Texas Wills and Estates: Cases and Materials (6Th Edition)

By Gerry W. Beyer

This book is designed for law school courses coveringintestate succession and wills. The cases, problems, and questions are drawn extensively from Texas materials and attempt to provide the student with a comprehensive understanding of how property transmission at death is handled in Texas.

• Language: English
• Publisher: AuthorHouse
• Release date: Dec 4, 2008
• ISBN: 9781467047609

Gerry W. Beyer

Professor Gerry W. Beyer received his J.D., summa cum laude, from the Ohio State University and his LL.M. and J.S.D. degrees from the University of Illinois.  Professor Beyer joined the faculty of the Texas Tech University School of Law in June 2005 as the Governor Preston E. Smith Regents Professor of Law.  Previously, Prof. Beyer taught at the St. Mary’s University School of Law from 1981 to May 2005 and has served as a visiting professor at several other law schools including Boston College, Southern Methodist University, the University of New Mexico, Santa Clara University, and La Trobe University (Melbourne, Australia).  Prof. Beyer is the author of numerous other books including Wills, Trusts, and Estates: Examples & Explanations.

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TEXAS WILLS AND ESTATES:

CASES AND MATERIALS

Sixth Edition

GERRY W. BEYER

Governor Preston E. Smith Regents Professor of Law

Texas Tech University School of Law

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AuthorHouse™

1663 Liberty Drive, Suite 200

Bloomington, IN 47403

www.authorhouse.com

Phone: [phone]

© 2008 Gerry W. Beyer. All rights reserved.

No part of this book may be reproduced, stored in a retrieval system, or transmitted by any means without the written permission of the author.

First published by AuthorHouse 11/19/2008

ISBN: 978-1-4389-0948-6 (sc)

ISBN: 978-1-4670-4760-9 (ebk)

Library of Congress Control Number: 2008910951

Printed in the United States of America

Bloomington, Indiana

Contents

CHAPTER ONE INTRODUCTION

CHAPTER TWO INTESTATE SUCCESSION

CHAPTER THREE WILL EXECUTION

CHAPTER FOUR CHANGING CIRCUMSTANCES AFTER WILL EXECUTION

CHAPTER WILL REVOCATION

Chapter Six WILL INTERPRETATION AND CONSTRUCTION

Chapter Seven WILL CONTESTS

CHAPTER EIGHT OTHER WILL ISSUES

CHAPTER NINE PROBATE AVOIDANCE TECHNIQUES

Chapter Ten

Chapter Eleven OTHER CONCERNS

APPENDIX SAMPLE WILL FORM

PREFACE

This book is designed for courses covering wills, intestate succession, and estate administration. The cases, problems, and questions are drawn extensively from Texas materials and attempt to provide the student with a comprehensive understanding of how decedent’s estates are handled in Texas.

When the notation "read’ is used, the student should immediately read the indicated materials before proceeding. The signal see indicates that the cited material is highly relevant to the question or statement being made but that, although highly recommended, the source need not be immediately consulted. "See generally" indicates background material or material that would be a good place to start researching that particular topic.

All of the cases have been edited, to one extent or another. Omissions are indicated by asterisks and most of the courts’ footnotes have been omitted or renumbered without notation.

This book is designed to be used in conjunction with TEXAS ESTATE PLANNING STATUTES-STUDENT EDITION which is published by Aspen. This book is a compilation of the relevant Texas statutes which are referenced in this book. The book also includes commentary entitled Statutes in Context to provide background information, explanations, and citations to key cases.

Every attempt was made to ascertain the correctness of the information contained in this book. However, neither AuthorHouse nor the author warrant that this material is without error. Readers should verify all material with the original sources before relying on it. In addition, new cases and legislation make important changes to the law. You may access a list of updates to this work at http://www.ProfessorBeyer.com

If, as you use this book, you have any suggestions, comments, corrections, or criticisms, i would greatly appreciate your sharing them with me. Please contact me via e-mail at [e-mail]

Gerry W. Beyer

Lubbock, Texas

September 2008

ACKNOWLEDGMENTS

I wish to acknowledge and express my gratitude to the many people who have lead to the publication of the sixth edition of this book.

To Professor Aloysius A. Leopold for his invaluable suggestions.

To William Lozano, Esq. and Robert Hobbs, Esq., former professors at the St. Mary’s University School of Law, for providing the inspiration for the first edition of this book.

To Thomson-West and the Altshuler Genealogical Service for permission to quote their materials.

To Amanda Hazzard (J.D. Candidate, Texas Tech University School of Law) for her excellent assistance in the preparation of this manuscript.

ABBREVIATIONS

Art. = Texas Revised Civil Statutes Annotated (Vernon).*

Beyer = 9 & 10 GERRY W. BEYER, TEXAS LAW OF WILLS (3d ed. Texas Practice 2002 & most recent Supp.).

Bus. & Com. Code = Texas Business and Commerce Code Annotated (Vernon).*

Civ. Prac. & Rem. Code = Texas Civil Practice and Remedies Code Annotated (Vernon).*

EXAMPLES & EXPLANATIONS = GERRY W. BEYER, WILLS, TRUSTS, AND ESTATES: EXAMPLES & EXPLANATIONS (4TH ED. 2007).

