Intestate Succession

Non-Marital Child

Malone v. Thomas, 24 S.W.3d 412 (Tex. App.—Houston [1st Dist.] 2000, no pet.).


After Intestate died, three individuals attempted to be declared his biological children. One of Intestate’s siblings contested. The probate court determined that one of these individuals was Intestate’s child and declared him to be Intestate’s sole heir. Sibling appealed claiming that the probate court did not properly apply the law.

The appellate court affirmed. The court focused on Probate Code § 42(b) which provides a list of the exclusive methods for a non-marital child to establish paternity for inheritance purposes. The trial court relied on a court order of paternity which is one of the methods listed. Even if this court order is invalid as Sibling alleged, the facts supported the finding of paternity in a variety of other ways. For example, Intestate consented to being named as the father on the birth certificate and Intestate executed a statement of paternity in compliance with the Family Code.

Moral: A person contesting the paternity of a non-marital child must show that none of the methods listed in Probate Code § 42(b) may be used to establish paternity.