San Antonio Express-News, May 11, 1990

Divorce Invalidates Certain Will Provisions

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Common Law Marriage in Texas

© 1989-2004, Paul Premack

Your former husband may have believed that his 1965 will could protect you, but it does not. Under the Texas Probate Code, when you get divorced any provision in a Will written before the divorce giving any assets to the former spouse is void. Also, any pro vision making the former spouse executor is void.

Your ex-husband could have written a new will after your divorce. The new will would have over-ridden the Probate Code to put you in control.

His 1965 will cannot protect you from the creditor. However, Texas' homestead laws forbid the creditor from collecting his debt against your ex-husband's interest in your house until a time when it is no longer your homestead.

Will provisions to a spouse do not become void until divorce is final. If you die before the divorce is final, your spouse still inherits. If you are in the process of getting an unfriendly divorce, you should modify your Will immediately to remove your spouse.

Common law marriage is the valid legal relationship of two people as husband and wife. It happens when two people agree to be married, then live together as husband and wife and tell other people that they are married.

No ceremony takes place and no license is issued, so proving the existence of the marriage can be difficult. If you stood to gain by being married, you could file a "declaration of informal marriage" with the county clerk. If you stand to lose by being married, then never "agree" that you are married and never tell anyone else that you are married.