Fam. Code = Texas Family Code Annotated (Vernon).*

Fin. Code = Texas Finance Code Annotated (Vernon).*

Gov’t Code = Texas Government Code Annotated (Vernon).*

Health & Safety Code = Texas Health and Safety Code Annotated (Vernon).*

Ins. Code = Texas Insurance Code Annotated (Vernon).*

Occ. Code = Texas Occupations Code Annotated (Vernon).*

Prob. Code = Texas Probate Code Annotated (Vernon).*

Prop. Code = Texas Property Code Annotated (Vernon).*

Trans. Code = Texas Transportation Code Annotated (Vernon).*

U.P.C. = Uniform Probate Code (official 1993 text).

Woodward & Smith = 17 & 18 M.K. WOODWARD & ERNEST E. SMITH, III, PROBATE AND DECEDENTS’ ESTATES (Texas Practice 1971 & most recent Supp.).

CHAPTER ONE INTRODUCTION

property with a deceased person is now viewed as an inefficient use of resources, many cultures still include some of a decedent’s property with the decedent. For example, people following Western religions are often buried in favorite clothes or jewelry, and Native American ceremonies may include the burial of certain personal items with the deceased.

Most cultures eventually had to decide who among the survivors should have ownership of a decedent’s property. Accordingly, either by custom or through more formal mechanisms, societies devised a fixed set of rules to control property transference. These rules typically stressed the importance of family relationships, but the way in which family relationships were determined varied tremendously among different societies. For example, some determined relationships through the mother’s side of the family while others stressed the father’s side. Rules often varied depending on the age or sex of the surviving family members. The rules were typically rigid and did not allow for alteration due to the circumstances or the desires of the decedent. These rules evolved into what we now call intestate succession or descent and distribution.

SOCIETIES ALSO DEVELOPED METHODS FOR A PERSON TO ISSUE INSTRUCTIONS WHILE ALIVE WHICH WOULD SPECIFY THE NEW OWNERS OF THE PERSON’S PROPERTY UPON DEATH. THIS POWER OF TESTATION HAS A BASIS IN EGYPTIAN SOCIETY PERHAPS AS LONG AGO AS 2900 B.C. GREEK AND ROMAN CIVILIZATIONS HAD EXTENSIVE RULES REGARDING WILLS; YOU CAN EVEN FIND TRANSLATIONS OF WILLS OF PEOPLE LIKE ARISTOTLE AND PLATO. THE DEVELOPMENT OF WILLS AT COMMON LAW BEGAN IN THE ANGLO-SAXON ERA, GREW AFTER THE NORMAN CONQUEST OF 1066 A.D., AND WAS FORMALLY CODIFIED IN 1540 IN THE ENGLISH STATUTE OF WILLS, THE PRECURSOR TO THE MODERN LAW OF WILLS.

CHAPTER TWO INTESTATE SUCCESSION

A person may die intestate either as to the person, i.e., no valid will, or as to property, i.e., a valid will which fails to dispose of all of the person’s property. The person’s property which is neither covered by a valid will nor by a non-testamentary transfer is then distributed under the state’s law of descent and distribution.

Some commentators urge that inheritance rights should be limited. What policies support curtailing inheritance? See Mark L. Ascher, Curtailing Inherited Wealth, 89 MICH. L. REV. 69 (1990). But see Patti S. Spencer, Must Private Property be Inheritable?, 10 PROB. L.J. 141, 162 (1990) (Insofar as there is a right of private property to be secured and protected by our government, the right includes the alienability of property and its inheritability.).

See generally Examples & Explanations §§ 2.1 & 2.2.

A. BASIC DISTRIBUTION SCHEME

Read Prob. Code §§ 38, 43, & 45. Texas law uses the civil law method to compute degrees of relationship. See Gov’t Code § 573.021.

Two persons are related to each other by consanguinity if one is a descendant of the other or if they share a common ancestor. See Gov’t Code § 573.022. Two persons are related by affinity if they are married to each other or if the spouse of one of the persons is related by consanguinity to the other person. See Gov’t Code § 573.024. Termination of a marriage by divorce or the death of a spouse terminates relationships by affinity created by that marriage unless a child of that marriage is living, in which case the marriage is treated as continuing to exist as long as a child of that marriage lives. Id.

THE ALTSHULER CHART¹

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NOTES AND QUESTIONS

1. Wilma, a widow, dies intestate survived by her only son, Sammy,

and her father, Frank. How is Wilma’s property distributed?

2. Harry, a widower, dies intestate survived by his mother, Mary, and

his two brothers, Bruce and Bob. How is Harry’s property distributed?

3. Husband (H) and Wife (W) have three children, Amy (A), Brad

(B), and Charles (C). All three children are married and have children of

their own. A has one child, Mike (M). B has three children, Nancy (N),

Opie (O), and Pat (P). C’s children are Robert (R) and Susan (S). H died

intestate with both community and separate property. In addition, H owned real and personal property of each type.

a.How would H’s property be distributed?

b.Assume that both B and C predeceased H. How would H’s property be distributed?

c.Assume that A, B, and C predeceased H. How would H’s property be distributed?

d.Answer questions (a), (b), and (c) assuming that A’s mother is X instead of W.

