You have probably heard stories when someone who is very old marries their caretaker or someone significantly younger (do you remember Anna Nicole Smith?) – especially when the older “spouse” has significant assets. However, you probably are not aware that Texas law permits a marriage to be declared void after one dies. Although death automatically terminates a marriage and you cannot get divorced after death, Texas permits a marriage to be declared void even after one of the couple dies. When the court finds the deceased (the “decedent”) did not have mental capacity to consent to the marriage (unless mental capacity is regained and the marriage relationship is regained) and understand the nature of the marriage ceremony (if there was a ceremony), an interested party (i.e., a child) may petition a court to void a marriage of the decedent if (1) on the date of death of the decedent, the decedent was married and (2) the marriage commenced not earlier than three years before the date of death of the decedent. An interested party has to bring an action for a declaratory judgment within one year of the decedent’s death.

One Texas case where the children successfully had their father’s marriage declared void involved a rich businessman, W.R. Durrill. He was married for 50 years to his first wife until she passed. He began living with a woman named Georgeanne Costello Gasaway in 2009 when his health began to decline – both physically and mentally (he needed full-time care at his home as of September 2015). Gasaway started telling others that they were married at a wedding reception in November 2015. Durrill died approximately six months later. A couple of months before he died, he signed a codicil to his will that gave a 20% interest in his estate and a right to live in his home for life in addition to burial spaces to Gasaway.

His children petitioned the court to have the marriage declared void. A jury agreed with the children that Durrill lacked mental capacity to marry and he never regained mental capacity. Under Texas common law, you are not married until you hold yourself out to be married (which in this case was at the wedding reception in November 2015).

As a result, not only was Durrill’s codicil to his will determined to be invalid due to his lack of capacity and undue influence, but Gasaway lost all surviving spousal rights including any interest in community property, the right to live in the homestead of the decedent for life, any right to exempt personal property (home furnishings, farm and ranching vehicles, tools, equipment, clothes, two guns, sporting equipment, car for each member of family who holds a driver’s license, animals and pets, jewelry, etc.) or an allowance in lieu thereof ($45,000 in lieu of homestead – otherwise $30,000), as determined by the court. Also lost were any rights to be paid a family allowance for one year.

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