Estate of Durrill, 570 S.W.3d 945 (Tex. App.—Corpus Christi-Edinburg 2019, no pet. h.).


"Bad Spouse” Statute


After the decedent’s death, his children used Estates Code Chapter 123 to void their father’s marriage based on his lack of capacity to enter into the marriage. Accordingly, the purported spouse will not be treated as the decedent’s surviving spouse for any purpose such as being an intestate heir and having the right to a survivor’s homestead. The purported spouse appealed.


The appellate court affirmed. The court found that all of the statutory requirements were satisfied and that the evidence was sufficient to show the decedent’s lack of mental capacity to enter into a marriage on the date of the ceremony. In addition, the court rejected the claim that the decedent and the purported spouse were common law married even before the ceremonial marriage which would have placed the marriage outside of the three year period by which the marriage must be entered into prior to death for the statute to operate.


Moral:  A marriage may be set aside even after a spouse’s death and despite the fact that no divorce proceedings were pending at the time of death if the requirements of Estates Code Chapter 123 are satisfied.