Children Born Outside of Marriage: Unknown Descendants that May Inherit

Creating a Will is extremely important for individuals that have a sizable estate in the Dallas and DFW metroplex. Time and time again, individuals refuse to properly prepare for death and do not see the proper preparation of a legal and valid will as a necessity. 

When you refuse to prepare a Will, then your entire estate will pass through the intestate process. Intestate rules apply if: (1) there is no will, (2) the will does not completely dispose of the entire estate, or (3) there is a pretermitted child/adopted child born after the will’s execution.

In certain situations, a child born outside of a marriage may still claim inheritance rights per the rules of Intestate succession. Nonmarital children may establish inheritance rights from the alleged father if the presumption of paternity is proven in court. Paternity is presumed if one of the following elements are met per Tex. Fam. Code § 160.204:

1. The child was born during (or within 300 days after) the marriage of the man and the child’s mother; 
2. During the first two years of the child’s life, the man continuously resided in the same household as the child and represented to others that the child was his; or 
3. The parties married after the Child’s birth and the man voluntarily asserted his paternity of the child in one of the following ways:

   a) The assertion of paternity is in a record filed with the Bureau of Vital Statistics;
   b) The man was voluntarily named as the Child’s father on the birth certificate; or
   c) The man promised in a record to support the child as his own.

   In many cases a child that was born out of wedlock may still inherit from the father’s estate if the above mentioned actions can be proved. Depending on the estate, this ability to prove the presumption of paternity can have a great impact on the allocation of the estate’s assets.

   Paternity may be rebutted, even if the presumption is proved by a preponderance of evidence, by a DNA test. DNA testing is the only option to rebut the presumption of paternity. Depending on the estate and the desires of all parties involved, a Judge may order that the body be dug up for a DNA sample of the deceased. This is rare, but the Court does have the authority.

   It is important to remember that the Statute of Limitations to establish inheritance rights or the presumption of paternity begins at the date in which the father died. The statute of limitations is four years, which means any potential claim must be brought within four years of the individual’s death.

   If you are a nonmarital child or born out of wedlock in the DFW area, you may still inherit as a matter of law. A will created prior to the birth of a nonmarital child will not cut off the child from his or her rightful inheritance. For situations like this, please contact Nacol Law Firm to acquire an experienced attorney to navigate through intestacy laws and probate.

   Julian Nacol
   Dallas Probate Attorney
   Nacol Law Firm P.C. 
   tel: (972) 690-3333