What kind of power does a Power of Attorney have and someone with a common law marriage?
Common Law Marriage was estqablished in Kansas but their Power of Attorney is in Houston, TX. The deceased passed away in Texas. Does the person who has common law marriage with the deceased have more power than the person who is Power of Attorney?
Power of attorney ends when the principal dies. If the principal has a will, the will allocates authority and assets subject to community property and statutory share laws. If the principal has no will state intestate succession laws govern and the wife likely has major power and right to assets.
Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (L.L.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax and SpecialNeedsNJ.com/blog for timely updates. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.
Agent's power under DPOA terminates at death of principal. Now the issue is whether decedent had a Will. Also open is whether or not a common law marriage was in fact established in Kansas. Assuming there is a valid common law marriage, there will be community property verses separate property issues to resolve. An attorney is needed.
As death was in Texas, Texas has jurisdiction, unless the decedent had no intention to make Texas his domicile and you can prove this. If, however, nothing was owned in Texas and there is real estate in Kansas, then Kansas has at least jurisdiciton over the real estate. Texas presumes another state's law is the same asthe law of Texas; thus the court will assume the common law claim from Kansas should be proved up the same as a Texas common law.
As stated by lawyers below, the Power of Attorney has no power. However, if you can identify that the power of attorney was signed in an attorney's office, that attorney may have prepared a Will.