1.If a decedent dies survived by two children and his parents, but no surviving spouse, to whom does decedent’s community property go and in what proportions? (careful!)

2.Mother and Father, both now deceased, had three children, Arthur, Bill, and Chris. Arthur died survived by his wife, Peggy, and their two children, Linda and Ken. Bill is unmarried and childless. Chris is married to Wendy and they have no children. Chris died intestate with both community and separate property. In addition, Chris owned real and personal property of each type. How would Chris’ property be distributed?

3.In distributing an intestate person’s estate, does it matter that Blackacre was inherited from the intestate’s mother? Read Prob. Code § 39. See generally Examples & Explanations § 4.1.

4.If you were to die intestate, how would your property be distributed? Do you like what would happen to your property?

5.Why does a spouse get a one-third life estate in the intestate spouse’s separate real property? See Darien A. McWhirter, The Ancient Origins of Texas Probate Law, 49 TEX. B.J. 1061 (1986).

6.In Ross v. Goldstein, 203 S.W.3d 508 (Tex. App.-Houston [14th Dist.] 2006, no pet.), Son, as the independent administrator of Father’s estate, brought suit against Partner to recover estate assets. Partner argued that the court should adopt the marriage-like relationship doctrine so that he could claim the assets. Both the trial and appellate court rejected Partner’s claim and refused to recognize this doctrine. Partner asserted that the doctrine is an equitable remedy which is not against the public policy of Texas and that it would aid the courts in addressing the growing reality of same-sex relationships. Ross at 514. The appellate court explained that it was unwilling to recognize the marriage-like relationship doctrine and that same-sex couples must address their particular desires through other legal vehicles such as contracts or testamentary transfers. Id.

The court examined two provisions of Texas law; first, Article 1, § 32 of the Texas Constitution which provides that no state or political subdivision may create or recognize any legal status identical or similar to marriage for same-sex partners and second, Texas Family Code § 6.204 which states that it is contrary to Texas public policy to recognize or give effect to a same-sex marriage or civil union. Accordingly, the court held that it lacked the power to create an equitable remedy akin to marriage.

10. See generally Examples & Explanations §§ 2.3-2.5.

STATE v. ESTATE OFLOOMIS

Texas Civil Appeals—Tyler 1977 553 S.W.2d 166 writ refd

MOORE, Justice.

This appeal calls for an interpretation and construction of the last sentence of Section 38(a)(4) of the Texas Probate Code * * *

Mrs. J.A. Loomis a/k/a Sue A. Loomis died intestate on the 18th day of May 1974 and was not survived by a husband, children, father, mother[,] brothers or sisters. The paternal grandparents both predeceased Mrs. Loomis, leaving no descendants. On the maternal side, both grandparents were deceased at the time of the death of Mrs. Loomis, but left surviving them thirty-one persons as their descendants.

On December 11, 1975, an application to declare heirship was filed by the administrator of the estate of Mrs. Loomis and proper notice was given. The administrator alleged that thirty-one maternal heirs were known to be living but after an extensive search he was unable to locate any paternal heirs. On January 21, 1976, the State of Texas appeared by and through its Attorney General and filed a Plea of Intervention and Answer alleging that in the event no paternal heirs were located, the portion of the estate allotted to them should be held to escheat to the State as provided for in [Tex. Prop. Code Ann. § 71.001]. After a trial before the court without a jury, the trial court entered judgment awarding the entire estate to the thirty-one persons who were descendants of the decedent’s maternal grandparents. The State of Texas perfected this appeal.

We affirm.

The facts are not in dispute. The decedent left tangible personal property consisting of cash in the amount of $25,085.93. There were thirty-one maternal kindred who were descendants of the intestate decedent’s maternal grandparents and there were no descendants of the intestate’s paternal grandparents.

By two points of error the State contends that since there was a default of heirs in the paternal line, the trial court erred holding that the one-half of the decedent’s estate destined for the paternal heirs passed to the maternal line of heirs and erred in refusing to hold that such one-half escheated to the State. The State argues that where none of the kindred mentioned in Section 38(a)(1-3) exist then Section 38(a)(4) of the Code provides that the estate must be divided in two moieties one of which must be distributed to the paternal kindred and the other to the maternal kindred. Based on this premise, the State argues that since there was no kindred on the paternal side, there was no one left to take this one-half of the estate. Therefore, the State contends that this one-half of the estate should be treated as abandoned property and should escheat under the provisions of [Tex. Prop. Code Ann. § 71.001] which provides that where a person dies intestate having no heirs his estate shall escheat and vest in the State.

Thus, the question to be determined is: If no paternal kindred can be found, will the paternal moiety then go to the maternal kindred or does it escheat to the State? * * *

A reading of Section 38 of the Probate Code in its entirety clearly shows that it was the purpose of the legislature in passing the descent provision to transfer title to the estate of a decedent in its entirety to his heirs, and to effectuate an equitable and fair distribution of the estate among the heirs. Where none of the kindred specified in Section 38(a)(1-3) survives the decedent and it becomes necessary to distribute the estate to the paternal and maternal kindred, the legislature provided in Section 38(a)(4) that the estate is to be divided into two moieties, one of which would go to the paternal heirs and the other to the maternal heirs.

