24 August 2010, 3:44 pm
The issue of who inherits when a person dies has to deal with all of the various forms of today’s families. Families may consist of parents and step-parents, brothers and sisters, step-brothers and sisters and half-brothers and sisters. This post discusses the issue of the inheritance rights of whole and half brothers and sisters or what the law refers to as those of the “whole blood” and those of the “half blood.” This post does not include the inheritance rights of step siblings who generally do not inherit from other step siblings or step parents unless there is a will that names them as a beneficiary.
In Texas, the laws of descent and distribution determine what happens to a person’s property if they die intestate (without a will.) They may have failed to make a will or a purported will may have been contested and denied probate. In those cases, the law determines who gets the estate and the law treats “those of the half blood” differently from “those of the whole blood.” As an example, if a person dies and is survived by a half brother and a whole brother, the half brother will take half of what the whole brother will take. If the survivors are all “of the half blood,” they will take a full share the same as if all of the survivors were “of the whole blood.” TPC 41(b).
Pearls of wisdom. If you have “step” relations or “half” relations and you want them to participate in your bounty or you want to make sure that they don’t participate in your bounty, it is important that you make a will so that the judge uses your wishes instead of the laws of descent and distribution to determine who inherits your estate.
3 August 2010, 8:47 am
Inheritance laws give illegitimate children, or what the courts sometimes refer to as non-marital children, the same inheritance rights as legitimate children. The laws of inheritance determine who inherits if there is no will, if a will has been contested and denied probate or if the will does not dispose of all of the property. If there is a valid will that disposes of all of the property, it and not the laws of inheritance determine who receives the property. To learn more, look at this page and this page.
The biggest problem that an illegitimate child encounters is the issue of paternity. If everyone agrees that the illegitimate child is the child of the parent, then the child would take a part of the property the same as any other child. If, however, as usually happens, some family members deny that the child is the child of the parent, then the illegitimate child has to prove paternity before he would be entitle to take his share of the property. Each state has time limits within which the child must take action to prove paternity. If the child waits too long, he may not inherit even if he can prove paternity.
Another problem facing an illegitimate child is not knowing who their natural parents are. If a child doesn’t find out who his natural parents are until after their death, he must act quickly or he could loose forever his rights to inherit. The Texas Supreme Court in recent rulings has been tough on children who didn’t start inheritance proceedings in time even in those cases when the child did not know or could not know who his natural parents were. I’ve discussed this issue here. Since the courts are not willing to extend the time for illegitimate children to take action to obtain their inheritance, early action is necessary.
2 August 2010, 3:53 pm
Generally, in Texas, adopted children have the same inheritance rights as naturally born children. That means that they inherit from and through their adoptive parents. “Through their adoptive parents” means that if the parent of the adoptive parent dies after the adoptive parent, the adopted child will inherit from the grandparent to the same extent as a natural born child. You can read more here.
A child does not necessarily have to be formally adopted to be considered an adopted child of the adoptive parents. You can read about adoption by estoppel here.
Adopted children may also have inheritance rights from their natural parents. An adopted child could inherit from his natural parents as well as from his adoptive parents. If a court terminated the rights of the natural parents, the order of termination has to be reviewed to determine what inheritance rights the child has from his natural parents. You can read more here.
6 July 2010, 8:40 am
A pretermitted child is a child who is:
- born or adopted after a parent’s will is executed, and
- who is not otherwise provide for by the parent.
A pretermitted child takes a share of his parent’s estate even though he is not mentioned in the will.
A recent inheritance case out of Dallas dealt with both of the issues above. A man made a will leaving his estate to his brother and to his brother’s children. He later married, had two children and divorced. After he was divorced, he wrote a note on the bottom of his original will that said in its entirety “9/9/99 I am now divorced from Melissa McCormick & Virginia Dillon. The same will and testament exists now as on 4/30/99 Charles Hendler.”
The divorced wife alleged that her children were entitled to share in the estate because they were pretermitted children since the original will was made before they were born and they were not otherwise provide for. The brother alleged that he was entitled to all of the estate because the addition of the quoted note republished the will so that the will was not made before the children were born. He also alleged that the children were provided for since the were minors and were getting social security, were receiving court ordered child support and since one was listed as a contingent beneficiary on a life insurance policy. The trial court ruled in favor of the brother and denied the children any inheritance.
