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CHAPTER II. DESCENT AND DISTRIBUTION

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PROBATE CODECHAPTER II. DESCENT AND DISTRIBUTIONText of article effective until January 01, 2014Sec. 37. PASSAGE OF TITLE UPON INTESTACY AND UNDER A WILL.Whena person dies, leaving a lawful will, all of his estate devisedor bequeathed by such will, and all powers of appointment grantedin such will, shall vest immediately in the devisees or legateesof such estate and the donees of such powers; and all the estateof such person, not devised or bequeathed, shall vest immediatelyin his heirs at law; subject, however, to the payment of thedebts of the testator or intestate, except such as is exempted bylaw, and subject to the payment of court-ordered child supportpayments that are delinquent on the date of the person's death;and whenever a person dies intestate, all of his estate shallvest immediately in his heirs at law, but with the exceptionaforesaid shall still be liable and subject in their hands to thepayment of the debts of the intestate and the delinquent childsupport payments; but upon the issuance of letters testamentaryor of administration upon any such estate, the executor oradministrator shall have the right to possession of the estate asit existed at the death of the testator or intestate, with theexception aforesaid; and he shall recover possession of and holdsuch estate in trust to be disposed of in accordance with thelaw.Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amendedby Acts 1969, 61st Leg., p. 1703, ch. 556, Sec. 2, eff. June 10,1969; Acts 1981, 67th Leg., p. 2537, ch. 674, Sec. 3, eff. Sept.1, 1981.Text of article effective until January 01, 2014Sec. 37A.MEANS OF EVIDENCING DISCLAIMER OR RENUNCIATION OFPROPERTY OR INTEREST RECEIVABLE FROM A DECEDENT.(a)PersonsWho May Disclaim.Any person, or the guardian of anincapacitated person, the personal representative of a deceasedperson, or the guardian ad litem of an unborn or unascertainedperson, with prior court approval of the court having, or whichwould have, jurisdiction over such guardian, personalrepresentative, or guardian ad litem, or any independent executorof a deceased person, without prior court approval, or anattorney in fact or agent appointed under a durable power ofattorney authorizing disclaimers that is executed by a principal,who may be entitled to receive any property as a beneficiary andwho intends to effect disclaimer irrevocably on or afterSeptember 1, 1977, of the whole or any part of such propertyshall evidence same as herein provided.(b)Effective Date of Disclaimer.A disclaimer evidenced asprovided by this section shall be effective as of the death ofdecedent and shall relate back for all purposes to the death ofthe decedent and is not subject to the claims of any creditor ofthe disclaimant.(c)Effect of Disclaimer. Unless the decedent's will providesotherwise, the property subject to the disclaimer shall pass asif the person disclaiming or on whose behalf a disclaimer is madehad predeceased the decedent and a future interest that wouldotherwise take effect in possession or enjoyment after thetermination of the estate or interest that is disclaimed takeseffect as if the disclaiming beneficiary had predeceased thedecedent.(d)Ineffective Disclaimer. Failure to comply with theprovisions of this section shall render such disclaimerineffective except as an assignment of such property to those whowould have received same had the person attempting the disclaimerdied prior to the decedent.(e)Definitions. The term "property" as used in this sectionshall include all legal and equitable interests, powers, andproperty, whether present or future, whether vested orcontingent, and whether beneficial or burdensome, in whole or inpart.The term "disclaimer" as used in this section shallinclude "renunciation."In this section "beneficiary" includes aperson who would have been entitled, if the person had not made adisclaimer, to receive property as a result of the death ofanother person by inheritance, under a will, by an agreementbetween spouses for community property with a right ofsurvivorship, by a joint tenancy with a right of survivorship, orby any other survivorship agreement, account, or interest inwhich the interest of the decedent passes to a survivingbeneficiary, by an insurance, annuity, endowment, employment,deferred compensation, or other contract or arrangement, or undera pension, profit sharing, thrift, stock bonus, life insurance,survivor income, incentive, or other plan or program providingretirement, welfare, or fringe benefits with respect to anemployee or a self-employed individual.(f)Subsequent Disclaimers. Nothing in this section shall beconstrued to preclude a subsequent disclaimer by any person whoshall be entitled to property as a result of a disclaimer.(g)Form of Disclaimer.In the case of property receivable by abeneficiary, the disclaimer shall be evidenced by a writtenmemorandum, acknowledged before a notary public or other personauthorized to take acknowledgements of conveyances of realestate.(h)Filing of Disclaimer. Unless the beneficiary is a charitableorganization or governmental agency of the state, a writtenmemorandum of disclaimer disclaiming a present interest shall befiled not later than nine months after the death of the decedentand a written memorandum of disclaimer disclaiming a futureinterest may be filed not later than nine months after the eventdetermining that the taker of the property or interest is finallyascertained and his interest is indefeasibly vested.If thebeneficiary is a charitable organization or a governmental agencyof the state, a written memorandum of disclaimer disclaiming apresent or future interest shall be filed not later than thefirst anniversary of the date the beneficiary receives the noticerequired by Section 128A of this code, or the expiration of thesix-month period following the date the personal representativefiles the inventory, appraisement, and list of claims due orowing to the estate, whichever occurs later.The writtenmemorandum of disclaimer shall be filed in the probate court inwhich the decedent's will has been probated or in whichproceedings have been commenced for the administration of thedecedent's estate or which has before it an application foreither of the same;provided, however, if the administration ofthe decedent's estate is closed, or after the expiration of oneyear following the date of the issuance of letters testamentaryin an independent administration, or if there has been no will ofthe decedent probated or filed for probate, or if noadministration of the decedent's estate has been commenced, or ifno application for administration of the decedent's estate hasbeen filed, the written memorandum of disclaimer shall be filedwith the county clerk of the county of the decedent's residence,or, if the decedent is not a resident of this state but realproperty or an interest therein located in this state isdisclaimed, a written memorandum of disclaimer shall be filedwith the county clerk of the county in which such real propertyor interest therein is located, and recorded by such county clerkin the deed records of that county.