No Standing Without a Common Law Marriage

Family law and medical malpractice aren’t usually our things here at 600 Commerce, but a wrongful death opinion case illustrates a principle of standing that may be of interest to commercial litigators in their own tort and family law-related cases. At issue was whether the plaintiff had standing to sue for wrongful death after her former husband died of cardiac arrest. Husband and wife were formally divorced at the time of his death, but the wife claimed that they had an “informal” or common law marriage even after the divorce. The trial court granted summary judgment for the defendants, and the Court of Appeals affirmed. The wrongful death statute required the plaintiff to have been a surviving spouse.┬áThe evidence showed that the divorce had really only happened because the couple wanted to protect their assets from potential creditors, and that they had continued to live together and hold themselves out as husband and wife. Although the couple here held themselves out to be husband and wife and lived together as such after the divorce, the wife had failed to show that they had actually agreed to be married — i.e., that they had a present, immediate, and permanent intent to be married as husband and wife. Instead, the widow testified that they had intended to “legalize the marriage again” only when the couple’s creditors were paid off. Thus, without the required element of a present intent to be married, the plaintiff could not demonstrate the existence of a common law marriage, and she had no standing to sue under the wrongful death statute.

Malik v. Bhargava, No. 05-13-00384-CV

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