Estate Planning 101

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My significant other passed away and we were never married. What happens now?

No one is ever ready to deal with the death of a loved one. Yet, we can always prepare our affairs to make it easier for our loved ones when that time comes. Unfortunately, many people don’t have their estate planed. Having the admittedly uncomfortable conversation with your loved ones and an attorney can save you lots of heartache and money down the road.

Texas has its very own intestate succession laws, which are rules to make it easier for a court to decide how to distribute someone’s estate when they pass away without a will or a living trust. Not everything that you own can be passed through a probate court. There are some assets that can’t be touched through intestate succession laws in Texas such as bank accounts, money from a life insurance policy that has a named beneficiary, real estate that is jointly owned, and assets that have a TOD (Transfer On Death) title, etc…

In Texas, like most states, if you’re married and have no children or parents, the spouse will inherit everything. One doesn’t necessarily have to have a marriage certificate to be legitimately married. These situations are called common law marriage and it bestows upon you marital rights even without a certificate to match.

There are four things you need to do to have a valid common law marriage in Texas. First, you need to live together, you need to be 18 years old or older, you must also agree to be married, and you need to tell someone that you are married. Even if you only told one person, either by introducing yourselves as husband and wife, or applying for items such as credit cards as a married couple, you can satisfy the requirement.

As a surviving spouse in a common law marriage, you will inherit all assets if there are no other relatives. The chart below identifies how the estate will be divided in case there are other surviving relatives:

Intestate Succession chart


Please make sure you meet all requirements necessary for a common law marriage before submitting any paperwork to a probate court to save you time and money. If you have any questions on whether or not you and your spouse were married under common law, please call Paul K. Foley of the Foley Law Firm, PLLC to set up a free 30 minute consultation.