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Adoption State can Affect Claim to Mineral Rights

Original Publication: San Antonio Express News, July 22, 2013.


Dear Mr. Premack: My two sisters and I were raised by our stepmother. We were a family for 38 years. In her will she left us everything, referring to us as her daughters and naming us individually. She had a life estate for mineral rights she wanted to leave to us. A cousin of hers is claiming it should come to him since we were never adopted, nor born to her, though she is the only mother we ever had. She did not even know the cousin. Now he wants what she left to us. What are the guidelines for adoption by estoppel? – BD

Under Texas law, there are a variety of ways that property title can pass when a person dies. They can broadly be categorized as “testamentary” (through the last will and testament) or as “non-testamentary” (through some legal arrangement that does not involve the will).

You mention that your stepmother made a will, and that in the will you (her three stepchildren) were named as her heirs. If her will has been admitted to probate, then your status as stepdaughters or adopted daughters makes no difference at all, as least at it relates to her testamentary estate. Her instruction that the three of you inherit her testamentary estate is legally binding regardless of your relationship to her. Note that I said the will only affects her testamentary estate.

You then mention that she had a life estate for minerals which she wanted to leave to you. Your stepmother’s will has no effect over the mineral rights because she only had a life estate. The document that created the life estate is a non-testamentary transfer of the underlying asset. A person who “has a life estate” has the right to use and benefit from the underlying asset so long as that person is alive. Your stepmother would have, for instance, been entitled to any mineral royalties or lease payments during her lifetime. Upon her death, her will has no impact on the mineral rights, so you must refer to the document that created the life estate to determine what must be done next.

The document that granted the life estate should name someone as owner of the “remainder interest” (who becomes owner of the underlying asset when the holder of the life estate dies). Although your stepmother was not familiar with the cousin who is claiming the minerals, perhaps the cousin was named as holder of the remainder interest by the same person who granted the life estate to your stepmother.

If you inspect the document creating the life estate and it does not name any owner of the remainder interest, then the cousin’s only legal position would be as an heir-at-law of the person who created the life estate. For instance, if your stepmother’s grandfather created the life estate for her, but failed to name an owner for the remainder, then upon your stepmother’s death (when her rights ended) the property passed back to her grandfather’s estate. It would then pass according to his will (if he had one and it was probated).

But if her grandfather died intestate then this cousin may be an heir at law to her grandfather’s estate.

Under Texas law, as stepchildren you are not heirs at law to her grandfather’s estate. This is why you ask about adoption by estoppel, which would legally re-define you as her children, not her stepchildren. Under Texas law, to establish adoption by estoppel you must prove to the court (1) that there was an agreement between you and stepmother that she adopted you as her children, and (2) that you “performed” like her children. Courts have said that performance means you bestowed love and did tasks expected of a child, like mowing the lawn or taking out the garbage. If a court rules in your favor, then your legal status becomes “adopted children” and you may have rights under the Texas laws of intestacy as heirs at law to her grandfather’s estate, and may have some claim to the mineral rights.


Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.


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