Dying Without A Will For Common Law Same Sex Couples

Categories: Estate Planning

Many people in Texas don’t have a Will. However, if a person dies without a Will directing to whom their property passes, the person dies “intestate” and the laws of intestacy determine who gets the deceased’s property. As we will discuss in this article, it is especially important to have a Will if the person the testator wishes to leave his or her property to is a common law spouse or same sex partner. In this article we will discuss Texas laws and the dangers of dying without a Will for same sex and non-married couples. To avoid intestacy, it is wise to contact a probate attorney such as Austin probate lawyer Farren Sheehan for help drafting a Will.

Intestate Succession

If a person dies in Texas without a Will, his property passes to his heirs under Texas law. This is known as intestate succession. Without a Will, the estate passes to the descendants according to Texas law even if the decedent said while he was alive that he preferred that his property be left in a different way.

How the property passes and to whom under Texas intestate laws is very complicated. Often families in Pflugerville, Cedar Hill, Austin, and Round Rock will need an Austin probate attorney to help sort this out. There are a number of considerations that only get more complicated when there are family members as well as significant others that are not married or of the same sex.

Same Sex Couples

Texas law does not recognize same sex couples in marriage. Marriage is only recognized in Texas between a man and a woman. Therefore, a same sex partner has no legal standing to inherit property by intestate succession in Texas. The only way a same sex partner can inherit property in Texas is through a valid Will.

Informal or Common Law Marriage

Texas is among 12 states that do recognize informal, common law marriages between a man and a woman. Texas has codified the requirements for a common law marriage in Texas Family Code.

Contact our offices for questions about your will.