the agreement, they lived together in Texas as spouses; and (3) they represented to others that they were married. The court cited Obergefell in determining whether a common law marriage existed. Obergefell v. Hodges, 135 S. Ct. 2584, 2607-08, 192 L. Ed. 2d 609 (2015) (same-sex couples have fundamental right to marry in all states). In this case, the evidence was conflicting as to whether an informal marriage existed. There was evidence that Applicant was in and out of rehab for alcohol issues, that she did not consistently live with decedent, and that they did not have a reputation as being married in the community. The trial court was within its discretion to resolve this conflicting evidence and find that a marriage did not exist.