Mary Goodblood grew up believing that she was the only daughter of Cash Goodblood. One day, 25 years after Cash died, and to no one’s surprise after the lucrative sale of the Goodblood family business was plastered on the front page of the local newspaper, Mary received a Facebook message from a woman named Désirée that said “Hi, I think your Dad is also my Dad. Do you want to exchange DNA?” After doing some research, Mary discovered that Désirée’s mom, Candy Onenight, had a very brief relationship with Cash long before Cash and Mary’s mom married. Cash died thinking that he left everything to his wife Martha Goodblood and their daughter Mary under his will and trust.

Regrettably, Cash’s will only addressed certain specific items for distribution; it did not address all of his remaining assets. During probate of Cash’s will the executor discovered valuable mineral interests that were not mentioned in the will. If a paternity test establishes Desirée as Cash’s daughter, does Desirée have a claim to Cash’s mineral interests that did not pass under either Cash’s will or his trust?

Part 1 of our series considered whether Desirée was Cash’s biological child – legitimate or otherwise. The Texas Family Code addresses paternity for child support purposes, not for heirship rights. None of the Family Code provisions that presume the father’s paternity apply to Desirée’s facts. Yet, for purposes of this blog Part 3, we assume the court found paternity – that Desirée was Cash’s biological child.

Part 2 of our series considered whether the “Lawful Descendant” Language in Cash’s Trust described Désirée. Under Texas case law interpreting the meaning of “lawful descendant,” only a child born of parents who were legally married at the time of Desirée’s birth could benefit under a Trust or will. This Part 3 focuses upon assets not captured in the trust or Cash’s will.

What happens to assets not distributed by a will or trust?

Assuming Desirée is Cash’s child and his will does not address the remaining assets of the estate that were not specifically distributed, does Desirée have a claim to them?

When a person dies without a will, it is called intestacy. In Texas, if someone dies without a will or if their will doesn’t mention certain assets like mineral interests, those assets are distributed according to the state’s intestacy laws. These laws determine who will inherit the assets based on a predetermined order, usually starting with the surviving spouse and children. If there are no spouse or children, other family members may be entitled to inherit.

Modern intestate law does not distinguish descendants born out of wedlock from those born of a “lawful” marriage. Because Desirée is the daughter of Candy and not Martha, then as Cash’s surviving spouse Martha would only inherit her one-half interest in the community estate; the other half would be split between Martha and Cash’s children Mary and Desirée. If any of the newly discovered assets, including mineral interests, are Cash’s separate property Cash’s widow Martha receives one-third of any separate personal property and a right to use any real property (a life estate) until her death. Martha and Cash’s daughter Mary – and now, assuming paternity, Desirée – inherit the remainder outright.

Balancing the Scales – for both the Family and the Business in Transition

It is vitally important that a will and trust address both the assets that the owner wants specifically distributed as well as all of the remaining assets. If Desirée was Cash’s biological child and the entirety of his probate estate – his will and any trusts – passed all of his estate only to his “lawful descendants,” Cash’s unknown illegitimate child would receive nothing. However, any unspecified assets – such as mineral interests that are not conveyed by his will and any trusts – would be shared by his illegitimate child Desirée.

Tilting the Scales Blog

This is the third in a series of articles on “real life” business and family issues litigated and resolved by Gray Reed lawyers Cleve Clinton, Greg Sampson and Bill Drabble. This Part 3 of “Illegitimate Heirs – Intestate Inheritance: ‘Hi, I think Your Dad is Also My Dad’” addresses the third of four questions that Desirée must successfully “win” to complete her claim to at least a portion of her claimed share of Cash’s assets – her illegitimate father who never knew her.

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