Updated: Jul 28, 2021
This column first appeared in the San Antonio Express-News and other Hearst newspapers on October 9, 2020
Dear Mr. Premack: My Mom was married to my Dad with me as their only child. They owned a house, mineral rights, and a ranch. Dad died and Mom didn’t do anything legal because he didn’t have a Will and she just thought everything transferred to her. Mom remarried and lived with my stepdad, at my mom’s home and they used the ranch, and both benefited from the mineral rights. My stepdad had 2 children. My stepdad died, again without a Will and Mom didn’t do anything legal. Now my Mom has died, I am thinking of probating my mom’s estate, but again, she made no Will. Do I have to consider my deceased stepdad’s 2 children in the process? PS
When people ignore their legal opportunity to make plans for the future, and when they ignore the legal ramifications caused by the death of a family member, they create legal trouble for themselves and for their next generation. The legal woes are compounded by time limits for taking certain legal actions. Translation: your parents were irresponsible with their valuable assets and it has left you in a vulnerable position.
The first issue you will have to face is tied to the date of your father’s death. Laws change over time. Before 1992, Texas law said when a person died intestate (without a Will) and left a spouse and child, the spouse inherited part of the estate and the child inherited part of the estate. After 1992, Texas law was changed so that if all the children of the deceased were from the same marriage, then the surviving spouse inherited the entire estate. Depending on when he died, you may already own part of your father’s estate. Regardless of when he died, your mother did inherit something (all or part of his estate) but took no legal steps to establish her ownership or to determine if you may have inherited.
Then your mother remarried. Did she and husband #2 sign a prenuptial agreement? Since they ignored making Wills, I’ll assume they also ignored the benefits of a prenup. While Texas law provides that assets she owned before the marriage remained her separate property, it is also true that 1) the income produced by your mother’s separate property was joint community property, and 2) any personal efforts husband #2 put into the ranch or house created a reimbursable contribution from her to his estate which his 2 children may be able to claim.
Examining husband #2’s two children, were they legally adopted by your mother? Since adoption would involve a lawyer and court, I’ll assume they were not legally adopted. However, Texas law provides that if they were under age 18 when their father married your mother, and if (1) there was an agreement between your mother and the step-kids that she was their mother, and (2) that they “performed” like her children – meaning they bestowed love and did tasks expected of a child – then a court would treat them as “adopted by estoppel” with full inheritance rights.
So, do you have to consider husband #2’s children in the process? The answer depends on the facts and on what claims they may assert during the process. You will need to hire legal counsel to sort out any competing claims and you may be in court for a ruling on the identity of your mother’s proper legal heirs under the Texas intestacy laws.
If your mother and father had made Wills, a Trust, or other arrangements like a Community Property Survivorship Agreement then your mother would have clearly become owner of his assets. If she and husband #2 had made a prenup they could have eliminated community property reimbursement claims and even eliminated the possibility of his children claiming adoption by estoppel. Finally, if she had a valid estate plan, she could have given you clear legal authority to control and to receive all her assets. Readers: learn from this example. Consult with a qualified attorney about estate planning or if you are considering remarriage. It will set your minds at ease, and your families will thank you in the future.
Paul Premack is a Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. View past legal columns or submit free questions on those legal issues via www.Premack.com.