Pretermitted Spouse in Texas

Pretermitted Spouse in Texas

by | Last updated May 4, 2022 | Heirship, Spouse, Spouses

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.

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

by | Last updated Jun 30, 2021 | Inheritance, Spouse, Spouses

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.

Problems filing in the wrong court

Problems filing in the wrong court

by | Last updated Dec 16, 2020 | How, How to probate a case, Spouses, Who

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

by | Last updated Feb 4, 2021 | Glossary, Spouse, Spouses

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.

Can you have a secret common-law marriage in Texas

Definition of Putative Spouse in Texas

Definition of Putative Spouse in Texas

Definition of Putative Spouse in Texas

by | Last updated Feb 4, 2021 | Glossary, Spouse, Spouses

Putative Spouse in Texas

A 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

by | Last updated Jan 2, 2020 | Spouses

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.

By a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about Texas inheritance laws, inheritance rights, probate limits, have a family inheritance dispute, a property dispute or want to know the reasons for contesting a will or protecting a will from a contest and need an inheritance lawyer, we can help. Please click on the “Contact Us” tab above and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case. There is no fee for the initial consultation.

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