Couple with Vague Marital Status Should not do Joint Estate Planning

Dear Mr. Premack: My father and his common law wife want to make a trust together. My father wants me to be trustee over his estate. If they do this together will it be a problem if he dies first? Will she be able to fight me for his land and home? She also has children from her prior marriage. Will this give them rights to my father’s property as well? What do I need to do to avoid a fight with this woman and her children? She talked him into doing this together and I questioned why it would be done together and not individually. Will it give her the chance to take the property that my dad wants his children to have? – WDM

Defining “common law marriage” is the first step in understanding your father’s legal situation. Common law marriage is correctly called “informal marriage” under Texas law. Four requirements must be met in order to claim an informal marriage exists:

  1. The parties must have “capacity to marry” – which means that they cannot be married to someone else, they must be a man and a woman (same sex marriage is not legal in Texas, even under the informal marriage rules), they must be 18+ and they must not be too closely related.

  2. The parties must agree to be married, either explicitly or implicitly. There must be evidence that the couple intended to have an existing, immediate and ongoing marital relationship.

  3. The parties must cohabitate; and

  4. The parties must represent themselves to others a married. They must tell others they are married; they must refer to each other as husband and wife; they must have a general reputation in the community of being a married couple.

The easiest way to prove that all those factors are true is when the couple files a “declaration of informal marriage” with the county clerk. Once filed, the law presumes the couple to be married. If one later wants to prove that there was not a marriage, he/she must show how one of the four requirements was in fact not fulfilled.

The point is that your father’s status as married or single is not conclusively established for legal purposes. If he were to die without a will and without a trust, the woman claiming to be his wife would have to prove in court that their relationship met all the above requirements. A court could rule that there is not adequate evidence to establish the existence of a marriage, and in so ruling, the claimant would receive no part of his estate. There would be no community property, no homestead rights and no rights as an heir-at-law.

It is odd, then, that these people — who have not taken the effort to get formally married and who have not taken the effort to file a declaration of informal marriage — would take the effort to do joint estate planning. They have not laid the groundwork for a successful, conflict-free estate plan. Before they co-mingle their funds, before they dedicate their assets to each other’s care, they should decide whether they are married or not married.

If they leave the marriage issue undetermined, yet make a joint trust and put their assets together, it will certainly be a problem (from your and other perspectives) if your father dies first. He may grant to her ownership rights or at least rights of use in his home and other assets under the terms of the trust. Depending on the trust’s wording, it may give her authority to divert assets way from his children in favor of her children. Sadly, you can do nothing to avoid a fight with her and her children; it is all up to your father. If they make this trust, he could be changing all his prior plans and leave you out, or set the grounds for a major battle if he is the first to die.

Your father has every right to dispose of his assets in the manner he deems most appropriate. He has no legal obligation to leave anything to you. At the same time, he should not be railroaded by the woman with whom he is cohabiting. They should see separate legal counsel. If they don’t want to marry, they can set up separate trusts to help provide for whoever may die first. Each should retain control over his/her own assets. If they decide to break-up, they won’t have a battle over separating assets co-mingled into a joint trust. Only if they decide to marry, or file a declaration of informal marriage, should they even consider a joint trust.

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, November 11, 2010

#ChildrenFromaPreviousMarriage #CommonLawMarriage #InformalMarriage #SecondMarriage

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Paul Premack has been a Board Member and has served as President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) and is a Member of the Washington Chapter of NAELA. He is *Certified as an Elder Law Attorney (CELA) by the National Elder Law Foundation as accredited by the Texas Board of Legal Specialization and the ABA. He is licensed to practice law in the States of Texas and Washington and handles Estate Planning and Probate in Texas and Washington, including and Bexar County and King County Probate, Wills, Living Trusts, Durable and Medical Powers of Attorney, and Elder Law. Premack writes the legal column for the San Antonio Express News which is syndicated in other Hearst Newspapers around the USA.

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