illegitimate child

Inheritance Rights of Illegitimate Children in Texas


There are children all over the world that were born in less than ideal situations. These children do not have control over their circumstances, but are often subject to a level of discrimination or difficulty. Fortunately, the law in Texas offers degrees of protection.

History

The state of Texas did not provide inheritance rights for illegitimate children until 1991. That was the time when the Texas Supreme Court stated that the statutes that excluded illegitimate children from this right was unconstitutional, taking its cue from the United Supreme Court’s ruling. The ruling stated that depriving the rights of illegitimate children were a violation of the Constitution, specifically the equal protection clause. 

The ruling stated that illegitimacy, like race or country of origin is beyond a citizen’s control. It is also not an indicator of his/her capacity to participate and contribute to society. Thus, using it as a basis for exclusion is a violation of the equal protection clause.

Texas Probate Code 

In accordance with that principle, the Texas Probate Code now states that illegitimate children can have the same inheritance from their parents as those of the legitimate children, under certain conditions.

The key here is establishing paternity. There are many methods wherein a father can voluntarily declare that he is the father of a child. The most obvious way is through DNA testing, but he can also execute a voluntary statement of paternity in accordance with the Family Code or he can also legally adopt the child.

The Probate Court also acknowledges consent forms signed by the father in cases of assisted reproduction, like in-vitro fertilization. It is also applicable to legitimate gestational agreements, provided the father is adjudicated to be the father. Once paternity is established, the child will gain inheritance rights as those with legitimate children. 

In cases where the parent has not accomplished a will, he/she is considered intestate. The illegitimate child can still be included in the intestate succession once paternity is established. 

Paternity Issues

Complications arise when paternity is not acknowledged or established. There are even cases when the child’s existence is unknown. For example, instances when the mother does not inform the (alleged) father that she gave birth and the child was given up for adoption. 

In these cases, the illegitimate child can petition the probate court to determine their paternity and subsequently, their rights to inheritance. The statute of limitations states that these can only be done only before the child’s twentieth birthday. 

The probate court can still accept petitions to determine paternity even if all these aforementioned conditions could not be established. With these avenues, illegitimate children should seek the help of an attorney if they discover that they have a family, even if they were conceived out of wedlock. 

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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas.

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