Children – natural born, adopted or adopted by estoppel in Texas

Children – natural born, adopted or adopted by estoppel in Texas

For the purpose of inheritance, there are natural children, adopted children, children adopted by estoppel, also called equitable adoption and illegitimate children. What do these terms mean?

  1. Natural children are, of course, the children born to the parent.
  2. Adopted children are children that were adopted by the parent through the legal system.
  3. “Adoption by estoppel” sometimes called “equitable adoption” or “adoption status” means those children who were not adopted through the legal system but are nevertheless recognized by the law as the adopted children of a deceased person. This involves children who were raised by a decedent (someone other than their parents) and there must be a parent child relationship established between the person (the decedent) who raised them and the children. It is legally similar to a common law marriage.
  4. Illegitimate children are those whose parents were not married.

When a person dies intestate or when they leave a will that makes general references to “my children” or “my heirs,” all of the above will inherit. Once the status of “child” is established, it makes no difference whether they are natural children, adpoted children or illegitimate children. Adpotion by estoppel is a little different but they still inherit from the parent. See the discussion of informal adoptions like adoption by estoppelequitable adoption or adoption status here.

Learn if Adopted Children Inherit From Their Biological Parents

Learn if Adopted Children Inherit From Their Biological Parents

In Texas, when a child is adopted, he becomes the child of his adoptive parents. He inherits from and through them. That means that the adopted child will inherit from the ancestors of the parent who adopted him as well as from the parent. There is no difference based on the adoption.

The question is often asked about the Texas inheritance rights of the adopted child from his natural (birth or biological) parents. Generally, the adopted child inherits from his natural parents and his adoptive parents. Of course, this only applies if the parents, adoptive or biological, don’t have wills. If either or both have wills, their estate goes to whomever they say in their will. Texas does not have “forced heirship.” An adoptive or biological parent does not have to leave anything to his children. But if he does not have a will and dies intestate, then his estate would be divided between all of his children whether natural (birth or biological) or adopted.

An exception to the above rule may occur if the parental rights of the biological parent were terminated by a court order. If the termination order is silent as to inheritance, then the above rule applies. If, however, the termination order says that the child will not inherit from his biological parent, then there would be no inheritance unless the biological parent left a will specifically naming the child as a beneficiary. FC 161.206.

An adopted child can contest a will of his parents just as any child can.

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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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Read About Pretermitted children in Texas

Read About Pretermitted children in Texas

Contesting a will in Texas

What is a pretermitted child

A pretermitted child is a child who is born or adopted after a will is made and is not mentioned in the will. Most states have statutes that deal with this issue. In Texas, the statute provides that if the child is not otherwise provided for by the deceased parent, the child will take a portion of the estate even though he is not mentioned in the will.

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pretermitted child or a “forgotten child” is a child of the deceased who is both:

 1. born or adopted after a parent’s will is executed, and

 2. is not otherwise provided for by the parent.

Most states have statutes that deal with this issue. In Texas, the statute provides that if the child is not otherwise provided for by the deceased parent, the child will take a portion of the estate even though he is not mentioned in the will. §255.051, et. seq. Remember, if there is no will, the child would inherit a child’s share of the estate so the pretermitted child statute only applies if there is a will.

I have written on my blog about the requirements pretermitted children need to show in order to receive their inheritance and referenced several cases. To see a discussion of some Texas cases on inheritance rights of pretermitted children, click here.

Update: A 2017 case out of Pennsylvania had an interesting twist in a pretermitted child case. The child, who was born before the will was executed, attempted to get around the requirement that the child had to be born after the will was executed by claiming that her father was not aware of her existence until after the will was executed. The court did not agree and denied her status as a pretermitted child because she was born before the will. Estate of Sidney Rothberg, Deceased, No. 1428 EDA 2016, 2017 PA Super 198.

If you have questions about your Texas inheritance rights and would like to talk to an estate planning attorney or a lawyer who is familiar with Texas inheritance and probate law to advise you about your Texas inheritance rights, click on the “Contact Us” tab at the top.

I have a podcast on pretermitted children that you can listen to by using the links below:

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).
Contesting a will in Texas

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

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Inheritance Rights of Children in Texas

As an easy starting point to learn about the inheritance rights of children, the following list is provided:

  1. The inheritance rights of natural children;
  2. The inheritance rights of adopted children;
  3. The inheritance rights of children born after a will is made; and
  4. The inheritance rights of illegitimate children.

Click on one of the links above to learn more about the inheritance rights of children. If you don’t find the exact answer to your question, use the search box in the upper right hand corner to refine your search.

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

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).

Robert Ray Texas Inheritance

Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

Can Adopted Children Inherit in Texas?

Can Adopted Children Inherit in Texas?

