Have You Told Your Spouse EVERYTHING? Justin Crain, Partner

Have You Told Your Spouse EVERYTHING? Justin Crain, Partner

If you have children that your spouse doesn’t know about, don’t assume that just because they were adopted by another family that they are no longer an heir of your estate.

TRUE STORY: In late 2020, a surviving spouse came to the office after her husband had died seeking advice on how to handle her deceased husband’s estate. Her husband died with no estate plan in place, and the surviving wife said they had no children together, and he had no children before they were married. The deceased husband had a house and some other assets that he owned as part of his 50% community property and the wife thought that she would have full ownership of the assets as the surviving spouse. To have her deceased husband’s name removed from the assets and her name listed as 100% owner, documents needed to be filed with the court to begin the probate process, which included a required process called a determination of heirship because there was no Last Will and Testament or Living Trust.

A determination of heirship is a process intended to determine the known and unknown surviving heirs of a deceased person. The court must appoint an additional attorney to represent unknown heirs and public notice must be posted with the intent of notifying any potential heirs of the heirship proceedings.

During the heirship investigation for this probate case, the court appointed attorney found out that years before the marriage to the surviving spouse that the husband had a son who was given up for adoption soon after birth. That changed everything.

Did you know that an adopted child inherits from their adoptive parents and their natural parents (read section 201.054 of the Texas Estates Code and 161.206 of the Texas Family Code)? The adopted child can inherit from their biological parents unless a court order states otherwise.

STORY CONCLUSION: So, what happened in our client’s case? After the surviving child and surviving spouse were formally recognized in the heirship proceedings, the court applied rules of law stating that in the instance where a person dies with no legal documents directing asset disbursement at death that the deceased spouse’s one-half interest in the community estate passes to the deceased spouse’s separate children. That means that the surviving spouse kept her half of the community property and the other half of the community property (the husband’s half) went to his son who had been given up for adoption. The surviving spouse in this case lost her deceased husband’s 50% interest in the community property to the previously unknown son of her deceased husband.

This is not a result that the deceased husband would have likely intended and certainly was not what the surviving spouse expected. Dying with no legal instructions (dying intestate) often has unexpected and unintended results. These situations can be avoided by intentionally planning and executing important estate documents such as a Last Will and Testament or a Living Trust.

To be blunt, you don’t know what you don’t know which is why working with a qualified estate planning attorney is of paramount importance. Make sure that this does not happen to you – call or email to speak with a professional today.

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