DOES “SPOUSE” MEAN CURRENT SPOUSE?

Problems with terms like “spouse,” “children,” “heirs…”

In an interesting case from 2020, 04-20-00035-CV, a woman created a trust. The trust named her son’s “spouse” as a beneficiary. The son later divorced and remarried. The question before the court was whether the beneficiary designation of “spouse” meant the prior spouse or the current spouse.

The court ruled in favor of the spouse at the time the trust was created…

(W)e hold that the grantor’s use of the term “spouse” referred to William’s spouse at the time the Trust was executed, and did not refer to a class of persons including future spouses.

There is a section of the Texas Estates Code that provides that any provision in a will or trust in favor of a person’s spouse is void if they later divorce. However, the woman in this case was not leaving something to her spouse but to the spouse of her son. The court did not discuss this section of the Texas Estates Code so I would assume that all parties agreed that it didn’t apply.

Insight

Is the result the court reached the result that the woman who created the trust wanted? Probably, but maybe not. To avoid problems like this, it is better to specify who you’re leaving your property to rather than use terms that may cause confusion like “spouse.” “children,” “heirs…”

Spouses

Does a spouse inherit in Texas

Spousal Rights to Inherit in Texas

Does a surviving spouse inherit everything when their spouse dies?

Does a spouse inherit over children from a previous marriage?

I have updated the page on my main website about a spouse’s right of inheritance. View it here – 

Spouses

Let’s Work Together

Can you have a secret common-law marriage in Texas

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Texas Law

Texas recognizes common-law marriages or what Texas refers to as” informal” marriages. An informal marriage may be proved by one of two ways. The first way is to introduce a declaration of informal marriage that has been filed with the County clerk. If there is no declaration of marriage, a common law marriage may be proved by showing: (1) agreement to be married; (2) after the agreement, living together in Texas as husband and wife; and (3) representing to others in Texas that they were married. FC §2.401. The statutory requirement of “represented to others” is synonymous with the judicial requirement of “holding out to the public.” Both of these methods of proving an informal marriage depend upon the marriage being open and obvious to anyone who bothers to look.

Can you have a secret common-law marriage in Texas

What happens in those circumstances when the informal marriage is kept secret from a few are many people? The courts have held that a marriage that was secret from only a few members of the couple’s family was a common-law marriage because the marriage was widely known in the community. 734 S.W.2d 27. On the other hand, courts have denied a common law marriage when the marriage was know to only a few. 333 S.W.2d 361. In other words the cohabitation must be professedly as husband and wife, and public, so that by their conduct towards each other they may be known as husband and wife.

Update: In a 2019 case, a Declaration of Marriage was filed in 2015 saying that the parties had been married since 2010. If they were married in 2010, it would be too late to contest the marriage. If they were married in 2015, the man’s children could contest the marriage. The court ruled that there was no evidence that the parties held themselves out as husband and wife (representing to others that you are married) before 2015, so there was no marriage before 2015. The children contested the marriage of 2015 saying that he was not mentally competent to marry. The jury agreed with the children that he was not mentally competent. 13-17-00431-CV.

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Pretermitted Spouse and Premarital Agreement

Pretermitted wifeWhat is a pretermitted spouse

Texas does not recognize a pretermitted (forgotten) spouse so this article has no application to Texas. Some states do recognize a pretermitted spouse and I have written about those states here. Basically, a pretermitted spouse is someone who marries a person after that person has made a will. If the will is not revised and the parties are still married on the death of the one who made the will, the surviving or pretermitted spouse will take a portion of the estate even though they are not mentioned in the will.

Pretermitted Spouse and Premarital Agreement

In a 2014 case from California, which does recognize a pretermitted spouse, the court was asked to determine if a premarital (more…)

Elder Abuse Is Increasing

Elder abuse is increasingElder abuse is increasing, often at the hands of those closest. In an article in the Arizona Daily Star by Patrick McNamara, which was published on their website, tucson.com, the paper reported that law enforcement is seeing an increase in elder abuse.

Reason that elder abuse is increasing

As our elderly population grows, law enforcement and prosecutors are seeing an increase in the number of incidents of exploitation and abuse against older people. According to the article, law enforcement has seen a nearly 50 percent increase in elder exploitation reports. Financial crimes are taking a toll on lives and pocketbooks reports Constance Gustke in the New York Times. Trusted caregivers – friends and relatives who offer support and guidance – are often the ones at fault. The article states that older adults are appealing – and vulnerable – targets (more…)

What Is A Widow’s Election In Texas?

contestthumbnail The Doctrine

The doctrine of a widow’s election in Texas is based on the principle that a person may not take benefits under a will and, at the same time, set up a right or claim of his own, even if well founded, which would defeat or in any way prevent the full effect and operation of every part of the will. A beneficiary under a will is put to an election only where the will expresses the testator’s purpose to dispose of the beneficiary’s property in such clear and unequivocal language that the will is open to no other construction. Since it is presumed that a testator intends to dispose only of his own property, a beneficiary under a will is put to an election only where the will expresses the testator’s purpose to dispose of the beneficiary’s property in such clear and unequivocal language that the will is open to no other construction. I have written about a person’s ability to contest a will if he (more…)

Contesting a will in Texas

Zoom type workshops?

In the age of Covid-19. we have been thinking of having monthly or bi-monthly, free, Zoom type workshops where participants discuss with us issues that are of interest to them. There would be no agenda, we would discuss areas that the participants wanted to discuss. Participants could attend by computer, tablet or smartphone.

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