Wilson ex. rel. C.M.W. v. Estate of Williams, 99 S.W.3d 640 (Tex. App.—Waco 2003, no pet.).
Intestate and Partner were never married. However, Partner asserted
that they had an informal or “common law” marriage. Partner testified
that they agreed to marry, lived together, and held each other out as
husband and wife. Before Intestate’s death, however, Partner moved out
and married another man in a ceremonial marriage without first getting
divorced from Intestate. Approximately four years later, Intestate died
in an industrial accident giving rise to significant wrongful death and
survival claims. The trial court found that Partner was Intestate’s
surviving spouse and therefore entitled to inherit from Intestate.
The appellate court agreed. The court refused to apply the Family Code
provision which was in effective when Partner and Intestate separated
requiring an action to establish a common law marriage to be commenced
not later than one year after the date on which the relationship ended.
Instead, the court applied current Family Code § 2.401(b), which was in
effect at the time of Intestate’s death, which merely provides a
rebuttable presumption that no common law marriage exists if no action
to prove the common law marriage is commenced within two years after the
parties separate and cease living together. The court refused to examine
the sufficiency of the facts establishing the common law marriage
because they had not been challenged.
Moral: A common law marriage may be still be established by a partner
even after many years have elapsed since the parties lived together and
even by the partner who, without first obtaining a divorce, marries
another person. Accordingly, a party challenging the existence of a
common law marriage should challenge the factual sufficiency of the
evidence.
Wilson ex. rel. C.M.W. v. Estate of Williams, 99 S.W.3d 640 (Tex. App.—Waco 2003, no pet.).
Wife, while married to Husband, gave birth to Child. However,
Intestate acknowledged Child as his son, was named on Child’s birth
certificate as the father, and signed an acknowledgment of paternity
form. Intestate died in an industrial accident giving rise to
significant wrongful death and survival claims. The trial court found
that Child was Intestate’s son and therefore entitled to inherit from
Intestate.
The appellate court agreed basing its analysis on the law as it existed
on the date of Intestate’s death. Accordingly, Husband was Child’s
presumed father. The court examined Intestate’s actions of acknowledging
Child, being named on Child’s birth certificate, and the signing the
paternity form. In addition, Wife testified that she did not have sexual
relations with Husband for at least one year before Child’s birth. The
court determined that this was clear and convincing evidence which was
sufficient to rebut the presumption that Husband was Child’s father. The
trial court was within its discretion to give little weight to the
possibility that someone else was the father even though Mother
testified that about nine months before Child’s birth she had sex with a
man whose name she could not recall. The court did not examine a DNA
report which may have shown Intestate was not the father because the
report was not properly offered and thus was not before the court.
The court also rejected the argument that Probate Code § 42(b) requires,
except for adopted children, a showing of a biological link between
Intestate and Child because it provides that “for the purpose of
inheritance, a child is the child of his biological father * * * ” The
court instead read the statute as defining who qualifies as a biological
father rather than requiring Child to show an actual biological link to
Intestate.
Moral: Proof of biological paternity is not necessary for a child to
inherit from his or her father if the father’s paternity is otherwise
established.