(i)Notice of Disclaimer.Unless the beneficiary is acharitable organization or governmental agency of the state,copies of any written memorandum of disclaimer shall be deliveredin person to, or shall be mailed by registered or certified mailto and received by, the legal representative of the transferor ofthe interest or the holder of legal title to the property towhich the disclaimer relates not later than nine months after thedeath of the decedent or, if the interest is a future interest,not later than nine months after the date the person who willreceive the property or interest is finally ascertained and theperson's interest is indefeasibly vested.If the beneficiary isa charitable organization or government agency of the state, thenotices required by this section shall be filed not later thanthe first anniversary of the date the beneficiary receives thenotice required by Section 128A of this code, or the expirationof the six-month period following the date the personalrepresentative files the inventory, appraisement, and list ofclaims due or owing to the estate, whichever occurs later.(j)Power to Provide for Disclaimer.Nothing herein shallprevent a person from providing in a will, insurance policy,employee benefit agreement, or other instrument for the making ofdisclaimers by a beneficiary of an interest receivable under thatinstrument and for the disposition of disclaimed property in amanner different from the provisions hereof.(k)Irrevocability of Disclaimer.Any disclaimer filed andserved under this section shall be irrevocable.(l)Partial Disclaimer.Any person who may be entitled toreceive any property as a beneficiary may disclaim such propertyin whole or in part, including but not limited to specific powersof invasion, powers of appointment, and fee estate in favor oflife estates; and a partial disclaimer or renunciation, inaccordance with the provisions of this section, shall beeffective whether the property so renounced or disclaimedconstitutes a portion of a single, aggregate gift or constitutespart or all of a separate, independent gift;provided, however,that a partial disclaimer shall be effective only with respect toproperty expressly described or referred to by category in suchdisclaimer;and provided further, that a partial disclaimer ofproperty which is subject to a burdensome interest created by thedecedent's will shall not be effective unless such propertyconstitutes a gift which is separate and distinct fromundisclaimed gifts.(m)Partial Disclaimer by Spouse.Without limiting Subsection(l) of this section, a disclaimer by the decedent's survivingspouse of a transfer by the decedent is not a disclaimer by thesurviving spouse of all or any part of any other transfer fromthe decedent to or for the benefit of the surviving spouse,regardless of whether the property or interest that would havepassed under the disclaimed transfer passes because of thedisclaimer to or for the benefit of the surviving spouse by theother transfer.(n)Disclaimer After Acceptance.No disclaimer shall beeffective after the acceptance of the property by thebeneficiary.For the purpose of this subsection, acceptanceshall occur only if the person making such disclaimer haspreviously taken possession or exercised dominion and control ofsuch property in the capacity of beneficiary.(o)Interest in Trust Property.A beneficiary who accepts aninterest in a trust is not considered to have a direct orindirect interest in trust property that relates to a licensed orpermitted business and over which the beneficiary exercises nocontrol.Direct or indirect beneficial ownership of not morethan five percent of any class of equity securities that isregistered under the Securities Exchange Act of 1934 shall not bedeemed to be an ownership interest in the business of the issuerof such securities within the meaning of any statute, pursuantthereto.Added by Acts 1971, 62nd Leg., p. 2954, ch. 979, Sec. 1, eff.Aug. 30, 1971. Amended by Acts 1977, 65th Leg., p. 1918, ch. 769,Sec. 1, eff. Aug. 29, 1977; Acts 1979, 66th Leg., p. 1741, ch.713, Sec. 4, eff. Aug. 27, 1979; Acts 1987, 70th Leg., ch. 467,Sec. 2, eff. Sept. 1, 1987; Acts 1991, 72nd Leg., ch. 895, Sec.2, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 846, Sec. 1,eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 1039, Sec. 5, eff.Sept. 1, 1995.Amended by:Acts 2007, 80th Leg., R.S., Ch.1170, Sec. 3.01, eff. September 1, 2007.Text of article effective until January 01, 2014Sec. 37B. ASSIGNMENT OF PROPERTY RECEIVED FROM A DECEDENT.(a) Aperson entitled to receive property or an interest in propertyfrom a decedent under a will, by inheritance, or as a beneficiaryunder a life insurance contract, and who does not disclaim theproperty under Section 37A of this code, may assign the propertyor interest in property to any person.(b)The assignment may, at the request of the assignor, be filedas provided for the filing of a disclaimer under Section 37A(h)of this code.The filing requires the service of notice underSection 37A(i) of this code.(c) Failure to comply with the provisions of Section 37A of thiscode does not affect an assignment under this section.(d) An assignment under this section is a gift to the assigneeand is not a disclaimer or renunciation under Section 37A of thiscode.(e) An assignment that would defeat a spendthrift provisionimposed in a trust may not be made under this section.Added by Acts 1985, 69th Leg., ch. 880, Sec. 1, eff. Sept. 1,1985.Amended by:Acts 2007, 80th Leg., R.S., Ch.1170, Sec. 3.02, eff. September 1, 2007.Text of article effective until January 01, 2014Sec. 37C. SATISFACTION OF DEVISE.(a) Property given to a personby a testator during the testator's lifetime is considered asatisfaction, either wholly or partly, of a devise to the personif:(1) the testator's will provides for deduction of the lifetimegift;(2) the testator declares in a contemporaneous writing that thelifetime gift is to be deducted from or is in satisfaction of thedevise; or(3) the devisee acknowledges in writing that the lifetime gift isin satisfaction of the devise.(b) Property given in partial satisfaction of a devise shall bevalued as of the earlier of the date on which the deviseeacquires possession of or enjoys the property or the date onwhich the testator dies.Added by Acts 2003, 78th Leg., ch. 1060, Sec. 7, eff. Sept. 1,2003.Text of article effective until January 01, 2014Sec. 38. PERSONS WHO TAKE UPON INTESTACY.(a) Intestate LeavingNo Husband or Wife. Where any person, having title to any estate,real, personal or mixed, shall die intestate, leaving no husbandor wife, it shall descend and pass in parcenary to his kindred,male and female, in the following course:1. To his children and their descendants.2. If there be no children nor their descendants, then to hisfather and mother, in equal portions. But if only the father ormother survive the intestate, then his estate shall be dividedinto two equal portions, one of which shall pass to suchsurvivor, and the other half shall pass to the brothers andsisters of the deceased, and to their descendants; but if therebe none such, then the whole estate shall be inherited by thesurviving father or mother.3. If there be neither father nor mother, then the whole of suchestate shall pass to the brothers and sisters of the intestate,and to their descendants.4. If there be none of the kindred aforesaid, then theinheritance shall be divided into two moieties, one of whichshall go to the paternal and the other to the maternal kindred,in the following course: To the grandfather and grandmother inequal portions, but if only one of these be living, then theestate shall be divided into two equal parts, one of which shallgo to such survivor, and the other shall go to the descendant ordescendants of such deceased grandfather or grandmother. If therebe no such descendants, then the whole estate shall be inheritedby the surviving grandfather or grandmother. If there be nosurviving grandfather or grandmother, then the whole of suchestate shall go to their descendants, and so on without end,passing in like manner to the nearest lineal ancestors and theirdescendants.