Common Law Same-Sex Marriage Before June 26, 2015?

So in the legal community it is still being debated as to whether common law same-sex marriage exists before the famous Obergefell decision on June 26, 2015 that required states to permit same-sex marriage. Just recently a South Carolina  Judge found that a couple who were together for 30 years met that state’s criteria for a common law same-sex marriage that predated the Obergefell decision. In Texas a Federal Judge did not grant a summary judgment against a person alleging to be common law spouse of someone who died in a car accident.

It would seem that common law same-sex marriage exists before the Obergefell decision, however, with everything else going on in Texas one can never know exactly how a Judge will rule. After all we have the Governor challenging the City of Houston’s decision to provide same-sex married couple’s benefits because the Obergefell decision did not specifically address benefits.  I suspect that in time the State of Texas may step in and challenge divorces of same-sex couples who try to allege they were common law married prior to the Obergefell decision just as the State of Texas was intervening in divorce cases of same-sex couples prior to the Obergefell decision.

So, the question is, what can you do? If you and your partner have considered yourselves married before the Obergefell decision, then you need to fill out a Declaration of Informal Marriage and file it with the county clerk in the county in which you reside. When you go, both you and your partner must appear and bring some form of picture identification, your social security card, and the filing fee (currently $37.00). Click Declaration of Informal Marriage for the form that you can fill out and take with you, however, you will need to wait to sign it until you are at the clerk’s office.  You and your partner will need to agree on the date that you consider yourselves married and put that date in the space before your signatures.

This form provides many benefits to same-sex couples who have considered themselves married: 1) In the event that one spouse passes away the other spouse benefits from the inheritance laws of the state; 2) Each spouse has the ability to benefit from social security benefits if applicable; 3) in the event of divorce this declaration is proof that a marriage existed leaving little room to contest the validity of a marriage; 4) in the event of an accident or disability of one spouse, the other spouse can make decisions for that spouse