what are the laws in texas on if a parent passes away and the common law wife wants partial inheritance?
my dad passed away, he had a common law wife, i was informed there was an inheritance to him from his aunt that has also passed. my dad wanted me to have all of the money, but he had no will drawn out. she got a lawyer and wants 1/3 of the money. can i fight this and what are my chances of winning? would the lawyer fees be worth the battle or should i just cut my losses?
Most attorneys will give you a free hour consultation. You should speak to a couple attorneys and find out what Texas law states. Just because she got a lawyer and wants something doesn’t mean that she is entitled to it under Texas Law. Sometimes people will ask for something hoping that you will just cave in and give it to them to make them go away. She may be entitled to it, but you should ask an attorney and be certain. She is asking for the spousal inheritance under Texas Intestacy Law which is 1/3, but is she entitled under Texas Law?
If she does have any legal entitlement, then you can settle with her. If she does not have any legal entitlement, you can decide if the amount of money is worth the fight. Most of the time, if the amount is small, it is not worth the attorney fees to fight about it. If, however, the amount is large, you will have to decide if it is worth the cost to fight it.
As far as Common Law marriage goes:
Common Law Marriage Fact Sheet
By Dorian Solot and Marshall Miller
Note: You can download a version of the text below in Adobe Acrobat format.
THE MYTH: There is a common misperception that if you live together for a certain length of time (seven years is what many people believe), you are common-law married. This is not true anywhere in the United States.
STATES THAT RECOGNIZE COMMON LAW MARRIAGE:
Only a few states recognize common law marriages:
Alabama
Colorado
Georgia (if created before 1/1/97)
Idaho (if created before 1/1/96)
Iowa
Kansas
Montana
New Hampshire (for inheritance purposes only)
Ohio (if created before 10/10/91)
Oklahoma (possibly only if created before 11/1/98. Oklahoma’s laws and court decisions may be in conflict about whether common law marriages formed in that state after 11/1/98 will be recognized.)
Pennsylvania (if created before 1/1/05)
Rhode Island
South Carolina
Texas
Utah
Washington, D.C.
IF YOU LIVE IN A STATE THAT DOES RECOGNIZE COMMON LAW MARRIAGE: If you live in one of the above states and you "hold yourself out to be married" (by telling the community you are married, calling each other husband and wife, using the same last name, filing joint income tax returns, etc.), you can have a common law marriage (for more information on the specific requirements of each state, see next page). Common law marriage makes you a legally married couple in every way, even though you never obtained a marriage license. If you choose to end your relationship, you must get a divorce, even though you never had a wedding. Legally, common law married couples must play by all the same rules as "regular" married couples. If you live in one of the common law states and don’t want your relationship to become a common law marriage, you must be clear that it is your intention not to marry. The attorneys who wrote Living Together (additional information below) recommend an agreement in writing that both partners sign and date: "Jane Smith and John Doe agree as follows: That they’ve been and plan to continue living together as two free, independent beings and that neither has ever intended to enter into any form of marriage, common law or otherwise."
STATE-BY-STATE REQUIREMENTS TO FORM A COMMON LAW MARRIAGE:*
Texas: A man and woman who want to establish a common-law marriage must sign a form provided by the county clerk. In addition, they must (1) agree to be married, (2) cohabit, and (3) represent to others that they are married.
I would check with the County Clerk and see if such a form was signed and filed. If not, then ask your attorney. If so, then she is probably entitled to 1/3 but still ask your attorney.
February 5th, 2010 at 8:37 am
It would probably be worth the money to go have a sit down with a probate lawyer and discuss your situation with them.
References :
February 5th, 2010 at 9:02 am
Consult an attorney on this one. Many attorneys will give you a free initial consultation.
I’m guessing that no court has yet declared this person to be a "common law" spouse. So, she would need to convince the probate court that she meets the requirements of a common law spouse in order to be entitled to anything. At least that’s the way it typically works in common law marriage states. So, if nothing yet has been declared concerning this woman’s common law status, then you have room to negotiate. My understanding is that a spouse gets 1/3 of an intestate estate in Texas. So, if you fight her on the 1/3 demand, then you really don’t have anything to lose (except your attorney’s fees). So you can probably negotiate something smaller at this stage; perhaps a 80%/20% split.
Whether its worth it depends on the size of the estate. Are you talking $1 million [worth it], or $10,000 [not worth it.]
Like I said, see an attorney. Attorneys not only know the law, but they are also expert negotiators. Find one whom you believe can negotiate an equitable distribution between you & your common law step mother.
References :
February 5th, 2010 at 9:42 am
Most attorneys will give you a free hour consultation. You should speak to a couple attorneys and find out what Texas law states. Just because she got a lawyer and wants something doesn’t mean that she is entitled to it under Texas Law. Sometimes people will ask for something hoping that you will just cave in and give it to them to make them go away. She may be entitled to it, but you should ask an attorney and be certain. She is asking for the spousal inheritance under Texas Intestacy Law which is 1/3, but is she entitled under Texas Law?
If she does have any legal entitlement, then you can settle with her. If she does not have any legal entitlement, you can decide if the amount of money is worth the fight. Most of the time, if the amount is small, it is not worth the attorney fees to fight about it. If, however, the amount is large, you will have to decide if it is worth the cost to fight it.
As far as Common Law marriage goes:
Common Law Marriage Fact Sheet
By Dorian Solot and Marshall Miller
Note: You can download a version of the text below in Adobe Acrobat format.
THE MYTH: There is a common misperception that if you live together for a certain length of time (seven years is what many people believe), you are common-law married. This is not true anywhere in the United States.
STATES THAT RECOGNIZE COMMON LAW MARRIAGE:
Only a few states recognize common law marriages:
Alabama
Colorado
Georgia (if created before 1/1/97)
Idaho (if created before 1/1/96)
Iowa
Kansas
Montana
New Hampshire (for inheritance purposes only)
Ohio (if created before 10/10/91)
Oklahoma (possibly only if created before 11/1/98. Oklahoma’s laws and court decisions may be in conflict about whether common law marriages formed in that state after 11/1/98 will be recognized.)
Pennsylvania (if created before 1/1/05)
Rhode Island
South Carolina
Texas
Utah
Washington, D.C.
IF YOU LIVE IN A STATE THAT DOES RECOGNIZE COMMON LAW MARRIAGE: If you live in one of the above states and you "hold yourself out to be married" (by telling the community you are married, calling each other husband and wife, using the same last name, filing joint income tax returns, etc.), you can have a common law marriage (for more information on the specific requirements of each state, see next page). Common law marriage makes you a legally married couple in every way, even though you never obtained a marriage license. If you choose to end your relationship, you must get a divorce, even though you never had a wedding. Legally, common law married couples must play by all the same rules as "regular" married couples. If you live in one of the common law states and don’t want your relationship to become a common law marriage, you must be clear that it is your intention not to marry. The attorneys who wrote Living Together (additional information below) recommend an agreement in writing that both partners sign and date: "Jane Smith and John Doe agree as follows: That they’ve been and plan to continue living together as two free, independent beings and that neither has ever intended to enter into any form of marriage, common law or otherwise."
STATE-BY-STATE REQUIREMENTS TO FORM A COMMON LAW MARRIAGE:*
Texas: A man and woman who want to establish a common-law marriage must sign a form provided by the county clerk. In addition, they must (1) agree to be married, (2) cohabit, and (3) represent to others that they are married.
I would check with the County Clerk and see if such a form was signed and filed. If not, then ask your attorney. If so, then she is probably entitled to 1/3 but still ask your attorney.
References :