In Allebach v. Gollub, the decedent had three children, and after he died, one of them filed a will contest and a claim that the decedent’s marriage to his second wife was void. No. 14-22-00272-CV, 2023 Tex. App. LEXIS 3469 (Tex. App.—Houston [14th Dist.] May 23, 2023, no pet. history). The plaintiff filed a will contest, alleging among other things that the decedent had been suffering from memory declines and that he lacked testamentary capacity. She also sought to probate an earlier will, in which she was a beneficiary. Furthermore, she asserted several causes of action against the new wife, and sought a declaratory judgment that the marriage was void as a matter of law because the new wife was the daughter of the decedent’s biological sister—which made her the niece of the decedent and the cousin of his children. The trial court granted summary judgment for the plaintiff on the claim voiding the marriage, and the new wife appealed.
The court discussed the standards for voiding a marriage:
Texas law presumes that every marriage is valid “unless expressly made void by Chapter 6 [of the Texas Family Code] or unless expressly made voidable by Chapter 6 and as annulled as provided by that chapter.” This presumption applies to the marriage between Anna and the decedent because, even though their marriage was performed in another state, they were domiciled here in Texas. To overcome this presumption, Julie had the burden of proving that the marriage between Anna and the decedent was either void or voidable. There are significant differences between these two types of invalid marriages.
Voidable marriages are identified in Subchapter B of Chapter 6, which is entitled “Grounds for Annulment,” and they include marriages that are founded on such grounds as fraud and mental incapacity. To challenge a voidable marriage, a party must bring a suit for annulment. And this suit must be brought before the death of either party to the marriage, except as provided by the Texas Estates Code. See Tex. Fam. Code § 6.111.
Void marriages, on the other hand, are identified in Subchapter C of Chapter 6, which is entitled “Declaring a Marriage Void,” and they include marriages founded on grounds such as consanguinity. To challenge a void marriage, a party must bring a suit to declare the marriage void. And under our common law, such suits may be brought “by anyone, at any time, directly or collaterally.”
Id. (internal citations omitted). The court held that the evidence proved that the new wife was the defendant’s niece as matter of law, which was not contradicted by any evidence of the new wife.
The new wife argued that the claim to void the marriage was barred by the statute of limitations. The court stated:
Anna relies specifically on Section 123.102 of the Texas Estates Code, which provides in material part that “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 . . . the marriage commenced not earlier than three years before the date of the decedent’s death.” Anna then refers to Julie’s own summary-judgment evidence to prove the application of this statute, because Julie attested in her affidavit that the decedent married Anna more than four years before his death. By advocating for the application of this statute of limitations, Anna implicitly suggests that Section 123.102 has supplanted the common law rule that a void marriage may be challenged “at any time.”… Altogether, the text and structure of Subchapter C of Chapter 123 reflect a singular focus of invalidating a marriage on the ground of mental incapacity, which makes a marriage voidable, not void. Thus, the limitations provision contained within Section 123.102 should only be understood to apply to a challenge to a marriage made voidable on the ground of mental incapacity. This understanding comports with the plain language of the statute, and it also preserves the longstanding common law rule that challenges to void marriages are not subject to limitations. Because Julie sought a declaration that the marriage between Anna and the decedent was void on the ground of consanguinity, rather than voidable on the ground of mental incapacity, we conclude that the limitations provision contained within Section 123.102 has no application to this case.
Id. (internal citations omitted). The court also disagreed that the plaintiff lacked capacity or standing to raise her claims. The court affirmed the trial court’s judgment voiding the marriage.