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When an Uncle Marries a Niece: Can the Niece Inherit as a Surviving Spouse?

Lifetime transgressions can and do often come to a head when someone dies.  This can include a variety of family issues, including those that some may consider taboo.

Take the example of where an uncle purports to marry his niece.  Texas law does not allow such a marriage, but, apparently, some jurisdictions do.  What happens if the uncle and niece get married in such a jurisdiction, and then the uncle dies?  Can the niece inherit from the uncle as a surviving spouse?  

The recent Allebach v. Gollub, No. 14-22-00272-CV (Tex. App.–Houston [14th. Dist.] 2023) case helps to answer this.

Facts & Procedural History

The decedent was married and he had three children. His wife died, and married someone else. This second marriage took place in another state and none of the decedent’s children knew of the marriage until their father died.

The decedent’s second wife filed an application to probate her husband’s will.  The will left the majority of the estate to her, and barely anything to the children. 

As it turns out, the decedent’s new wife was actually the decedent’s niece and cousin to the decedent’s children. 

This issue led to one of the decedent’s daughters to file a will contest, alleging that the decedent had suffered from memory declines and lacked testamentary capacity

The decedent’s daughter filed an application to probate an earlier will that favored the decedent’s children. Furthermore, she sought a declaratory judgment against the decedent’s wife, stating that the marriage should be void given the decedent’s direct family relationship with his new wife, which was granted by the courts.

Can You Legally Marry a Relative?

The first question to consider is whether, in Texas, you can marry a relative.  Not surprisingly, the answer is “no.”  

Texas law looks to “consanguinity” in determining whether individuals can be married.   The term “consanguinity” refers to the degree of blood relationship or kinship between individuals. It is a term used to describe the biological connection or shared ancestry between family members, such as parents and children, siblings, grandparents and grandchildren, and so on.

This concept is based on Chapter 6 of the Texas Family Code. This Chapter states that a marriage is void if one is related to the other as:

  • an ancestor or descendant, by blood or adoption,
  • a brother or sister, of the whole or half blood or by adoption,
  • a parent’s brother or sister, of the whole or half blood or by adoption, or
  • a son or daughter of a brother or sister, of the whole or half blood or by adoption

As you can see from the last bullet point above, an uncle cannot marry a niece.  So how does that play out in the context of a probate case in Texas?

Voiding a Marriage After Death

A marriage to a relative is void.  This is true even if the marriage took place outside of Texas, as it did in this case.  Although the decedent and his wife were married outside of the state of Texas, they were domiciled within the state. As such, Texas law is applicable to their case.

Section 1.101 of the Texas Family Code states that marriages are entered by both parties in good faith, and that the state of Texas will uphold each marriage against claims of invalidity unless there is a strong enough reason to void the marriage. 

This is the same rule that applies after one of the alleged spouses’s die and the case is in probate court.  Because of these rules, it falls on the decedent’s daughter to prove beyond a reasonable doubt that the marriage between her father and his surviving wife is voidable.

The decedent’s daughter submitted an affidavit, and when the wife was questioned, she did not contest that she was the decedent’s niece. Although Texas law does not allow marriages to be dissolved upon the death of a spouse, a legitimate argument, such as consanguinity, can allow Texas law to dissolve the marriage.  That is what the probate court did in this case.

The Takeaway

An uncle cannot marry a niece.  This results in a void marriage.  As this case explains, the fact that the uncle dies does not change the outcome.  Probate law does not allow the niece to inherit as a surviving spouse.  With that said, the uncle and his niece could have accomplished their aims here by simply having the uncle execute a will and leaving his estate to the niece. 

Do you need help with a probate matter in El Paso or the surrounding area?  We are El Paso probate attorneys.  We help clients navigate the probate process.   Call today for a free confidential consultation, 915-223-5015

Our El Paso Probate Attorneys provide a full range of probate services to our clients, including helping with probate litigation. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.


The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.

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