CHAPTER 2. DESCENT AND DISTRIBUTION Part 3

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m1ke_d
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CHAPTER 2. DESCENT AND DISTRIBUTION Part 3
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2011-09-27 18:00:33
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Section 40-47A Completed
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  1. Sec. 41. MATTERS AFFECTING AND NOT AFFECTING THE RIGHT TO INHERIT

    (a) Persons Not in Being. No right of inheritance shall accrue to any persons other than to children or lineal descendants of the intestate, unless they are in being and capable in law to take as heirs at the time of the death of the intestate.
  2. Sec. 41. MATTERS AFFECTING AND NOT AFFECTING THE RIGHT TO INHERIT

    (b) Heirs of Whole and Half Blood. In situations where the inheritance passes to the collateral kindred of the intestate, if part of such collateral be of the whole blood, and the other part be of the half blood only, of the intestate, each of those of half blood shall inherit only half so much as each of those of the whole blood; but if all be of the half blood, they shall have whole portions.
  3. Sec. 41. MATTERS AFFECTING AND NOT AFFECTING THE RIGHT TO INHERIT

    (c) Alienage. No person is disqualified to take as an heir because he or a person through whom he claims is or has been an alien.
  4. Sec. 41. MATTERS AFFECTING AND NOT AFFECTING THE RIGHT TO INHERIT

    (d) Convicted Persons and Suicides. No conviction shall work corruption of blood or forfeiture of estate, except in the case of a beneficiary in a life insurance policy or contract who is convicted and sentenced as a principal or accomplice in willfully bringing about the death of the insured, in which case the proceeds of such insurance policy or contract shall be paid as provided in the Insurance Code of this State, as same now exists or is hereafter amended; nor shall there be any forfeiture by reason of death by casualty; and the estates of those who destroy their own lives shall descend or vest as in the case of natural death.
  5. Sec. 41. MATTERS AFFECTING AND NOT AFFECTING THE RIGHT TO INHERIT

    (e) Parent-Child Relationship. A probate court may declare that the parent of a child under 18 years of age may not inherit from or through the child under the laws of descent and distribution if the court finds by clear and convincing evidence that the parent has:

    (1) voluntarily abandoned and failed to support the child in accordance with the parent's obligation or ability for at least three years before the date of the child's death, and did not resume support for the child before that date;
  6. Sec. 41. MATTERS AFFECTING AND NOT AFFECTING THE RIGHT TO INHERIT

    (e) Parent-Child Relationship. A probate court may declare that the parent of a child under 18 years of age may not inherit from or through the child under the laws of descent and distribution if the court finds by clear and convincing evidence that the parent has:

    (2) voluntarily and with knowledge of the pregnancy, abandoned the mother of the child beginning at a time during her pregnancy with the child and continuing through the birth, failed to provide adequate support or medical care for the mother during the period of abandonment before the birth of the child, and remained apart from and failed to support the child since birth; or
  7. Sec. 41. MATTERS AFFECTING AND NOT AFFECTING THE RIGHT TO INHERIT


    (e) Parent-Child Relationship. A probate court may declare that the parent of a child under 18 years of age may not inherit from or through the child under the laws of descent and distribution if the court finds by clear and convincing evidence that the parent has:


    (3) been convicted or has been placed on community supervision, including deferred adjudication community supervision, for being criminally responsible for the death or serious injury of a child under the following sections of the Penal Code or adjudicated under Title 3, Family Code, for conduct that caused the death or serious injury of a child and that would constitute a violation of one of the following sections of the Penal Code:
    (A) Section 19.02 (murder);
    (B) Section 19.03 (capital murder);
    (C) Section 19.04 (manslaughter);
    (D) Section 21.11 (indecency with a child);
    (E) Section 22.01 (assault);
    (F) Section 22.011 (sexual assault);
    (G) Section 22.02 (aggravated assault);
    (H) Section 22.021 (aggravated sexual assault);
    (I) Section 22.04 (injury to a child, elderly individual, or disabled individual);
    (J) Section 22.041 (abandoning or endangering child);
    (K) Section 25.02 (prohibited sexual conduct);
    (L) Section 43.25 (sexual performance by a child); or
    (M) Section 43.26 (possession or promotion of child pornography).
  8. Sec. 41. MATTERS AFFECTING AND NOT AFFECTING THE RIGHT TO INHERIT

    (f) Treatment of Certain Relationships. On a determination that the parent of a child may not inherit from or through the child under Subsection (e) of this section, the parent shall be treated as if the parent predeceased the child for purposes of:
    (1) inheritance under the laws of descent and distribution; and
    (2) any other cause of action based on parentage.
  9. Sec. 40. INHERITANCE BY AND FROM AN ADOPTED CHILD.

