Treatment of Potential Heirs
A. Posthumous Heirs
Posthumous heirs are heirs conceived but not yet born when the intestate dies. Probate Code § 41(a) provides that posthumous lineal heirs (e.g., children and grandchildren) will inherit from the intestate, but posthumous non-lineal heirs (e.g., nieces and nephews) will not inherit.
B. Adopted Individuals
The ability of a person to adopt a non-biological person and cause that person to be treated as a biological child was recognized thousands of years ago by societies such as the ancient Greeks, Romans, and Egyptians. However, the concept of adoption was beyond the grasp of common law attorneys and courts. The idea that a person could have “parents” other than the biological mother and biological father was unthinkable. In fact, English law did not recognize adoption until 1926. Accordingly, modern law relating to adoption developed in the United States with Vermont and Texas taking the lead when their legislatures enacted adoption statutes in 1850.
Probate Code § 40 details the effect of adoption on intestate distribution. The rights of three parties are at issue: (1) the adopted child; (2) the adoptive parents; and (3) the biological parents. Adopted children will inherit from and through the adoptive parents and, unlike in many states, also from and through the biological parents. Adoptive parents are entitled to inherit from and through the adopted child. The inheritance rights of the biological parents, on the other hand, are cut off-biological parents do not inherit from or through their child who was given up for adoption. See also Family Code §§ 162.017 (adoption of minors) and 162.507 (adoption of adults).
A decree terminating the parent-child relationship may specifically remove the child’s right to inherit from and through a biological parent. See Family Code § 161.206.
Adoption by estoppel, also called equitable adoption, occurs when a “parent” acts as though the “parent” has adopted the “child” even though a formal court-approved adoption never occurred. Typically, the “child” must prove that there was an agreement to adopt and the courts will look at circumstantial evidence to establish the agreement. Thus, when the “parent” dies, the adopted by estoppel child is entitled to share in the estate just as if an adoption had actually occurred.
The result is different, however, if the adopted by estoppel child dies. The adoptive by estoppel parents and their kin are prohibited from inheriting from or through the adopted by estoppel child. The courts explain that it is the parents’ fault that a formal adoption did not take place and thus the equities are not in their favor. As a result, the child’s biological kin are the child’s heirs. See Heien v. Crabtree, 369 S.W.2d 28 (Tex. 1963).
C. Non-Marital Individuals
At common law, a child born outside of a valid marriage was considered as having no parents (filius nullius). Thus, a non-marital child did not inherit from or through the child’s biological mother or father. Likewise, the biological parents could not inherit from or through the child. However, the non-marital child did retain the right to inherit from the child’s spouse and descendants. If the child died intestate with neither a surviving spouse nor descendants, the child’s property escheated to the government.
This harsh treatment of non-marital children, formerly referred to by pejorative terms such as illegitimate children or bastards, has been greatly alleviated under modern law. In the 1977 United States Supreme Court case of Trimble v. Gordon, 430 U.S. 726 (1977), the Court held that marital and non-marital children must be treated the same when determining heirs under intestacy statutes. The Court held that discriminating against non-marital children was a violation of the equal protection clause of the 14th Amendment.
One year later, the Supreme Court retreated from its broad holding in Trimble. In the five-four decision of Lalli v. Lalli, 439 U.S. 259 (1978), the Court held that a state may have legitimate reasons to apply a more demanding standard for non-marital children to inherit from their fathers than from their mothers. The Court cited several justifications for this unequal treatment including the more efficient and orderly administration of estates, the avoidance of spurious claims, the maintenance of the finality of judgments, and the inability of the purported father to contest the child’s paternity allegations.
Probate Code § 42(a) permits the non-marital child to inherit from and through the biological mother (and vice versa) without any difference in the amount of maternity proof from that which a marital child is required to produce. On the other hand, Texas imposes higher standards on a non-marital child to inherit from the father. Section 42(b), in conjunction with the Family Code, enumerates how a person may be considered the child of a man and thus entitled to inherit such as when the child is born during marriage or within 300 days after the marriage ends, there is a court decree of paternity, the man adopts the child, or the man executes a statement of paternity.
Texas also permits the non-marital child to prove paternity after the purported father has died. In an attempt to limit the number of false claims, Texas imposes a higher standard of proof of paternity in post-death actions, that is, there must be clear and convincing evidence of paternity. DNA evidence is especially helpful in making this determination.
D. Children From Alternative Reproduction Technologies
Modern medical technology permits children to be born via reproduction techniques that involve more than the traditional two people or years after the death of one of the parents. Examples of these methodologies include (1) artificial insemination (donated semen artificially introduced into the mother’s vagina or uterus), (2) in vitro fertilization (donated egg and donated semen combined in a laboratory with the resulting embryo transferred to a donee), (3) gamete intrafallopian transfer (donated egg and donated sperm combined in a donee’s fallopian tube), and (4) embryo lavage and transfer (fertilized egg removed from the donor and transferred to the donee’s uterus).
Several options exist regarding the parentage of children born as a result of these techniques. The father could be (1) the supplier of the genetic material (sperm), (2) the husband of the supplier of the female genetic material (egg), or (3) the husband of the woman who gestates the child. Likewise, the mother could be (1) the supplier of the female genetic material, (2) the wife of the man who supplies the male genetic material, or (3) the woman who gestates the child even though this woman did not supply any genetic material (a surrogate mother).
Family Code §§ 160.701-.707 resolve some, but not all, of the issues which arise regarding the individuals whom the law will treat as the parents of children conceived by means of assisted conception. Generally, the donor of the sperm or egg is not considered as a parent and the birth mother is deemed to be the mother. For the child to have a father, the father must be married to the mother and the father must (1) provide the sperm, (2) consent in a record signed by both husband and wife to the assisted reproduction, or (3) openly treat the child as a child.
