My motivation for this article is the existence of his “Ex” wife and the discrepancy between her perception of herself, and her legal standing within his estate. My experience and knowledge are based on Texas law and may differ from other states.
Due to the decedent’s lifestyle, he did not have an estate, yet his “Ex” wife was very interested in any dependency funds available for her upon his death, and desired to be recognized and respected as his wife.
As I left the cemetery and reflected back upon the week’s experience, I thought to myself, how very odd that this woman did not understand her severance from this man, as stipulated through the courts in their divorce decree. Interestingly, this woman is not unique in her misconception of her legal standing within the “Ex” husband’s estate. I meet women almost weekly who are under one or more misconceptions regarding their legal status within the estate of a particular male decedent.
It seems as though the popular phrase of the 1960’s “It’s only a piece of paper,” has diluted the legal importance of the marital contract within the minds of many couples. This mere piece of paper is a legal and binding contract, issued through the state which establishes, combines and protects one’s legal next of kinship within an estate. If a couple is married, each party is legally recognized as the other’s next of kin. As such, each has power, rights and responsibilities within the combined marital estate. Their legal document (marriage certificate) places them in this important position. Individuals who choose to reside together without this legal contract, are not in the next of kinship position, and, therefore, have no legal standing within the estate.
In such a case, a woman who has never been the decedent’s legal wife, or who has given up her place as his legal wife, forgoes her rights and considerations as kinship, along with anything else she may consider as combined property and estate. She may therefore find herself evicted from her residence without legal rights to any insurance funds or estate properties. A man however faces far graver consequences. In addition to the previously stated losses, a man who has not married the mother of his children, and has failed to secure his name on their birth certificates, may find that on the dreadful day of losing his pseudo wife, he stands without parental rights. Not only might he lose what he thought was community property, without expensive testing and court battles, he will most likely see the guardianship of his children fall to their maternal grandparents.
The “Ex” wife this weekend wanted the decedent’s social security benefits and payouts for her children, as well as for herself. Although her dependent children are possibly eligible for social security funds, she most likely is not. When the marital contract was severed, her privileges and rights were severed too. One hopes she listed her “Ex” husband as the father of her children on their birth certificates; otherwise, they as their mother may be without support.
The key to understanding your position in an estate as spousal next of kin is to understand that there must be a legal and binding contract, a.k.a. a marriage certificate, in effect. If you are an “Ex” spouse, you have been legally removed and displaced as the decedents next of kin. Not only will you have lost all legal claims to the decedent’s estate; most probably, you will not be mentioned in the obituary, nor asked to sit with the family at the services. Moreover, if you have forgone the marriage contract altogether, you are not, nor will you ever be, the spousal next of kin.
My name is Tracy Renee Lee. I am a funeral director, author and freelance writer. I write books, weekly bereavement articles, and mid-week grief briefs related to understanding and coping with grief. It is my life's work to comfort the bereaved and help them live on.