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Children Successfully Void Father’s Marriage in Texas

When someone marries later in life, the marriage is often questioned – is my family member being taken advantage of?  Is this young woman really in love with my elderly father?  In Estate of W.R. Durrill, children of a Texas decedent were able to successfully void their father’s marriage in Texas after his death.

How Can Children Successfully Void A Parent’s Marriage After Death?

Texas law provides the mechanism for interested persons to void the marriage of a decedent.

Section 123.102 of the Texas Estates Code provides that:

(a)  Subject to Subsection (c), if a proceeding described by Section 123.101(a) is not pending on the date of a decedent’s death, an interested person may file an application with the court requesting that the court void the marriage of the decedent if:

(1)  on the date of the decedent’s death, the decedent was married; and

(2)  that marriage commenced not earlier than three years before the date of the decedent’s death.

(b)  The notice applicable to a proceeding for a declaratory judgment under Chapter 37 Civil Practice and Remedies Code, applies to a proceeding under Subsection (a).

(c)  An application authorized by Subsection (a) may not be filed after the first anniversary of the date of the decedent’s death.

The Texas court shall declare a marriage void if the court finds that, when the marriage occurred, the decedent did not have the mental capacity to:

  • Consent to the marriage; and
  • Understand the nature of the marriage ceremony, if a ceremony occurred.

A court that makes such findings may not declare the marriage void if the court finds that, after the marriage occurred, the decedent:

  • Gained the mental capacity to recognize the marriage relationship; and
  • Did recognize the marriage relationship


The Facts Of This Successful Marriage Challenge

This case centered around wealthy businessman W.R. Durrill.  In 2008, Durrill was widowed after 50 years of marriage.  Durrill, once an active businessman, began disengaging from his business.

Durrill began living with a woman named Georgeanne Costello Gasaway in 2009.  Around this time, Durrill began to suffer from mental decline and chronic health issues. By September 2015, Durrill needed full time care in his home.

A few months later, Gasaway and Durrill filed a declaration that they had been “informally” married since 2010.  In November 2015, Gasaway and Durrill had a wedding reception.  Durrill’s family did not make the invite list.  November 2015 was the first time that Gasaway began representing herself and Durrill as married.

A few months later, in April 2016, Durrill was admitted to the hospital for kidney failure and dehydration.  Durrill died two days later.

The Texas Probate Proceedings

Durrill’s children petitioned to probate Durrill’s 2004 Will.  It was later discovered that Durrill had executed a 2016 codicil.  The 2016 codicil left Gasaway a:  20% interest in some of Durrill’s estate assets, a life estate in Durrill’s home and furnishings, as well as funeral plots.

The children petitioned pursuant to chapter 123 of the Texas Estates Code to have the marriage between Durrill and Gasaway declared void.

A two week jury trial occurred in this case.  Many witnesses as to decedent’s capacity testified, as well as witnesses who knew decedent and Gasaway.  The jury found that Durrill did not have the mental capacity to enter into a marriage on November 2, 2015.  The jury also found that Durrill never gained the mental capacity to recognize the marriage relationship.

The trial court granted a directed verdict in favor Durrill’s children to void the marriage.   The trial court found that there was no informal marriage because Durrill and Gasaway did not hold themselves out as married before November 2015 (when the couple had a wedding reception).  “Holding out” is an essential element of an informal marriage.  Gasaway herself testified that they did not tell others they were married until after November 2015.  The appeals court upheld the findings in the trial court.

The Effect of A Voided Marriage in Texas

Section 123.104 of the Texas Estates Code sets forth the effect of a voided marriage and states:

If the court declares a decedent’s marriage void in a proceeding described by Section 123.101(a) or brought under Section 123.102 the other party to the marriage is not considered the decedent’s surviving spouse for purposes of any law of this state.

Therefore, Gasaway did not receive any of the benefits to which a surviving spouse is entitled under the laws of Texas.


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