By James L. Gosdin, Copyright reserved ADOPTION
1.0 INHERITANCE
1.1 Prior Law: While the legality of the adoption is governed by the laws in force at the time
the adoption takes place, the right to inherit property is determined and fixed by the laws in force at the time of
the adoptive parent's death.1
1.2 Effect on Inheritance: On entry of a decree of adoption, the parent-child relationship exists
between the adopted child and the adoptive parents for all purposes.2 An adopted child is entitled to inherit
from and through the child's adoptive parents as though the child were the biological child of the parents.3
Upon entry of the decree, the adopted child is the son or daughter of the adoptive parents for all purposes and
of the biological parents for inheritance purposes only. The adopted child inherits from and through its natural
parents. However, the biological parents may not inherit from or through the adopted child.4 Inheritance of
Texas property is determined by Texas law, not the law of the state of the adoption.5
For the purpose of inheritance under the laws of descent and distribution, an adopted child
shall be regarded as the child of the parent or parents by adoption. The adopted child and its descendants
inherit from and through the parent or parents by adoption and their kin the same as if such child were the
natural child of such parent or parents. The natural parent or parents of such child and their kin shall not inherit
from or through said child, but said child shall inherit from and through its natural parent or parents.6 The
parent by adoption may dispose of his or her property by will.
1.3 Disposal of Property of Will: Where a child was adopted by a testator after the making of
a will, then he or she is considered an "after-born" child under the provisions of Section 67, Probate Code.7
Disposal of property by will is not affected by adoption; the effect of adoption merely places the child in the
same situation as that of the adopter's other children.8
2.0 PROCEEDINGS FOR ADOPTION
2.1 Eligible Child: Any resident child may be adopted.9 Subject to the requirements of Section
162.001, Tex. Family Code, any adult is eligible to adopt a resident child.10 When a petitioner is married, both
spouses must join.11 A general prerequisite is a decree terminating the parent-child relationship to each living
parent.
2.2 Adoption of Adult: Under Section 162.501, Family Code, et seq., any adult resident of the
state may petition the district court, or statutory court granted jurisdiction in family law cases, to adopt an adult
person. The only consent necessary is the acknowledged consent of the adult to be adopted and of the adoptive
parent or parents. The document should set forth the facts that give the adopt the status of an adult.12 The
adopted adult retains the right to inherit from the adult’s biological parents. The biological parents may not
inherit from or through an adopted adult.13
3.0 ADOPTION BY ESTOPPEL
3.1 Heirship: In limited situations, some effects of adoption may be achieved without
compliance with the statutory requirements. The Texas Probate Code acknowledges this when it defines the
term "child" to include an adopted child, whether adopted by any existing or former statutory procedure or by
acts of estoppel.14 Typically, the issue of adoption by estoppel arises on an application for determination of
heirship. Some courts have implied that the doctrine may only be applied only in cases of intestate
1
Fulcher v. Carter, 212 S.W.2d 503 (Tex. Civ. App. 1948, no writ)
2
Tex. Fam. Code sec. 162.017(a)
3
Tex. Fam. Code sec. 162.017(b)
4
Tex. Prob. Code sec. 40
5
Northwestern National Casualty Co. v. Doucette, 817 S.W.2d 396 (Tex. App.–Ft. Worth [2nd Dist.] 1991, writ denied)
6
Tex. Prob. Code Ann sec. 40
7
Spaulding v. Melch, 189 S.W.2d 639 (Tex. Civ. App. 1945, writ ref’d)
8
Masterson v. Harris, 107 Tex. 73, 174 S.W. 570 (1915); Bell v. Thomsen, 116 Tex. 325, 273 S.W. 1109 (1925) (motion overruled)
9
Tex. Fam. Code sec. 162.001
10
Tex. Fam. Code sec. 162.501
11
Tex. Fam. Code sec. 162.002
12
Hunter v. Koisch, 798 S.W.2d 857 (Tex. App.–Beaumont 1990, writ denied).