The last sentence in Section 38(a)(4) provides that: If there be no surviving grandfather or grandmother, then the whole of such estate shall go to their descendants, and so on without end, passing in like manner to the nearest lineal ancestors and their descendants. The phrase their descendants has reference to the descendants of the paternal grandparents and the descendants of the maternal grandparents each as separate groups and not collectively. Since the first sentence of Section 38(a)(4) directs that the estate be divided into two moieties, one of which will go to the paternal kindred and the other to the maternal kindred, the remainder of Section 38(a)(4) explains the disposition of the estate after it has already been divided into two moieties. It follows, therefore, that the term the whole of such estate found in the last sentence refers to one moiety, and refers to either the moiety destined to go to the paternal kindred or the moiety destined to go to the maternal kindred and does not refer to the estate in its entirety. Although the language in the last sentence of Section 38(a)(4) is somewhat confusing and susceptible to an interpretation that the whole estate is to be distributed as an entirety to all descendants surviving on the nearest ascending level, it is now settled that where the estate passes by virtue of the last sentence in Section 38(a)(4) the estate must be divided into two equal moieties, one of which passes to the paternal kindred and the other to the maternal kindred. Golden v. York, 410 S.W.2d 181 (Tex. 1966); McKinney v. Abbott, 49 Tex. 371 (1878). The two moieties are said to be [two] distinct estates, being destined by the law for different objects, having no bond of union except through the intestate. Jones v. Barnett, 30 Tex. 637, 642 (1868); See Witherspoon v. Jernigan, 97 Tex. 98, 76 S.W. 445, 446 (1903). This brings us to the problem of how a moiety will descend under Section 38(a)(4) in a situation where the decedent leaves surviving kindred on one side (paternal or maternal) but leaves no surviving kindred on the other side. See Bailey, Intestacy in Texas: Some Doubts and Queries, 32 Texas L. Rev. 776 (1954). Although there is no explicit provision in the Probate Code providing for a situation where the decedent leaves kindred on one side (paternal or maternal) but leaves no surviving kindred on the other side, the cardinal rule in construing the Probate Code is to ascertain and give effect to the intent and purpose of the legislature in relation to the subject matter of the legislation. Once the intent is ascertained, the courts will then seek to construe the legislation so as to give effect to the purpose of the legislative intent and not to defeat, nullify or thwart it. * * *

The legislative purpose in enacting the descent statute was to pass an intestate decedent’s estate in its entirety to his descendants. It is clear, we think, that the legislature intended to accomplish such purpose by providing for every conceivable contingency. The legislature could have provided for an escheat in case there were living descendants on only one side, but it did not do so. Although in derogation of the common law, statutes of descent and distribution are to be construed in keeping with their general purpose to effectuate a complete and orderly distribution of the entire estate of the decedent. To adopt the construction urged by the State would be to hold that it was not the intention of the legislature to provide for every contingency in passing the estate on to the intestate decedent’s descendants especially where there is a default of the heirs on one side. Where the underlying purpose of the statute is clear, as we think it is here, the courts should not and will not construe it so as to create a casus omissus, if by any other construction, this result can be avoided. Rippeth v. Connelly, 60 Te[n]n. App. 430, 447 S.W.2d 380 (1969).

The escheat statute * * * relied on by the State, has no application to the facts here because the statute applies only in situations where a person dies intestate, possessing an estate and having no heirs.

After considering the underlying purpose of the legislature in providing for the distribution of the estates of decedents and the fact that the legislature failed to provide for an escheat in the Probate Code, we hold that the moiety destined for the paternal heirs descended to the heirs in the maternal line with the result being that the entire estate descended to the thirty-one maternal heirs of the intestate decedent.

Accordingly the judgment is affirmed.

NOTE

See also Kirkpatrick v. Estate of Kane, 743 S.W.2d 371 (Tex. App.—Austin 1988, no writ).