    For purposes 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, such adopted child and its descendants inheriting 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 by adoption, and such parent or parents by adoption and their kin inheriting from and through such adopted child the same as if such child were the natural child of such parent or parents by adoption. The natural parent or parents of such child and their kin shall not inherit from or through said child, but, except as provided by Section 162.507(c), Family Code, the child shall inherit from and through its natural parent or parents. Nothing herein shall prevent any parent by adoption from disposing of his property by will according to law. The presence of this Section specifically relating to the rights of adopted children shall in no way diminish the rights of such children, under the laws of descent and distribution or otherwise, which they acquire by virtue of their inclusion in the definition of "child" which is contained in this Code.
    Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1989, 71st Leg., ch. 375, Sec. 34, eff. Sept. 1, 1989.
  10. Sec. 42. INHERITANCE RIGHTS OF CHILDREN.

    (a) Maternal Inheritance. For the purpose of inheritance, a child is the child of his biological or adopted mother, so that he and his issue shall inherit from his mother and from his maternal kindred, both descendants, ascendants, and collaterals in all degrees, and they may inherit from him and his issue.
  11. Sec. 42. INHERITANCE RIGHTS OF CHILDREN

    (b) Paternal Inheritance.

    (1) For the purpose of inheritance, a child is the child of his biological father if the child is born under circumstances described by Section 160.201, Family Code, is adjudicated to be the child of the father by court decree as provided by Chapter 160, Family Code, was adopted by his father, or if the father executed an acknowledgment of paternity as provided by Subchapter D, Chapter 160, Family Code, or a like statement properly executed in another jurisdiction, so that he and his issue shall inherit from his father and from his paternal kindred, both descendants, ascendants, and collaterals in all degrees, and they may inherit from him and his issue. A person claiming to be a biological child of the decedent, who is not otherwise presumed to be a child of the decedent, or claiming inheritance through a biological child of the decedent, who is not otherwise presumed to be a child of the decedent, may petition the probate court for a determination of right of inheritance. If the court finds by clear and convincing evidence that the purported father was the biological father of the child, the child is treated as any other child of the decedent for the purpose of inheritance and he and his issue may inherit from his paternal kindred, both descendants, ascendants, and collaterals in all degrees, and they may inherit from him and his issue. This section does not permit inheritance by a purported father of a child, whether recognized or not, if the purported father's parental rights have been terminated.
  12. Sec. 42. INHERITANCE RIGHTS OF CHILDREN

    (b) Paternal Inheritance.

    (2) A person who purchases for valuable consideration any interest in real or personal property of the heirs of a decedent, who in good faith relies on the declarations in an affidavit of heirship that does not include a child who at the time of the sale or contract of sale of the property is not a presumed child of the decedent and has not under a final court decree or judgment been found to be entitled to treatment under this subsection as a child of the decedent, and who is without knowledge of the claim of that child, acquires good title to the interest that the person would have received, as purchaser, in the absence of any claim of the child not included in the affidavit. This subdivision does not affect the liability, if any, of the heirs for the proceeds of any sale described by this subdivision to the child who was not included in the affidavit of heirship.
  13. Sec. 42. INHERITANCE RIGHTS OF CHILDREN.

    (c) Homestead Rights, Exempt Property, and Family Allowances.

    A child as provided by Subsections (a) and (b) of this section is a child of his mother, and a child of his father, for the purpose of determining homestead rights, distribution of exempt property, and the making of family allowances.
    (d) Marriages Void and Voidable. The issue of marriages declared void or voided by annulment shall be treated in the same manner as issue of a valid marriage.
  14. Sec. 43. DETERMINATION OF PER CAPITA AND PER STIRPES DISTRIBUTION.

    When the intestate's children, descendants, brothers, sisters, uncles, aunts, or any other relatives of the deceased standing in the first or same degree alone come into the distribution upon intestacy, they shall take per capita, namely: by persons; and, when a part of them being dead and a part living, the descendants of those dead shall have right to distribution upon intestacy, such descendants shall inherit only such portion of said property as the parent through whom they inherit would be entitled to if alive.
  15. Sec. 44. ADVANCEMENTS.

