Inheritance Rights of Illegitimate Children

Robert Ray

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As originally enacted, the Texas Estates Code (formerly the Probate Code) accorded paternal inheritance rights to an illegitimate child only if the parents had married after the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.

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Robert Ray

Robert Ray handles inheritance disputes of all kinds. He takes cases throughout Texas.
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