No Forced Heirship In Texas

No Forced Heirship In Texas

Forced Heirship in Texas?

Forced heirship is a concept that provides that all of your children have a right to a portion of your estate upon your death. In other words, each of your children must get part of your estate. There are limited circumstances under which a child can be disinherited. Absent one of these circumstances, if you do not provide a child with his or her forced portion, he or she can sue to claim it. The idea comes from Roman and French Civil Law but is not part of the common law of England. All states follow the Common Law of England rather than the Civil Law of Europe except for Louisiana. Louisiana has forced heirship, the other states generally do not have it.

No Texas Forced Heirship.

Texas was part of Mexico before its independence. Mexico’s law is based on the Civil Law of Europe.  Because Mexico had forced heirship, it was part of Texas law at the time of Texas’ independence. It remained part of Texas law for only a short time. Texas repealed forced heirship in 1856. As a result, a Texas will can leave property to a child or not leave property to a child. There is no law that requires a person in Texas to leave property to a child, a spouse or anyone else. There is complete freedom to leave property to anyone regardless of their relationship to the maker of a will.

If you want to read an in depth discussion on forced heirship in Texas and Louisiana, there is an excellent discussion titled The Early Sources of Forced Heirship; Its History in Texas and Louisiana, 4  Louisiana Law Review 1941.

Pretermitted Children and Spouses.

Note that forced heirship is different from the concept of pretermitted children and spouses. Pretermitted children are those children born after a will is executed and not otherwise provided for by the decedent. The law treats these children as forgotten children and they inherit as if there was no will. Texas doesn’t recognize pretermitted spouses but some states do. The same principles apply as apply to pretermitted children. I have written about pretermitted children here and here. I have written about pretermitted spouses here and here.

Listen to the this Podcast on pretermitted children:

INHERITANCE RIGHTS IN TEXAS—HOW TO OBTAIN THEM

INHERITANCE RIGHTS IN TEXAS—HOW TO OBTAIN THEM

Background

Heirship proceeding are different from will contest.

This article deals with getting property that is yours based on an inheritance. This may occur where a person dies without a will. It can also occur where there is a will but the will leaves property to the decedent’s “children” or his “heirs” or something similar without identifying the children or heirs by name. It may occur when there is a will but someone has taken your inheritance without your knowledge or when you didn’t know about your inheritance. This is different from a will contest where you are trying to prove your inheritance.

Let us say an heir finds out that a relative died some years back and that they may have some inheritance rights. What can they do? Is the statute of limitations a problem?

This situation may arise because a child was unborn or was an infant when the facts occurred. It may be that the child is illegitimate or only recently learned through DNA who their relatives were. It can also arise when other heirs, not just children, discover their potential inheritance.

There is currently no statute of limitation on heirship proceedings if the decedent died after January 1, 2014. If the decedent died before that date, there may or may not be a limitation problem depending on the circumstances. This is complicated, involving heirship proceedings (trial brief), but there is a possibility that it can be done.

Don’t get this limitation period confused with the two-year limitation period for contesting a will. This article deals with heirship and not with contesting wills. And if the facts are in your favor and the case is properly handled the limitation of those dying before January 1, 2014 may be avoided. In a recent case, the decedent died in 1972. Her heirs didn’t file any proceedings until 2013 when they filed a suit to get their inheritance. The statute of limitations was not a problem because of the facts and how the case was handled.

Inheritance Rights of Illegitimate Children

Inheritance Rights of Illegitimate Children

Do Illegitimate Children Inherit in Texas

  1. Yes, Illegitimate children inherit in Texas.
  2. The problem is proving paternity.
  3. If paternity is acknowledged or proved, they inherit.

Historical Background

In Texas, until 1991, illegitimate children did not inherit from their parents. In that year, the Texas Supreme Court, following an earlier ruling by the U.S. Supreme Court, held that the statutes that deny inheritance rights to illegitimate children violate the Constitution’s equal protection clause.

As originally enacted, the Texas Estates Code (formerly the Probate Code) accorded paternal inheritance rights to an illegitimate child only if the parents had married after the child’s birth. The statute was amended several times to allow inheritance rights to illegitimate children if the father took some voluntary action to acknowledge the child before he died.