(b) Intestate Leaving Husband or Wife. Where any person havingtitle to any estate, real, personal or mixed, other than acommunity estate, shall die intestate as to such estate, andshall leave a surviving husband or wife, such estate of suchintestate shall descend and pass as follows:1. If the deceased have a child or children, or theirdescendants, the surviving husband or wife shall take one-thirdof the personal estate, and the balance of such personal estateshall go to the child or children of the deceased and theirdescendants. The surviving husband or wife shall also be entitledto an estate for life, in one-third of the land of the intestate,with remainder to the child or children of the intestate andtheir descendants.2. If the deceased have no child or children, or theirdescendants, then the surviving husband or wife shall be entitledto all the personal estate, and to one-half of the lands of theintestate, without remainder to any person, and the other halfshall pass and be inherited according to the rules of descent anddistribution; provided, however, that if the deceased has neithersurviving father nor mother nor surviving brothers or sisters, ortheir descendants, then the surviving husband or wife shall beentitled to the whole of the estate of such intestate.Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.Text of article effective until January 01, 2014Sec. 39. NO DISTINCTION BECAUSE OF PROPERTY'S SOURCE.Thereshall be no distinction in regulating the descent anddistribution of the estate of a person dying intestate betweenproperty which may have been derived by gift, devise or descentfrom the father, and that which may have been derived by gift,devise or descent from the mother; and all the estate to whichsuch intestate may have had title at the time of death shalldescend and vest in the heirs of such person in the same manneras if he had been the original purchaser thereof.Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.Text of article effective until January 01, 2014Sec. 40.INHERITANCE BY AND FROM AN ADOPTED CHILD.For purposesof inheritance under the laws of descent and distribution, anadopted child shall be regarded as the child of the parent orparents by adoption, such adopted child and its descendantsinheriting from and through the parent or parents by adoption andtheir kin the same as if such child were the natural child ofsuch parent or parents by adoption, and such parent or parents byadoption and their kin inheriting from and through such adoptedchild the same as if such child were the natural child of suchparent or parents by adoption.The natural parent or parents ofsuch child and their kin shall not inherit from or through saidchild, but, except as provided by Section 162.507(c), FamilyCode, the child shall inherit from and through its natural parentor parents. Nothing herein shall prevent any parent by adoptionfrom disposing of his property by will according to law.Thepresence of this Section specifically relating to the rights ofadopted children shall in no way diminish the rights of suchchildren, under the laws of descent and distribution orotherwise, which they acquire by virtue of their inclusion in thedefinition of "child" which is contained in this Code.Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amendedby Acts 1989, 71st Leg., ch. 375, Sec. 34, eff. Sept. 1, 1989.Amended by:Acts 2005, 79th Leg., Ch.169, Sec. 2, eff. September 1, 2005.Text of article effective until January 01, 2014Sec. 41. MATTERS AFFECTING AND NOT AFFECTING THE RIGHT TOINHERIT.(a) Persons Not in Being. No right of inheritance shallaccrue to any persons other than to children or linealdescendants of the intestate, unless they are in being andcapable in law to take as heirs at the time of the death of theintestate.(b) Heirs of Whole and Half Blood. In situations where theinheritance passes to the collateral kindred of the intestate, ifpart of such collateral be of the whole blood, and the other partbe of the half blood only, of the intestate, each of those ofhalf blood shall inherit only half so much as each of those ofthe whole blood; but if all be of the half blood, they shall havewhole portions.(c) Alienage. No person is disqualified to take as an heirbecause he or a person through whom he claims is or has been analien.(d) Convicted Persons and Suicides. No conviction shall workcorruption of blood or forfeiture of estate, except in the caseof a beneficiary in a life insurance policy or contract who isconvicted and sentenced as a principal or accomplice in wilfullybringing about the death of the insured, in which case theproceeds of such insurance policy or contract shall be paid asprovided in the Insurance Code of this State, as same now existsor is hereafter amended; nor shall there be any forfeiture byreason of death by casualty; and the estates of those who destroytheir own lives shall descend or vest as in the case of naturaldeath.(e)Parent-Child Relationship.A probate court may declare thatthe parent of a child under 18 years of age may not inherit fromor through the child under the laws of descent and distributionif the court finds by clear and convincing evidence that theparent has:(1)voluntarily abandoned and failed to support the child inaccordance with the parent's obligation or ability for at leastthree years before the date of the child's death, and did notresume support for the child before that date;(2)voluntarily and with knowledge of the pregnancy, abandonedthe mother of the child beginning at a time during her pregnancywith the child and continuing through the birth, failed toprovide adequate support or medical care for the mother duringthe period of abandonment before the birth of the child, andremained apart from and failed to support the child since birth;or(3)been convicted or has been placed on community supervision,including deferred adjudication community supervision, for beingcriminally responsible for the death or serious injury of a childunder the following sections of the Penal Code or adjudicatedunder Title 3, Family Code, for conduct that caused the death orserious injury of a child and that would constitute a violationof 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, ordisabled 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 childpornography).(f)Treatment of Certain Relationships.On a determination thatthe parent of a child may not inherit from or through the childunder Subsection (e) of this section, the parent shall be treatedas 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.Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amendedby Acts 1969, 61st Leg., p. 1922, ch. 641, Sec. 2, eff. June 12,1969.Amended by:Acts 2007, 80th Leg., R.S., Ch.1412, Sec. 2, eff. September 1, 2007.Text of article effective until January 01, 2014Sec. 42. INHERITANCE RIGHTS OF CHILDREN.(a) MaternalInheritance. For the purpose of inheritance, a child is the childof his biological or adopted mother, so that he and his issueshall inherit from his mother and from his maternal kindred, bothdescendants, ascendants, and collaterals in all degrees, and theymay inherit from him and his issue.