Many misconceptions exist as to whether someone has a common law marriage. It is actually quite easy to create a common law marriage if you are not careful.
The law requires only three things to establish a legally binding common law marriage:
- An agreement between the parties to be married;
- The parties live together in Texas as husband and wife (for any amount of time and it does not have to be continuous);
- The parties represent to others that they are married.
Sounds relatively easy, right? However there are many hurtles that one must get through to determine if a common law marriage has been created.
The hardest thing to establish is that an agreement existed. This requires that there be a meeting of the minds between the two parties that they are now married. The case law in Texas states that there must be evidence that shows that the parties intended to have a present, immediate, and permanent marital relationship wherein they both agreed to be husband and wife.
This is NOT an agreement that they will get married, intend to get married, make a promise to get married in the future or make plans to get married in the future. Instead it is an agreement where the parties agree that THIS MOMENT FORWARD WE ARE MARRIED! It is not always possible to prove or disprove this element without some circumstantial evidence. The intent of the parties can be shown with circumstantial evidence, such as the following:
- The parties wear wedding bands;
- The parties celebrate a wedding anniversary date;
- The parties file joint tax returns;
- The parties announce their wedding to family members;
- The parties host a party to celebrate their union; and
- The parties refer to each other as “husband” and “wife”.
Many people think that a couple have to live together for a certain amount of time, however, this prong does not suggest any time limit. Instead, it requires that the couple, after making their agreement, start living together as husband and wife in the state of Texas. Many misconceptions arise around what it means to live together as husband and wife. The way to answer this is to look at the difference between a husband/wife relationship versus a boyfriend/girlfriend room mate relationship. In the first one, the couple each have duties they take on, such as, the wife doing laundry, cooking, taking care of the children, and the man takes on such choirs as taking care of the lawn, fixing things and taking out the trash. The couple also would likely have a joint bank account, even if it is not their only account, and they should be paying the bills together as a married couple would do. They should both be disciplining the children, going on vacation with the children, attending school events with the children, etc.
REPRESENT TO OTHERS:
The last prong and easier prong to prove is “representing to others that you are married”. This prong merely requires that take some sort of directed action to make others think you are in fact married and not just living together. This usually means you call each other “husband” and “wife”, you file joint tax returns, you enter into contracts for services as husband and wife, you never correct people when they assume your married, you celebrate a wedding anniversary, you change your social media status to “married” or you wear wedding bands. It does not require all of these things but instead only a few actions that caused people to believe you were married.
Many people think that estate planning is only for the elderly or the wealthy, but have you thought about what would happen if you unexpectedly died? Do you really want to leave you wife and kids to figure out how to manage your affairs while they are grieving? If you have a will, then your family has options on how to proceed and it makes the legal process less trying on them. It is even a bigger issue when you are in a blended family. Imagine your minor children living with your ex-spouse becoming a one-half owner of your house with your current spouse. This in it self creates drama for all those involved when it could be avoided with a simple document expressing your desires.
Many people believe that having a will makes their family go through the costly process of probate, however, in Texas the process is not costly and its a lot easier than letting Texas laws decide who gets your stuff.
How does the probate process work? After you pass away, your executor, who you named in your will, will collect and distribute the assets to your beneficiaries during a process known as probate. This will include settling any debts you have with creditors. The process is inexpensive, simple and non intrusive into your loved ones lives.
What happens if you don’t have a will?
- If you are married and all your kids are from your spouse? Your spouse gets your community property and your spouse splits your separate property with your kids.
- If you are remarried and have kids from another marriage? Your new wife and your kids share all your property. In this scenario it is common for your wife and kids to become joint owners of your home.
- If you are single with kids? Your stuff goes equally to your kids and if one is not living then their share goes to their children (your grandchildren from that kid).
- If you are single without kids? Your stuff is divided between your parents, if one of them is deceased then that parent’s share goes to your siblings.
So you can see how the laws in Texas might not be how you want your things to be distributed and having a will leaves the decision solely up to you! We can always find a distant relative to be your heir, but do you really want someone else deciding? So get a will today! My office can help, just call 817-336-2400 and ask for Patricia Cole.
Texas Supreme Court Rules – Intentional Interference with Inheritance Rights is not a cause of action in Texas.
The Texas Supreme Court made a ruling last week that may change the way we look at inheritance rights in Texas. In many family disputes concerning the estates of a loved one, there is a claim that a will is not valid due to lack of capacity or undue influence. But what if there is no will to probate because the perpetrator had the Deceased sign a deed transfer ring their house, or made them beneficiaries on bank accounts or life insurance policies, all which make probate unnecessary.
In May of 2017, the Texas Supreme Court refused to rule on whether Texas has a Tortious Interference with Inheritance Rights cause of action. But in an about face, this month they took the plunge in Archer v. Anderson an appeal out of the 3rd Court of Appeals of Texas. In that case, the Texas Supreme Court found that the tort of interference with inheritance is not recognized in Texas.
Intentional Interference with Inheritance means one who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift. (Restatement of Torts Section 774B) However, not all restatements are made into law in all states and Texas has never drafted a specific law on this issue.
The overall point of the Texas Supreme Court was that the testator (Decedent) has the right to dispose of their assets anyway they want. However, if they lacked the capacity, were coerced or mistaken in their bequest or gift then the courts are able to undo the bequest or gift. Also the Court already has broad authority to rectify inequalities using a constructive trust in an action for restitution to prevent unjust enrichment. These specialized doctrines and procedures in the probate court help distinguish the true intent of the testator. Therefore the cause of action of Intentional Interference with Inheritance is not needed.
