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    Judge Issues Ruling Recognizing Gay Common-Law Marriage in Texas

    Judge Issues Ruling Recognizing Gay Common-Law Marriage in Texas

    Court finds gay couple were in a common-law marriage, even before Obergefell ruling was issued.

    When the U.S. Supreme Court ruled that there was a right under the Fourteenth Amendment to gay marriage in Obergefell v. Hodges, this meant that the marriage laws in each of the states had to be interpreted without discriminating against same-sex couples.

    As I wrote here last month, “[f]or gay couples living in a state that allows common-law marriage, especially those states that did not allow gay marriage prior to the Obergefell decision, they may find themselves meeting their state’s definition of a common-law marriage.”

    Now, this has become a reality. A judge in Texas has issued a ruling recognizing a same-sex common-law marriage.


    Key issue: Did the couple hold themselves out to the public as married?


    In most cases where the court is attempting to determine if a common-law marriage exists, the key legal inquiry is whether the couple had held themselves out to the public as married. With many gay couples having wedding celebrations even before their states legally recognized them, and calling each other “husband and husband” or “wife and wife,” that certainly seems likely to meet the standard to establish a common-law marriage.

    That was the reasoning used by Travis County Probate Judge Guy Herman earlier this week, finding that two Austin women were in a common-law marriage. As the Austin American-Statesman reported, Stella Powell and Sonemaly Phrasavath began dating in 2006. In 2008, they had a wedding ceremony performed by a Zen Buddhist priest even though Texas did not recognize gay marriage at that time. Powell and Phrasavath also “lived openly as spouses in a Northwest Austin home,” according to the Statesman, until Powell passed away from cancer in 2014.

    During Powell’s battle with cancer, the couple had begun drawing up a will that spelled out Powell’s wishes, but she died before the forms were properly signed and notarized. A battle between Phrasavath and Powell’s relatives then ensued, with the family arguing that since Texas did not recognize same-sex marriages, Phrasavath had no right to Powell’s estate


    But what about the timing?

    Texas Attorney General Ken Paxton filed a motion to intervene in the case, saying that the Supreme Court’s ruling in Obergefell did not apply because Powell had passed away before that ruling was issued.

    “Phrasavath asks the court to reach back in time and declare that a relationship that at all points of existence could not have been a valid marriage under Texas law is now — over a year after the death of one spouse — a valid informal marriage under Texas law,” said Paxton in the motion filed by his office. “The court should not rewind history and supplant statutory requirements to establish as valid what state law at the time foreclosed as invalid.”

    In my original article on this story, one of the family law attorneys I interviewed for background theorized that courts would use the date of the Obergefell decision as the date to start ticking the clock for determining the existence of common-law marriages, as Paxton had argued.


    Judge’s ruling: Obergefell was not a time barrier.

    However, Judge Herman disagreed, and did not treat Obergefell as a time barrier, ruling that there had in fact been a valid common-law marriage between the two women. Accordingly, Phrasavath was entitled to inherit part of Powell’s estate under the Texas law allowing a spouse to automatically inherit where there is no valid will.

    Phrasavath’s attorney, Brian Thompson, told the Statesman that their goal for the case was to have his client and Powell “treated like any other couple” under the law. “And now we know that other same-sex couples are going to be treated equally, not just in Travis County but now I think we have precedent for the state of Texas.”

    Paxton’s office is considering filing an appeal, and of course Powell’s family could appeal as well. But for now, we have a case on the books that states that same-sex couples, at least in Texas, can be found to have established common-law marriages even before the Obergefell opinion was issued.


    Gay or straight, put it in writing.

    This all comes back to the advice from the attorneys I shared before: if the romantic relationship has not yet been formalized by a legal marriage recognized by the couple’s state of residence, then find an attorney to formalize it in a written agreement.

    “I’d give the same advice [to gay couples] I’d give straight couples,” said Trabin. “It is always a good idea to have something in writing, about the respective rights and responsibilities, and financial implications, if they ever stopped being a couple.”

    …“There’s nothing romantic about it but it’s still a good idea [to put the relationship in writing],” said Trabin. Regardless of whether the couple entered into an agreement before or after they moved in together, or if they were gay or straight, “there are going to be financial consequences and they need to be aware of that.”