(b) Paternal Inheritance. (1) For the purpose of inheritance, achild is the child of his biological father if the child is bornunder circumstances described by Section 160.201, Family Code, isadjudicated to be the child of the father by court decree asprovided by Chapter 160, Family Code, was adopted by his father,or if the father executed an acknowledgment of paternity asprovided by Subchapter D, Chapter 160, Family Code, or a likestatement properly executed in another jurisdiction, so that heand his issue shall inherit from his father and from his paternalkindred, both descendants, ascendants, and collaterals in alldegrees, and they may inherit from him and his issue. A personclaiming to be a biological child of the decedent, who is nototherwise presumed to be a child of the decedent, or claiminginheritance through a biological child of the decedent, who isnot otherwise presumed to be a child of the decedent, maypetition the probate court for a determination of right ofinheritance. If the court finds by clear and convincing evidencethat the purported father was the biological father of the child,the child is treated as any other child of the decedent for thepurpose of inheritance and he and his issue may inherit from hispaternal kindred, both descendants, ascendants, and collateralsin all degrees, and they may inherit from him and his issue. Thissection does not permit inheritance by a purported father of achild, whether recognized or not, if the purported father'sparental rights have been terminated.(2) A person who purchases for valuable consideration anyinterest in real or personal property of the heirs of a decedent,who in good faith relies on the declarations in an affidavit ofheirship that does not include a child who at the time of thesale or contract of sale of the property is not a presumed childof the decedent and has not under a final court decree orjudgment been found to be entitled to treatment under thissubsection as a child of the decedent, and who is withoutknowledge of the claim of that child, acquires good title to theinterest that the person would have received, as purchaser, inthe absence of any claim of the child not included in theaffidavit. This subdivision does not affect the liability, ifany, of the heirs for the proceeds of any sale described by thissubdivision to the child who was not included in the affidavit ofheirship.(c) Homestead Rights, Exempt Property, and Family Allowances. Achild as provided by Subsections (a) and (b) of this section is achild of his mother, and a child of his father, for the purposeof determining homestead rights, distribution of exempt property,and the making of family allowances.(d) Marriages Void and Voidable. The issue of marriages declaredvoid or voided by annulment shall be treated in the same manneras issue of a valid marriage.Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amendedby Acts 1977, 65th Leg., p. 762, ch. 290, Sec. 1, eff. May 28,1977; Acts 1979, 66th Leg., p. 40, ch. 24, Sec. 25, eff. Aug. 27,1979; Acts 1979, 66th Leg., p. 1743, ch. 713, Sec. 5, eff. Aug.27, 1979 ; Acts 1987, 70th Leg., ch. 464, Sec. 1, eff. Sept. 1,1987; Acts 1989, 71st Leg., ch. 375, Sec. 35, eff. Sept. 1, 1989;Acts 1997, 75th Leg., ch. 165, Sec. 7.54, eff. Sept. 1, 1997;Acts 1997, 75th Leg., ch. 1302, Sec. 4, eff. Sept. 1, 1997; Acts2001, 77th Leg., ch. 821, Sec. 2.18, eff. June 14, 2001.Text of article effective until January 01, 2014Sec. 43. DETERMINATION OF PER CAPITA AND PER STIRPESDISTRIBUTION.When the intestate's children, descendants,brothers, sisters, uncles, aunts, or any other relatives of thedeceased standing in the first or same degree alone come into thedistribution upon intestacy, they shall take per capita, namely:by persons; and, when a part of them being dead and a partliving, the descendants of those dead shall have right todistribution upon intestacy, such descendants shall inherit onlysuch portion of said property as the parent through whom theyinherit would be entitled to if alive.Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amendedby Acts 1991, 72nd Leg., ch. 895, Sec. 3, eff. Sept. 1, 1991.Text of article effective until January 01, 2014Sec. 44. ADVANCEMENTS.(a) If a decedent dies intestate as toall or a portion of the decedent's estate, property the decedentgave during the decedent's lifetime to a person who, on the dateof the decedent's death, is the decedent's heir, or propertyreceived by a decedent's heir under a nontestamentary transferunder Chapter XI of this code is an advancement against theheir's intestate share only if:(1) the decedent declared in a contemporaneous writing or theheir acknowledged in writing that the gift or nontestamentarytransfer is an advancement; or(2) the decedent's contemporaneous writing or the heir's writtenacknowledgment otherwise indicates that the gift ornontestamentary transfer is to be taken into account in computingthe division and distribution of the decedent's intestate estate.(b) For purposes of Subsection (a) of this section, property thatis advanced is valued at the time the heir came into possessionor enjoyment of the property or at the time of the decedent'sdeath, whichever occurs first.(c) If the recipient of the property fails to survive thedecedent, the property is not taken into account in computing thedivision and distribution of the decedent's intestate estate,unless the decedent's contemporaneous writing provides otherwise.Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amendedby Acts 1993, 73rd Leg., ch. 846, Sec. 4, eff. Sept. 1, 1993.Text of article effective until January 01, 2014Sec. 45. COMMUNITY ESTATE.(a) On the intestate death of one ofthe spouses to a marriage, the community property estate of thedeceased spouse passes to the surviving spouse if:(1) no child or other descendant of the deceased spouse survivesthe deceased spouse; or(2) all surviving children and descendants of the deceased spouseare also children or descendants of the surviving spouse.(b) On the intestate death of one of the spouses to a marriage,if a child or other descendant of the deceased spouse survivesthe deceased spouse and the child or descendant is not a child ordescendant of the surviving spouse, one-half of the communityestate is retained by the surviving spouse and the other one-halfpasses to the children or descendants of the deceased spouse. Thedescendants shall inherit only such portion of said property towhich they would be entitled under Section 43 of this code. Inevery case, the community estate passes charged with the debtsagainst it.Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amendedby Acts 1991, 72nd Leg., ch. 895, Sec. 4, eff. Sept. 1, 1991;Acts 1993, 73rd Leg., ch. 846, Sec. 33, eff. Sept. 1, 1993.Text of article effective until January 01, 2014Sec. 46. JOINT TENANCIES.(a) If two or more persons hold aninterest in property jointly, and one joint owner dies beforeseverance, the interest of the decedent in the joint estate shallnot survive to the remaining joint owner or owners but shall passby will or intestacy from the decedent as if the decedent'sinterest had been severed. The joint owners may agree in writing,however, that the interest of any joint owner who dies shallsurvive to the surviving joint owner or owners, but no suchagreement shall be inferred from the mere fact that the propertyis held in joint ownership.