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In a First, Texas Recognizes a Same-Sex Common Law Marriage

Turning aside objections from Texas Attorney General Ken Paxton, a Travis County judge approved an out-of-court settlement Tuesday that recognizes the eight-year relationship of two Austin women as a common-law marriage.

By Chuck Lindell

Turning aside objections from Texas Attorney General Ken Paxton, a Travis County judge approved an out-of-court settlement Tuesday that recognizes the eight-year relationship of two Austin women as a common-law marriage.

The settlement accepted by Travis County Probate Judge Guy Herman ended an estate fight between Sonemaly Phrasavath and family members of the woman soon to be legally acknowledged as her wife -- Stella Powell, who died of cancer in June 2014.

Reached last week with the help of a mediator, the agreement divided Powell's estate roughly in half between Phrasavath and members of Powell's family. It also acknowledged Phrasavath as Powell's spouse from a common-law or informal marriage -- a legal distinction that doesn't require a marriage license.

An Oct. 5 hearing has been set to formally declare Phrasavath as Powell's heir due to marriage -- the first common-law marriage finding for a same-sex couple in Texas history, lawyers said.

Lawyers for Paxton opposed the designation during a hearing before Herman on Tuesday, arguing that the settlement ended the legal dispute over Powell's estate, making any decision about Phrasavath's marital status moot and beyond Herman's jurisdiction.

But Brian Thompson, Phrasavath's lawyer, told Herman that his client would settle for nothing less than the recognition of her relationship as a valid marriage, particularly after the U.S. Supreme Court overturned state laws banning same-sex marriage in June.

"How many more courts have to tell Ken Paxton that these statutes (banning same-sex marriage) are unconstitutional?" Thompson said. "Apparently one more."

Thompson also asked Herman to remove Paxton from the case, saying his office had "no interest in this family dispute."

"The denial of my client's fundamental right to marry needs to end today, and Ken Paxton's groundless, harassing and mean-spirited attacks on same-sex couples needs to end today," he said. "The only reason the state is attempting to continue to interfere in this case is because Som and Stella were a same-sex couple, and Ken Paxton can't live with the fact."

Ruling from the bench after the 20-minute hearing, Herman granted the motion to remove Paxton as a party to the probate case. The judge also approved the settlement without comment.

Paxton's office is evaluating its options to challenge Herman's finding, which could create confusion by potentially reopening already finalized probate cases, spokeswoman Cynthia Meyer said.

Thompson disagreed, saying other courts have rejected the argument in cases involving the death of a same-sex spouse.

Neither Phrasavath nor Powell's family attended Tuesday's hearing.

Texas courts can recognize a common-law marriage if a couple who lives together -- no time limit is specified -- agrees they are married and presents themselves as married, such as introducing each other as a spouse.

Phrasavath and Powell met the legal definition of informal marriage, Thompson said, noting that they began dating in 2006 and celebrated a 2008 marriage ceremony that, though not recognized under Texas law, was performed by a Zen Buddhist priest. They lived openly as spouses in a Northwest Hills home, he added.

Phrasavath also cared for Powell, acting with her medical power of attorney during Powell's eight-month fight with cancer before she died at age 53, Thompson said.

Herman's court became involved because a will dividing Powell's estate among her three siblings, mother, Phrasavath and a church was never executed. Unable to agree with Phrasavath on how to divide the estate, two of Powell's siblings filed suit last fall stating that Powell died single because she wasn't married under Texas law. Phrasavath responded by challenging the constitutionality of Texas' ban on gay marriage and moved to establish her relationship as a common-law marriage.

The case became national news in February when Herman ruled in Phrasavath's favor, declaring that the Texas ban violated the U.S. Constitution's promise of equal protection and fair treatment under the law.

(c)2015 Austin American-Statesman, Texas

Caroline Cournoyer is GOVERNING's senior web editor.
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