Dear Mr. Premack: My husband once had an affair. The other woman had a child, but listed her husband’s name on the birth certificate. That child, now age 42, recently contacted my husband saying she thinks she has inheritance rights. She said she had a DNA test done and it proved that her mother’s husband is not her father. There has been no DNA test of my husband, and he thinks this is all absurd. What legal rights does this person have under the circumstances? – PA
There are only two ways for a person to have inheritance rights. First, those rights can be voluntarily given in a Will or via a non-testamentary designation like a trust, right of survivorship or beneficiary designation. Second, those rights can exist “at-law”.
For a person to have inheritance rights at-law, two things must first happen. One: the property owner must die intestate – that is, must lack a Will or a valid non-testamentary disposition of the estate. Two: the person must be related to the property owner and be a member of the group entitled to receive property.
In your husband’s situation, this 42 year old woman is implying that he is her father. Hints and implications are not legally adequate. In fact, under the law, the other woman’s husband is still presumed to be the father unless a court rules that he is not the father. She may bring such a court action only if she can prove that man did not live with her mother during the probable time of conception, and that he never represented to others that he was her father.
Getting the DNA test is not enough. It may be evidence, but it does not legally change her paternity until a court rules on the overall issues. Also, the DNA test must meet certain legal standards to be admissible in court – and even if it meets those standards, it only indicates that her mother’s husband was not her father.
Proving the negative (that her mother’s husband is not her father) does not prove the positive (that your husband is her father). Under Texas law, your husband could only be recognized as her father if 1) he had been married to this person’s mother when she was born, 2) he voluntarily acknowledges paternity or 3) a court rules that he is her father based on DNA evidence. She would face a long expensive legal process to affirmatively prove your husband is her father.
However, if your husband were to die intestate, it is possible that the 42 year old could make a claim to part of his estate in probate court. She could ask the court to determine her paternity in a “determination of heirship” proceeding, and would have to offer DNA evidence from herself and from your husband to prove kinship. Even if she succeeds, she would get only a portion of his half of the estate, sharing it with her newly established family members.
All of that can be avoided if he has a Will leaving all his assets to you or to others (like his acknowledged family). If he dies testate, she would have no right to any part of his estate.
Consequently, the first thing your husband must do is to make a valid legal Will declaring exactly to whom his estate must pass. He can mention this potential claimant and state that she is to receive no part of his estate. He could block her even more completely by establishing a living trust, assigning ownership of his assets to the trust, and declaring in the trust to whom the assets should be distributed upon his death (since the trust distributes the assets without the necessity of an proceeding in probate court).
Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, June 11, 2010
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