Mary Goodblood grew up believing that she was the only daughter of Cash Goodblood. One day, 25 years after Cash died, and to no one’s surprise after the lucrative sale of the Goodblood family business was plastered on the front page of the local newspaper, Mary received a Facebook message from a woman named Désirée that said “Hi, I think your Dad is also my Dad. Do you want to exchange DNA?” After doing some research, Mary discovered that Désirée’s mom, Candy Onenight, had a very brief relationship with Cash long before Cash and Mary’s mom married. What should Mary do? If Désirée can first prove paternity – that Cash is her biological father – does she have a legitimate claim to share equally with Mary in Cash’s trust created from the sale of the Goodblood family business?
Whether Desirée is Cash’s biological child (legitimate or otherwise) was considered in the last blog Illegitimate Heirs – Paternity. Assuming that Désirée is Cash and Candy’s child –
Do the words in the Goodblood trust describe an intent to benefit Désirée?
For hundreds of years, will and trust language benefitting the progeny (offspring) of a father used words like “child,” “heir,” and “next of kin” The beneficiaries of Cash’s Trust are described as his “lawful descendants.” Even if Desirée is Cash’s child – and she is unquestionably illegitimate – is she a “lawful descendant” that the trust intends to benefit?
Texas still follows the English common law that reaches back to England’s King Charles II whose only children were born out of wedlock – illegitimate. He had no legitimate child to succeed him to the throne. Thus, Charles’s brother King James II was crowned in 1685 upon Charles’s death. Entrenched in English common law, the Republic of Texas, and later the State of Texas in these early years, affirmed by statute that, like the royals, children born out of wedlock did not have a claim to the rights of either one of a deceased parent – even if their parents later married. So, applying the historic English common law rule to “descendants” and “children” – even before adding the word “lawful” – in Texas, only a child born of parents who were legally married at the time of birth could inherit. Regardless of whether Désirée is actually Cash’s biological daughter, it is undisputed—and undisputable—that she was not his legitimate daughter. Désirée’s mother was never married to Cash. In fact, she was married to another man when she gave birth to Desirée. As you might imagine, more modern cases and statutes have muted this hard line in certain circumstances.
Cash’s trust language, which adds the adjective “lawful” – using “lawful descendants” – further strengthens Mary Goodblood’s argument that Desirée has no rightful claim to Cash’s trust. Even though some states abandon the historical common law rule as to “descendants,” they all reach the same conclusion for “lawful descendants” – the child must have been born to married parents. They interpret “descendants” and “children” to include illegitimate offspring only if the documents’ language does not indicate a different intent. Here, Cash’s repeated use of the adjective “lawful” in his trusts establishes that he intended to exclude illegitimate offspring from any beneficiaries of his trusts. Therefore, Désirée is not a “descendant” – and certainly not a “lawful descendant” – under Cash’s trusts.
Desirée’s Counsel Disagrees
First, Désirée argued that Texas statutory law is now changed from English common law – that illegitimate children can inherit from their parents. Her lawyers would have been correct only if Cash died without a will or a trust, but he had both. Before a 1984 U.S. Supreme Court case Trimble, whether a deceased parent had a will or trust or not, the illegitimate child of a deceased parent could not inherit. After changes in 1984 to Texas estate statutes, a parent who dies intestate – without a will – and with children, all “heirs at law” (children), legitimate or illegitimate, share equally in their deceased parent’s estate. However, Texas still holds that every parent, including Cash, has the right to decide who gets their “stuff,” so long as their intent is spelled out in a will or trust which identifies the beneficiaries. Cash’s “lawful descendants” do not include Désirée, whether her paternity establishes that she is Cash’s illegitimate child, or not.
Second, Désirée argued that the culture and the law is changing, and that “lawful descendants” should include all children – legitimate or illegitimate – because the Texas Estates Code permits a determination of paternity by genetic testing. Genetic testing can answer whether Désirée is Cash’s biological child, but it does not tell us whether she is a “lawful descendant,” as intended by Cash in his will or trust. A better argument is that when Cash signed his will “lawful descendants” meant his children born of a marriage. Texas cases and Estates Code law are clear on this. If the culture has, in fact, changed Texas courts will wait for the Texas legislature to change Texas law on this point.
Family in Transition
After Mary’s father Cash died, Cash’s brother – Uncle Trusty – was anointed as being responsible to handle Cash’s trust assets (principally, the proceeds from the sale of the family business) for the benefit of Mary. Mary was initially thrilled that she might have a sister to hang out with. Mary’s Uncle Trusty just wanted to make sure that he was paying the right person the right amount from Cash’s trust. Mary’s mother Martha didn’t much care for the possibility that – even though born before Martha and Cash started dating – Désirée might have been Cash’s daughter. Martha just wanted all of this to go away. What do you think Desirée – who grew up with her stepbrother and a stepsister – and her mother Candy wanted?
Balancing the Scales – for both the Family and the Business in Transition
Careful thought must be given to both the strictly legal answers as the business transitions from one generation to the next, and to the emotional / practical answers as the family transitions between generations. Both must be weighed to chart a workable solution for all interested parties.
Tilting the Scales Blog
This is the second in a series of articles on “real life” business and family issues litigated over a claimed illegitimate heir, and resolved by Gray Reed lawyers Cleve Clinton, Greg Sampson and Bill Drabble. This Part 2 of “Illegitimate Heirs – Trust Language: ‘Hi, I think Your Dad is Also My Dad’” addresses the second – and probably the most challenging – of four questions that Desirée (who now claims to be a biological daughter of Cash who he never knew) must successfully “win” to succeed in her claim to share with Cash’s daughter Mary, the benefits of her father’s trust.
No Legal Advice
This blog is informational only. The names have been changed. The facts and legal issues are sometimes changed to make a point. Seek advice worthy of your trust from someone with the necessary education and experience.