    True, it may not be the most romantic, but spending an afternoon sitting in an attorney’s office is better (and cheaper) than spending months in court.

    UPDATE: An alert reader informed us that James Fritsch and William Parker, a gay couple living in the Dallas area, received legal recognition of their common-law marriage a few weeks prior to Powell and Phrasavath, the couple described in this article. Therefore, Powell and Phrasavath’s same-sex common-law marriage is not the first to be recognized in Texas and the article has been updated accordingly. It is interesting to note that Fritsch and Parker also argued that the date of their marriage preceded the Obergefell decision and sought recognition for that date, successfully.

    Follow Sarah Rumpf on Twitter @rumpfshaker.


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    Here is another was of looking at it from a purely equitable POV: Who should get the estate? The partner who stayed with the decedent or the relatives of the decedent who probably were against the common law relationship from the get-go?

      Ragspierre in reply to Redneck Law. | October 12, 2015 at 2:52 pm

      Overlooking your many assumptions (and there were a bunch!), I can’t think of a time when equity trumped probate law in Texas (and I’m pretty good with equity).

        Rags, I’m not defending the decision. Just making a “Court of Equity” statement to interject a different POV.

        Ragspierre in reply to Ragspierre. | October 12, 2015 at 3:57 pm

        Oh, I understood! And I LOVE equity, and think it should be MUCH better taught in law schools today.

        But probate just tends to be VERY rule-driven (though you might not know it by this judge’s ruling). I’m not suggesting that equity is a stranger in a probate court, just that I’ve never known of it trumping the rules.

    I warned my colleagues that this was coming.

    I warned them, and I said that when this hits, it is going to be a NIGHTMARE to deal with, because instead of the occasional claim of common law marriage between a man and woman (one of whom wants to take the other to the cleaners), NOW we’re going to have claims of common-law marriage all over the place regarding past health care denials, will contests, estate planning disasters, tax deferrals, claims on business interests and all sorts of other shenanigans.

    It’s going to be a disaster, and anytime an individual walks in who is in a homosexual relationship comes into my office, I now have to double the requested pre-paid legal fee due to the fact that there is GOING to be a fight about these issues from somebody (maybe the “spouse” maybe the State, maybe the business, etc…).

      My great uncle and his long-time partner (they’d been together my entire life, and before that as well) ended up wanting to go into a retirement home with on-site assisted living, and the facility they really wanted to live in said they’d have to take two single rooms — they couldn’t have one shared room with just the one bed, because they weren’t married. That was just the rule – only married couples could be treated as married couples. I’m thinking that this is the kind of situation lawyers will now be brought into as well, since the expense of two “singles” having to take two separate rooms is considerably more than one couple sharing the same room.

      MSO in reply to Chuck Skinner. | October 12, 2015 at 8:22 pm

      The federal government has no business interfering with marriage, gay or otherwise. Yes, there is a compelling public interest in providing encouragement to those who wish to join together to share the risks and benefits of life together.

      That said, the encouragement should be limited strictly to a contractual arrangement between the parties involved. It should not award monetary benefits such as tax deductions and social security based on such contracts. That is, the contract should bind only the parties involved, but not the government itself beyond an obligation to enforce the contract.

      We have lost the traditional meaning of the word marriage but we have not lost either the tradition or the benefits derived from traditional marriage.

      All of the problems you’ve mentioned have come about because the government took an active hand where it should have remained silent. Now we have a silly justice braying some nonsense about ‘love’ and the government’s responsibility in that regard. Soon, we’ll see thousands of people seeking to marry so that one person will work while the other 999 will apply for social security benefits.

      The government made its mistake centuries ago. If it fails to bow out of the picture now, it’s really going to get ugly in the future.

        retire05 in reply to MSO. | October 12, 2015 at 9:30 pm

        ” It should not award monetary benefits such as tax deductions”

        Educate yourself and stop offering same-sex marriage proponent talking points.

        There is NO monetary benefit tax deduction. The individual tax deduction for the year 2014 is $6,200. For marrieds filing jointly (two people) it is $12,400 (2 x’s $6,200.00). No benefit as the individual tax deduction is the same per person whether you are married or not.