In declaring the statute unconstitutional, the Supreme Court said “(t)he legal status of illegitimacy is, like race or national origin, a characteristic beyond an individual’s control, and it bears no relation to the individual’s ability to participate in and contribute to society…thus, a statutory classification based on illegitimacy violates equal protection unless it is substantially related to an important governmental interest.” Finding no substantial government interest in denying inheritance rights to illegitimate children, the Supreme Court declared the statute unconstitutional.

If the illegitimate child is acknowledged as the child of the decedent by other heirs or if the child proves his paternity by court action, then the child is treated as any other child as far as inheritance goes. Remember, this only applies if there is no valid will or if there is a valid will that does not dispose of all of the property. If there is a valid will that disposes of all of a decedent’s property, it determines who inherits.

How does an Illegitimate Child Prove His Paternity.

If the illegitimate child is acknowledged as the child of the decedent by other heirs or if the child proves his paternity by court action, then the child is treated as any other child as far as inheritance goes. Remember, this only applies if there is no valid will or if there is a valid will that does not dispose of all of the property. If there is a valid will that disposes of all of a decedent’s property, it determines who inherits.

The current Texas Estates Code (formerly the Probate Code) provides that illegitimate children inherit from their parents and other ancestors and descendants to the same extent as legitimate children.

Problems arise in proving paternity not whether paternity allows the inheritance. Problems like the child is never acknowledge as a child or is unknown as a child of their biological parents. This can happen when a mother gives birth without telling anyone and letting the child be adopted. It can also happen when a father denies that he is the father but no paternity suit is ever filed. What does the child do in those circumstances?

Illegitimate children can petition the probate court to determine paternity and their rights of inheritance. The statute of limitations requires that the children must petition the court within certain time limits after the death of the parent.

Inheritance from Grandparents

Because a child inherits from his ancestors and descendants, an illegitimate child may find that his biological grandparents had a substantial estate and seek to inherit from them. He might also discover that he has siblings from whom he would inherit. The point to remember is that if you discover that you have a family that you did not know you had or that has denied you being a child of that family, you should contact an attorney quickly to secure your rights.

Do not take, or refrain from taking, any action based on what you read. You need to discuss your situation with your attorney who can advise you based on your facts.

If you have a question about a pending or anticipated lawsuit about contesting a will in Texas, use the Contact Us page at the top of the site to see if we can help.

Thanks for visiting!

Podcast – What are pretermitted children?

Podcast – What are pretermitted children?

Podcast added!

The topic is “Pretermitted Children”

A pretermitted child is a forgotten child who takes a part of their parents’ estate even if not mentioned in the will.

This discussion only applies where the parent dies testate, meaning the parent left a will. If the parent dies intestate, without a will, then the child would inherit a child’s portion the same as any other child and there is no need to resort to the pretermitted child statute.

So, what in the world is a pretermitted child? This podcast has a brief introduction.

I produce these Podcast to briefly discuss current topics about Texas inheritance issues. You can find more information about Texas inheritance issues on this website or on my blog above.

We will be making new podcast from time to time so subscribe to this blog. You can also subscribe to our channel on Apple PodcastSpotify, Google Podcast, Anchor, RSS feed and others that can be found here.

 

Click on the podcast below.

Adoption by Estoppel in Texas

Adoption by Estoppel in Texas

Adoption by Estoppel Texas

Adoption by Estoppel

Texas recognizes adoption by estoppel which is a form of an informal adoptions.  An informal adoption is similar to a common law marriage in that no formal legal proceedings are involved. An inheritance lawyer is going to walk you through what it is.

Defining Adoption by Estoppel

These adoptions may be called adoption by estoppelequitable adoption or adoption status by the courts discussing them.  The courts treat these as contract cases in that once the facts are established, the heirs of the adopting parent are estopped from denying the adopted child his inheritance rights.

The courts look for an enforceable agreement between the adopting parent and the adopted child, his parents or some other person in loco parentis with the child.  The adopting parent agrees to adopt the adopted child then confers affection and benefits upon them and the person who agreed with the adopting parent relies upon the adopted status. These informal adoptions are important where the adopting parent dies without a will.  If the adopting parent leaves a will, he can leave his property to anyone he chooses.  He can leave property to the adopted child or not.  However, if he dies intestate (without a will) then the child adopted by estoppel will inherit a share of this adoptive parent’s estate the same as any other child.  906 – 576.

