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Common Law Marriage & the Race to the Courthouse When the First Spouse Dies

The statistics show that fewer and fewer people are getting married.  It is much more common for those who are in a relationship to simply forego the legal or formal process to get married.  This can have a number of unforeseen consequences.

Take the case of a couple who held themselves out as being married for several decades.  They may have opened joint bank accounts and other financial accounts and worked together to build up their financial assets.  If they did not get married formally, they may be surprised to find out that the surviving spouse is left with little to nothing after the first spouse dies. This often happens when the decedent’s children file for probate without notifying the surviving spouse.

The opposite can be true too, where the deceased spouse’s children end up with nothing as the common law spouse acts first to file for probate.

This creates a situation where the parties race to the courthouse to be the first to file.  The case of Gill v. Vordokas, No. 14-21-00356-CV (Tex. App.–Houston [14th Dist.] 2022) provides an opportunity to consider this situation. 

Facts & Procedural History

This case involves someone who died without a will.  The decedent’s daughter filed for probate, which included the judicial heirship proceeding.  

The application for heirship filed by the daughter asserted that her father had four children and that the children were the sole heirs to the estate.  The application did not say that the decedent was married at the time he died.

As it turns out the father was married twice and divorced twice.  When he died, he had cohabitated with a girlfriend for more than two decades. That was the dispute in this case. 

The Judicial Heirship Process in Texas

According to Section 202.002 of the Texas Estates Code, since there was no will, the daughter had to prove who the heirs were.  This is what the heirship proceeding is for.  This is a process where the decedent’s heirs are identified, which determines who gets what when there is no will. 

Up until late-2023, this had to be done via a court hearing–aka a judicial heirship.  That is what the daughter did in this case.  

Section 202.005 of the Texas Estates Code sets out the requirements for what has to be included in the heirship application.  This includes items such as the decedent’s name, date, and place of death, the names and addresses of heirs, their relationships to the decedent, and their interests in the estate or trust. Additionally, the application has to include information about the decedent’s marriages, the existence of a will, and a description of the property subject to distribution or held in trust. 

The heirship proceeding usually involves testimony from the applicant, i.e., the daughter in this case and two disinterested witnesses.  That is what happened in this case. During the heirship hearing, three witnesses testified about the decedent’s living arrangements and relationships. 

The daughter testified that she and her siblings were the only heirs. The other two witnesses, with no vested interest in the estate, testified that the decedent was not married at the time of his death, confirming the children as his sole heirs. 

As a result, the probate court issued a judgment declaring that the decedent’s sole heirs were his four children and each child was entitled to a one-fourth share of the estate.

The Attorney Ad Litem’s Role in Probate Cases

An attorney ad litem is a lawyer appointed by the probate court to represent the interests of minors, people with disabilities, nonresidents, and other individuals who cannot represent themselves in probate proceedings.

The probate courts routinely appoint attorney ad litems in cases where there is no will.  This provides the court with a verification that the parties, etc. listed in the heirship application are correct.  

This is a key aspect of what the attorney ad litems do in probate cases.  They investigate the facts of the case and ensure that the interests of unknown heirs are protected. 

This investigation typically includes gathering information such as birth certificates, death certificates, and marriage licenses. The attorney ad litem may also interview witnesses and review other relevant documents. 

It is not clear what the attorney ad litem did or did not do in this case.  They did not question the witnesses as to the possibility of the decedent having a common-law wife, which led to the dispute in this case.  The alleged common-law wife did not attend the hearing as she was not a party to the proceeding, and, because the appointed attorney ad litem did not question the witnesses about the possibility of a common-law wife, there was no testimonial evidence or other indication that there was a common law spouse.

About Common Law Marriages in Texas

Texas law recognizes common law marriages.  An informal marriage, also known as a common-law marriage, is a marriage in which the couple did not have a formal marriage ceremony or obtain a marriage license.

There are several elements one has to prove to establish that there was a common law marriage.  Specifically, one has to show that:

  • The spouses agreed to be married.
  • They lived together in Texas as husband and wife.
  • They represented themselves to others as being married.

This usually involves presenting evidence, such as:

  • A signed declaration of marriage.
  • A joint tax return.
  • A lease or mortgage in both names.
  • Bank statements or other financial documents showing shared finances.
  • Letters or cards addressed to the spouses as husband and wife.
  • Witness testimony from people who knew the spouses as a married couple.

Common law marriages, when proven through sufficient evidence, have the same legal rights as a spouse would have with a formal marriage, including the right to inherit from the deceased spouse’s estate.

In this case, the decedent’s common-law wife was eligible to inherit part of the estate as an heir if she were able to provide sufficient evidence of their common-law marriage. While the common law spouse started the process to prove her marriage, she failed to follow through timely.  This resulted in her losing her ability to pursue the matter.  Had she pursued her claim timely and presented the evidence noted above, the outcome in the case may have been different.  

The Takeaway

This case shows how disputes involving common law spouses arise.  They usually arise after the fact when the common-law spouse realizes that the children filed for probate.  It is then on the common law spouse to try to correct the record by proving up their common law marriage.  Ultimately, this case underscores the importance of understanding the intricacies of probate law, especially when common-law marriages are involved. It serves as a reminder that careful adherence to procedural requirements is essential when navigating the complex landscape in Texas probate courts.

Do you need help with a probate matter in Houston or the surrounding area?  We are Houston probate attorneys.  We help clients navigate the probate process.   Call today for a free confidential consultation, 281-339-4355.  

Our Houston Probate Attorneys provide a full range of probate services to our clients, including helping with probate disputes. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.


The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.

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