Intestate Succession

Non-Marital Child

Villery v. Solomon, 16 S.W.3d 106 (Tex. App.—Houston [1st Dist.] 2000, no pet.).


Intestate died with Marital Child, Non-Marital Son, and Non-Marital Daughter. The court determined that there was clear and convincing evidence as required under Probate Code § 42(b) to establish that both non-marital children were Intestate’s biological children. Marital Child appealed the court’s finding with regard to Non-Marital Daughter.

The appellate court affirmed. There was ample clear and convincing evidence to support the trial court’s finding that Non-Marital Daughter was Intestate’s child. For example, the mother of Non-Marital Daughter testified that Intestate was the father and that he acknowledged her as his child. In addition, he paid child support, visited her, and wanted to change her last name to match his. Non-Marital Son also agreed that Non-Marital Daughter was her sister. Non-Marital Daughter testified that she always considered Intestate as her father and that he helped pay her rent and support her child, Intestate’s grandson. The court also agreed that the trial court was within its right to give little weight to an ambiguous DNA report, especially because there was no expert testimony to interpret the report and the Intestate was not tested.

Moral: If a DNA report is going to be used in a paternity determination, the report should be clearly explained by an expert who tests the mother, alleged father, and child.