Posted on | September 17, 2010 | 2 Comments
There is a movie titled “It’s complicated.” That title describes the inheritance rights of a spouse. It’s complicated because of defining who is the spouse, what property the spouse inherits and what is the status of any children. The inheritance laws are used to determine who inherits if there is no will or if a will has been contested and the judge refuses to admit the will to probate. If the will is valid then the will and not the laws of inheritance determine who inherits the estate. The rest of this article concerns the inheritance laws that would be applied if there is no will
Texas recognizes formal marriages as well as informal marriages. Informal marriages are more commonly called “common-law marriages.” In a formal marriage a man and a woman who are legally able to get married get a marriage license and have a marriage ceremony performed by a clergyman or a judge. There are usually few complications arising from a formal marriage.
An informal marriage or “common-law marriage” involves a man and woman who are legally able to marry but who don’t get a marriage license and don’t have a ceremony. The spouse in an informal marriage has the same rights of inheritance as a spouse in a formal marriage. The problem is that informal marriages usually cause litigation because the family that would inherit if the decedent was not married will oppose the alleged common-law spouse’s claim that they are the spouse. The spouse of an informal marriage will have to prove the informal marriage when the spouse of a formal marriage does not normally have that burden. Read more about informal or common-law marriages here.
Another complicating issue with determining who is the spouse involves a “putative spouse.” A putative spouse is one who has a formal marriage in that a marriage licenses is obtained and a ceremony is performed. However, one of the parties to the marriage is not legally able to get married. This usually involves a person who was married before but who did not get a divorce from his first spouse. It doesn’t matter whether the person knows that he did not get divorced or believes that he is divorced. If there is no divorce, the person is still married. The person cannot get married a second time. On the death of the spouse who could not legally get married the question becomes which of the two spouses receives his estate: the one to whom he was legally married or the one who was not aware of the prior marriage and entered into the second marriage in good faith and became the putative spouse? Read more about the rights of a putative spouse here.
Another complicating factor in the inheritance rights of the spouse is the type of property involved. In Texas there is community property and separate property. Generally, separate property is everything that a spouse owned before marriage or that was acquired during the marriage by gift or inheritance. Everything else is community property. If the decedent owned separate property and had children, the separate property generally goes to the children with some exceptions in favor of the wife. If the decedent had no children, then the wife would receive more of the separate property with the parents and siblings of the decedent also getting a share. Read more about the types of property involved in inheritance here.
Finally, there is the issue of children. Before the 1990s when the inheritance laws were changed, a spouse did not inherit community property from their spouse if children were involved. All of the community property went to the children. If the decedent owned separate property, it generally went to the children with some few exceptions.
Under current Texas law, if the spouse of the decedent is the parent of all of his or her children, the spouse inherits all of the decedent’s community property. If there are stepchildren, that is, children of the decedent who are not also children of the spouse, then the children inherit the decedent’s community property. As an example, suppose a man was married for a short time and had one child of that short marriage. He got divorced. He then met his current wife, got married and they lived together for 50 years and had six children. Since the current wife is not the mother of all of his children, his community property would go to his children and not to his wife.
It is important that you make a will so that you and not the laws of inheritance determine who inherits your estate.
Copyright by Robert Ray a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, inheritance rights, have a family inheritance dispute, a property dispute or want information about contesting a will and need an inheritance lawyer, we can help. Please go to our main site www.theprobate.net and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case and there is no fee for the initial consultation.