The appeals court reversed part of the trial court’s decision. It held that there was a fact issue that a jury should decide as to whether the note on the bottom of the old will was done with testamentary intent. Testamentary intent is required to make a will or to republish one. The appeals court went on to hold that receiving social security benefits or child support did not conclusively prove that the children were “otherwise provided for” by the parent. The court noted that “otherwise provided for” has to be intended to take effect at the testator’s death. The court however was convinced that naming one of the children as a contingent beneficiary in a life insurance policy did satisfy the otherwise provided for requirement and the court held that the child so named was not a pretermitted child and therefore not entitled to any inheritance.
Pearls of Wisdom: Make a will. Say who you want to receive your estate. Don’t make notes on your will. See an attorney. Otherwise, you family will be fighting over your estate in all probability.
24 June 2010, 9:40 am
Legally, he can. Practically, he can’t.
The Texas State Constitution has a provision that says “”No conviction shall work corruption of blood, or forfeiture of estate.” The Texas Probate Code §41(d) is similar. Those two provisions have been interpreted to allow a murderer to inherit from his victim. However, the courts have allowed the heirs of the victim to file suit against the murderer and to impose a constructive trust on any property he might receive from the victim. The practical effect of the constructive trust is to deny the murderer the inheritance from the victim.
If the heirs of the victim do nothing, the murderer receives his inheritance. If the heirs of the victim file suit in court, the courts will impose a constructive trust on the inheritance which effectively denies the inheritance to the murderer.
Insurance policies are different. The murderer does not inherit the proceeds from an insurance policy since there is a special statute that deals with insurance policies. That statute denies payment of the proceeds to the person who causes the death of the insured.
PEARLS OF WISDOM: If someone is ever in a position where a murderer is going to profit from his misdeed, affirmative action is required to prevent the murderer from inheriting the victim’s property. Compare 287 S.W.2d 546 with 68 S.W.3d 242.
22 June 2010, 7:24 am
Inheritance cases sometimes present unusual problems. A man left a holographic will. The entire will read “Last Will & testament Debbie gets everything till she dies. Being of sound mind & this is my w. last will & testament. I leave to my Wife Daphne Craigen all p. real & personal property. 12-17-99 Dalton Craigen.” Everyone involved agreed that “Debbie” and “Daphne” referred to the same person,e.g., testator’s wife.
The question: Does “till she dies” mean that the testator was giving his wife a life estate in his property – meaning that when she died, the property would go to his heirs instead of her’s? Or did the will give his wife full title to his property so that when the wife died, it would go under her will or to her heirs?
The court ruled that the wife received full title to the property and not just a life estate. It based its ruling on rules of construction for wills. The courts don’t use rules of construction when the will is unambiguous. The court held that this will was ambiguous and that resort to the rules of construction was necessary. The court said that the following rules of construction indicated that the testator’s intention was to give his wife full title:
- When a will has been drafted by a layperson who is not shown to be familiar with the technical meanings of certain words, courts do not place “‘too great emphasis on the precise meaning of the language used where the will is the product of one not familiar with legal terms, or not trained in their use.
- Instead, in arriving at the meaning intended by the layman-testator, courts refer to the popular meaning of the words the testator chose to use. In summary, the testator’s intent, as gathered from the will as a whole, prevails against a technical meaning that might be given to certain words or phrases, unless the testator intended to use the word or phrase in the technical sense.
- A very strong presumption arises that when a person makes a will, the testator intended a complete disposition of his property. “[T]he very purpose of a will is to make such provisions that the testator will not die intestate.”
- Texas law also favors the vesting of estates at the earliest possible period, and courts will not construe a remainder as contingent when it can reasonably be taken as vested.
- When a will provides that upon a certain contingency the estate given shall pass to another, “the law favors the first taker and will construe the words of the will to grant to the first taker the greatest estate which they, by a fair construction in harmony with the will as a whole, are capable of passing.”
- The court also noticed that the testator’s children were not mentioned in the will. If the will was construed as creating a life estate, the children, although not mentioned, would inherit everything. The court held that the testator probably did not intend that to happen.
Pearls of wisdom: The people who you want to get your estate may or may not get it depending on how your will is worded. To make sure that the correct people get your estate, you should carefully prepare your will so that there is no ambiguity. 305 S.W.3d 825.
2 June 2010, 9:14 am
The short answer is no. The long answer is, it depends.