In Texas, when a child is legally or formally adopted, they inherit to the same extent as natural children. A formal adoption is where the court system is involved.  A suit for adoption is filed.  Then, in some cases, the state investigates the adopting parents to make sure that they are good candidates for adoption.  The home may also be inspected to make sure that the adopted child will be provided for.  If everything is in good order, the judge approves the adoption and the adopted person becomes the child of the adopting parents with the same rights as a natural born child. That means that the adopted child inherits not only from the adopting parents but through them.  They will inherit from grandparents and aunts and uncles to the same degree that a natural born child would inherit from them.

Adults who are adopted are treated differently. Those who are adopted as adults may not inherit from or through the adult’s biological parent.  A biological parent may not inherit from or through an adopted adult. Professor Gerry Beyer, www.ProfessorBeyer.Com, has said that this rule may lead to an absurd result.  “For example, assume that Mother and Father have a child in 1985.  Mother dies in 1990 and Father marries Step-Mother in 1995.  As time passes, Child and Step-Mother become close and shortly after Child reaches age 18, Step-Mother adopts Child.  If Father dies intestate, Child will not be considered an heir because the statute provides that an adopted adult may not inherit from a biological parent.
The statute was enacted as part of “family values” legislation primarily to prevent same-sex couples from adopting each other and thereby creating a “grandchild” for their parents.  Now that same-sex couples may marry, the need for this provision may no longer exist.

The simple, albeit “dumb,” solution may be to have the biological father adopt his son in the same proceeding.”

Update: In 2017, the Amarillo Court of Appeals ruled that a trust that gave property to children “born of or adopted” included adults who were adopted as adults. 07-16-00003-CV. The court found no language in the trust that would restrict “adopted” to those adopted as children. “We cannot agree that any language of the trust agreements indicates an intention of the trustors to limit adopted grandchild beneficiaries to those adopted as minors.” This case is applying language in the trust agreement and not applying the above statute to the question of adopted adults.

Texas also recognizes informal adoptions.  An informal adoption is similar to a common law marriage in that no formal legal proceedings are involved.  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.

2017 UPDATE on adoption by estoppel

In 2017, the legislature amended the Texas Estates Code to treat children adopted by estoppel the same as any other adopted child. 22.004; 201.054(e). Some of the cases and situations listed below may no longer be good law but they are included for historical research.

Cases

The informally adopted child will not inherit from his grandparents (his adoptive parent’s parents) unless they were in privity with the adoption.  He will only inherit from his adoptive parents not through them.  In other words, persons not in privity with the adoption are not bound by the adoption.

In a 2016 case, a Texas court of appeals held that adoption by estoppel does not apply to adults but only to children. The court said “(a)llowing an adult to be adopted by estoppel “would greatly extend the doctrine and surely open the door to many fraudulent claims” … Such an extension would open the door to abuse by “persons who have assisted and befriended the elderly during the last years of their life” and, after the decedent’s death, claim the decedent “adopted” them by estoppel.” 01-15-00670-CV.

In a 2017 case, the Amarillo Court of Appeals had a case involving adoption by estoppel. Although the facts are not clear the end results were that the competing parties ended up agreeing that the child claiming adoption by estoppel was the sole heir of the decedent. 07-16-00375-CV.

A Tennessee court has held that adoption by estoppel or equitable adoption are probate concepts to determine inheritance and do not apply to proceedings for parentage, custody, and visitation. Scarlett. The same is probably true in Texas courts.

Adopted children can contest the will of their parents. A formally adopted child and an informally adopted child whose adoptive grandparents were in privity with the adoption, can contest the will of their adoptive grandparents. Contesting a will is discussed here.

Example:   There is an adoption by estoppel where Joe adopts Jane. Joe dies without a will.  Jane inherits all or part of Joe’s estate the same as any child would.

Example:  There is an adoption by estoppel where Joe adopts Jane.  Joe dies with a will that leaves his estate to his parents who survive him.  Jane doesn’t inherit from Joe because of the will.  Later, Joe’s parents die without a will.  Jane isn’t entitled to inherit from Joe’s parents if they were not in privity with the adoption.

The U.S. Department of Health and Human Services Administration for Children and Families Administration on Children, Youth and Families Children’s Bureau put out a summary of the various states laws relating to the adoption rights of those adopted, those adopting and the birth parents that may be found here.

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

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).

Robert Ray Texas Inheritance

Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

Inheritance Rights of Natural Children

Inheritance Rights of Natural Children

Natural children are the biological children of their parents. This article discusses the inheritance rights of those children.

In Texas, in general, children inherit the estate of their parents if there is no valid will. The spouse of the parent will also inherit a portion of the estate. How much the spouse inherits depends on whether the spouse is also the parent of the children (more) or the step parent of the children (less.) Read here for a discussion of the kinds of property involved and what the spouse and children receive when there is no will.

If there is a valid will, the will determines who gets the estate. A testator does not have to leave his estate or any part of his estate to his children. He is free to leave it to anyone he pleases.

If there is no will, or the will is determined to be invalid by a court after a will contest, then the decedent is treated as if he died without a will. This assumes that there is no older, valid will that would be admitted to probate. To review the grounds for contesting a will to have it declared invalid, read here.

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

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).

Robert Ray Texas Inheritance

Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

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