13
Tex. Fam. Code sec. 162.507
14
Tex. Prob. Code sec. 3(b)
Curing Title Defects - Revised 1998 Adoption ADO-1
By James L. Gosdin, Copyright reserved ADOPTION
succession.15 Such children are allowed to inherit by "equitable adoption" or "adoption by estoppel" if the
intestate deceased made efforts to adopt the children that "were ineffective because of failure to comply strictly
with statutory procedures" or if there was an agreement to adopt that was not performed.16
3.2 Requirements: Adoption by estoppel involves the rule precluding adoptive parents and
their privies from asserting the invalidity of the adoptive status where such parents have received benefits
incident to a defective statutory adoption or an agreement to adopt based on representations to the so-called
adopted child which induced performance under the belief that such child occupied the status of an adopted
child.17 The child need not prove he or she knew about the agreement to adopt and acted in reliance on that
agreement.18
3.3 No Inheritance by "Parent": The legal status of parent and child is not created by parties
assuming and living in relationship of parent and child pursuant to an unperformed agreement to adopt. This is
true in spite of the provisions of the Probate Code, Sec. 3(b) defining a child as including a child adopted "by
acts of estoppel" and the provisions of Sec. 40 Probate Code, outlining rights of inheritances by and from an
adopted child. Therefore, the heirs of adoptive parents do not inherit from the adopted son where the adoption
is by estoppel only. Furthermore, one claiming to be adopted by estoppel only cannot claim by inheritance
from the collateral kindred of the adopting parent.19 Equitable adoption does not prevent the biological parents
from asserting inheritance rights from and through the child.20
3.4 Bona Fide Purchaser: A bona fide purchaser from the apparent legal heirs will take title
free of any claim of inheritance by a child pursuant to adoption by estoppel. 21
4.0 EFFECT OF ADOPTION
4.1 Status of Adopted Person: The Family Code provides that upon the entry of the decree of
adoption the parent-child relationship exists between the adopted child and the adoptive parents as if the child
were born to the adoptive parents.22 The adopted adult is the son or daughter of the adoptive parents and the
biological parents for inheritance purposes.23
4.2 What Law Governs: The legality of the adoption is determined by the law of the place of
adoption, whether in another state or in a foreign country.24 But the right to inherit Texas property is governed
by Texas law.25 The law in force at the time of the adoption determines the validity or legality of the adoption,
while the law in force at the time of the adoptive parent's death determines the adoptive child's right to inherit
the adoptive parent's property.26
5.0 EFFECT OF PROVISIONS OF WILL, TRUST, OR DEED
5.1 Exclusion of Benefits: A will, trust, or deed may exclude benefits for adopted children
only by clear language restricting application to those born to named persons.27
The term "child,” “descendant," "issue," or similar term indicating the relationship of
parent and child includes an adopted child unless the context or express language clearly indicates
15
Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972 (1951); Pope v. First Nat’l Bank in Dallas, 658 S.W.2d 764 (Tex. App.--Dallas
1983, no writ).
16
Heinen v. Crabtree, 369 S.W.2d 28 (Tex. 1963).
17
Cubley v. Barbee, 123 Tex. 411, 73 S.W.2d 72 (1934); Cheney v. Coffee, 131 Tex. 212, 113 S.W.2d 162 (1938); Howell v. Thompson,
190 S.W.2d 597 (Tex. Civ. App. 1945); Hilt v. Hooper, 203 S.W.2d 334 (Tex. Civ. App. 1943); Lowery v. Bottello, 473 S.W.2d 239 (Tex.
Civ. App.–San Antonio, 1971); Ramsey v. Lane, 507 S.W.2d 905, 97 A.L.R. 3d 341 (Tex. Civ. App.–Houston [1st Dist] 1974, writ ref’d
n.r.e.); Luna v. Rodriguez, 906 S.W.2d 576 (Tex. App.–Austin 1995, no writ)
18
Spiers v. Maples, 1998 Tex. App. Lexis 3051 (Tex. App. – Ft. Worth, May 21, 1998)
19
Asbeck v. Asbeck, 362 S.W.2d 891 (Tex. Civ. App.–Texarkana 1962), aff'd, 369 S.W.2d 915 (Tex. 1963); Pouncey v. Garner, 626
S.W.2d 337, 342 (Tex. App.--Tyler 1981, writ ref’d n.r.e.)
