Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Friday, October 15, 2010

Date of Birth, Not Paternity Determination, Governs Pretermitted Heir Status

Texas In Bailey v. Warren, a Texas appellate court held that the date of birth of a child born out of wedlock governs pretermitted heir status, even though the determination of paternity was made one year after the will was executed.

Testator’s will left everything to his wife, or if she predeceased him, to his heirs at law. Testator had two nonmarital children, Keith Lee Bailey Hodges and Christian Matthew Warren. Keith was born in 1984, Testator executed his will in 1996, a Henderson County court declared Keith to be Testator’s son in 1997, and Christian was born in 2003.

The court rejected Keith’s argument that he was not “born” until he was adjudicated Testator’s child in 1997, and thus held that Keith is not a pretermitted child and not entitled to an intestate share of Testator’s estate.

Christian is undisputedly a pretermitted child. However, because he was provided for in Testator’s will in the "heirs at law" class gift, he is also not entitled to a share of Testator’s estate.  The court stated that the value of Christian's interest did not matter, and that "[t]he gift of a nominal sum, a contingent interest, or a future interest, however slight, will be sufficient to avoid the application of the [pretermitted child] statute." 

See Bailey v. Warren, 2010 Tex. App. LEXIS 5004 (quoting 10 Aloysius A. Leopold & Gerry W. Beyer, Texas Practice: Texas Law of Wills § 34.16 (2d ed.1992)).

Special thanks to Martin D. Begleiter (Ellis and Nelle Levitt Distinguished Professor of Law, Drake University Law School) for bringing this to my attention.


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