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Voiding a Common Law Marriage After Death

Will contest suits often involve children whose inheritance is being claimed by a third party who asserts to be common law married to the child’s dead parent.  This raises questions as to whether the new spouse is entitled to all or some of the decedent’s assets and how one would go about voiding a common-law marriage after death.  The recent Estate of Durrell, No. 13-17-00431-CV (Tex. App. – Corpus Christi [13th] 2019) provides a prime example of this type of will contest suit.

Facts & Procedural History

The case involved an “informal marriage” or common law marriage.  More specifically, it involved the last will and testament and a codicil that purported to transfer to a common-law spouse.

The decedent’s first wife passed in 2008.  The facts suggest that the decedent and his girlfriend started living together a year later. Four years after that, he filed a declaration saying that he was married to his girlfriend for several years.

The decedent’s health was not good during any of these years and he died less than a year after the declaration.  The facts recited by the court suggest that his mental faculties were in question during his last years.

The decedent’s children probated his will and codicil and sought a court order to void the informal marriage.

A jury trial was held, which resulted in an order that voided the marriage.  This court opinion was the appeal for the order voiding the marriage.

Texas Marriage Laws

Texas law allows for an informal or “common-law” marriage.  This may be proved by evidence that:

  1. A declaration of their marriage has been signed as provided by Texas law or
  2. The man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.

Texas law provides a process to declare marriages void after the death of one spouse.  This process starts with an interested party filing an application with the probate court.  The court can then order a marriage void if:

  1. The application was filed within one year of the decedent’s death,
  2. The decedent was married on the date of his death, and
  3. The marriage commenced no earlier than three years before the decedent’s death.

If a marriage is declared void, the surviving spouse is not treated as the decedent’s spouse for any purpose.

Voiding the Informal Marriage

The purported spouse argued that the decedent’s children did not prove that her marriage commenced no earlier than three years before the decedent’s death and, as such, the trial court order had to be overturned.

The court concluded that there was no evidence that the parties held themselves out as married prior to 2015, meaning that the court rejected the Declaration filed in 2015.  Thus, the court concluded that any marriage would have to have commenced after 2015.  This was within three years of the decedent’s death.

The supposed spouse also pointed to the codicil. The codicil granted her twenty percent of some of the decedent’s assets, a life estate in his house, and the right to a funeral plot beside him. The attorney who prepared the codicil kept it secret until after the decedent’s death. He did so at the decedent’s direction.

The purported spouse argued that this was evidence of a marriage.  The court disagreed.  It noted that a life estate would only be required in a codicil if there was no marriage, suggesting that there was in fact no marriage.  It also noted that the codicil did not refer to the purported spouse as the decedent’s wife.

Thus, the courts concluded that more evidence would be present if the decedent and the purported spouse intended to be husband and wife and had all of the legal consequences that come with marriage.

The Takeaway

This contest resulted in the decedent’s children succeeding to a larger portion of the decedent’s estate. They obtained the interest not by challenging the will, but by challenging the informal marriage. Absent a valid marriage, the will was not valid.

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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