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Interesting Developments In Inheritance Laws

My practice is limited to trials involving inheritance disputes including will contest, related property disputes and associated torts. To ask privately about a Texas litigation issue involving an inheritance dispute, click the big red button to go to our main site's contact page and ask a question privately.

No Forced Heirship In Texas

Forced Heirship in TexasWhat is Forced Heirship?

Forced heirship is a concept that provides that all of your children have a right to a portion of your estate upon your death. In other words, each of your children must get part of your estate. There are limited circumstances under which a child can be disinherited. Absent one of these circumstances, if you do not provide a child with his or her forced portion, he or she can sue to claim it. The idea comes from Roman and French Civil Law but is not part of the common law of England. All states follow the Common Law of England rather than the Civil Law of Europe except for Louisiana. Louisiana has forced heirship, the other states generally do not have it.

No Texas Forced Heirship.

Texas was part of Mexico before its independence. Mexico’s law is based on the Civil Law of Europe.  Because Mexico had forced heirship, it was part of Texas law at the time of Texas’ independence. It remained part of Texas law for only a short time. Texas repealed forced heirship in 1856. As a result, a Texas will can leave property to a child or not leave property to a child. There is no law that requires a person in Texas to leave property to a child, a spouse or anyone else. There is complete freedom to leave property to anyone regardless of their relationship to the maker of a will.

If you want to read an in depth discussion on forced heirship in Texas and Louisiana, there is an excellent discussion titled The Early Sources of Forced Heirship; Its History in Texas and Louisiana, 4  Louisiana Law Review 1941.

Pretermitted Children and Spouses.

Note that forced heirship is different from the concept of pretermitted children and spouses. Pretermitted children are those children born after a will is executed and not otherwise provided for by the decedent. The law treats these children as forgotten children and they inherit as if there was no will. Texas doesn’t recognize pretermitted spouses but some states do. The same principles apply as apply to pretermitted children. I have written about pretermitted children here and here. I have written about pretermitted spouses here and here.

 

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We handle litigation involving inheritance disputes. We don't prepare wills. We handle a select few cases on contingency. Don't use a comment to ask a personal question about an inheritance issue because your name and comment will be public. To ask a litigation question and to protect your privacy, click the red button to the right.


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