The 2003 Texas Legislature authorized gestational agreements between a surrogate mother and the intended parents in Family Code §§ 160.751-160.762. If the agreement is properly validated, the woman who gave birth to the child will not be treated as the child’s mother. Accordingly, this child would not inherit from or through the birth mother. Instead, the mother and father of the child will be the intended parents and inheritance rights will accrue accordingly.
E. Stepchildren
A stepchild is a child of a person’s spouse who is not a biological or adopted child of the person. Stepchildren may not inherit from their stepparents under Texas law.
F. Half-Blooded Collateral Heirs
The term “half-blood” refers to collateral relatives who share only one common ancestor. For example, a brother and sister who have the same mother but different fathers would be half-siblings. On the other hand, if the brother and sister have the same parents, they would be related by the “whole-blood” because they share the same common ancestors.
At common law, half-blooded heirs could not inherit real property from a half-blooded intestate although they were entitled to inherit personal property. This strict rule with its emphasis on blood relationships has been modified by the states. States adopt one of three modern approaches: (1) The majority of states have totally eliminated the distinction between half- and whole-blooded relatives in determining inheritance rights. Thus, half-blooded collaterals inherit just as if they were of the whole-blood. (2) Some states like Texas adopt the Scottish rule which provides that half-blooded collaterals receive half shares. (3) A few states permit half-blooded collateral heirs to inherit only if there is no whole-blooded heir of the same degree. Remember that the distinction between whole and half-blooded heirs is relevant only if distribution is being made to collateral heirs of the intestate.
A simple way to determine the proper distribution to half and whole-blooded heirs under Probate Code § 41(b) is to calculate the total number of shares by creating two shares for each whole-blooded heir and one share for each half-blooded heir. Each whole-blooded heir receives two of these shares and each half-blooded heir receives one. For example, if there are three sibling heirs, Whole Blood Arthur, Half Blood Brenda and Half Blood Charlie, four shares would be created (two for Arthur and one each for Brenda and Charlie). The estate would be distributed with Arthur receiving two shares (1/2 of the estate) and Brenda and Charlie receiving one share each (1/4 of the estate).
G. Non-United States Citizens
At common law, a non-citizen could not acquire or transmit real property through intestacy. This rule made sense because the landowner owed duties to the Crown which would be difficult to enforce if the landowner was not a citizen. On the other hand, non-citizens from friendly countries could both acquire and transmit personal property through intestacy.
Under Probate Code § 41(c), non-citizens are treated no differently than citizens when it comes to inheritance rights. Note, however, that during the World Wars, the United States government restricted the inheritance rights of citizens of enemy nations.
H. Unworthy Heirs
1. Forfeiture. Forfeiture refers to a common law principle which caused all the property of a person who was convicted of a felony to be forfeited to the government so there was no property for the person’s heirs to inherit. Article I, § 21 of the Texas Constitution prohibits forfeiture and Probate Code § 41(d) restates this prohibition. Note, however, that under federal law, a person convicted of certain drug offenses forfeits a portion of the person’s property to the government. 21 U.S.C. § 853.
2. Civil Death. Under the law of some states, persons who are convicted of certain serious crimes, especially if the sentence is for life, are treated as being civilly dead. A civilly dead person may lose a variety of rights such as the ability to contract, the right to vote, and the right to maintain a lawsuit. The issue which then arises is whether the person’s property passes to the heirs as if the person had actually died. Texas does not recognize civil death and thus property passes to a person’s heirs only upon a biological death. See Davis v. Laning, 19 S.W. 846 (1892).
3. Corruption of the Blood. Corruption of the blood refers to a common law principle which prevented a person from inheriting land if the person was convicted or imprisoned for certain offenses, especially treason and other capital crimes. Article I, § 21 of the Texas Constitution prohibits corruption of blood and Probate Code § 41(d) restates this prohibition. Accordingly, an imprisoned person, even one on death row, may inherit property.
4. Heir Killing Intestate. To prevent murderers from benefiting from their evil acts, most state legislatures have enacted statutes prohibiting murderers from inheriting. These provisions are often referred to as slayer’s statutes. Probate Code § 41(d), however, only applies if a beneficiary of a life insurance policy is convicted and sentenced as a principal or accomplice in willfully bringing about the death of the insured. Texas courts resort to the constructive trust principle to prevent the murdering heir from inheriting. Legal title does pass to the murderer but equity treats the murderer as a constructive trustee of the title because of the unconscionable mode of its acquisition and then compels the murderer to convey it to the heirs of the deceased, exclusive of the murderer. See Pritchett v. Henry, 287 S.W.2d 546 (Tex. Civ. App.-Beaumont 1955, writ dism’d).
5. Suicide. The property of a person who committed suicide was subject to special rules at common law. If the intestate committed suicide to avoid punishment after committing a felony, the intestate’s heirs took nothing. Instead, the real property escheated and personal property was forfeited. However, if the intestate committed suicide because of pain or exhaustion from living, only personal property was forfeited and real property still descended to the heirs. Article I, § 21 of the Texas Constitution abolishes these common law rules and thus the property of a person who commits suicide passes just as if the death were caused by some other means. Probate Code § 41(d) restates the Constitutional provision.
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Excerpted from the article The Basics of Texas
Intestate Succession Law at www.professorbeyer.com and reproduced with permission from the author.
Gerry W. Beyer is Governor Preston E. Smith Regents Professor of Law, Texas Tech University School of Law.
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