Howdoes a wife legally take her husband’s last name in a common law marriage?

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Howdoes a wife legally take her husband’s last name in a common law marriage?

I understand both of the ways that a couple can be considered common-law – by filing the declaration of informal marriage or by meeting the normal 3-prong test. My husband and I have met the test for the last 5 years. Now I want to take his last name and we want it done by before June (we are expecting the birth of second ourchild). What is the quickest way to accomplish this? If we file the declaration, will it allow me to change my name with all the required authorities? Can I just start using his name on things, like the birth certificate? Or do we have to get the marriage license?

Asked on January 31, 2011 under Family Law, Texas

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Generally speaking, you can use any name you want at any time as long as there is no intention to defraud.  So you can use his name on a daily basis but I do see that you wish to have it changed legally and your situation does raise an interesting case.  As for filing the declaration, please ask when you do so about the legality of the name change.  I thing, though, that you may have to go through the legal process of changing your name through the courts.  It is generally a simple process and inexpensive. Usually done in the civil court or clerk's office.  Congratulations of the upcoming birth of your child and good luck. 


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