Void versus Voidable

In a recent Texas case, Allebach v. Gollub, 14-22-00272-CV, the issue of void versus voidable marriages came up. There is a difference in the way the courts treat void marriages as opposed to voidable marriages. A void marriage is just that, void. A voidable marriage is one that can be declared void but someone must take some action to get it voided.

A man remarried after his wife died. When the man died, the new wife filed a new will for probate that left most of his estate to her. The Man’s children from the first marriage contested the will on the basis that the man lacked the testamentary capacity to make a new will. They also alleged that the marriage to the new wife was void. It was void, according to them, because the new wife was the daughter of their father’s biological sister – she was his niece. The new wife said the children were too late to contest the marriage because they didn’t complain about the new marriage until four years after the man died.

Is it too late?

There is a provision in the Texas estates code, §123.102, that says an interested party must contest a marriage within three years of the date of death of the Decedent. The subchapter is titled “Proceeding to Void Marriage Based on Mental Capacity Pending at Time of Death.”

The new wife said that this provision applied and since the children had not filed their motion to void the marriage within three years, the limitations of that provision applied and they were too late.

The court examined §123.102 and found that it applied to voidable marriages but not void marriages. The court explained that the marriage to a close relative was void and not voidable. Different rules are applied to void marriages. The court pointed out that:

And under our common law, such suits may be brought “by anyone, at any time, directly or collaterally.” See Simpson v. Neely, 221 S.W.2d 303, 308 (Tex. App.-Waco 1949, writ ref’d)…Thus, the limitations provision contained within Section 123.102 should only be understood to apply to a challenge to a marriage made voidable on the ground of mental incapacity. This understanding comports with the plain language of the statute, and it also preserves the longstanding common law rule that challenges to void marriages are not subject to limitations.

When you need to contest a marriage of someone who dies, you have to know the difference between void versus voidable marriages. If the marriage is void, as it was here, it can be contested at any time by anybody. However, if you are contesting the marriage because a person lacks mental capacity, you have to contest it within three years of that person’s deat.