(b) Subsection (a) does not apply to agreements between spousesregarding their community property. Agreements between spousesregarding rights of survivorship in community property aregoverned by Part 3 of Chapter XI of this code.Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amendedby Acts 1961, 57th Leg., p. 233, ch. 120, Sec. 1, eff. May 15,1961; Acts 1969, 61st Leg., p. 1922, ch. 641, Sec. 3, eff. June12, 1969; Acts 1981, 67th Leg., p. 895, ch. 319, Sec. 1, eff.Sept. 1, 1981; Acts 1987, 70th Leg., ch. 678, Sec. 2; Acts 1989,71st Leg., ch. 655, Sec. 1, eff. Aug. 28, 1989.Text of article effective until January 01, 2014Sec. 47. REQUIREMENT OF SURVIVAL BY 120 HOURS.(a) Survival ofHeirs. A person who fails to survive the decedent by 120 hours isdeemed to have predeceased the decedent for purposes of homesteadallowance, exempt property, and intestate succession, and thedecedent's heirs are determined accordingly, except as otherwiseprovided in this section. If the time of death of the decedent orof the person who would otherwise be an heir, or the times ofdeath of both, cannot be determined, and it cannot be establishedthat the person who would otherwise be an heir has survived thedecedent by 120 hours, it is deemed that the person failed tosurvive for the required period. This subsection does not applywhere its application would result in the escheat of an intestateestate.(b) Disposal of Community Property. When a husband and wife havedied, leaving community property, and neither the husband norwife survived the other by 120 hours, one-half of all communityproperty shall be distributed as if the husband had survived, andthe other one-half thereof shall be distributed as if the wifehad survived. The provisions of this subsection apply to proceedsof life or accident insurance which are community property andbecome payable to the estate of either the husband or the wife,as well as to other kinds of community property.(c) Survival of Devisees or Beneficiaries. A devisee who does notsurvive the testator by 120 hours is treated as if he predeceasedthe testator, unless the will of the decedent contains somelanguage dealing explicitly with simultaneous death or deaths ina common disaster, or requiring that the devisee survive thetestator or survive the testator for a stated period in order totake under the will. If property is so disposed of that the rightof a beneficiary to succeed to any interest therein isconditional upon his surviving another person, the beneficiaryshall be deemed not to have survived unless he or she survivesthe person by 120 hours. However, if any interest in property isgiven alternatively to one of two or more beneficiaries, with theright of each to take being dependent upon his surviving theother or others, and all shall die within a period of less than120 hours, the property shall be divided into as many equalportions as there are beneficiaries, and those portions shall bedistributed respectively to those who would have taken in theevent that each beneficiary had survived.(d) Joint Owners. If any real or personal property, includingcommunity property with a right of survivorship, shall be soowned that one of two joint owners is entitled to the whole onthe death of the other, and neither survives the other by 120hours, these assets shall be distributed one-half as if one jointowner had survived and the other one-half as if the other jointowner had survived. If there are more than two joint owners andall have died within a period of less than 120 hours, theseassets shall be divided into as many equal portions as there arejoint owners and these portions shall be distributed respectivelyto those who would have taken in the event that each joint ownersurvived.(e) Insured and Beneficiary. When the insured and a beneficiaryin a policy of life or accident insurance have died within aperiod of less than 120 hours, the insured shall be deemed tohave survived the beneficiary for the purpose of determining therights under the policy of the beneficiary or beneficiaries assuch. The provisions of this subsection shall not prevent theapplication of subsection (b) above to the proceeds of life oraccident insurance which are community property.(f) Instruments Providing Different Disposition. When provisionhas been made in the case of wills, living trusts, deeds, orcontracts of insurance, or any other situation, for dispositionof property different from the provisions of this Section, thisSection shall not apply.Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amendedby Acts 1965, 59th Leg., p. 279, ch. 119, Sec. 1, eff. Aug. 30,1965; Acts 1979, 66th Leg., p. 1743, ch. 713, Sec. 6, eff. Aug.27, 1979; Acts 1993, 73rd Leg., ch. 846, Sec. 5, eff. Sept. 1,1993.Text of article effective until January 01, 2014Sec. 47A.MARRIAGE VOIDABLE BASED ON MENTAL INCAPACITY.(a)Ifa proceeding under Chapter 6, Family Code, to declare a marriagevoid based on the lack of mental capacity of one of the partiesto the marriage is pending on the date of death of one of thoseparties, or if a guardianship proceeding in which a court isrequested under Chapter 6, Family Code, to declare a ward's orproposed ward's marriage void based on the lack of mentalcapacity of the ward or proposed ward is pending on the date ofdeath of the ward or proposed ward, the court may make thedetermination and declare the marriage void after the decedent'sdeath.In making that determination after the decedent's death,the court shall apply the standards for an annulment prescribedby Section 6.108(a), Family Code.(b)Subject to Subsection (c) of this section, if a proceedingdescribed by Subsection (a) of this section is not pending on thedate of a decedent's death, an interested person may file anapplication with the court requesting that the court void themarriage of the decedent if, on the date of the decedent's death,the decedent was married, and that marriage commenced not earlierthan three years before the decedent's date of death.The noticeapplicable to a proceeding for a declaratory judgment underChapter 37, Civil Practice and Remedies Code, applies to aproceeding under this subsection.(c)An application requesting that the court void a decedent'smarriage authorized by Subsection (b) of this section may not befiled after the first anniversary of the date of the decedent'sdeath.(d)Except as provided by Subsection (e) of this section, in aproceeding brought under Subsection (b) of this section, thecourt shall declare the decedent's marriage void if the courtfinds that, on the date the marriage occurred, the decedent didnot have the mental capacity to:(1)consent to the marriage;and(2)understand the nature of the marriage ceremony, if aceremony occurred.(e)In a proceeding brought under Subsection (b) of thissection, a court that makes a finding described by Subsection (d)of this section may not declare the decedent's marriage void ifthe court finds that, after the date the marriage occurred, thedecedent:(1)gained the mental capacity to recognize the marriagerelationship;and(2)did recognize the marriage relationship.(f)If the court declares a decedent's marriage void in aproceeding described by Subsection (a) of this section or broughtunder Subsection (b) of this section, the other party to themarriage is not considered the decedent's surviving spouse forpurposes of any law of this state.Added by Acts 2007, 80th Leg., R.S., Ch.1170, Sec. 4.01, eff. September 1, 2007.
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  • PROBATE CODE

