In To Kill a Mockingbird, Harper Lee wrote, “You can choose your friends but you sho' can't choose your family, an' they're still kin to you no matter whether you acknowledge 'em or not, and it makes you look right silly when you don't.”
Yet sometimes there are valid reasons why you might want to disinherit an heir. Maybe they are an addict in and out of jail. Or perhaps they have been abusive toward you. Did you think your spouse was cheating on you? No matter the reason, there are ways to disinherit heirs in Texas, with some limitations.
Who Is Considered an Heir?
An heir is anyone legally entitled to an inheritance should you die without a will. Generally, that includes spouse, children, parents, siblings, and other close blood relatives.
Disinheriting Your Child
Having a properly drafted will is crucial. In your will, you can leave nothing to a child as no Texas law prohibits that action. After your death, a child can challenge the will in court. In this case, the court generally sides with the estate if you have a solid will. The costs for attorneys to help the estate fight the suing child will be paid by the estate, leaving less money for your intended heirs.
Children born outside of marriage also have rights to your estate, even if you have never acknowledged them.
Every child, including illegitimate, should be named in your will as to what they should and should not receive. Disinheriting offspring can be done successfully through a legal will.
Disinheriting Your Spouse
Texas is one of nine community property states in the U.S., which means all property acquired during the marriage is owned by both spouses. You cannot disinherit a spouse of property they technically own. Any property you owned prior to marriage, or after legal separation, is considered solely yours.
You have complete control over separate property and can exclude your spouse from receiving it in your will.
What Is Community Property?
Community property, owned equally by both spouses, is more than real estate. It also includes wages, salaries, retirement accounts, cars, and more. Debt accrued during the marriage is considered community property as well. Inheritance or gifts you received during the marriage are not automatically considered community property, particularly if the inheritance or gift is kept in a separate account.
Can My Will Circumvent Community Property Laws?
No. Even in a legal will you cannot disinherit a spouse from property that the law says is also owned by them.
Can a Prenuptial Agreement Invalidate Community Property Laws?
Yes. A solid prenuptial agreement can allow for disinheritance because the spouse agreed to the arrangement in advance when they signed the document. Without a prenuptial agreement, Texas law protects the surviving spouse from being either intentionally or unintentionally disinherited.
When There Is No Will
Without a will, your property will be divided according to Texas Estates Code. If you are married with children (and your spouse is their parent), the spouse will receive your half of the community property and one-third of your separate property. The other two-thirds of the property is equally divided among your children. The percentages shift if the children are from another relationship. If you do not have children, any living parents or siblings are considered heirs. Family dynamics can be complicated, but the code dictates how property is divided when there is not a will in place. According to the code, adopted children have the same rights as biological children, but stepchildren do not.
Controlling Your Property with a Trust
You can place some or all your property in a trust. In a trust, you give one person – the trustee – legal title and control of the stipulated property. You can name yourself a trustee, to control the property while you are living. A trust removes the selected property from the estate and out of reach of heirs. In a trust, you also name the person who will serve as trustee upon your death and ensure that your wishes are carried out. Like a will, the trust names those you want to receive the property when you die. These assets in the trust are not subject to probate under a will or estates code if you do not have a will.
Estate Planning for Your Wishes
Designating how you want your property divided after you die in a legal will and/or trust is important if you want to avoid the courts making those decisions. Our experienced lawyers at The Springer Law Firm can walk through your options and ensure you understand the advantages and consequences of each.
If you need sharp legal minds to prepare or change your will, contact The Springer Law Firm at (281) 990-6025 to schedule your consultation.