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Can I Leave My Child out of My Will?

In a recent consult I had with a prospective client, the issue of leaving a child out of a will came up. This person was under the impression that in Texas you could not leave an adopted child out of a will. While, this is not true, there are laws in which an adopted child would be able to take upon your death.

If You Have a Will.

This is when the answer is yes, you can keep an adopted child, or any child for that matter, out of your will. When you draft a legal, valid, will in Texas you can leave your estate with whomever you chose. If you want it all to go to a charity and none to any of your children, that is your right. Besides, you won’t be here to have to deal with the aftermath, anyway right?!

If You don’t Have a Will.

This is where the complications arise. If you do not have a will but your intentions are that a certain child not take, they will have rights to your estate no matter what, without a valid will to the contrary.

In Texas, when a person dies without a will, it is called dying intestate. When someone dies intestate, the inheritance rights of Texas will apply. There are different types of children under these laws, adopted, illegitimate, stepchildren, children of the half-blood, and after-born or after adopted children.

  • Adopted children: If you die without a will, any children you legally adopted, while you are living, have the same inheritance rights as your natural born children.
  • Illegitimate children: this is a child born out of wedlock. If the mother dies without a will the illegitimate child can take from the mother. However, the illegitimate child can only inherit from the father, when he has no will, if either: 1. The father signs the birth certificate 2. paternity is established before the child’s 20th birthday 3. Father legally adopts the child 4. Father has a signed, notarized document, stating that he is the child’s father 5. After the birth of the child, the father marries the mother and either signs a birth certificate, signs a written acknowledgement, or a court ordered the father to support the child 6. After the father dies, the court finds the child to be his.
  • Stepchildren: If you die without a will, your stepchild does not inherit from you. Unless, you adopted the stepchild during your lifetime, or the stepchild can prove there was an agreement that you were to adopt the stepchild, but it was never executed.
  • Children of the Half-Blood: This always makes me think of Harry Potter, but I digress. The best way to explain this is through example. Max marries Pam, Max has Sue from a previous marriage. Max and Pam have, together, Charlotte. Charlotte is a whole-blood, Sue is a half-blood. If Max dies without a will, Texas will only allow Sue to inherit half of which Charlotte can inherit.
  • After-Born or After- Adopted Children: This is for a situation where you already have a will but after it’s execution, you have another child, or you adopt another child. These children, under Texas law, can only inherit in special circumstances, if you already have a will. The best advice I can give you is if you want to include an after-born or after-adopted children and you already have a will, call us today and let’s draft you a new will!
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