Written by attorney Stephen A. Mendel

Texas’ Intestacy Laws and Common Law Marriages

According to the Texas intestacy laws or rules of succession codified in the Texas Probate Code, a resident’s estate vests to his closest blood relatives who become his heirs. If a spouse and any children of the decedent survive him or her, the state’s community property laws give them a right to all of the community property. The Texas Probate Code favors very distant or remote relatives over those unrelated to you. Thus, at your death, your long-term girlfriend or boyfriend may not be entitled to receive any of your estate. Furthermore, your property may escheat to the state if you have no living heirs. Typically, an intestate decedent’s estate rarely escheats to the state, since the state will usually find living heirs, regardless of their degree of kinship.

You must also make sure your written Will complies with your state’s statutory formalities. In Texas, you must be at least 18 years old and mentally able to draft a Will. This means you must be of sound mind and you must not be under undue influence or duress when you create your Will. You must also sign your Will in the presence of two mentally competent witnesses who are over 14 years old, and your witnesses must sign your Will in your presence. If you do not comply with these requirements, a Texas probate court may declare your Will invalid.

Texas is only one of less than a dozen states that acknowledge common law marriages. As such, if you and your spouse are common law spouses, your surviving spouse may have a legal right to a portion of your estate. However, the common law marriage requirements are somewhat technical, and if you fail to comply with these statutory formalities, you may not have established a valid common law marriage.

If you have questions about estate planning issues, then please call for an initial one-hour consultation, which is at no-charge. We at the Mendel Law Firm can help you uncover your options and choose the strategy that is best for you.

Additional resources provided by the author

The Mendel Law Firm, L.P. 1155 Dairy Ashford, Suite 104 Houston, TX 77079 O: 281-759-3213 F: 281-759-3214 Email: [email protected]

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