Adoption by Estoppel – proof in court

The doctrine is applied regularly when, “because of the promises, acts and conduct of an intestate deceased, those claiming under and through him are estopped to assert that a child was not legally adopted or did not occupy the status of an adopted child.” The doctrine of equitable adoption (adoption by estoppel) is not “the same as legal adoption” and does not contain “all of the legal consequences of a statutory adoption.” Rather, it merely protects an adopted “child’s right to inherit by adoption” as if the adoption had been legally completed. The Texas Estates Code recognizes the doctrine, defining “child” as including a person adopted by “acts of estoppel.” 06-20-00007-CV.

Inheritance Rights of Illegitimate Children

Inheritance Rights of Illegitimate Children.

Contesting a will in Texas

Do Illegitimate Children Inherit in Texas

  1. Yes, Illegitimate children inherit in Texas.
  2. The problem is proving paternity.
  3. If paternity is acknowledged or proved, they inherit.

Historical Background

In Texas, until 1991, illegitimate children did not inherit from their parents. In that year, the Texas Supreme Court, following an earlier ruling by the U.S. Supreme Court, held that the statutes that deny inheritance rights to illegitimate children violate the Constitution’s equal protection clause.

As originally enacted, the Texas Estates Code (formerly the Probate Code) accorded paternal inheritance rights to an illegitimate child only if the parents had married after the child’s birth. The statute was amended several times to allow inheritance rights to illegitimate children if the father took some voluntary action to acknowledge the child before he died.

In declaring the statute unconstitutional, the Supreme Court said “(t)he legal status of illegitimacy is, like race or national origin, a characteristic beyond an individual’s control, and it bears no relation to the individual’s ability to participate in and contribute to society…thus, a statutory classification based on illegitimacy violates equal protection unless it is substantially related to an important governmental interest.” Finding no substantial government interest in denying inheritance rights to illegitimate children, the Supreme Court declared the statute unconstitutional.

If the illegitimate child is acknowledged as the child of the decedent by other heirs or if the child proves his paternity by court action, then the child is treated as any other child as far as inheritance goes. Remember, this only applies if there is no valid will or if there is a valid will that does not dispose of all of the property. If there is a valid will that disposes of all of a decedent’s property, it determines who inherits.

 

Contesting a will in Texas

Let’s Work Together

How does an Illegitimate Child Prove His Paternity.

If the illegitimate child is acknowledged as the child of the decedent by other heirs or if the child proves his paternity by court action, then the child is treated as any other child as far as inheritance goes. Remember, this only applies if there is no valid will or if there is a valid will that does not dispose of all of the property. If there is a valid will that disposes of all of a decedent’s property, it determines who inherits.

The current Texas Estates Code (formerly the Probate Code) provides that illegitimate children inherit from their parents and other ancestors and descendants to the same extent as legitimate children.

Problems arise in proving paternity not whether paternity allows the inheritance. Problems like the child is never acknowledge as a child or is unknown as a child of their biological parents. This can happen when a mother gives birth without telling anyone and letting the child be adopted. It can also happen when a father denies that he is the father but no paternity suit is ever filed. What does the child do in those circumstances?

Illegitimate children can petition the probate court to determine paternity and their rights of inheritance. The statute of limitations requires that the children must petition the court within certain time limits after the death of the parent.

Inheritance from Grandparents

Because a child inherits from his ancestors and descendants, an illegitimate child may find that his biological grandparents had a substantial estate and seek to inherit from them. He might also discover that he has siblings from whom he would inherit. The point to remember is that if you discover that you have a family that you did not know you had or that has denied you being a child of that family, you should contact an attorney quickly to secure your rights.

Do not take, or refrain from taking, any action based on what you read. You need to discuss your situation with your attorney who can advise you based on your facts.

If you have a question about a pending or anticipated lawsuit about contesting a will in Texas, use the Contact Us page at the top of the site to see if we can help.

Thanks for visiting!

Who and What we Are

Robert Ray is Board Certified

Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization. We handle cases throughout Texas. Our principal office is in Lantana, Texas (DFW area).
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Contesting a will in Texas

Zoom type workshops?

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