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Informal Marriage and Intestate Succession in Texas

In Texas, informal marriage and intestate succession are two areas of law that can unexpectedly collide. An informal marriage is relatively easy to enter into, and if a person enters into an informal marriage prior to their passing, this can create an additional heir, leading to potential conflicts in an heirship proceeding. To avoid such conflicts, having a will is crucial, but shockingly, less than half of adults in the U.S. have one.

Intestate succession governs the distribution of assets when a person dies without a will. Under the laws of intestate succession, if a decedent has no children or if all of the decedent’s children are also the children of the surviving spouse, the surviving spouse receives 100% of the decedent’s community property. This distribution scheme applies to both ceremonial and informal marriages. If the decedent has children outside the marriage, the decedent’s share of community property passes directly to their children or children’s children.

The separate property of an intestate decedent follows a different distribution scheme. If a marriage existed at the date of death, the decedent’s separate real property devolves with a life estate in 1/3rd of decedent’s lands to the surviving spouse and 2/3rds remainder interest to decedent’s children or children’s children. If a marriage existed at the date of death, the decedent’s separate personal property follows a one-third/two-third split between the surviving spouse and the decedent’s children or children’s children.

Informal marriages are surprisingly easy to enter into under Texas law. An informal marriage is established by evidence that (1) the parties agreed to be married, (2) the parties lived together in Texas as spouses after they agreed to be married, and (3) the parties represented to others that they were married. Each of these elements can be established by direct proof or circumstantial evidence. The burden of proof is on the person seeking to establish the existence of an informal marriage by a preponderance of the evidence.

The elements of an informal marriage are determined on a case-by-case basis. The burden is on the party alleging its invalidity once the elements of a common-law marriage are proven. Should the elements of an informal marriage be satisfied, and one of the parties passes away, the probate court has jurisdiction over the matter. Chapter 32 of the Estates Code delves deeper into this issue, but essentially, the court determines whether an informal marriage existed.

Informal marriages often arise as second or subsequent marriages and involve blended families, leading to conflicts between the surviving spouse and the decedent’s other heirs. Due to the potential for conflicts, it is essential to seek legal counsel when faced with an informal marriage situation.

The distribution of non-probate assets of the decedent can also lead to conflict in an informal marriage situation. Non-probate assets include life insurance proceeds, retirement accounts, and jointly owned property with rights of survivorship. The distribution of non-probate assets is governed by the terms of those assets or other laws beyond the scope of this article.

An additional wrinkle arises concerning the proof requirements of an informal marriage and those statutorily required in an heirship. An informal marriage may be established by the testimony of a single party, including a party to the marriage. The Estates Code, on the other hand, requires testimony regarding a decedent’s heirs and family history to be taken from two disinterested and credible witnesses.

When only one witness can prove the existence of an informal marriage where two are required for an heirship determination, it is unclear how a court would resolve the situation. The Estates Code allows a court to accept the testimony of only one witness to establish an heirship if it is shown to the court’s satisfaction that after a diligent search was made, only one disinterested and credible witness can be found who can make the required proof in the proceeding. However, in practice, this seems unlikely to occur.

It is important to note that a surviving spouse of an informal marriage could not satisfy the requirement of being a disinterested witness as required by the Estates Code. Furthermore, when there is a dispute, the disinterested witnesses are often aligned with one side, either the surviving informal spouse or the decedent’s other heirs.

In conclusion, navigating informal marriage and intestate succession in Texas can be a complex and challenging process. It is crucial to seek legal guidance and support to avoid potential conflicts that may arise from such situations. Having a will is one way to avoid such conflicts, but if you find yourself in an heirship dispute involving an informal marriage, engaging a qualified attorney to assist you is essential.

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

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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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