    CHAPTER II. DESCENT AND DISTRIBUTION

    Text of article effective until January 01, 2014

    Sec. 37. PASSAGE OF TITLE UPON INTESTACY AND UNDER A WILL. When

    a person dies, leaving a lawful will, all of his estate devised

    or bequeathed by such will, and all powers of appointment granted

    in such will, shall vest immediately in the devisees or legatees

    of such estate and the donees of such powers; and all the estate

    of such person, not devised or bequeathed, shall vest immediately

    in his heirs at law; subject, however, to the payment of the

    debts of the testator or intestate, except such as is exempted by

    law, and subject to the payment of court-ordered child support

    payments that are delinquent on the date of the person's death;

    and whenever a person dies intestate, all of his estate shall

    vest immediately in his heirs at law, but with the exception

    aforesaid shall still be liable and subject in their hands to the

    payment of the debts of the intestate and the delinquent child

    support payments; but upon the issuance of letters testamentary

    or of administration upon any such estate, the executor or

    administrator shall have the right to possession of the estate as

    it existed at the death of the testator or intestate, with the

    exception aforesaid; and he shall recover possession of and hold

    such estate in trust to be disposed of in accordance with the

    law.

    Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended

    by Acts 1969, 61st Leg., p. 1703, ch. 556, Sec. 2, eff. June 10,

    1969; Acts 1981, 67th Leg., p. 2537, ch. 674, Sec. 3, eff. Sept.

    1, 1981.

    Text of article effective until January 01, 2014

    Sec. 37A. MEANS OF EVIDENCING DISCLAIMER OR RENUNCIATION OF

    PROPERTY OR INTEREST RECEIVABLE FROM A DECEDENT. (a) Persons

    Who May Disclaim. Any person, or the guardian of an

    incapacitated person, the personal representative of a deceased

    person, or the guardian ad litem of an unborn or unascertained

    person, with prior court approval of the court having, or which

    would have, jurisdiction over such guardian, personal

    representative, or guardian ad litem, or any independent executor

    of a deceased person, without prior court approval, or an

    attorney in fact or agent appointed under a durable power of

    attorney authorizing disclaimers that is executed by a principal,

    who may be entitled to receive any property as a beneficiary and

    who intends to effect disclaimer irrevocably on or after

    September 1, 1977, of the whole or any part of such property

    shall evidence same as herein provided.

    (b) Effective Date of Disclaimer. A disclaimer evidenced as

    provided by this section shall be effective as of the death of

    decedent and shall relate back for all purposes to the death of

    the decedent and is not subject to the claims of any creditor of

    the disclaimant.

    (c) Effect of Disclaimer. Unless the decedent's will provides

    otherwise, the property subject to the disclaimer shall pass as

    if the person disclaiming or on whose behalf a disclaimer is made

    had predeceased the decedent and a future interest that would

    otherwise take effect in possession or enjoyment after the

    termination of the estate or interest that is disclaimed takes

    effect as if the disclaiming beneficiary had predeceased the

    decedent.

    (d) Ineffective Disclaimer. Failure to comply with the

    provisions of this section shall render such disclaimer

    ineffective except as an assignment of such property to those who

    would have received same had the person attempting the disclaimer

    died prior to the decedent.

    (e) Definitions. The term "property" as used in this section

    shall include all legal and equitable interests, powers, and

    property, whether present or future, whether vested or

    contingent, and whether beneficial or burdensome, in whole or in

    part. The term "disclaimer" as used in this section shall

    include "renunciation." In this section "beneficiary" includes a

    person who would have been entitled, if the person had not made a

    disclaimer, to receive property as a result of the death of

    another person by inheritance, under a will, by an agreement

    between spouses for community property with a right of

    survivorship, by a joint tenancy with a right of survivorship, or

    by any other survivorship agreement, account, or interest in

    which the interest of the decedent passes to a surviving

    beneficiary, by an insurance, annuity, endowment, employment,

    deferred compensation, or other contract or arrangement, or under

    a pension, profit sharing, thrift, stock bonus, life insurance,

    survivor income, incentive, or other plan or program providing

    retirement, welfare, or fringe benefits with respect to an

    employee or a self-employed individual.

    (f) Subsequent Disclaimers. Nothing in this section shall be

    construed to preclude a subsequent disclaimer by any person who

    shall be entitled to property as a result of a disclaimer.

    (g) Form of Disclaimer. In the case of property receivable by a

    beneficiary, the disclaimer shall be evidenced by a written

    memorandum, acknowledged before a notary public or other person

    authorized to take acknowledgements of conveyances of real

    estate.

    (h) Filing of Disclaimer. Unless the beneficiary is a charitable

    organization or governmental agency of the state, a written

    memorandum of disclaimer disclaiming a present interest shall be

    filed not later than nine months after the death of the decedent

    and a written memorandum of disclaimer disclaiming a future

    interest may be filed not later than nine months after the event

    determining that the taker of the property or interest is finally

    ascertained and his interest is indefeasibly vested. If the

    beneficiary is a charitable organization or a governmental agency

    of the state, a written memorandum of disclaimer disclaiming a

    present or future interest shall be filed not later than the

    first anniversary of the date the beneficiary receives the notice

    required by Section 128A of this code, or the expiration of the

    six-month period following the date the personal representative

    files the inventory, appraisement, and list of claims due or

    owing to the estate, whichever occurs later. The written

    memorandum of disclaimer shall be filed in the probate court in

    which the decedent's will has been probated or in which

    proceedings have been commenced for the administration of the

    decedent's estate or which has before it an application for

    either of the same; provided, however, if the administration of

    the decedent's estate is closed, or after the expiration of one

    year following the date of the issuance of letters testamentary

    in an independent administration, or if there has been no will of

    the decedent probated or filed for probate, or if no

    administration of the decedent's estate has been commenced, or if

    no application for administration of the decedent's estate has

    been filed, the written memorandum of disclaimer shall be filed

    with the county clerk of the county of the decedent's residence,

    or, if the decedent is not a resident of this state but real

    property or an interest therein located in this state is

    disclaimed, a written memorandum of disclaimer shall be filed

    with the county clerk of the county in which such real property

    or interest therein is located, and recorded by such county clerk

    in the deed records of that county.

