Gill v. Vordokas, 656 S.W.3d 398 (Tex. App.—Houston [14th Dist.] 2022, no pet. h.).

Intestate Succession

Common Law Spouse

During an heirship proceeding, the witnesses testified that they believed Intestate died unmarried with four children. However, the attorney ad litem for the unknown heirs did not question the witnesses about the possibility that Intestate had a common law wife. Thirty days after the judgment determining that the four children were Intestate’s sole heirs, the alleged common law wife (ACLW) filed a motion for a new trial saying she did not receive timely notice of the heirship proceeding and that she had been Intestate’s common law wife for over two decades. The motion was not set for a hearing and thus was deemed overruled by operation of law. ACLW did not appeal but instead filed a petition for a statutory bill of review seventeen months thereafter. The trial court granted a summary judgment that ACLW’s claims were barred by res judicata. ACLW appealed.


The appellate court reversed and remanded. The court explained that res judicata is not normally a defense to a bill of review because a bill of review’s purpose is to change a prior judgment. The court explained that ACLW’s filing of a bill of review under Estates Code § 55.251 was timely (within two years) and alleged “error.” The elements needed for an equitable bill of review are irrelevant such as the proper exercise of diligence.


Moral:  An heirship judgment is subject to modification via a timely statutory bill of review if error is shown.