POWERS v. MORRISON

Texas Supreme Court, 1895 88 Tex. 133, 30 S.W. 851

GAINES, C.J. This controversy arose in the county court of Henderson county during the course of a proceeding for the petition and distribution of the estate of N.P. Coleman, deceased. Coleman died intestate, and defendant in error, Morrison, became the administrator of his estate. He left surviving him a widow and five children. One of the intestate’s children died before his father, leaving a minor son, who is the plaintiff in error in this court. The deceased son was at the time of his death, indebted to his father in a sum which was found to exceed the interest he would have inherited in the estate had he survived his father. The case was appealed from the county court to the district court, where it was adjudged that the share of the grandchild in the estate of his grandfather was subject to be offset by his father’s debt to the estate, and that, therefore, he should take nothing in partition. The judgment of the district court was affirmed by the court of civil appeals. Was the grandchild chargeable in partition with the debt of his father to his grandfather? This is the sole question presented for our determination. The right of succession in this state is the creature of statutory law, and therefore the decision of the question depends upon the construction of our statutes of descent and distribution. When one dies intestate in this state, the statute casts the title of all his property, both real and personal, directly upon his heirs. The provision which applies immediately to the question before us is as follows: [court quotes what is now § 43]. We are of the opinion that the purpose of the article was to declare under what circumstances those entitled to the inheritance should take per capita and under what contingencies they should take per stirpes. Such is the intention plainly manifested upon the face of the provision, and we find nothing in the language employed to indicate a further purpose,—that when they take per stirpes, those standing in the remoter degree should be subject to the liabilities of their ancestors. The plaintiff in error in this case is entitled under the statute to the share which his father would have taken, if alive, at the death of the intestate. This share would have been one-sixth of the property, which descended to the children of the deceased. If the son of the intestate had survived his father, and had not paid his debt to the estate, in the adjustment of the equities between him and his coheirs, his share would have been set off by the debt. His portion of the estate would simply have been credited upon his obligation. If he had survived, and had paid his debt to the administrator, he would have been entitled to an equal distribution with his brothers and sisters. If his estate had been solvent, it would have been the duty of the administrator to collect the debt, and the right of the plaintiff in error to receive the share of the estate which he would have inherited if alive. If, on the other hand, his estate had been insolvent, and his debt had not been paid, and the plaintiff in error had received from his estate property subject to the payment of his debts, equal in value to the amount of the debt, then the latter would have become liable for the discharge of his obligation, and that liability could have been set off against the share of the estate he would otherwise have been entitled to receive. But, the estate of his deceased father being insolvent, the plaintiff in error received no property from it which rendered him liable to the payment of the debts against it, and therefore he owes his grandfather’s estate nothing, and there is no liability of his own to be set off against his share in the estate.

It does not follow that, because the father of plaintiff in error, if he had been alive at the death of his intestate, would have had to account in settlement for his debt, he would not have received his due share of the estate. He would not have been permitted to assert that his debt to the estate was of no value, though, under other circumstances, it may have been worthless. If alive, he would have received his full share in his debt. Being dead, since his child did not owe the debt, the latter was entitled to receive his share without accounting for the liability of his father. It is clear that, if the intestate had left only grandchildren, the plaintiff in error would have received his full share, although the immediate ancestors of the other grandchildren had owed nothing to the grandfather’s estate; and why a different rule should prevail when he takes per stirpes and not per capita we do not see. * * *

[Quoting a Pennsylvania case] The grandchildren of an intestate take by substitution, not through, but paramount to, their parent. The law designates them as persons to take a title, derived not from the parent, but immediately from the intestate. The property never was in the parent, and consequently they did not inherit from him what he had not. If the administrator could come upon the funds in their hands as the representative of the parent’s creditor, it is obvious that all other creditors might do the same,—a consequence not to be pretended. At least, as applied to our statute, we think this an accurate statement of the law. The argument is as forcible as it is terse. Our conclusion is that the plaintiff in error is entitled to recover his full share of the estate, without accounting for his father’s debt. * * *

NOTE

See generally Examples & Explanations § 4.7.

B. HALF AND WHOLE BLOODED HEIRS

Read Prob. Code § 41(b).

The term half-blood refers to collateral relatives who share only one common ancestor. For example, a brother and sister who have the same mother but different fathers would be half-siblings. On the other hand, if the brother and sister have the same parents, they would be related by the whole-blood because they share the same common ancestors.

At common law, half-blooded heirs could not inherit real property from a half-blooded intestate although they were entitled to inherit personal property. This strict rule with its emphasis on blood relationships has been modified by the states. States adopt one of three modern approaches: (1) The majority of states have totally eliminated the distinction between half-and whole-blooded relatives in determining inheritance rights. Thus, half-blooded collaterals inherit just as if they were of the whole-blood. (2) Some states like Texas adopt the Scottish rule which provides that half-blooded collaterals receive half shares. (3) A few states permit half-blooded collateral heirs to inherit only if there is no whole-blooded heir of the same degree.

A simple way to determine the proper distribution to half-and whole-blooded heirs under § 41(b) is to calculate the total number of shares by creating two shares for each whole-blooded heir and one share for each half-blooded heir. Each whole-blooded heir receives two of these shares and each half-blooded heir receives one.

NOTES AND QUESTIONS

1.Can a person have children or parents of the half-blood or do relationships of the half-blood only exist between collateral relatives? See Beyer § 4.25.

2.Barbara was married to John and they had two children, Art and Brenda. Art is married and has two children, Emily and Fred. Brenda is also married and has one daughter, Grace. Barbara divorced John and married Ray. Barbara and Ray had two children, Chad and Dennis.

a.What is the relationship between Art and Ray?

b.What is the relationship between Brenda and Chad?

c.Chad’s parents, Barbara and Ray, die and then Chad dies intestate. How should Chad’s estate be distributed?

3.See generally Examples & Explanations § 3.6; Beyer §§ 4.25 & 4.26.

C. ADOPTED CHILDREN

Read Prob. Code §§ 40, 3(b); Fam. Code §§ 162.017, 162.507, 161.206.

NOTE

The 2005 Legislature made a significant change with respect to the law governing inheritance by a person who is adopted as an adult. Under prior law, there was no difference between the inheritance rights of a person who was adopted as a minor and a person who was adopted after reaching adulthood, that is, both types of adopted individuals inherited not only from their adoptive parents but also retained the right to inherit from their biological parents.