20
Curry v. Williman, 834 S.W.2d 443 (Tex. App.–Dallas [5th Dist.] 1992, writ denied)
21
Moran v. Adler, 570 S.W.2d 883 (Tex. 1978)
22
Tex. Fam. Code sec. 162.017
23
Tex. Prob. Code sec. 40
24
Martinez v. Gutierrez, 66 S.W.2d 678 (Tex. Comm’n. App. 1933)
25
Martinez v. Gutierrez, 66 S.W.2d 678 (Tex. Comm’n. App. 1933)
26
Fulcher v. Carter, 212 S.W.2d 503 (Tex. Civ. App. 1948, no writ)
27
Ortega v. First Republic Bank Fort Worth, N.A., 792 S.W.2d 452 (Tex. 1990)
Curing Title Defects - Revised 1998 Adoption ADO-2
By James L. Gosdin, Copyright reserved ADOPTION
otherwise.28 Thus, "bodily issue" currently includes adopted adults unless adopted adults are expressly
excluded from the meaning of the term.29
6.0 DONATION
6.1 Oocyte Donation: If a husband consents to provide sperm to fertilize donor oocyte by
invitro fertilization or other assisted technique and the wife consents to have the donor oocyte placed in her
uterus, the child is a child of both of them. The child is not the child of the donor of the oocyte. 30
6.2 Artificial Insemination: If a husband consents to artificial insemination of his wife, any
resulting child is the child of both of them. If a woman is artificially inseminated, the child is not the child
of the donor unless he is the husband.31
6.3 Embryo Donation: If, with written consent of the husband and wife, a donated
preimplantation embryo implants in the uterus of the wife, the resulting child is the child of both of them.
The resulting child is not the child of the donor or donors of the embryo. The result applies whether the
embryo is the result of separate egg and sperm donations or the result of donation of an embryo created to
assist the reproduction of the couple.32
28
Tex. Fam. Code sec. 162.017
29
Hagoman v. Morgan, 886 S.W.2d 398 (Tex. App.-Dallas [5th Dist.] 1994, writ denied)
30
Tex. Fam. Code sec. 151.102
31
Tex. Fam. Code sec. 151.101
32
Tex. Fam. Code sec. 151.103
Curing Title Defects - Revised 1998 Adoption ADO-3
By James L. Gosdin, Copyright reserved ADOPTION
EXHIBIT 1
Affidavit of Heirship
State of Texas
County of ______________
Before me the undersigned authority, on this day personally appeared __________________ ("Affiant")
who being first duly sworn, upon his/her oath stated:
1. My name is ___________________ and I live at ____________________. I am personally familiar
with the family and marital history of _______________ ("Decedent") and I have personal
knowledge of the facts stated in this affidavit.
2. I knew decedent from __________ until __________. Decedent died on ____________,
__________. At the time of Decedent's death, Decedent's residence was __________________.
3. Decedent married ______________ on _____________ and they remained continuously married
until the date of Decedent's death. Decedent and ______________ had the following children:
_____________________ born on ______________ and now living at _________________
_____________________ born on ______________ and now living at _________________
4. Decedent did not have or adopt any other children and did not take any other children into
Decedent's home or raise any other children.
5. Decedent died without leaving a written will.
6. There has been no administration on the estate of Decedent to the best of my knowledge. There is no
necessity for administration of the estate because there are no unpaid bills owed by the estate.
7. To the best of my knowledge, the value of all the assets of Decedent was approximately
____________ and there are no estate or inheritance taxes owed on the estate.
Date: _________
____________, Affiant
State of Texas
County of _________________
Sworn to and subscribed to before me on this the ______ day of ______, _____, by ___________.
______________________
Notary Public, State of Texas
Printed Name of Notary
Curing Title Defects - Revised 1998 Adoption ADO-4