Problems filing in the wrong court

Problems filing in the wrong court

What happens if you miss-file your claims

When a case or claim is filed in the wrong court, you may lose your claim without being heard. If your case is dismissed after the statute of limitations has run, you are out of luck no matter how good your claim was.

Necessary Disclaimer: Do not take, or refrain from taking, any action based on what you read. You need to discuss your situation with an attorney who can advise you based on your facts.

If you have a question about a pending or anticipated lawsuit about contesting a will in Texas, use the Contact Us page at the top of the site to see if we can help.

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Filing in the wrong court

In a 2020 case, a man died and his family filed his probate case in the probate court. His wife ( a divorce was pending but was not final so she was still his wife) filed an opposition and also filed a tort suit against the other family members in the probate court asserting claims of business disparagement and intentional infliction of emotional distress. (“the tort case”). The other family members filed a motion to dismiss under the Texas Anti-SLAPP law. The probate judge granted the motion to dismiss the tort suit and ordered the wife to pay attorney’s fees to the other family members. The wife appealed. 4-19-00500-CV.

No jurisdiction

In the appeal, the appeals court ruled that the probate court did not have jurisdiction over the tort suit. Because this decision came more than two years after the claims accrued, it was too late for the wife to refile them in a court that did have jurisdiction. 

The moral of this case?

If you file in the wrong court you may never get your case decided on the merits.

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.

Definition of Putative Spouse in Texas

Definition of Putative Spouse in Texas

Putative Spouse in Texas

putative spouse is one who has a good faith belief that he or she is married but who is not legally married. An example will give a clearer picture.

A man and a woman get married either through a formal marriage or an informal, or common-law, marriage. They live together for some time and accumulate property. One of them dies and the surviving spouse finds out after the death that the deceased spouse was previously married to someone else but never got a divorce. Because the deceased spouse was never divorced from his first spouse, the marriage to the second spouse is not valid. However, because the second spouse had a good faith belief that he or she was married, the second or putative spouse has rights to property that are similar to a spouse’s rights to property in a valid marriage.

Deathbed Marriages in Texas

Deathbed Marriages in Texas

What are deathbed marriages in Texas

Deathbed or predatory marriages are when someone such as a friend, a caregiver or other person, by hook or by crook, marries the elderly person. I have written about those situations on my blog. The marriage is not based on the love and affection two people have for each other but is based on greed. The person is trying to loot the estate of the elderly person.

What can be done about deathebed marriages in Texas

Sometimes the family is not aware

that the caregiver has married their elderly relative until the relative dies. Texas has a statute that deals with these situations. TEC §123.102. However, the family must act quickly. If a procedding to annul the marriage must be commenced within one year after death. Additionally, the marriage must be less than three years old at time of death.

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

Robert Ray is Board Certified

Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization.

We handle cases throughout Texas. Our principal office is in Lantana, Texas (DFW area).

Robert Ray Texas Inheritance

Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

Can Spouses Inherit – Including Common Law

Can Spouses Inherit – Including Common Law

What does a Texas spouse inherit?

If there is a will, the will determines what property a spouse inherits. If there is no will, what a spouse inherits is determined by the type of property in the estate and what other heirs of the deceased exist. A review of the property in an estate and how much of it a spouse is entitled to can be found here.

There are two types of marriages that are recognized by Texas law:

  1. Ceremonial marriage – where the spouses obtain a marriage license and are married by someone authorized by law to perform marriages; and
  2. Common law marriages – where no marriage license is obtained and a ceremonial marriage may or may not be performed.

The law treats the spouse of a common law marriage the same as the spouse of a ceremonial marriage. Both are heirs of their spouse and would take under the laws of descent and distribution. Of course, the common law spouse must prove that they meet all of the legal requirements to be considered a common law spouse before they would be entitled to inherit.

For more information Start Here to Read About Inheritance.

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

Robert Ray is Board Certified

Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization.

We handle cases throughout Texas. Our principal office is in Lantana, Texas (DFW area).

Robert Ray Texas Inheritance

Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

When a will is not a will but is a community property survivorship agreement

A community property survivorship agreement is similar to a will but it does not have to be executed with the formalities required of a will. The agreement has to be signed by both parties and has to use certain words as described by the statute.
The effect of the agreement is to transfer all of the community property owned by husband and wife to the survivor when one dies. That sounds like a will doesn’t it? However, it is not a will but is just an agreement. Since it is an agreement and not a will, the requirements of execution under a will did not apply to an agreement. The agreement doesn’t transfer separate property, just community property. 112.001.

I have an article on my blog about a 2019 case involving community property survivorship agreements. You can view that here.

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

Robert Ray is Board Certified

Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization.

We handle cases throughout Texas. Our principal office is in Lantana, Texas (DFW area).

Robert Ray Texas Inheritance

Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

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