Effective with regard to intestate individuals who die on or after September 1, 2005, the adopted adult may no longer inherit from or through the adult’s biological parent. See Prob. Code § 40 & Fam. Code § 162.507(c).

This amendment may lead to an absurd result. For example, assume that Mother and Father have a child in 1985. Mother dies in 1990 and Father marries Step-Mother in 1995. As time passes, Child and StepMother become close and shortly after Child reaches age 18, Step-Mother adopts Child. If Father dies intestate, Child will not be considered an heir because the statute provides that an adopted adult may not inherit from a biological parent.

LITTLE v. SMITH

Supreme Court of Texas, 1997 943 S.W.2d 414

OWEN, Justice, delivered the opinion of the Court, joined by PHILLIPS, Chief Justice, and GONZALEZ, HECHT, SPECTOR and ABBOTT, Justices.

Katherine Smith, who was adopted as an infant, brought this suit to assert the right to inherit from her biological grandmother and, alternatively, to obtain damages or equitable relief for wrongful exclusion from her grandmother’s estate. We conclude that all of these claims are barred by statutes of limitations.

I

The trial court rendered summary judgment against Katherine Smith. Accordingly, we consider the facts in the light most favorable to her.

Smith was born in 1932 in Sherman, Texas. The next day, she was placed with Hope Cottage in Dallas, where she was subsequently adopted by W.L. and Katherine Barber. When Smith was about ten years old, Katherine Barber told Smith that she was adopted. In later conversations, Barber also revealed where Smith had been born and that she had been adopted through Hope Cottage, but did not reveal the identity of either of Smith’s biological parents.

Many years later, Smith began to search for information about her natural parents when her adult son was diagnosed with a malignant tumor. By that time, Katherine Barber had died. Smith contacted Hope Cottage, which agreed to send her birth records to her with all information about the identity of her biological parents deleted. It was not until about two years later, in 1989, that Smith first obtained the names of her biological mother and father. Smith found a scrap of paper inside a metal box her adoptive mother had kept that said: Thelma Little and Gus Eubanks. He is the son of the mayor of Sherman.

A few months later, in April 1989, Smith telephoned Dr. Frank Little, the brother of Thelma Little. Thelma Little had died twenty years earlier. Smith told Dr. Little she believed that she was the daughter of Thelma Little, to which Dr. Little responded, I have a great deal of difficulty accepting your premise because in 1932 [the year Smith was born] I was 15 years old and living at home, as was Thelma, and I cannot believe I would not have known of her predicament had it existed. Smith asked for information about the family’s history and health records, which Dr. Little supplied.

In October 1989, Smith filed a motion with a district court in Dallas County to obtain records from Hope Cottage, and she and Hope Cottage submitted an Agreed Statement of Facts. The court signed an order granting Smith’s motion on November 17, 1989, and Smith obtained an unredacted copy of Hope Cottage’s record of her birth. This one page document identified Thelma Little as her mother, although it is not signed or acknowledged by Thelma Little or any member of her family. It appears to be an internal record kept by Hope Cottage.

Thereafter, Smith went to the Sherman public library and read the obituary of O.L. Little, Thelma Little’s father, that referred to his ownership of cattle and oil interests in Grayson County. She then went to the Grayson County courthouse and made copies of wills, including that of Lula Little, her biological grandmother. Lula Little had died in 1982, leaving a will that was filed for probate by her son Dr. Frank Little that same year. Lula Little had four other children (Thelma Little Hart, Mary Little Rogers, Bettie Sue Little LeBrun, and Geraldine Little Dowden), who, along with Dr. Little, were named as beneficiaries under the will and were to receive equal shares of the estate. Two of Lula Little’s children, including Thelma Little Hart, had predeceased her. Thelma Little Hart was survived by two children born during her marriage to Sterling Hart, but her sister had died leaving no heirs. Under the antilapse statute, Tex. Prob. Code § 68, Dr. Little distributed a one-fourth interest to each of the three surviving children of Lula Little, and the one-fourth share of Lula Little’s estate that would have gone to Thelma was distributed to Thelma’s two children from her marriage to Hart.

Smith brought this action in November 1991, almost eight years after Dr. Little had made the final distribution of Lula Little’s estate and had filed an affidavit closing the administration of that estate on December 31, 1983. Smith’s causes of action fall into two categories. She essentially demands a one-twelfth interest in the assets of the estate of Lula Little by various means, including a declaratory judgment, a claim for an accounting, a claim for a constructive trust, and a claim for partition. The value of this one-twelfth interest is approximately $33,000. Smith also asserts derivative claims against Dr. Little and other heirs including breach of fiduciary duty, gross negligence, constructive fraud, and conspiracy, and she seeks actual and punitive damages.

The defendants moved for summary judgment, asserting limitations. They relied on the general four-year statute, Tex. Civ. Prac. & Rem. Code § 16.051, because it had the longest period of limitations among the statutes that were arguably applicable. The defendants further maintained in their motion that Dr. Little should have no liability for his failure to conduct a global search for Smith, assuming for the purposes of the summary judgment motion that Dr. Little was aware that his sister had given birth to a child out of wedlock. The defendants contended that Dr. Little would not know the identity or location of the child and that the adoption records were sealed. The defendants also included a broader assertion denominated in their motion as public policy, arguing that probate proceedings should be final.

