Honorable Robert S. Calvert OpinionNo. C-765

Comptroller of PublicAccounts Capitol Station Re: Whether the fact thatVernon Austin, Texas W. Dozier and Rosetta Bryant filed joint income tax returns as husband and wife is sufficientproof that Dozier and Rosetta entered into a common law marriage so as to classifyRosetta as Class "A"beneficiaryunder the Dear Mr. Calvert: will of Mr. Dozier.

This is in answer to your request for an opinion on the following statement of facts copied from your request.

"VernonW. Dozier died testate,a resident of Dallas County, Texas, and under the terms of his last will and testament, he left all of his estate to Rosetta Bryant. Mr. Vactor H. Stanford, the attorney for the estate, advises that Rosetta Bryant was the common law wife of Vernon W. Dozier,and his only statement to substantiate this claim is thatVernon W. Dozier and Rosetta Bryant filed joint income tax returns as husband and wife. "Pleaseadvise whether or not the above statement is sufficient to classlfxRosetta Bryant as a Class 'A'beneficiary. Common law marriages are recognized in Texas. However, whether or not there is a common law marriage is a question of fact. The essential elements of a common law marriage are an agreementpresently to become man and wife; a living together pursuant to the agreement as husband and wife; and a holding out of each other to the public as husband and wife. 38 Tex. Jur.2d 45, Marriage, Sec. 15, and cases cited thereunder.

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Just what act or acts of cohabitationwill suffice to consumatemarriage has never been stated - nor probably can it be. Manire v. error ref.). Burt, 121 S.W.2d 630 (Tex.Civ.App.1938,
Although a common law marriage is as legal and as binding as a statutorymarriage, and though the law does not favor but merely tolerates common law marriages, yet when common law marriage is established, it is as valid and binding as ceremonial marriage and law applicable to ceremonialmarriage is equally applicable to common law marriage. Texas Employer's InsuranceAssociationv. Elder, 274 S.W.2d 144 1954, affirmed 155 Tex. 27, 262 S.W.2d 371). (T Civ.App. TheeZaim of common law marriage is closely scrutinized in all matters involvingproperty rights. (Tex.Crim.1948). Welch v. State, 207 S.W.2d 627
The filing of joint income tax returns is not a holding out of each other to the public as husband and wife because Federal Income Tax returns are not open to thepublic and not available to the public.

We are of the opinion that the facts submitteddo not substantiatea common law marriage, as the submitted facts do not reveal the essential el;ments of a common law marriage. The essential elements are . . .an agreement to become husband and wife, a living togetherpursuant theretoas such, and a holding out of each other to thepublic as husband and wife." Martinez v. Martinez, 6 S.W.2d 408 (Tex.Civ.App.1928).

SUMMARY The facts submitteddo not substantiatea common law marriage.

JHB/fb Yours very truly, WAGGONER CARR

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APPROVED: OPINIORco!@inTER W.~ V. Geppert,Chairman Fopznkayne GordonCam BrandonBlckett APPROVEDFOR TREATTORNEYOEMERAL BY: T. B.Wright

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