Honorable Robert S. Calvert Opinion No. C- 765 

Comptroller of Public Accounts 

Capitol Station Re: Whether the fact that Vernon 

Austin, Texas W. Dozier and Rosetta Bryant 

filed joint income tax returns 

as husband and wife is sufficient proof that Dozier 

and Rosetta entered into a 

common law marriage so as to 

classify Rosetta as Class 

"A" beneficiary under 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. 

"Vernon W. 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 that Vernon W. 

Dozier and Rosetta Bryant filed joint 

income tax returns as husband and wife. 

"Please advise whether or not the above 

statement is sufficient to classlfx Rosetta 

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 

agreement presently 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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Honorable Robert S. Calvert, Page 2 (C- 765) 

Just what act or acts of cohabitation will suffice to 

consumate marriage 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 statutory marriage, 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 ceremonial marriage is 

equally applicable to common law marriage. Texas Employer's 

Insurance Association v. 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 

involving property 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 the public and not 

available to the public. 

We are of the opinion that the facts submitted do not 

substantiate a 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 together pursuant thereto as such, 

and a holding out of each other to the public as husband and 

wife." Martinez v. Martinez, 6 S.W.2d 408 (Tex.Civ.App. 1928). 

SUMMARY 

The facts submitted do not substantiate a 

common law marriage. 

JHB/fb 

Yours very truly, 

WAGGONER CARR 

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. t 

Honorable Robert S. Calvert, Page 3 (C-765) 

APPROVED: 

OPINIOR co!@inTER 

W.~ V. Geppert, Chairman 

Fopznkayne 

Gordon Cam 

Brandon Blckett 

APPROVED FOR TRE ATTORNEY OEMERAL 

BY: T. B. Wright 

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