Smith countered that the discovery rule applied and that her causes of action did not accrue until November 17, 1989, the date the district court in Dallas signed the order giving her access to Hope Cottage’s records, or December 8 of that year, the day her attorney actually received the records. In this Court, she has also contended that her right to bring a declaratory judgment action ... did not accrue until [April] 1989 when Defendants denied that she was a rightful heir.

The trial court rendered summary judgment in favor of the defendants. Smith appealed. The court of appeals held that the claims for an interest in the estate were barred by limitations, but concluded that the discovery rule applied to Smith’s claims of fraud, conspiracy, breach of fiduciary duty, and gross negligence. 903 S.W.2d 780, 786-88. The court of appeals found that there were fact questions as to when Smith should have known that Thelma Little was her natural mother and when Smith should have known that she had been excluded from Lula Little’s estate. Id. at 786-87. All parties seek review in this Court.

II

There are competing interests under various Texas statutes at issue in this case: (1) the right of adoptees to inherit from or through their natural parents, (2) the confidentiality of the identities of birth parents and their families, and (3) the need for finality of probate proceedings. We must determine whether the discovery rule should apply in cases of this nature to extend, perhaps for decades, the period of time within which adoptees may bring suit to assert rights of inheritance. In weighing the competing interests identified by the Legislature, we conclude that the need for finality of probate proceedings and the degree of confidentiality the Legislature has seen fit to extend to the adoption process are paramount. We consider first the claims that in essence seek a share of Lula Little’s estate.

Statutes of limitations afford plaintiffs a period of time that the Legislature deems reasonable to present claims, and such statutes cut off the pursuit of cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise. S.V. v. R.V., 933 S.W.2d 1, 3 (Tex.1996) (quoting Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990)). Statutes of limitations impose finality.

The need for finality of probate proceedings is well-recognized by this and other courts. A state’s interest in the orderly disposition of decedents’ estates was said by the United States Supreme Court to justif[y] the enforcement of generally applicable limitations on the time and manner in which claims may be asserted, even though those limitations may cut off the right of an illegitimate child to inherit. Reed v. Campbell, 476 U.S. 852, 855, 106 S.Ct. 2234, 2237, 90 L.Ed.2d 858 (1986). The Supreme Court held in Reed that a Texas statute prohibiting an illegitimate child from inheriting from her father unless her parents had subsequently married was unconstitutional. Id. at 856, 106 S.Ct. at 2237-38. It found that the state’s disapproval of the conduct of the child’s parents was insufficient to justify discriminatory treatment of the child. Id. at 854 n. 5, 106 S.Ct. at 2237 n. 5. However, imposition of limitations to narrow the time within which such claims could be asserted would of course be justified. Id. at 855, 106 S.Ct. at 2237; see also Lalli v. Lalli, 439 U.S. 259, 268, 99 S.Ct. 518, 524-25, 58 L.Ed.2d 503 (1978) (We have long recognized that a state’s goal to provide for the just and orderly disposition of property at death is an area with which the States have an interest of considerable magnitude.).

This Court recognized that there should be a definite time limit for presenting a claim against an estate in Mooney v. Harlin, 622 S.W.2d 83, 85 (Tex.1981), where we also observed that statutes of limitations provide stability and security to personal affairs and protect property rights. Id. at 84; see also Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 354 n. 6 (Tex. 1990) (noting the state[‘s] interest in the prompt settlement of a decedent’s affairs); Turner v. Nesby, 848 S.W.2d 872, 877 (Tex.App.--Austin 1993, no writ) (declaring that the state’s interest in the finality of judgments distributing estates can constitute a sufficient basis for barring claims, even though those claims may be meritorious).

Statutes of limitations preclude claimants from sleeping on their rights. In many cases, however, adoptees may be unable to timely assert inheritance rights, even with the exercise of the utmost diligence. Not all adoptees may know that they are adopted within the applicable limitations period. Even if they know that they are adopted, they may not know where they were born or, more to the point, where the adoption proceedings occurred, so that they may attempt to obtain access to their birth records. Conducting a meaningful search for your identity is difficult if you do not know where to begin that search. And assuming an adoptee found the correct court to petition, that court could well refuse to open adoption records if the only basis for doing so was to allow the adoptee to see if any inheritance claims existed. The fact that in this case a court opened Smith’s records does not mean that a different judge would have done so or even that the same judge would have done so years earlier.

Thus, we recognize the difficulties adopted children may encounter in identifying their biological parents. But we must also bear in mind that inheritance rights and statutes of limitations are largely within the domain of the Legislature, as are the laws that protect the identity of biological parents. The legislative intent and policies embodied in the statutes governing adoptions are at odds with applying the discovery rule to allow adopted children to assert inheritance rights many years after estates are settled.

