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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