While the court is correct that the Archers had other adequate remedies to recover against the perpetrators, those remedies do not allow them to recover attorney fees and court costs. So the moral of the story is take care of your loved ones, stay in their lives and make sure no one takes advantage of them!
There are several things you can do now while you are alive to prevent your loved ones from having to probate. This is especially important if you are married and your spouse will be your sole beneficiary. This is not to say you should not have a will. Everyone should have a will just in case some asset comes up that we didn’t plan for properly or in the event you die accidentally and litigation ensues.
- Name Beneficiaries – you can name your beneficiary on various types of accounts, including bank accounts, life insurance, retirement accounts, and investment accounts. Review these accounts every few years to ensure they have the beneficiary of your choosing.
- Joint Tenants with Right of Survivorship – when you purchase a house ask the title company have the deed read “joint with right of survivorship” which transfers the house to your spouse immediately upon death. If you already own your house, you and your spouse can execute a new deed that makes the ownership “joint with right of survivorship” so that the house is automatically transferred upon death.
- Living Trust – while this may seem to be the most straight forward approach, only an attorney can tell you if you really need one. Many people get living trusts and never properly fund them so probate turns out to be necessary anyways. Also a living trust does not protect you from liability as many people think it does.
- Transfer on Death Deed – this document is a new statutory document created by the Texas Legislator to help protect your real estate. While this document is a deed, it is not a traditional deed, in that it does not immediately transfer ownership to your beneficiary but allows you to instead retain all ownership rights. Upon your death the real estate automatically transfers ownership to your named beneficiaries. These types of deeds are used mostly by people wanting to transfer their home to their children or grandchildren upon their death.
For more ideas and ways to plan so your family can avoid probate court contact your attorney! Remember that “an ounce of prevention is worth a pound of cure”.
After losing their spouse, many people don’t contact an probate attorney because they believe that everything just goes to them immediately. But this way of thinking may cause more harm down the road. Nothing in life is absolute except death and taxes, so at least consult an attorney to make sure there is nothing you should do or to find out what your time limits are with regards to probate. Here are a few cases where waiting caused more problems:
- Jane Doe dies and her husband Don doesn’t probate her will. Four years pass, and then Don Doe dies. Since Jane’s will was not probated within the 4 year statutes the only alternative is to probate as “muniment of title” to clear title to the house or cars. In this case there is no formal probate of Jane’s estate which may create problems with certain asset at financial institutions and may force the beneficiaries to pay all debts prior to probating.
- Jane Doe dies and her will isn’t probated because her husband, Don Doe, doesn’t want to waste his money. Years later Don learns that there are assets in both of their names that need to be probated. Jane’s will can not be probated after 4 years because Don is the one at fault for not probating. Don goes to an attorney and finds out that since Jane had children from a prior marriage, they take her 1/2 instead of him.
- Sarah Jones dies and she does not have a will. Four years pass, and Mike Jones tries to sell their house. Just prior to closing on the house, Mike finds out that the house is still in both his and Sarah’s name. Mike contacts an attorney to probate and must wait more than 30 days to get the probate finalized, so he loses the sale on the house.
As you can see there are many different situations that warrant consulting an attorney to ensure probate is not necessary after the death of a loved one. While there are many different reasons that may take you into probate court, there are ways to avoid probate court such as:
When there is a will:
Muniment of Title – while this process requires you to file in probate court, you are not opening a formal administration so once the court signs an order you are done with the probate court. So if you find that all the deceased person’s unsecured debts are paid and you just need to transfer title to the assets, have your attorney probate the will as a “muniment of title” which transfers title only and does not open a formal estate.
When there is no will:
Affidavit of Heirship – when there is no will, there is an informal process of having an “affidavit of heirship” prepared by an attorney and filed in the county real property records. This is not a costly process and it will benefit the parties in the long run. Don’t try to do one yourself, as mistakes will end up costing more in the long run. Do this now rather than later because witnesses may die, move away, not remember, etc. This document will clear up title to property and vehicles so that the parties can move forward in life and not be held back when trying to sell such assets.
Determination of Heirship – This process is similar to the Affidavit of Heirship above, but it involves going to the probate court, having them appoint an attorney ad litem to verify the heirship information and signing an order on who the heirs are in an estate. This process may be required of certain financial institutions that do not want to rely upon a “Affidavit of Heirship” and who may want the Judge to make a formal finding.
Small Estate Affidavit – This process is for very small estates under $75,000.00 (not counting exempt assets) or when trying to transfer the decedent’s homestead to their spouse. The form is prepared and filed with the probate court. The judge will then approve the Small Estate Affidavit to allow the transfer of assets to occur. Keep in mind that this form will not transfer title to real property (other than the homestead), so if there is no spouse (so no homestead) or other rental real estate then this form won’t work.
The Texas Legislature adopted a new Medical Power of Attorney form, effective as of January 1, 2014. Click here to download the Medical Power of Attorney
NOTICE: This form is being provided for convenience only and is not intended to be construed as offering legal advise. You should always consult an attorney about giving someone your power of attorney!
1. The Business Owner. A properly created business has exhaustive company agreements, succession planning and creditor protection. Unless you have every confidence in your documents, you may want to consider a pre-nup to set up agreements between you and your spouse. I see many family-owned businesses severely disrupted by divorce, especially by the temporary orders phase. Image a couple in crises and both spouses are signatories on the company checking account. Perhaps each believes he/she runs the business and should be able to continue to run it exclusive to the other spouse. Where does a court begin to do what’s in the marital estate’s best interest? It is much easier on the Court if there is an agreement in place.
2. The Second Wife and Step-Mother. The reason wife No. 2 needs a pre-nup has everything to do with the probate code. When a spouse dies without a will and…
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