San Antonio Express-News
Copyright 2009, Paul Premack
September 22, 2009

*Adult Son & Mother have dispute over Home*

Dear Mr. Premack: My parents lived together for about 20 years, had two children, but never legally married. After my brother died, my mother left my father. About 12 years later, in 2004, my mother got legally married to another man. On the other hand, my father stayed single until his death in 2007. He did not leave a Will or anything of that sort. As his only surviving child, I moved into his house because I didn’t want it to be left unoccupied. Now my mother says she wants the house. Does she have any legal rights to my father’s house? – NR

Since your father did not make a Will or a Living Trust, and did not preplan in any way for succession of title for the house, we must apply the state’s laws of intestacy to determine who became owner of the house when he died. But before those laws apply, it is important to realize that whoever receives your father’s interest gets no more than your father owned.

Your letter appropriately tells us the highlights of you family history. What you omit is any history on the house your father lived in at the time of his demise. Thus, I’ll look at your question from two perspectives: 1) that your father was 100% owner of his home, and 2) that while he lived with your mother, they purchased this home together so that both names are still on the deed.

In the later event, your mother became a partial owner of the house while they resided together. Although they were not married, they could still be partners in ownership of the house. When your mother left your father, she walked away still owning her share. Her remarriage had no effect on her property interest, which she would still own to this day.

In the former event, let’s assume that the house you are talking about was completed unconnected to your mother. Perhaps after they split up, he purchased this house on his own without her involvement. If she did not own an interest in it before he died, she does not inherit any interest under the Texas laws of intestacy.

The intestacy laws first examine whether the decedent (your father) was married. According to your letter, they did not formally marry. Even so, your mother might have claimed to be his common law wife if all the elements existed: they resided together, they agreed to be spouses, and they represented themselves to the community as married. If so, does she have a claim as common law wife?

Not with the facts you recite. Texas law states that if a proceeding in which a marriage is to be proved (like a divorce or an intestacy proceeding) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is presumed the parties did not have a common law marriage. She did not go to court within that two year period. Further, the fact that she married another man without first divorcing your father implies that she and your father did not have a common law marriage (did not agree to be married). Any other conclusion means that when she married in 2004 she became an criminal bigamist, a position she certainly would not want to embrace.

If they were not married, and if you are the only surviving child (and your brother did not leave any children behind) then the intestacy laws say that you became owner of your father’s interest in the house when he died.

What you need to do now is research the deed records at the courthouse. Find out if your mother is already on the deed to the house. If she is, you and she became co-owning partners in the house when your father died. If she is not on the deed, then she has no legal claim to the house. You do have a legal claim, which you can substantiate by filing a determination of heirship in the Probate Court, or can (less formally) document your rights by filing an affidavit of heirship with the county clerk’s office.