    (a) If a decedent dies intestate as to all or a portion of the decedent's estate, property the decedent gave during the decedent's lifetime to a person who, on the date of the decedent's death, is the decedent's heir, or property received by a decedent's heir under a nontestamentary transfer under Chapter XI of this code is an advancement against the heir's intestate share only if:

    (1) the decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift or nontestamentary transfer is an advancement; or
  16. Sec. 44. ADVANCEMENTS.

    (a) If a decedent dies intestate as to all or a portion of the decedent's estate, property the decedent gave during the decedent's lifetime to a person who, on the date of the decedent's death, is the decedent's heir, or property received by a decedent's heir under a nontestamentary transfer under Chapter XI of this code is an advancement against the heir's intestate share only if:

    (2) the decedent's contemporaneous writing or the heir's written acknowledgment otherwise indicates that the gift or nontestamentary transfer is to be taken into account in computing the division and distribution of the decedent's intestate estate.
  17. Sec. 44. ADVANCEMENTS.

    (b) For purposes of Subsection (a) of this section, property that is advanced is valued at the time the heir came into possession or enjoyment of the property or at the time of the decedent's death, whichever occurs first.
  18. Sec. 44. ADVANCEMENTS.

    (c) If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the division and distribution of the decedent's intestate estate, unless the decedent's contemporaneous writing provides otherwise.
  19. Sec. 45. COMMUNITY ESTATE.

    (a) On the intestate death of one of the spouses to a marriage, the community property estate of the deceased spouse passes to the surviving spouse if:

    (1) no child or other descendant of the deceased spouse survives the deceased spouse; or

    (2) all surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse.
  20. Sec. 45. COMMUNITY ESTATE.

    (b) On the intestate death of one of the spouses to a marriage, if a child or other descendant of the deceased spouse survives the deceased spouse and the child or descendant is not a child or descendant of the surviving spouse, one-half of the community estate is retained by the surviving spouse and the other one-half passes to the children or descendants of the deceased spouse. The descendants shall inherit only such portion of said property to which they would be entitled under Section 43 of this code. In every case, the community estate passes charged with the debts against it.
  21. Sec. 46. JOINT TENANCIES.

    (a) If two or more persons hold an interest in property jointly, and one joint owner dies before severance, the interest of the decedent in the joint estate shall not survive to the remaining joint owner or owners but shall pass by will or intestacy from the decedent as if the decedent's interest had been severed. The joint owners may agree in writing, however, that the interest of any joint owner who dies shall survive to the surviving joint owner or owners, but no such agreement shall be inferred from the mere fact that the property is held in joint ownership.
  22. Sec. 46. JOINT TENANCIES.

    (b) Subsection (a) does not apply to agreements between spouses regarding their community property. Agreements between spouses regarding rights of survivorship in community property are governed by Part 3 of Chapter XI of this code.
  23. Sec. 47. REQUIREMENT OF SURVIVAL BY 120 HOURS.

    (a) Survival of Heirs. A person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of homestead allowance, exempt property, and intestate succession, and the decedent's heirs are determined accordingly, except as otherwise provided in this section. If the time of death of the decedent or of the person who would otherwise be an heir, or the times of death of both, cannot be determined, and it cannot be established that the person who would otherwise be an heir has survived the decedent by 120 hours, it is deemed that the person failed to survive for the required period. This subsection does not apply where its application would result in the escheat of an intestate estate.
  24. Sec. 47. REQUIREMENT OF SURVIVAL BY 120 HOURS.

    (b) Disposal of Community Property. When a husband and wife have died, leaving community property, and neither the husband nor wife survived the other by 120 hours, one-half of all community property shall be distributed as if the husband had survived, and the other one-half thereof shall be distributed as if the wife had survived. The provisions of this subsection apply to proceeds of life or accident insurance which are community property and become payable to the estate of either the husband or the wife, as well as to other kinds of community property.
  25. Sec. 47. REQUIREMENT OF SURVIVAL BY 120 HOURS.

