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WHARTON, Texas The family and ex-wife of a Wharton firefighter killed in a huge blaze at a local egg farm have filed a lawsuit saying that his widow shouldn t get death benefits because she was born a man.

Thomas Araguz, a captain who d been with the Wharton Volunteer Fire Department for 11 years, died while battling a fire on July 4 at the Maxim Egg Farm on FM 442 in Boling.

His family s lawsuit is an attempt to annul the marriage of Araguz, 30, and his wife, Nikki, based on a 1999 Texas case law which prohibits same-sex marriage and says a person s gender cannot be changed from what it was at birth. Araguz married Nikki in August 2008.

Nikki Araguz was born as Justin Graham Purdue, a boy, in 1975. The family s attorney told the Chronicle he was unsure when Nikki Araguz may have had a sex-change operation, but according todocuments obtained by 11 News,she legally changed her name to Nikki in the mid-90s.

The family said up to $500,000 in benefits may be at stake. Without the lawsuit, the benefits would be divided between Nikki Araguz and the fallen firefighter s two young children that he had with ex-wife Heather Delgado.

An attorney representing Delgado and the firefighter s parents said Thomas and Nikki Araguz separated two months before his death, after the firefighter learned about Nikki s history in a custody battle with his ex-wife.

I miss my husband. I miss my best friend, and this is ridiculous, Nikki Araguz said Monday. He knew before, he was with me ... through the process.

She said her husband supported her through the reconstructive surgery.

But in April, in a child custody fight, both Thomas and Nikki Araguz swore under oath that Thomas Araguz had no idea about her gender change.

We were in difficult position and he and I both lied in that deposition, she said.

She said they lied because they thought that would help them in the child custody arrangements. However, the Araguz family said Thomas Araguz was devastated after the testimony.

Nikki Araguz said the sex-change issue initially came up back in the spring when she was running for mayor of Wharton. She blamed politics in the deposition taken during the custody battle with Thomas' ex-wife. She lost herbid for mayor.

Nikki Araguz also said her husband knew about her nearly dozen arrests, which involved offenses from drunken driving to theft.

You know what... I had made some mistakes prior to my marriage, she said.

Since then, she said she has worked hard while her husband went to firefighting and police academies.

I did support our family, I even made child support payments, she said.

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