In Texas, the government has rules about who will inherit if a person dies without a will. Dying without a will means that the person died “intestate.” We have talked about how the rules on intestate succession favor the children of a deceased spouse if they are not the children of the surviving spouse. Here is one more reason why the government’s rules may not be what the person would expect.

While an adopted child inherits from the adoptive parents, section 201.054 of the Texas Estates Code provides that an adopted child also inherits from “the child’s natural parent or parents.” Section 161.206 of the Texas Family Code provides that in the case of the termination of the parent child relationship, the child retains the right to inherit from the parent unless a court order states otherwise.

While adoption records are sealed in Texas, if an adopted child is able to determine the identity of his birth parents and the parental rights termination order does not preclude inheritance rights, that child will be in line for inheritance from the birth parents. This can have a significant impact on an estate. Take this recent true story as an example:

A wife died and did not leave a will. The couple had no children together and had been married for 40 years. Since they had been married for so long, they had no separate property—only community property between them. If this were the end of the story, then the surviving husband would have been entitled to 100% of the community property of the marriage. However, since the wife left no will, the first step at the courthouse was to determine the identity of her heirs. Unbeknownst to her surviving husband, the wife had a child before they were married. After the required newspaper publication of the upcoming determination of heirship proceeding, her 42 year old biological son, whom she had given up for adoption 42 years ago, contacted the family. With the biological son now identified, this meant that the husband kept his own 50% interest in the community property, but the biological son of his wife inherited the wife’s entire 50% interest in the community property. In other words, the surviving husband lost an undivided 50% interest in his home and 50% interest in all other community property to the wife’s biological son.

This could have been avoided by simply having a will in place. There is a set of estate planning documents that we recommend for all Texas residents. First and foremost, is a will. The other documents include medical and financial powers of attorney, an advanced directive to physicians, a declaration of guardian in case of necessity, a HIPAA release, and an appointment of agent for remains. You should have your rules in place instead of relying on the government’s rules.