Pretermitted Spouse in Texas

Pretermitted Spouse in Texas

Pretermitted Spouse in Texas.

Texas does not recognize a pretermitted spouse, but other states, including New Mexico, do. I have written articles about a pretermitted spouse here and here. Even though Texas doesn’t recognize a pretermitted spouse, do they have inheritance rights in Texas if they are recognized as a pretermitted spouse in another state?

Background

If a person leaves a will, the will is filed for probate, and it determines who owns his property. If there is no will, then an heirship determination is filed to determine who his/her heirs are and who will receive his/her property.

Can you have an heirship proceeding when there is a will? Yes, says Amarillo Court of Appeals, 07-21-00137-CV.

Facts

A man died with a will. His sister filed the will for probate, claiming his property under the will. The will was admitted to probate on September 16, 2015. Almost two years later, a woman from New Mexico filed a pleading in the case asking for an heirship determination alleging that she was the man’s common-law wife. She claims that she is a pretermitted spouse under New Mexico law. Because she was a pretermitted spouse, she claimed she owned the man’s property.

The sister filed a plea to the jurisdiction and a motion for summary judgment, alleging that there could be no determination of heirship because there was a will. She cited §202.002 of the Estate Code “Circumstances under Which Proceeding to Declare Heirship Is Authorized.”

Ruling

The court pointed out that §202.002(2)(B) of that section allows an heirship proceeding when there is a will if “no final disposition of property in this state has been made in the administration…”

Because “Nothing of record indicates that the administration of Joe’s testamentary estate ever closed,” the court held that §202.002(2)(B) applied and denied the sister’s plea to the jurisdiction and summary judgment. The wife was allowed to have her day in court.

Reflection

There can be no Texas pretermitted spouse, but if a person from another state is recognized as a pretermitted spouse, they may be able to obtain some or all of their spouse’s estate. It is worth noting that the case mentions that the man had property in New Mexico.

Difference between annulment and divorce in Texas

Difference between annulment and divorce in Texas

What is the difference between annulment and divorce?

A divorce is a court order that ends a marriage. An annulment is a court order that the marriage never existed.

An annulment can only be ordered based on limited circumstances like fraud, duress, or force as well as underage parties, alcohol or drug abuse, mental capacity, etc. There has to be some kind of untruthfulness that caused the person seeking an annulment to enter the marriage when they would not have done so if they knew the truth.

A divorce can be ordered when the parties feel they cannot continue living together. So, there was a marriage that is now ended.

What difference does it make in inheritance disputes?

A recent case shows how an annulment affects inheritance disputes. 02-21-00044-CV. In this case, a man, Quebe, died intestate. His daughter asked the probate court in Galveston to appoint her the independent administrator of the estate. A woman named Wallace, who claimed she was the common-law wife of Quebe, filed a competing application. Wallace was married to a man, King, who lived in Wichita County. Wallace went to Wichita County and asked the judge to annul the first marriage to King based on fraud. King didn’t object so the judge granted her an annulment. Wallace then returned to Galveston where the judge found that she was the common-law wife of Quebe and had priority of appointment as the administrator of his estate.

If the woman had gotten a divorce, she couldn’t be the common-law wife of Quebe because she was already married. But, by getting the marriage annulled, it is as if no marriage ever existed! And in this case, the probate judge found that she had put on enough evidence to find that she was the common-law wife.

Does a Spouse Inherit if the Other Spouse Dies Intestate Without a Will

Does a Spouse Inherit if the Other Spouse Dies Intestate Without a Will

Texas Law

Does a spouse inherit if the other spouse dies intestate without a will? That simple question cannot be answered with a simple answer. It can’t be answered simply because there are so many factors:

  • Are there children and are they children of both parents? See here, and here.
  • What kind of property is involved? See here.

Texas recognizes common-law marriages or what Texas refers to as” informal” marriages. How does that affect inheritance rights. See here and here.

Because these issues are complicated, you need to discuss your rights with an attorney who understands inheritance laws.

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

Texas Requirements For A Common Law Marriage

Texas Requirements For A Common Law Marriage

Texas Common-law Marriage

Texas recognizes common-law marriages or what Texas calls “Informal Marriages.” There are two different ways you can have an informal marriage:

  1. Agreeing to be married; living together in Texas after the agreement; and, representing to others that you are married; or,
  2. Signing a “Declaration of Marriage.

A person who claims a common law marriage must prove it. A proceeding to prove the informal marriage has a statute of limitations. The proceeding must be filed within certain time limits after the date of death of one of the spouses or within the time limits after the date the parties ceased living together as husband and wife. If a proceeding is not commenced within the statute of limitations, there is a rebuttable presumption that the parties did not have a common-law marriage. FC 2.401.

Once proven, a common-law spouse is treated the same as any other spouse in Texas.

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. 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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