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What Do Children Inherit When There is No Will?

Posted by Chris Peterson | Jul 22, 2014 | 0 Comments

What Do Children Inherit When There is No Will?

parental alienationWe've written several articles about the disadvantages of dying without a will, including greater expense in handling the estate and the inherent frustration for family members who are left to sort it all out. While Texas law provides clear rules for distributing property to surviving family members, the existence of a blended family can quickly complicate matters.

In this article we will discuss the different rules for children of a previous marriage, step-children, adopted children and illegitimate children.

Children of a previous marriage

The law does not assume your surviving spouse will voluntarily share your estate with his or her step-children, so the rules require your estate to be divided between your surviving spouse, if any, and your children. Generally speaking, aside from any applicable spousal election, your spouse will receive one-half of your estate and the other half will be divided among your children.

So, who is considered to be your legal child?

Adopted children

Most folks already know that adopted children are treated the same as natural born children when it comes to intestate succession. Adopted children's inheritance rights are protected under Texas law and are entitled to receive the same inheritance as your natural born children, if any.


Stepchildren are not your legal children and they are generally not entitled to inherit from you, regardless how much time you've have been together as a family or how much you loved each other. This can be heartbreaking, especially if you helped raise your stepchild. The sole exception is if your stepchild can prove you made a verbal or written agreement to adopt, but had not yet completed the adoption process.

Illegitimate Children

Thankfully, there seems to be less stigma assigned to children born out of wedlock in our society today than in the past. The law, however, still holds a strict distinction for purposes of intestate distribution when a person dies without a will.

A child born to parents who are not married can inherit from his or her natural mother without restriction, but the child cannot inherit from his or her natural father or the father's family members except under one of these circumstances:

  • The father legally adopts the child
  • Paternity is established in court before the child's twentieth birthday
  • The father consents in writing to be named as the child's father on the child's birth certificate
  • The father voluntarily signs a written notarized statement of paternity
  • The father marries the biological mother and is obligated under a written voluntary promise to support the child
  • A probate court determines paternity after the father's death

If your family structure is anything other than very traditional, consider whether any of these legal distinctions between children will result in unintended consequences if you die without a valid will. Avoid the default rules and make a will to ensure your property will be distributed the way you want it.

Call us to get started on your estate plan

An experienced estate planning attorney at Peterson Law Group can prepare a will and other property transfer documents to carry out your wishes for distributing your property. Contact our experienced Bryan, Texas estate planning attorneys at Peterson Law Group at 979-703-7014 to schedule a meeting, or visit us online.

About the Author

Chris Peterson

Chris Peterson is the owner of Peterson Law Group. He practices primarily in the areas of wills, trusts and estate planning; probate and trust administration; elder law; and business law. Chris is also the owner of Brazos 1031 Exchange Company.


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