Texas recognizes common-law marriages or what Texas refers to as” informal” marriages. An informal marriage may be proved in 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 known to only a few. 333 S.W.2d 361. In other words, the cohabitation must be professed 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.
Everybody knows when you are dead, right? When the question involves when are you dead for probate purposes the answer is not quite so settled. I have written before on this question of when are you dead for probate purposes and those articles are cited at the bottom of this article.
Simultaneous Death Act
The question usually arises because Texas, as most states, has a statute that deals with survivorship when two people die around the same time. In Texas, if you die within 120 hours of another person you are presumed to have died at the same time. Usually when these statutes are invoked, the issue involves close family members like a husband and wife. If the husband and wife die close together in time, the state doesn’t want to require the children to have to file an estate for the father and then put his money into the mother’s estate and then open an estate for the mother and put her money into the estate of the father and then…. you can see the point. The issue is also important in joint accounts with right of survivorship. If the joint owners die close together, what happens to the money. The Simultaneous Death Act resolves that problem. One final issue is what happens when a will speaks to what happenes to the property if the testator and the main beneficiary die in a common disaster. Common disaster means (“[a]n event that causes two or more persons [with related property interests] . . . to die at very nearly the same time, with no way of determining the order of their deaths.”) This last issue relating to the definition of common disaster was the subject of a 2016 case out of the Texas Supreme Court. NO. 14-0406 consolidated with NO. 14-0407.
A husband murdered his wife at 8:59 PM and then shortly thereafter at 10:55 PM killed himself. They had nearly identical wills with provisions relating to what happens to their estate if they died in a “common disaster.” The issue before the court was whether or not these two people died in a common disaster? The trial court had ruled that they did die in a common disaster. The Court of Appeals agreed holding that the homicide-suicide was “a common disaster in spite of the fact that husband did not successfully kill himself immediately” because the shots that killed the husband and wife “were fired in one episode.” The Supreme Court however disagreed and ruled that the husband and wife did not die in a common disaster.
Construing A Will
The Supreme Court said that this was a case of construing a will, plain and simple. While the trial court and the Court of Appeals had discussed the Texas Simultaneous Death Act, the Supreme Court said that that act did not apply because the wills addressed the situation and had to be followed. The court stated that common disaster has a settled legal meaning. One of the requirements is that the order of death must be uncertain. In the case under review, there was no uncertainty as to the order of death. Common disaster fails to encompass unrelated but closely timed deaths. Therefore the doctrine of common disaster did not apply in this case. The provisions in the will dealing with what happens to the property if the husband and wife die in a common disaster never become effective.
The other two articles I have written concerning the issue of when are you did for probate purposes are hereand here.
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…)
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…)
I’ve written before about pretermitted (forgotten) children and their rights to inherit. You can read the articles hereand here. Basically, a pretermitted child is one who is born after a will is executed and is not otherwise provided for by the parent. In that case, the pretermitted child would inherit a share of the parent’s estate even though he is not mentioned in the will. Some states also recognize a pretermitted wife or spouse. In that case, if a marriage takes place after a will is executed and the wife is not otherwise provided for by the husband, she takes a share of the estate even though she is not mentioned in the husband’s will. See for example, the California Probate Code Section 21610-21612. Washington state also recognizes a pretermitted spouse. No. 30995-9-III.
Pretermitted wife not recognized in Texas
Texas does not recognize a pretermitted wife, only pretermitted children. A child in Texas who is contesting a will may recover under the pretermitted child statute. A wife in a will contest in Texas will not since there is no Texas statute recognizing a pretermitted spouse.