    (i) Notice of Disclaimer. Unless the beneficiary is a

    charitable organization or governmental agency of the state,

    copies of any written memorandum of disclaimer shall be delivered

    in person to, or shall be mailed by registered or certified mail

    to and received by, the legal representative of the transferor of

    the interest or the holder of legal title to the property to

    which the disclaimer relates not later than nine months after the

    death of the decedent or, if the interest is a future interest,

    not later than nine months after the date the person who will

    receive the property or interest is finally ascertained and the

    person's interest is indefeasibly vested. If the beneficiary is

    a charitable organization or government agency of the state, the

    notices required by this section shall be filed not later than

    the first anniversary of the date the beneficiary receives the

    notice required by Section 128A of this code, or the expiration

    of the six-month period following the date the personal

    representative files the inventory, appraisement, and list of

    claims due or owing to the estate, whichever occurs later.

    (j) Power to Provide for Disclaimer. Nothing herein shall

    prevent a person from providing in a will, insurance policy,

    employee benefit agreement, or other instrument for the making of

    disclaimers by a beneficiary of an interest receivable under that

    instrument and for the disposition of disclaimed property in a

    manner different from the provisions hereof.

    (k) Irrevocability of Disclaimer. Any disclaimer filed and

    served under this section shall be irrevocable.

    (l) Partial Disclaimer. Any person who may be entitled to

    receive any property as a beneficiary may disclaim such property

    in whole or in part, including but not limited to specific powers

    of invasion, powers of appointment, and fee estate in favor of

    life estates; and a partial disclaimer or renunciation, in

    accordance with the provisions of this section, shall be

    effective whether the property so renounced or disclaimed

    constitutes a portion of a single, aggregate gift or constitutes

    part or all of a separate, independent gift; provided, however,

    that a partial disclaimer shall be effective only with respect to

    property expressly described or referred to by category in such

    disclaimer; and provided further, that a partial disclaimer of

    property which is subject to a burdensome interest created by the

    decedent's will shall not be effective unless such property

    constitutes a gift which is separate and distinct from

    undisclaimed gifts.

    (m) Partial Disclaimer by Spouse. Without limiting Subsection

    (l) of this section, a disclaimer by the decedent's surviving

    spouse of a transfer by the decedent is not a disclaimer by the

    surviving spouse of all or any part of any other transfer from

    the decedent to or for the benefit of the surviving spouse,

    regardless of whether the property or interest that would have

    passed under the disclaimed transfer passes because of the

    disclaimer to or for the benefit of the surviving spouse by the

    other transfer.

    (n) Disclaimer After Acceptance. No disclaimer shall be

    effective after the acceptance of the property by the

    beneficiary. For the purpose of this subsection, acceptance

    shall occur only if the person making such disclaimer has

    previously taken possession or exercised dominion and control of

    such property in the capacity of beneficiary.

    (o) Interest in Trust Property. A beneficiary who accepts an

    interest in a trust is not considered to have a direct or

    indirect interest in trust property that relates to a licensed or

    permitted business and over which the beneficiary exercises no

    control. Direct or indirect beneficial ownership of not more

    than five percent of any class of equity securities that is

    registered under the Securities Exchange Act of 1934 shall not be

    deemed to be an ownership interest in the business of the issuer

    of such securities within the meaning of any statute, pursuant

    thereto.

    Added by Acts 1971, 62nd Leg., p. 2954, ch. 979, Sec. 1, eff.

    Aug. 30, 1971. Amended by Acts 1977, 65th Leg., p. 1918, ch. 769,

    Sec. 1, eff. Aug. 29, 1977; Acts 1979, 66th Leg., p. 1741, ch.

    713, Sec. 4, eff. Aug. 27, 1979; Acts 1987, 70th Leg., ch. 467,

    Sec. 2, eff. Sept. 1, 1987; Acts 1991, 72nd Leg., ch. 895, Sec.

    2, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 846, Sec. 1,

    eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 1039, Sec. 5, eff.

    Sept. 1, 1995.

    Amended by:

    Acts 2007, 80th Leg., R.S., Ch.

    1170, Sec. 3.01, eff. September 1, 2007.

    Text of article effective until January 01, 2014

    Sec. 37B. ASSIGNMENT OF PROPERTY RECEIVED FROM A DECEDENT. (a) A

    person entitled to receive property or an interest in property

    from a decedent under a will, by inheritance, or as a beneficiary

    under a life insurance contract, and who does not disclaim the

    property under Section 37A of this code, may assign the property

    or interest in property to any person.

    (b) The assignment may, at the request of the assignor, be filed

    as provided for the filing of a disclaimer under Section 37A(h)

    of this code. The filing requires the service of notice under

    Section 37A(i) of this code.

    (c) Failure to comply with the provisions of Section 37A of this

    code does not affect an assignment under this section.

    (d) An assignment under this section is a gift to the assignee

    and is not a disclaimer or renunciation under Section 37A of this

    code.

    (e) An assignment that would defeat a spendthrift provision

    imposed in a trust may not be made under this section.

    Added by Acts 1985, 69th Leg., ch. 880, Sec. 1, eff. Sept. 1,

    1985.

    Amended by:

    Acts 2007, 80th Leg., R.S., Ch.

    1170, Sec. 3.02, eff. September 1, 2007.

    Text of article effective until January 01, 2014

    Sec. 37C. SATISFACTION OF DEVISE. (a) Property given to a person

    by a testator during the testator's lifetime is considered a

    satisfaction, either wholly or partly, of a devise to the person

    if:

    (1) the testator's will provides for deduction of the lifetime

    gift;

    (2) the testator declares in a contemporaneous writing that the

    lifetime gift is to be deducted from or is in satisfaction of the

    devise; or

    (3) the devisee acknowledges in writing that the lifetime gift is

    in satisfaction of the devise.

    (b) Property given in partial satisfaction of a devise shall be

    valued as of the earlier of the date on which the devisee

    acquires possession of or enjoys the property or the date on

    which the testator dies.

    Added by Acts 2003, 78th Leg., ch. 1060, Sec. 7, eff. Sept. 1,

    2003.

