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Inheritance Rights of Adopted Children in Texas

Inheritance rights of adopted children in Texas vary depending on whether the person was adopted as a child or as an adult.

Do Adopted Children Inherit Through Their Birth Parents?

Yes, adopted children in Texas have inheritance rights in the estates of their birth parents.   The birth parents and their kindred, however, do not inherit through the adopted-out child.

Adopted adults are treated differently.  If the person was adopted as an adult, the adopted person does not inherit through their birth parents.  Likewise, the birth parents of a person who was adopted as an adult do not inherit through the adopted adult.

These inheritance rights apply if Texas law governs the disposition of the estate because the decedent died without a valid will.  If the decedent dies with a will and did not include the child in the will, there is no right of inheritance.

Do Adopted Children Inherit Through Their Adoptive Parents?

Yes.  Section 162.017 of the Texas Family Code governs the effect of adoption and states:

(a) An order of adoption creates the parent-child relationship between the adoptive parent and the child for all purposes.

(b) An adopted child is entitled to inherit from and through the childs adoptive parents as though the child were the biological child of the parents.

(c) The terms “child,” “descendant,” “issue,” and other terms indicating the relationship of parent and child include an adopted child unless the context or express language clearly indicates otherwise.

Adopted adults are the son and daughter of the adoptive parents for all purposes.

The “all purposes” language means that an adopted person inherits from the ancestors of the adoptive parent as well as the adoptive parent.

What if an Adopted Person is Not Included In A Will?

If an adopted person is not included in the will because they were adopted after the execution of the will, they are called pretermitted.

The rules are different depending on whether the testator has a living child at the time of the execution of the will.

Succession By Pretermitted Adopted Child If Living Child At Time Of Execution of Will

If the testator has a living child at the time of the execution of the will, section 255.053 of the Texas Estates Code governs:

(a) If no provision is made in the testators last will for any child of the testator who is living when the testator executes the will, a pretermitted child succeeds to the portion of the testators separate and community estate, other than any portion of the estate devised to the pretermitted childs other parent, to which the pretermitted child would have been entitled under Section 201.001 if the testator had died intestate without a surviving spouse, except as limited by Section 255.056.

(b)If a provision, whether vested or contingent, is made in the testators last will for one or more children of the testator who are living when the testator executes the will, a pretermitted child is entitled only to a portion of the disposition made to children under the will that is equal to the portion the child would have received if the testator had:

(1)included all of the testators pretermitted children with the children on whom benefits were conferred under the will; and

(2)given an equal share of those benefits to each child.

(c)To the extent feasible, the interest in the testators estate to which the pretermitted child is entitled under Subsection (b) must be of the same character, whether an equitable or legal life estate or in fee, as the interest that the testator conferred on the testators children under the will.

Succession By Pretermitted Adopted Child If No Living Child At Time Of Execution of Will

If the testator has no living child at the time of the execution of the will, section 255.054 of the Texas Estates Code governs:

If a testator has no child living when the testator executes the testators last will, a pretermitted child succeeds to the portion of the testators separate and community estate, other than any portion of the estate devised to the pretermitted childs other parent, to which the pretermitted child would have been entitled under Section 201.001 if the testator had died intestate without a surviving spouse, except as limited by Section 255.056.

Can An Adopted Child Challenge an Adoptive Parent’s Will?

Yes, an adopted child can challenge the will of an adoptive parent, just like a biological child can.  Learn more about how to contest a will in Texas here.

 

 

 

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Find Your Texas Probate Star

San Antonio

Gilbert Vara, Jr.

Austin

Kyle Robbins

Houston

Grace P. Shoemakers

Dallas

Steven S. Boss

Williamson County

Lorenza Cigarroa

Grayson County

Jacob Pelley