Texas is a community property state. That means that a husband and wife have community property and separate property. Separate property is everything acquired before marriage and everything acquired during marriage by gift or inheritance. Everything else is community property. At the termination of the marriage by divorce or death, all property is presumed to be community property. The person claiming that some property is separate property has the burden of showing that it is separate. If he can’t, it is community property because of the presumption.
It is easy to show whether real property is separate property or not. The same is true for heirlooms. It may be hard to show that cash or others items that are not distinct are separate property. If someone inherits $100,000.00 and puts it in a community account where it is commingled with community property. It will be harder to prove what part is separate and what part is community.
If the party claiming that something is his or her separate property, such as inherited property, proves that it was received as an inheritance then the other spouse does not get any part of that property on divorce.
If you have questions about your inheritance rights and would like to talk to an estate planning attorney or a lawyer who is familiar with inheritance and probate law to advise you about your inheritance rights, click on the picture in the upper right under “Visit our website.”
19 May 2010, 6:58 am
The United States government’s Administration on Aging, a part of the U.S. Department of Health & Human Services, identifies the major types of elder abuse such as physical abuse, sexual abuse, neglect, financial abuse, etc. A type of abuse identified by the U.S. government that is seen too often in probate and inheritance matters is the financial abuse of the elderly.
The Administration on Aging has posted the signs and symptoms of financial or material exploitation of the aging. These include but are not limited to:
- sudden changes in bank account or banking practice, including an unexplained withdrawal of large sums of money by a person accompanying the elder;
- the inclusion of additional names on an elder’s bank signature card;
- unauthorized withdrawal of the elder’s funds using the elder’s ATM card;
- abrupt changes in a will or other financial documents;
- unexplained disappearance of funds or valuable possessions;
- substandard care being provided or bills unpaid despite the availability of adequate financial resources;
- discovery of an elder’s signature being forged for financial transactions or for the titles of his/her possessions;
- sudden appearance of previously uninvolved relatives claiming their rights to an elder’s affairs and possessions;
- unexplained sudden transfer of assets to a family member or someone outside the family;
- the provision of services that are not necessary; and
- an elder’s report of financial exploitation.
You can visit the government’s site here for more information.
If you know of an elderly person who may be the subject of financial or material abuse, you should visit the government’s site to learn what you can do to protect them in these situations.
If you have questions about your inheritance rights and would like to talk to an estate planning attorney or a lawyer who is familiar with inheritance and probate law to advise you about your inheritance rights, click on the picture in the upper right under “Visit our website.”
7 May 2010, 12:19 pm
The Texas Supreme Court decided a case in 2010 that answered the question of fee disgorgement. In the case, two business partners decided that one partner would sell his interest to the other partner. Partners are fiduciaries to the other partners. They also signed a non-compete clause so that the selling partner could not go into a business to compete with the remaining partner. The facts showed that before the sale, the selling partner’s wife had formed a new corporation that was going to and did compete with the old partnership. The trial court said that the selling partner breached his fiduciary duty and had to disgorge (pay back) the money that he had received for the sale of the partnership. The Court of Appeals reversed. It said that although there was a breach of fiduciary duty, the contract payment was for the selling partner’s interest in the business rather than a fee. It ruled that only a fee could be disgorged.
In reversing the Court of Appeals, the Supreme Court said that where there is no fee, the court can fashion a remedy, in this case disgorgement of the contract price, for breach of fiduciary duty. A fee is not required. If it were, there would be no remedy for a breach of fiduciary duty in non fee cases. NO. 07-1042.
19 April 2010, 10:35 am
Apparently, an illegitimate child can’t. The Health and Safety Code §711.004 allows a district court to order an exhumation if requested by certain people including the spouse or the children. That section may not apply to illegitimate children unless money is involved.
In a case decided in 2010, the Texas Supreme Court ruled that a woman who claimed that she was the illegitimate child of a man could not have his body exhumed to test his DNA. The woman asked for the exhumation more than four years after the man’s estate had been closed. The four year statute of limitations applies to making claims for inheritance. The Court said that because she could not claim part of his estate since more than four years had passed, she did not have a “justiciable interest” in the exhumation of his body for DNA testing. 04-0608.
Pearls of wisdom: Apparently, whether you have a father or not is unimportant. You have a “justiciable interest” only if it will lead to money, not peace of mind! In fairness to the Court, the woman was making a claim for her inheritance which the Court ruled was barred. But the broad language of the decision seems to make exhumation for DNA testing a proposition based on money alone.