    Text of article effective until January 01, 2014

    Sec. 38. PERSONS WHO TAKE UPON INTESTACY. (a) Intestate Leaving

    No Husband or Wife. Where any person, having title to any estate,

    real, personal or mixed, shall die intestate, leaving no husband

    or wife, it shall descend and pass in parcenary to his kindred,

    male and female, in the following course:

    1. To his children and their descendants.

    2. If there be no children nor their descendants, then to his

    father and mother, in equal portions. But if only the father or

    mother survive the intestate, then his estate shall be divided

    into two equal portions, one of which shall pass to such

    survivor, and the other half shall pass to the brothers and

    sisters of the deceased, and to their descendants; but if there

    be none such, then the whole estate shall be inherited by the

    surviving father or mother.

    3. If there be neither father nor mother, then the whole of such

    estate shall pass to the brothers and sisters of the intestate,

    and to their descendants.

    4. If there be none of the kindred aforesaid, then the

    inheritance shall be divided into two moieties, one of which

    shall go to the paternal and the other to the maternal kindred,

    in the following course: To the grandfather and grandmother in

    equal portions, but if only one of these be living, then the

    estate shall be divided into two equal parts, one of which shall

    go to such survivor, and the other shall go to the descendant or

    descendants of such deceased grandfather or grandmother. If there

    be no such descendants, then the whole estate shall be inherited

    by the surviving grandfather or grandmother. If there be no

    surviving grandfather or grandmother, then the whole of such

    estate shall go to their descendants, and so on without end,

    passing in like manner to the nearest lineal ancestors and their

    descendants.

    (b) Intestate Leaving Husband or Wife. Where any person having

    title to any estate, real, personal or mixed, other than a

    community estate, shall die intestate as to such estate, and

    shall leave a surviving husband or wife, such estate of such

    intestate shall descend and pass as follows:

    1. If the deceased have a child or children, or their

    descendants, the surviving husband or wife shall take one-third

    of the personal estate, and the balance of such personal estate

    shall go to the child or children of the deceased and their

    descendants. The surviving husband or wife shall also be entitled

    to an estate for life, in one-third of the land of the intestate,

    with remainder to the child or children of the intestate and

    their descendants.

    2. If the deceased have no child or children, or their

    descendants, then the surviving husband or wife shall be entitled

    to all the personal estate, and to one-half of the lands of the

    intestate, without remainder to any person, and the other half

    shall pass and be inherited according to the rules of descent and

    distribution; provided, however, that if the deceased has neither

    surviving father nor mother nor surviving brothers or sisters, or

    their descendants, then the surviving husband or wife shall be

    entitled to the whole of the estate of such intestate.

    Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

    Text of article effective until January 01, 2014

    Sec. 39. NO DISTINCTION BECAUSE OF PROPERTY'S SOURCE. There

    shall be no distinction in regulating the descent and

    distribution of the estate of a person dying intestate between

    property which may have been derived by gift, devise or descent

    from the father, and that which may have been derived by gift,

    devise or descent from the mother; and all the estate to which

    such intestate may have had title at the time of death shall

    descend and vest in the heirs of such person in the same manner

    as if he had been the original purchaser thereof.

    Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

    Text of article effective until January 01, 2014

    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.

    Amended by:

    Acts 2005, 79th Leg., Ch.

    169, Sec. 2, eff. September 1, 2005.

    Text of article effective until January 01, 2014

    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.

    (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.

    (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.

    (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 wilfully

    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.

    (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;

    (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

    (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).

    (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.

    Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended

    by Acts 1969, 61st Leg., p. 1922, ch. 641, Sec. 2, eff. June 12,

    1969.

    Amended by:

    Acts 2007, 80th Leg., R.S., Ch.

    1412, Sec. 2, eff. September 1, 2007.

    Text of article effective until January 01, 2014

    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.

    (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.

    (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.

    (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.

    Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended

    by Acts 1977, 65th Leg., p. 762, ch. 290, Sec. 1, eff. May 28,

    1977; Acts 1979, 66th Leg., p. 40, ch. 24, Sec. 25, eff. Aug. 27,

    1979; Acts 1979, 66th Leg., p. 1743, ch. 713, Sec. 5, eff. Aug.

    27, 1979 ; Acts 1987, 70th Leg., ch. 464, Sec. 1, eff. Sept. 1,

    1987; Acts 1989, 71st Leg., ch. 375, Sec. 35, eff. Sept. 1, 1989;

    Acts 1997, 75th Leg., ch. 165, Sec. 7.54, eff. Sept. 1, 1997;

    Acts 1997, 75th Leg., ch. 1302, Sec. 4, eff. Sept. 1, 1997; Acts

    2001, 77th Leg., ch. 821, Sec. 2.18, eff. June 14, 2001.

    Text of article effective until January 01, 2014

    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.

    Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended

    by Acts 1991, 72nd Leg., ch. 895, Sec. 3, eff. Sept. 1, 1991.

    Text of article effective until January 01, 2014

    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

    (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.

    (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.

    (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.

    Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended

    by Acts 1993, 73rd Leg., ch. 846, Sec. 4, eff. Sept. 1, 1993.

    Text of article effective until January 01, 2014

    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.

    (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.

    Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended

    by Acts 1991, 72nd Leg., ch. 895, Sec. 4, eff. Sept. 1, 1991;

    Acts 1993, 73rd Leg., ch. 846, Sec. 33, eff. Sept. 1, 1993.

    Text of article effective until January 01, 2014

    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.

    (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.

    Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended

    by Acts 1961, 57th Leg., p. 233, ch. 120, Sec. 1, eff. May 15,

    1961; Acts 1969, 61st Leg., p. 1922, ch. 641, Sec. 3, eff. June

    12, 1969; Acts 1981, 67th Leg., p. 895, ch. 319, Sec. 1, eff.

    Sept. 1, 1981; Acts 1987, 70th Leg., ch. 678, Sec. 2; Acts 1989,

    71st Leg., ch. 655, Sec. 1, eff. Aug. 28, 1989.

    Text of article effective until January 01, 2014

    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.

    (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.

    (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.

    (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.

    (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.

    (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.

    Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended

    by Acts 1965, 59th Leg., p. 279, ch. 119, Sec. 1, eff. Aug. 30,

    1965; Acts 1979, 66th Leg., p. 1743, ch. 713, Sec. 6, eff. Aug.

    27, 1979; Acts 1993, 73rd Leg., ch. 846, Sec. 5, eff. Sept. 1,

    1993.

    Text of article effective until January 01, 2014

    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.

    (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.

    (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.

    (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.

    (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.

    (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.

    Added by Acts 2007, 80th Leg., R.S., Ch.

    1170, Sec. 4.01, eff. September 1, 2007.

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