Texas Estates Code 255.053 – Succession by Pretermitted Child If Testator Has Living Child At Will’s Execution
(a) If no provision is made in the testator‘s last will for any child of the testator who is living when the testator executes the will, a pretermitted child succeeds to the portion of the testator’s separate and community estate, other than any portion of the estate devised to the pretermitted child’s other parent, to which the pretermitted child would have been entitled under § 201.001 if the testator had died intestate without a surviving spouse, except as limited by § 255.056.
(b) If a provision, whether vested or contingent, is made in the testator’s last will for one or more children of the testator who are living when the testator executes the will, a pretermitted child is entitled only to a portion of the disposition made to children under the will that is equal to the portion the child would have received if the testator had:
(1) included all of the testator’s pretermitted children with the children on whom benefits were conferred under the will; and
(2) given an equal share of those benefits to each child.
Terms Used In Texas Estates Code 255.053
- Child: includes an adopted child, regardless of whether the adoption occurred through:
(1) an existing or former statutory procedure; or
(2) an equitable adoption or acts of estoppel. See Texas Estates Code 22.004 - Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
- Estate: means a decedent's property, as that property:
(1) exists originally and as the property changes in form by sale, reinvestment, or otherwise;
(2) is augmented by any accretions and other additions to the property, including any property to be distributed to the decedent's representative by the trustee of a trust that terminates on the decedent's death, and substitutions for the property; and
(3) is diminished by any decreases in or distributions from the property. See Texas Estates Code 22.012 - Intestate: Dying without leaving a will.
- Life estate: A property interest limited in duration to the life of the individual holding the interest (life tenant).
- Testator: A male person who leaves a will at death.
(c) To the extent feasible, the interest in the testator’s estate to which the pretermitted child is entitled under Subsection (b) must be of the same character, whether an equitable or legal life estate or in fee, as the interest that the testator conferred on the testator’s children under the will.