Texas Judge Recognizes Same-Sex Common Law Marriage In Historic Ruling

A Texas probate judge recognized a common law marriage between two women this week, granting that the women were in fact legal spouses and defying objections from the state attorney general in the process. The ruling is a historic first for the Lone Star State.

On Tuesday, Travis County Probate Judge Guy Herman approved an agreement between Sonemaly Phrasavath and the family of her late partner, Stella Powell, who died of colon cancer in 2014, to split Powell's assets. The ruling simultaneously recognized the couple's common law marriage, the Houston Chronicle first reported.

Brian Thompson, attorney for Phrasavath, told The Huffington Post that his client can finally move on with her life with this critical ruling.

"Sonemaly is pleased that Judge Herman's ruling acknowledges her marriage to Stella Powell and allows her to move forward from the tragedy of losing her wife," Thompson said. 

Phrasavath and Powell met in 2004 and were married in 2008 in Texas -- long before the Supreme Court's June ruling that legalized same-sex marriage in all 50 states and ended the bans in states like Texas. When Powell died in 2014, a legal battle began between Phrasavath and Powell's family over her deceased partner's estate.

In Texas, a common law marriage is legally valid and includes the same rights enjoyed in other marriages, given that the adult couple agrees to marry, lives together for an indeterminate time and communicates to other people that they are, in fact, a married couple. The Houston Chronicle adds that, in 2008, Phrasavath and Powell also held a marriage ceremony with a Zen Buddhist priest in the state.

However, because same-sex marriage was still banned at the time, Powell's family argued that Phrasavath had no right to Powell's estate. But Herman ruled in 2014 that Phrasavath was entitled to her partner's estate because Texas' same-sex marriage ban was in violation of the couple's constitutional rights.

State Attorney General Ken Paxton disagreed with Herman, intervened in the case, and struck down the judge's ruling as unconstitutional in 2014. This year, two months after the historic SCOTUS ruling on same-sex marriage, Paxton filed a motion in Travis County probate court to block Phrasavath from receiving any funds from her partner's estate. He argued that because same-sex marriage was illegal during the entire course of the women's relationship, it wasn't relevant that same-sex marriage is now legal in Texas and across the nation.

“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," the attorney general's motion reads. "The court should not rewind history and supplant statutory requirements to establish as valid what state law at the time foreclosed as invalid."

But this week, that's just what Judge Herman did, approving a settlement agreement between the Powell family and Phrasavath. Herman also removed Paxton from the case, arguing that the state no longer had a role to play in the dispute.

While the issue appears to be settled, Cynthia Meyer, spokeswoman for the state attorney general, told The Huffington Post that the office is still evaluating its options on any future steps to be taken against Herman's ruling.

"It’s important that the state’s interests in constitutional issues be represented," Meyer said. "This ruling could create confusion by potentially leading to the reopening of past probate cases long finalized, in the process creating new conflicts between families and surviving domestic partners."

Thompson called Paxton's efforts to interfere in the case "shameless and desperate" and said his client remains disappointed in the attorney general's office for pursuing this case months after the historic SCOTUS ruling. "Attorney General Ken Paxton continues to disregard the law and spend the hard-earned tax dollars of Texans to finance his mean-spirited campaign against Texas's same-sex families," he said.

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