Ron Lipman is a Houston attorney that I have turned to for assistance on various legal matters. He writes a column for the Houston Chronicle and recently addressed a question on inheritance rights in Texas. Here is that article.
Q: My husband and I were married for 48 years when he died without a will. We have one child together. He was married previously and had two children by that marriage, but they were adopted by their new stepfather over 50 years ago. Are those two children still considered my husband’s legal heirs? The only asset in my husband’s name is our community property home that we have owned for decades. I need to have his name removed from the deed to sell it. How can I accomplish this?
A: Under Texas law, your husband’s two children from his prior marriage are considered to be his heirs, and they do inherit from him, with one exception.
That exception applies if your husband’s parental rights were terminated by a court and that court eliminated the children’s inheritance rights. Therefore, you need to find the paperwork associated with the adoption of the two children back in the 1960s to see what the court’s order stated.
If your husband’s two children do inherit from him, then your child will also inherit from him. The three children would become equal owners of your husband’s half interest. But if the two children don’t inherit, then your husband’s half of the home would pass entirely to you (and your child would not inherit).
Clearly, it is important for you to find out what the court order stated before you do anything else.
You also need to understand your homestead rights as a surviving spouse. When your husband died, you became entitled to live in the home for as long as you want (assuming the two of you never signed a marital property agreement to the contrary). No one can force you to move out, even his two children if they did inherit a portion of the home.
Therefore, if your husband’s half of the home did pass to the three children, you might want to consider not selling the home. When you move out, you forfeit your homestead right.
With regard to your second question, removing your husband’s name from the deed might not be necessary. Instead, you might simply need to establish who owns the home in a manner which is sufficient for a title company to insure title when you sell it.
An Affidavit of Heirship might be good enough, or a Small Estate Affidavit might work. If you have to go through probate, it will be very complicated and expensive because your husband died without a will. You would therefore be best served by talking with a title company or an attorney to determine which approach is the quickest and least expensive way to clear up title.
Ronald Lipman, of Houston law firm Lipman & Associates, is board certified in estate planning and probate law by the Texas Board of Legal Specialization.
Problems like these can be avoided by having a well prepared will. If you or your spouse have children from a prior marriage, it’s very important that you prepare a will. Otherwise, you too may be in a situation like this lady.