Intestate Succession

Spousal Determination

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.

 

Intestate Succession

Non-Marital Child

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.



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