If the spouse were to die, you would have to prove the marriage. Common law marriage is established by proof that you have cohabited (lived together), represented to others that you are married and had an agreement to be married. The agreement can be inferred from the other two elements. Texas Family Code section 2.401. There is a rebuttable presumption of no marriage unless a suit is commenced to prove the marriage before the second anniversary that the parties “separated and ceased living together”. Then, as a surviving spouse, you would have a homestead right to remain in the house as long as you please, as long as you maintain the taxes, mortgage payments, and payments on construction improvements. Texas Estates Code sections 102.002 and 102.004. If you divorce the spouse, you would also have to prove the marriage, and then the character of any property, meaning separate or community property character, would matter.
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