        In many cases, gays who do marry, and file joint tax returns, find that due to the combination of their incomes they are in a higher tax bracket and there is actually a marriage “penalty.”

          Milhouse in reply to retire05. | October 14, 2015 at 9:56 am

          There is a marriage benefit, if and only if one partner’s income is much higher than the other’s, and especially if one partner has no income. In marriages where both partners have income that is roughly comparable, there is a marriage penalty.

      forksdad in reply to Chuck Skinner. | October 13, 2015 at 1:05 pm

      My guess is that special privilege will be afforded. Some animals are more equal than others. Just as affirmative action was supposed to ‘level the playing field and be abandon by now because everything would be equal’ we have discovered a monster.

      It will be like AA and Title IX, it will be the monster that ate Poughkeepsie and grow and metastasize for decades. Special rights will never cease to be discovered and everything will be restructured to force something that cannot be forced. People will be hurt, lives impacted for the benefit of people right around 2% of the population. We had protests when the 1% were supposedly oppressing everyone. What percentage of 330 mil is 5?

      When will have protests that close the streets to protest the tyranny of 2% plus five?

    ugottabekiddinme | October 12, 2015 at 8:16 pm

    Speaking as a lawyer, how the he** can there be a common law marriage out of a relationship or at least conduct that was probably felonious under the common law? I need an updated Blackstone.

    On the other hand, I do seem vaguely to recall, from law school research days, that if you need a case that stands for some obscure proposition you cannot find in a controlling jurisdiction, you can nearly always come up with what you seek in some or other Texas Ct of Appeals report.

    DaveGinOly | October 13, 2015 at 1:00 am

    Two people together ordering their lives and their common personal affairs as they see fit, without interference from the state – sounds like “freedom” to me. Personal liberty is being able to order your life as you see fit, without fear that someone who disapproves of your choices will be able to enlist the government to stop you.

    Some of you take offense at same-sex marriage the way Muslims take offense at pork being on a menu. Your offense is just as noisome to me as that of those of the Religion of Permanent Offense®. You seem to not understand that “freedom” means people get to do things that offend and disgust you, and “limited government” means it has no authority to enforce your objections. Or do you think freedom exists when everybody is allowed to only do that which meets universal approval? Although voluntary conformity to mutually-approved behaviors can be admirable in a society, there is no freedom if that society doesn’t permit deviation from conformity.

      Ragspierre in reply to DaveGinOly. | October 13, 2015 at 8:47 am

      “Two people together ordering their lives and their common personal affairs as they see fit, without interference from the state – sounds like “freedom” to me. Personal liberty is being able to order your life as you see fit, without fear that someone who disapproves of your choices will be able to enlist the government to stop you.”

      Which is a very pretty lil’ straw-man argument!

      Two people HAVE done that, and I’ve helped a few such couples. Nobody tried to stop them, and nobody gave a flying fluck. Nobody called it a “marriage”, either, because it cannot be one.

      You missed the part in the root post were the two young ladies COULD have, and SHOULD have “ordered their lives as they saw fit”, but DIDN’T.

      Now the surviver is “trying to enlist the government” in probate court.

      But it is NOT “two people together ordering their lives” in the case of the assault on marriage. It is an assault on a fundamental cultural norm PRECISELY to enlist government in destroying the meaning of that norm that has existed always and everywhere…the union of the two sexes. It is PRECISELY the assault on that norm that comprises an effort to limit freedom via government edict.

      Nobody is “more free” because of that awful diktat by that reprehensible tyrant in black robes. Quite the opposite is true.

    2nd Ammendment Mother | October 13, 2015 at 1:23 pm

    One pitfall I see coming is when a person leaves an older will in effect – intentionally or not – when entering into a new relationship. How many cases do we see where a spouse has set up their estate to leave their assets earned in a previous marriage to the children of that marriage later be challenged by a new spouse?

    More to the point would be situations where one of the partners may have been less “committed” than the second would have liked and intentionally not made provisions for that person.

    And I agree with the opening of a can of worms regarding cases that pre-date the SCOTUS decision – the legal business is definitely getting a financial windfall from this mess.

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