    (c) Survival of Devisees or Beneficiaries. A devisee who does not survive the testator by 120 hours is treated as if he predeceased the testator, unless the will of the decedent contains some language dealing explicitly with simultaneous death or deaths in a common disaster, or requiring that the devisee survive the testator or survive the testator for a stated period in order to take under the will. If property is so disposed of that the right of a beneficiary to succeed to any interest therein is conditional upon his surviving another person, the beneficiary shall be deemed not to have survived unless he or she survives the person by 120 hours. However, if any interest in property is given alternatively to one of two or more beneficiaries, with the right of each to take being dependent upon his surviving the other or others, and all shall die within a period of less than 120 hours, the property shall be divided into as many equal portions as there are beneficiaries, and those portions shall be distributed respectively to those who would have taken in the event that each beneficiary had survived.
  26. Sec. 47. REQUIREMENT OF SURVIVAL BY 120 HOURS.

    (d) Joint Owners. If any real or personal property, including community property with a right of survivorship, shall be so owned that one of two joint owners is entitled to the whole on the death of the other, and neither survives the other by 120 hours, these assets shall be distributed one-half as if one joint owner had survived and the other one-half as if the other joint owner had survived. If there are more than two joint owners and all have died within a period of less than 120 hours, these assets shall be divided into as many equal portions as there are joint owners and these portions shall be distributed respectively to those who would have taken in the event that each joint owner survived.
  27. Sec. 47. REQUIREMENT OF SURVIVAL BY 120 HOURS.

    (e) Insured and Beneficiary. When the insured and a beneficiary in a policy of life or accident insurance have died within a period of less than 120 hours, the insured shall be deemed to have survived the beneficiary for the purpose of determining the rights under the policy of the beneficiary or beneficiaries as such. The provisions of this subsection shall not prevent the application of subsection (b) above to the proceeds of life or accident insurance which are community property.
  28. Sec. 47. REQUIREMENT OF SURVIVAL BY 120 HOURS.

    (f) Instruments Providing Different Disposition. When provision has been made in the case of wills, living trusts, deeds, or contracts of insurance, or any other situation, for disposition of property different from the provisions of this Section, this Section shall not apply.
  29. Sec. 47A. MARRIAGE VOIDABLE BASED ON MENTAL INCAPACITY.

    (a) If a proceeding under Chapter 6, Family Code, to declare a marriage void based on the lack of mental capacity of one of the parties to the marriage is pending on the date of death of one of those parties, or if a guardianship proceeding in which a court is requested under Chapter 6, Family Code, to declare a ward's or proposed ward's marriage void based on the lack of mental capacity of the ward or proposed ward is pending on the date of death of the ward or proposed ward, the court may make the determination and declare the marriage void after the decedent's death. In making that determination after the decedent's death, the court shall apply the standards for an annulment prescribed by Section 6.108(a), Family Code.
  30. Sec. 47A. MARRIAGE VOIDABLE BASED ON MENTAL INCAPACITY.

    (b) Subject to Subsection (c) of this section, if a proceeding described by Subsection (a) of this section is not pending on the date of a decedent's death, an interested person may file an application with the court requesting that the court void the marriage of the decedent if, on the date of the decedent's death, the decedent was married, and that marriage commenced not earlier than three years before the decedent's date of death. The notice applicable to a proceeding for a declaratory judgment under Chapter 37, Civil Practice and Remedies Code, applies to a proceeding under this subsection.
  31. Sec. 47A. MARRIAGE VOIDABLE BASED ON MENTAL INCAPACITY.

    (c) An application requesting that the court void a decedent's marriage authorized by Subsection (b) of this section may not be filed after the first anniversary of the date of the decedent's death.
  32. Sec. 47A. MARRIAGE VOIDABLE BASED ON MENTAL INCAPACITY.

    (d) Except as provided by Subsection (e) of this section, in a proceeding brought under Subsection (b) of this section, the court shall declare the decedent's marriage void if the court finds that, on the date the marriage occurred, the decedent did not have the mental capacity to:
    (1) consent to the marriage; and
    (2) understand the nature of the marriage ceremony, if a ceremony occurred.
  33. Sec. 47A. MARRIAGE VOIDABLE BASED ON MENTAL INCAPACITY.

    (e) In a proceeding brought under Subsection (b) of this section, a court that makes a finding described by Subsection (d) of this section may not declare the decedent's marriage void if the court finds that, after the date the marriage occurred, the decedent:
    (1) gained the mental capacity to recognize the marriage relationship; and
    (2) did recognize the marriage relationship.
  34. Sec. 47A. MARRIAGE VOIDABLE BASED ON MENTAL INCAPACITY.

    (f) If the court declares a decedent's marriage void in a proceeding described by Subsection (a) of this section or brought under Subsection (b) of this section, the other party to the marriage is not considered the decedent's surviving spouse for purposes of any law of this state.

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