A surviving spouse has standing under Texas law to pursue a survival action on behalf of the estate and an individual wrongful-death claim.[1] The “purpose of Wrongful Death Act is to provide means whereby surviving spouses, children, and parents can recover for the loss of a family member by wrongful death.”[2] It is a requirement, however, that that marriage is valid. There are different types of marriages that are considered valid in different states. Texas recognizes formal, informal and common law marriages. The length of time it takes for a relationship to become a common law marriage varies from jurisdiction to jurisdiction.
In a majority of states, including Texas, marriage to a first cousin is statutorily banned. The Texas Legislature adopted new language Sept. 1, 2005 which added the prohibition of marriage between “a son or daughter of a parent’s brother or sister, of the whole or half blood or by adoption.”[3] If a couple were to try to acquire a marriage certificate, formally or not, they would be denied on the grounds of the prohibition mentioned above and therefore would also not be eligible for common law status. Without a legally recognized marriage, one cannot recover for their loved one’s death under the Texas Wrongful Death Statute.
However, marriage between cousins was not prohibited until the 2005 legislative session. So, first cousins that were legally married before that date are presumed to have a legal marriage. It was held in 1965 that the introduction of a marriage license and certificate into evidence suffices to invoke the statutory presumption of validity.[4] Because marriage is a vested right, it has been held that subsequently made laws cannot retroactively effect its validity or void it as a matter of law. The Texas Constitution states that “If a statute impairs or takes away vested rights, it may not be made retroactive.”[5 ]
The law, in its current combination would allow a wife or husband that is also their spouse’s first cousin to bring a lawsuit for wrongful death against a negligent defendant. The U.S. Department of Justice reported that 90% of medical malpractice cases include wrongful death.[6] The U.S. Department of Transportation reported 37,261 wrongful death claims related to accidents in 2007.[7] Prescription drugs are another growing area of wrongful deaths as well as product liability cases.[8]
Because of the growing number of wrongful deaths and the complications that can be associated with legal battles, if your spouse has passed away due to the negligence of someone else, and that spouse is your first cousin, you would be best served by calling an attorney to discuss the facts of your case.
Written by:
Lyndsey Mott
Approved by Francisco Guerra IV
Watts Guerra LLP
4 Dominion Drive, Bldg 3, Suite 100
San Antonio, TX 78257
Phone (210) 447-0500
© Watts Guerra LLP 2015
[1] See TEX. CIV. PRAC. & REM. CODE ANN. §§71.0001- .0021 (Vernon 1997)
[2] Garza v. Maverick Mkt., Inc., 768 S.W.2d 273. 274 (Tex. 1989)
[3] See Acts 2005, 7th Leg., ch. 268, §4.05, eff. Sept. 1, 2005
[4] See, e.g., Black v. Shell Oil Co., 397 S.W.2d 877, 881 (Tex. Civ. App.–Texarkana 1965, writ ref’d n.r.e.)
[5] Tex. Const. art. I, §16
[6] http://www.justice.gov
[7] https://www.transportation.gov
[8] http://www.justice.gov
