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Forced Heirship in Texas Probate

Should someone have the right to dispose of their property when they die as they see fit? Should the law impose a requirement to leave loved ones with equal shares?

These competing policies have found their way into Texas probate law. Texas law used to provide for forced heirship, which resulted in equal shares and could be used to void wills that provided unequal shares. Texas law no longer provides for this, but the Texas Estates Code includes some laws that have a similar outcome.

The Scoby v. Sweatt, 28 Tex. 713 (1866) provides an opportunity to consider these issues. It involved a will that left unequal shares at a time when Texas law provided for forced heirships.

Facts and Procedural History

Edward Sweatt had ten living children, excluding those who had predeceased him. One of his deceased children, Sarah Sweatt-Scoby, was the mother of James Scoby (Plaintiff).

The decedent executed a will during his lifetime that bequeathed certain property to his wife, with the remainder going to his children. However, Decedent did not give his children equal shares of his estate. Some children received greater portions than others, and he also gave certain children advancements during his lifetime.

The Decedent’s will was drafted just a few days prior to his death, and named two of his surviving sons as his executors.

At the time of the Decedent’s passing, the law of forced heirship was in place, which required that the children of a testator be given equal shares of a testator’s estate.

Plaintiff filed a lawsuit to (1) assert his claim as a forced heir; (2) invalidate Decedent’s will; and (3) recover damages against the executors of the Decedent’s estate for not distributing his inheritance.

Forced Heirship in Texas Probates

The Sweatt case involved the law of forced heirship. Under Texas law at the time, a testator could not completely disinherit their children.

Children were entitled to a minimum share of their parent’s estate, known as their forced share. In this case, Decedent did not give his children equal shares of his estate, contrary to the law of forced heirship. Plaintiff argued that he was entitled to a greater portion of the Decedent’s estate than he received.

The probate court ended up ruling against the Plaintiff, stating that he forfeited his right to appeal by accepting the money and filing the lawsuit after two years had passed (under adverse possession). The Supreme Court reversed and remanded the case to the trial court. The Supreme Court reversed.

Texas Does Not Provide for a Forced Heirship

Texas law no longer recognizes the concept of forced heirship. In fact, the law now says that a testator can choose who gets his or her estate and in what amount. The law even allows the testator to disinherit some or all of his heirs. If the Sweatt case was tried today, the courts would not have even had to consider the lawsuit.

There are exceptions to these general rules, however. The family allowance and the set aside of exempt property are examples of laws that provide remedies that are somewhat similar to a forced heirship. These laws generally say that the surviving spouse and any minor children are entitled to some minimum amount of assets upon the decedent’s passing. Had the Plaintiff in Sweatt been a minor child, then the court may have applied these concepts similar to the result in a forced heirship.

About the Family Allowance

Under Texas Estates Code, the family allowance is a specific award from the deceased person’s estate to support their surviving spouse and minor children during the probate process.

The family allowance is intended to provide for the immediate needs of the family members while the probate proceedings are ongoing. It is considered a priority claim and is paid before other debts and expenses of the estate.

The amount of the family allowance in Texas is determined by the court in dependent administrations and by the executor in independent administrations. The family allowance is not automatic, and a request must be made to the court or the administrator to receive it.

Exempt Property

Under the Texas Estates Code, exempt property is a category of property that is protected from creditors and can be set aside for the benefit of the surviving spouse and minor children of the deceased person.

The exempt property set-aside includes tangible personal property that is used primarily for personal, family, or household purposes. This may include items such as furniture, appliances, and other household items, up to certain specified values.

If the deceased person is survived by a spouse and minor children, the court (in a dependent administration) or the administrator (in an independent administration) may set aside the exempt property for their use and benefit. If the estate is not large enough to satisfy all of the surviving spouse’s homestead and exempt property rights, the surviving spouse is entitled to an allowance in lieu of homestead and exempt property.

It’s important to note that the set-aside of exempt property and the family allowance are separate provisions under Texas law. The set-aside of exempt property is meant to provide the surviving spouse and minor children with property they can use and keep, while the family allowance is meant to provide them with money to support them during the probate process.

The Takeaway

This case dealt with forced heirship, which is no longer recognized in Texas. Today, a testator can choose who gets their estate and in what amount. There are some exceptions, such as the family allowance and the set-aside of exempt property for surviving spouses and minor children.

If you need help with your Texas probate matter, call us today for a FREE attorney consultation at (281) 219-9090.

Our Houston Probate Attorneys provide a full range of probate services to our clients, including helping with disputes between heirs. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.


The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.

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