Allebach v. Gollub, Allebach v. Gollub, No. 14-22-00272-CV, 2023 WL 3588748(Tex. App.—Houston [14th Dist.] May 23, 2023, no pet. h.)..

Estate Administration

Validity of Marriage


After the decedent’s death, one of testator’s daughters from a prior relationship discovered that her dad had secretly married his niece. The daughter successfully obtained a judgment from the trial court declaring the marriage void on the basis of consanguinity under Family Code § 6.201(4).


The alleged wife appealed claiming that the statute of limitations had run because Estates Code § 123.101(a) states that a post-death action to set aside a marriage is permissible only if the marriage occurred within three years before the decedent’s death. In this case, the decedent married his niece more than four years prior to his death. The Houston Court of Appeals for the Fourteenth District examined the Estates Code provisions regarding setting aside a marriage after death and held that they apply only to invalidate a marriage on the grounds of mental incapacity. The limitations in the Estate Code have no application to an action to determine a marriage void on consanguinity grounds. Suits to declare a marriage void may be brought “by anyone, at any time, directly or collaterally.” Id. at *3-4, quoting Simpson v. Neely, 221 S.W.2d 303, 308 (Tex. App.—Waco 1949, writ ref’d).


Moral:  After a decedent dies, an action to set aside the decedent’s marriage as void is not subject to the Estates Code limitations which only apply to setting aside a marriage because the decedent lacked mental capacity to enter into the marriage.


Estate Administration



The testator’s daughter claimed that she had standing in a probate action even though she was not a named beneficiary in her dad’s will. Both the trial and appellate courts agreed that she had standing because she is an “interested person” as an heir. In addition, she attempted to probate an earlier will in which she was named as a beneficiary.


Moral: An heir has standing to contest a will.