Blended families have become become commonplace over the last few decades, in Texas as well as across the U.S. As a Houston estate planning attorney, many of my clients are in second marriages where each spouse has children from a prior marriage. A question I often get is whether stepchildren inherit under the probate laws of Texas. The answer is that stepchildren do not have the same inheritance rights as biological children under Texas law.
The Texas Estates Code does not treat your stepchildren as your legal heirs, which means that if you die without a will (also known as dying “intestate”), your stepchildren will not inherit any of your assets. This is because Texas law does not include people related by marriage as “heirs” under the law. For those couples who get married later in life and whose children are all grown by the time they remarry, this may seem fine, although in my experience it usually is not what the couples desire. However, for couples with younger children from previous marriages, especially where there is one spouse who is the primary earner or has more assets than the other, it is crucial to have a will in place that takes into account any stepchildren.
In order for a person’s Texas will to take into account his or her stepchildren, a common approach is to define stepchildren as descendants in the will. For example, there is usually a section in each Texas will that names the testator’s children (the “testator” is the person making the will). In this section, the testator will name his children and his spouse’s children from a previous marriage, and will state that the spouse’s children are to be treated as his children for all purposes in the will. In order to make sure that stepgrandkids are not left out, the will can also state that the descendants of the stepchildren will be also be considered descendants of the testator. By defining the terms “children” and “descendants” in this way, you can ensure that any bequests made to “my children” or “my descendants” in your will be made to your biological children as well as your stepchildren. Of course, you may not want equal distributions between your biological children and your stepchildren, so your will needs to account for your specific wishes, and an estate planning attorney can help you accomplish this.
The rules are different for stepchildren that you adopt. Generally, if you adopt a child, that child is treated as your biological child for purposes of Texas estate law.