Common law marriage saved a lifetime of work for a Dallas widow after his husband died

DAVID TAFFET | Senior Staff Writer
taffet@dallasvoice.com

Although Leon Schroeder and Duke Odel Cole had been a couple for 28 years, but they had never legally married. So when Schroeder died earlier this year, his sister thought she was entitled to everything he had owned.

Thanks to Texas’ common-law marriage, a Dallas County jury decided that she wasn’t.

Schroeder and Cole met in 1989 and held a small commitment ceremony at their house in 1993. They celebrated that date as their anniversary ever since.

Schroeder owned a wire fabrication manufacturing company. Cole was driving a truck at the time they met. Schroeder “wanted me to come off the road,” Cole said. “I did.”

And they began their life together.

When marriage equality became law in 2015, Cole said he and Schroeder never really thought about getting married.

“We never talked about it,” he said. “We’d been together so long, we never thought we had to. In hindsight, I wish we had.”

They also didn’t have any of their legal paperwork establishing each other as heirs in place — no wills, no powers of attorney — and most of what they owned was in Schroeder’s name.

Schroeder, 69, died suddenly in January. Dallas County listed Cole as next of kin on the death certificate. But the night he died, Schroeder’s sister came over. She wanted to know when he was moving out of the house.

Leon

Leon

At the funeral home the next day, the sister claimed to have no knowledge of her brother’s and Cole’s relationship and declared Cole wasn’t Schroeder’s legal spouse. She tried to stop the funeral, which Cole had arranged, but the funeral home said all paperwork was in order — Cole was listed as spouse on the death certificate — and they refused her demands.

Next, the sister hired an attorney, who sent Cole a letter laying out her terms and informing him she was going to liquidate the estate.

“She wanted to take our entire life away from me,” Cole said. “I was shocked and hurt.”

Meanwhile, Nancy Ridgway, an attorney and a friend of Schroeder’s and Cole’s, stepped in and filed probate before Schroeder’s sister could do so. Cole said wasn’t trying to keep Schroeder’s family from receiving some assets. In fact, he gave one nephew his car and kept Schroeder’s. And he made sure his husband’s sister got an annuity Schroeder had set up for her years earlier.

But Schroeder’s sister insisted on pursuing the case and requested a jury trial, Ridgway said. But as Cole noted, “Her attorney underestimated Nancy.”

Ridgway said she thought the sister’s attorney, from Collin County, underestimated or maybe didn’t understand a Dallas County jury.

A number of friends and Schroeder’s nephew testified for Cole. None were in same-sex relationships and most were straight.

Ridgway said that each testified that since the Obergefell marriage equality ruling, they hadn’t seen a rush to formalize their marriages among their friends, “nor do they know that these friends are filing marital declarations at their local courthouse,” Ridgway said, referring to common-law marriages.

Cole put it more simply: “They testified being with me and Leon was like being with an old married couple.”

After Ridgway presented her case showing that Schroeder and Cole presented themselves as a married couple and that shared their lives and their assets, the other side rested without putting on a case.

Cole said he wasn’t sure if their case fell apart or they thought they’d win because they never expected a jury to side with a gay couple.

Before the trial, Cole said, he got word that his husband’s brother’s ex-wife said she was going to testify that Schroeder couldn’t be gay because he was always coming on to her. Ridgway would have annihilated that testimony by simply asking when was the last time she had seen him. If she had been asked and had answered truthfully, she would have had to say 1992.

Members of the jury told Ridgway after the trial that they had unanimously decided for Cole after five minutes. But they deliberated for a full hour just to make sure they hadn’t missed anything.

In her ruling, the judge wrote, “After considering the application, the evidence and testimony offered in support and opposition to the applications, the jury found that decedent was informally married to Duke Odel Cole on the date of death.”
In other words, the judge affirmed the two men as common-law spouses.

By recognizing the couple’s common-law marriage, the judge gave Cole the right to probate the estate. The ruling sets the date of marriage as Jan. 1, 1993, the date of the couple’s informal ceremony in their home.

While other common-law marriages have been filed in Texas for pension purposes, this is the first to be recognized by jury trial and for purposes of probate. This may also be the oldest officially recognized same-sex marriage in Texas.

Texas is one of only eight states that statutorily protect common-law marriage.

“Without a will and/or formal ceremony in the other 42 states, committed same-sex couples are vulnerable to attack from a decedent’s family, should one of the partners die,” Ridgway said. “This case could have died on the vine, but for our common-law statute.”

The trial was held on Aug 28-29, almost eight months after Schroeder’s death. During that time, Cole said, it’s been like time was standing still.

“I miss him so much,” he said. “It’s like nothing has restarted yet.”

He said he holds no ill will toward the sister-in-law who sued him. “It was her loss as well,” he said. “I’m sorry we didn’t share it.”

Now that the case is settled, Cole is going through some of his belongings and making sure Schroeder’s sister and others in the family get things he knew his husband wanted them to have.

Ridgway said she loved that the case was held in the same courtroom where Judge Dennise Garcia married Jack Evans and George Harris, the first couple to legally marry in Dallas County, on June 26, 2015.

This article appeared in the Dallas Voice print edition September 8, 2017.