This column first appeared in the San Antonio Express News on November 7, 2016.
Dear Mr. Premack: My parents divorced after 30 years of marriage. Mom then bought a new house. However, a few years later my Father and she got back together. He moved into her house with her (but her name was the only name on the deed). They did not remarry. Mom passed away leaving a Will that names me (their only child) as sole beneficiary. Father now claims common law marriage and does not want to probate the Will. He also denied being common law married to get out of liability for mom’s debts. He is trying to get the deed into his name somehow, but won’t let me go to the attorney with him and has been secretive. He is now telling me that his new girlfriend is moving in and he is granting her the right to live there until her death. He said the house will be mine after such time comes. Do I have reasonable recourse? – RT
Yes, you have reasonable recourse: the Executor named in the Will should hire a qualified Probate Attorney to file your mother’s Will for probate and to claim ownership of the house as her sole devisee. The house was her separate property since she purchased it while she was unmarried. Via the probated Will you as devisee would receive 100% title in the property.
If you probate the Will, your father’s common law marriage claim will have no impact on enforcement of the Will’s provisions. You will become owner of the house. However, if he can establish that they were common law married then he will have homestead occupancy rights.
To establish a common law marriage claim, he will have to take action in court. He can either 1) file a written declaration of informal marriage, which they both signed, if such a document exists, or 2) he can bring witnesses to testify that they lived together, that they agreed to be married, and that they represented to others that they were married.
You can present rebuttal evidence, like showing that after she died he said that they were not married (so he could get out of paying her debts). If the Judge rules that they were not married, then he has no homestead rights. You can, as owner of the house (after the court’s ruling) seek to evict your father and his girlfriend.
Even if the Judge rules that your father and mother were informally married, he still will not be the owner of the house. Her Will leaves the house to you. But he will have homestead rights, and can occupy the house for his lifetime. While he occupies it, he can invite his girlfriend to live there as well. He cannot, however, give or assign to her the right to occupy the house after his death.
Now let’s look at this from your father’s perspective. He is seeing an attorney, refuses to allow you to participate, and told you not to probate your mother’s Will. He may be asserting that there was no Will. If you do not stand up for yourself by filing the Will for probate within the four-year statute of limitations, and if he establishes that they were married, then he will own the house as her spousal heir-at-law. In that event, your inaction has waived your claim.
As owner, he could then do anything he wants, including setting up his girlfriend for life and going back on his word that it will “be yours” when his girlfriend has died. Protect yourself and your inheritance by consulting with a Probate Attorney as soon as possible.