If you are not named in your loved one’s will, you are not entitled to an inheritance in Texas. This is because there is no forced heirship in Texas, and spouses and children do not have a right to sue for part of an estate if they are not in the will.
The only exception is pretermitted children, or children who are born after a will is executed. Also, if you live in a community property state like Texas, and your spouse dies, you are entitled to half of any property earned or obtained during your marriage.
Inheritance laws can be complex, so you should always speak to an attorney if you believe your loved one’s will is incorrect, unfair, or violates your rights.
Do You Have a Right to Inherit Despite What the Will Says?
Generally, probate courts and county courts in Texas uphold wills. If your parent passed away, you do not have a right to inheritance despite what the will says. If you are a pretermitted child, however, you may be entitled to an inheritance because you were not mentioned in the will. Pretermitted children inherit as if there were no will.
What Are Your Inheritance Rights?
You do not have inheritance rights when the will says otherwise. Nevertheless, you may have other rights. Spouses, for example, have the “right of election,” or the right to community property, which means they are entitled to half of their spouse’s estate – excluding separate property. Separate property includes property that one spouse owned prior to the marriage and property that one spouse receives during the marriage through gift or inheritance.
- A Spouse’s Right to Inherit. Only current spouses are entitled to half of the decedent’s estate. Divorce nullifies a spouse’s right to inherit community property, so ex-spouses cannot claim half the estate. Texas recognizes common law marriages, so common law spouses have the right to inherit. If you lived with your partner and presented yourself to others as married, you have the same rights as a formal spouse. If you do not receive half of the community property in your loved one’s estate, you can use the right of election to take that amount – even if the will says otherwise. Keep in mind that if you exercise your right of election, you will not receive what was left to you in the will.
- A Child’s Right to Inherit. Because there is no forced heirship in Texas, children do not have a right to inherit if they are not included in the decedent’s will. This includes minor children, adult children, stepchildren, and grandchildren.
What Happens if a Child Is Born After a Will Is Executed?
Children born after a will is executed are considered pretermitted children. The court will provide for them using the rules of intestate succession, even if their parent had a will.
Intestate succession is the process that determines what happens to a person’s estate and assets when they die without a last will and testament. In intestate succession, spouses inherit first, then children, then parents and siblings. Stepchildren do not automatically receive a share of the estate unless the decedent legally adopted them. Grandchildren only inherit when the decedent’s children are not alive to receive their share of an inheritance.
Handling pretermitted children can be difficult, as courts must balance honoring the decedent’s will with providing for children not included in the will.
What Happens If a Will Is Not Changed After a Divorce?
If you get a divorce after making a will, the divorce does not invalidate the will. But there is a statute that says the former spouse is treated as having pre-deceased you. The effect of that law is the former spouse is not entitled to inherit anything and any part of the will naming the former spouse as an executor or trustee cease to apply. The will is still valid, but any provisions relating to your former spouse no longer apply because the law treats them as if they had died before you.
The downside to not updating your will after a divorce is that, if you failed to plan for what happens to your estate in the event your spouse dies first, your estate might pass as if you never had a will in the first place and go to people who you never expected or intended to inherit anything in the first place. It can also create a lot of confusion if you remarry but fail to update the will.
Most people should generally update their estate planning documents after any major change in their family or marital status, including death, divorce, or incapacity of any executor or beneficiary named in the will.
How to Exercise Your Inheritance Rights in Texas:
Unfortunately, contesting a will may result in probate litigation or mediation. To exercise your spouse's right of election or your rights as a pretermitted child, you will need to speak to a probate litigation attorney.
Hendershot Cowart P.C. provides competent and compassionate representation to surviving relatives, including spouses and pretermitted children. We handle complex cases with personalized legal strategies, and we bring over 100 years of collective experience to the table.
At our firm, we value relationships and believe in strong communication. We are loyal to our clients and make sure they know what is going on every step of the way. We know you are facing an unwanted conflict at a difficult time in your life, and we will help you resolve it as quickly and peacefully as possible.
Give us a chance to exceed your expectations. Call Hendershot Cowart P.C. at (713) 909-7323 or contact us online to schedule a consultation today.