Navigating the probate process after losing a loved one is already emotional, but when questions arise about who is legally considered an heir, things can become incredibly stressful. In Texas probate law, a “determination of heirship” is meant to clarify exactly who inherits an estate. However, unexpected family dynamics can sometimes lead to sudden disputes.
In our latest video, we break down why transparency is absolutely vital during this process and look at two very common legal concepts that often surprise Texas families:
- Common-Law Marriage: Many people believe an informal marriage “doesn’t count” or rely on timeline myths they find on Google. In reality, Texas rules are highly flexible, there is no set timeframe, and there is no such thing as a common-law divorce.
- Adoption by Estoppel: This occurs when a loved one raises a child as their own and calls them their child, but never formally completes legal adoption papers. Under certain scenarios, the court may still deem them an heir.
When these situations are left unaddressed, they inevitably surface during an attorney ad litem’s investigation, potentially derailing your court hearing. The good news is that a dispute doesn’t always mean heading straight into a costly courtroom battle; options like declaratory judgments or creative out-of-court mediations can help keep the peace.
Every family dynamic is unique, and we have seen just about every fact pattern imaginable at our firm. Watch our short video above to learn how we evaluate these complex relationships and protect your family’s estate.
Video Transcript
0:00 Intro
0:13 Common Law Marriage
1:27 Adoption by Estoppel
0:00 Intro
When we’re filing determination of heirships in Texas, sometimes it can lead to disputes amongst the family members about whether or not an heir should be included or maybe there are other heirs that they think should be included that were not included.
0:13 Common Law Marriage
Some common scenarios that we might see are common-law marriages. So, say we’re hired by a child to do an heirship and when we ask if the person that deceased was married, the child may say no because to them it was an informal marriage. It didn’t count. And again, I’ll go on this again. This is why we need all the information so that we can make the correct determination based on what the estates code says and based on what we know the court is going to want to see from our experience that we have with the courts. So if there is a common-law marriage or even a potential common-law marriage in an heirship, this is something that we have to know about so that we can evaluate it.
The rules about common-law marriage in Texas are very flexible and there’s no such thing as a common-law divorce. So, if you have a loved one that held themselves out as married, cohabitated with someone, regardless of how long it was, there’s no timeframe. People are always quoting timeframes they found on Google. There’s no timeframe in Texas. So, if your loved one resided with someone and held themselves out as husband and wife to the world and then never got a formal divorce, the court could very well find that this was the surviving common-law spouse that’s still entitled to a portion of the estate. Please let us determine that for you based on the facts and kind of do some digging and, and interviewing witnesses to see if we think they need to be listed.
1:27 Adoption by Estoppel
Adoption by estoppel is another theory here in Texas that can present some interesting challenges when you’re doing a determination of heirship in Texas. Maybe it’s a child that, that your loved one raised as their own, called them their child, but never actually adopted them. There are certain scenarios where that child can actually be deemed a child by adoption by estoppel theory, that they need to be included in that application.
Sometimes there will be testimony at the court and the judge will determine that there is no adoption by estoppel. But again, we have to be as transparent as possible in our documents to the court because these things are going to come up in the attorney ad litem’s investigation. So always being transparent about any children that the decedent might have taken into their home and raised, any relationships that were long-term where they resided together and held themselves out as husband and wife. These are all things that we have to know about so that we don’t have a contest come up later when we have filed this determination of heirship and we’re at the hearing and then it comes up that there’s this other child that we should have included.
Now, if there is a contest and there’s someone that has retained another firm and they have sent our office a letter saying, “We think that we’re a child with the theory adoption by estoppel, that we should be included,” this is something that we can look into. There are lots of options. We could either try to file a declaratory judgment with the court asking them to make a determination based on evidence if they think this child should be included or if we don’t think that the estate is worth the cost of litigation, we can always try to do a mediation where the family comes to some sort of out-of-court agreement as to what we can do to kind of keep both sides happy without having to fully litigate the matter.
Same thing with common-law marriage. There’s always room for, you know, out-of-court agreements and just getting creative within the family to see what we can work for both sides. Lots of interesting fact patterns that you can see in heirships. We’ve seen a lot of them here at the firm and we’d be happy to answer any questions that you might have about your particular family scenario. Thank you so much for watching.