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Regarding common law marriage in texas: two things-Is income

he earned from working while...
Regarding common law marriage in texas: two things-Is income he earned from working while i was home not working with our son also community? and secondly, he has cancer. If he is incapacitated and decisions must be made, he wants me to be able to do that and i told him he had to make a will and a med power of atty. would i be able to make those decisions without power of atty and if he dies intestate does everything go to me or does he have to make a will? We have a 6 year old together but he has two grown kids with x wife.
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3/31/2017
FamilyAttorney
Category: Family Law
Satisfied Customers: 1,537
Experience: Owner, attorney in private practice, appellate attorney, GAL & former trial lawyer, licensed for 37 years
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Hello and thanks for using Just Answer. I’m a licensed attorney with 37 years’ extensive experience in family law, trials, appeals, landlord-tenant, and other types of law.

This is general information and not legal advice. No specific course of action is proposed, and no attorney-client relationship is formed. This is for educational purposes only.

I'm answering another question so I'll be right back. Thanks!

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Customer reply replied 7 months ago
I understand. We spoke a few minutes ago, I just thought of a few details. Thanks so much. Stacey

Almost done, thanks S!

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Customer reply replied 7 months ago
Take your time, ill be here

Okay, I'm here.

Income he earned from working while you're at home is still community property. In Texas, income EVEN generated by separate property is still considered community income. So yes, this is community property.

I'm so sorry to hear about his health! Awful. I'm so sorry!

He should make a will definitely because he has children from another marriage. If you're not married, you wouldn't inherit. If you are common law married, you will inherit.

You should get a will plus a medical/health care power of attorney and also a durable power of attorney for all other issues. You need to have the POA for him. He has to make these now while he is of sound mind.

I just had two TX questions back to back -- are you common law married or debating marriage -- sounds like you are the common law married question, correct? I just want to make sure I have the right customer so I can give the right answer ;>

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Customer reply replied 7 months ago
you're right. We have lived together since 2010 and talked about getting married after dating 4 months and its been all this time and we're still just talking and i am concerned since i havent worked in so long and now i have this young one here...40th bday surprise!..lol Thanks for your kind words about his illness. Let me be sure i understand. Since we satisfy those three conditions and tx is a common law state which recognizes community property; technically if he died intestate i would inherit but im correct in thinking since there are others involved it would be safest to have will, POA and all you said.

There are several reasons to have a will and a POA.

First, the POA will allow you to handle his affairs if he cannot. The medical POA will help you make important decisions if he cannot.

The will here is crucial for several reasons. First, if you have a common law marriage, with one person deceased it is more difficult to prove it was a common law marriage! Second, in TX, there is sharing with the children. You have your own child but he also has two others.

In TX, if someone dies intestate, this is what happens:

If there is a spouse and children who are also the children of your spouse:

  • spouse inherits all of your community property, plus 1/3 of your separate personal property and the right to use your real estate for life
  • children inherit everything else

If there is a spouse and children who are not the children of your spouse:

  • spouse inherits 1/3 of your separate personal property and the right to use your real estate for life
  • children inherit everything else, including your 1/2 interest in the community property

So you will be sharing with all of the children in one way or another. If he wants you to have everything, he must make a will otherwise you could be left out if you can't prove common law marriage and if you can, you'd have to share with the kids -- all of them.

Thanks in advance for rating me. :)

FamilyAttorney
Category: Family Law
Satisfied Customers: 1,537
Experience: Owner, attorney in private practice, appellate attorney, GAL & former trial lawyer, licensed for 37 years
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Customer reply replied 7 months ago
It would be simpler if we just got married. Neither of us have considered separating all this time, but i always told him i wanted it to be official once we had a child because of complications like this. He has issues withl formal marriage and yet always said one day we would and he put, me off and off ect. Now that hes sick i told him he needed to get those things if we didnt get married if he wanted me to be in the position a wife should be in. Now im starting to suspect something fishy. Thank you for clarifying it for me so wonderfully, gives me a little piece of mind. Have a wonderful weekend. Stacey

Thank you for rating me.

I have to tell you though, this won't solve the problem because if he is intestate you STILL have to share with all the children.

You have a wonderful weekend too but please understand -- without a will, you're out in the cold. You really need a will. A marriage will not change anything here. :( I hope you understand that the most important thing here is a will. Be well!

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