The Legislature has drawn a clear line marking the boundaries of information that will be made available to adoptees and their adoptive parents from public records. Under former section 16.032 of the Texas Family Code and the 1995 amendments to the Code, detailed information about the natural parents is to be included in the records available to the adoptee and adoptive parents, but the identity of the natural parents remains confidential unless good cause is shown and a court order is obtained. Tex. Fam.Code §§ 162.006, . 007, .018, .022. Under section 162.007, the adoption records are to include information about the biological parents’ health and medical history; any genetic diseases or disorders; their height, weight, eye, and hair color; nationality and ethnic background; general levels of education; religious backgrounds; and psychological, psychiatric, or social evaluations. Id. § 162.007(d). However, the identity of the biological parents must be edited from the public records. See Id. §§ 162.006, . 018(b); see also 25 Tex. Admin. Code § 181.10 (restricting availability of birth records and requiring a record of birth based on adoption to be sealed or expunged to insure the confidentiality of adoption placements).

The information about the biological parents detailed in the statute, which excludes the identity of the parents, is to be provided to the adoptee or adopting parents by the department, agency, or person who places the child for adoption, regardless of when the adoption occurred, if that information is available. See section 7 of the Act amending former section 16.032, which provides that [t]his Act applies to adoptions consummated before, on, or after the effective date of this Act. Act of May 27, 1989, 71st Leg., R.S., ch. 1231, § 7, 1989 Tex. Gen. Laws 4954, 4957; see also Methodist Home v. Marshall, 830 S.W.2d 220, 225 (Tex.App.--Dallas 1992, orig. proceeding) (holding that section 16.032, the predecessor to sections 162.005-.008, applied to a 1980 adoption that took place prior to the statute’s enactment in 1983).

To strike a balance between the respective desires of the biological parents and their offspring to either retain anonymity or to learn the identity of one another, the Legislature has implemented a comprehensive voluntary registration process. See Tex. Fam. Code §§ 162.401-.422. An adoptee who wants to know the identity of his or her biological parents, a parent whose child has been adopted and wants to locate that child, or a biological sibling may file an application with a registry. See id. § 162.406. The statute spells out processes for establishing these registries, for making application to them, and for determining if applications match. Id. §§ 162.403, .405, . 414. When a match is found, the registry is required by statute to remind the registrants that they may withdraw the registration before disclosure is made, and each registrant is required to sign a consent to disclosure. Id. § 162.416(a)(2)-(3). Even after the death of a registrant, identifying information will not be released unless the registrant had specifically consented in writing to a posthumous disclosure of a match and that consent remained in effect and valid at the time of death. Id. § 162.416(b); see also Id. § 162.409(a)(10) (requiring an applicant to a registry to state whether disclosure of identifying information after death of the applicant is authorized). The statutes further prescribe criminal penalties for disclosure of information from a registry in violation of the statutes and for attempts to obtain information from a registry by impersonating an employee of a registry or impersonating an adoptee, birth parent, or biological sibling. Id. § 162.421.

These procedures are designed to maintain the confidentiality of the identities of adoptees, their natural parents, and biological siblings unless there is a mutual desire for that information to be disclosed. See Id. § 162.401. The statutes contain no indication that an adoptee can circumvent these procedures simply by asking a court to open the adoption records so that any inheritance rights can be asserted.

As can be seen from these statutes, confidentiality is given a high priority in the legislative scheme. The statutes retaining the right of adoptees to inherit by descent and distribution from their biological parents do nothing to disturb the Legislature’s imposition of confidentiality or the Legislature’s carefully constructed scheme for revelation of information. Tex. Prob.Code § 40; Tex. Fam.Code § 161.206(b) (formerly Tex. Fam.Code § 15.07).

In discovery rule cases, we have held that a cause of action does not accrue until the plaintiff knows of the facts giving rise to the cause of action. See Trinity River Auth. v. URS Consultants, Inc., 889 S.W.2d 259, 262 (Tex.1994); Gaddis v. Smith, 417 S.W.2d 577, 578 (Tex.1967). Yet in many cases in which an adoptee seeks to assert inheritance rights years after the death of a biological relative, the inability to have discovered the right to inherit at an earlier date is a direct result of the legislative scheme.

The Legislature has expressly sanctioned the protection of the identity of natural parents. The Legislature has in essence said that adoptees may not be able to know from whom they could be entitled to inherit. Absent constitutional considerations, when the Legislature has put in place a scheme that may prevent an adoptee from ever obtaining the identity of the natural parents, it would be unwise for this Court to apply the discovery rule to hold open for years or even decades the right to assert inheritance claims on the chance that adoptees may learn the identities of their biological relatives. The legislative policies embodied in the statutes calling for confidentiality of adoption records and finality of estate matters weigh heavily against preserving such claims indefinitely. Accordingly, we conclude that the discovery rule is unavailable in suits to assert a right of inheritance by adoptees.

III

For the same reasons, Smith’s claims against Dr. Little and the other heirs for breach of fiduciary duty, gross negligence, constructive fraud, and conspiracy are barred by limitations.

However, one aspect of the fraud claim asserted by Smith does not survive summary judgment, irrespective of the applicability of the discovery rule to the wrongful exclusion from inheritance claims, and we consider it briefly. When Smith spoke with Dr. Little by telephone in April 1989, he told her that he had difficulty believing she was the child of Thelma Little because he lived at home with his sister at the time Smith was born and he would have known of his sister’s predicament. Smith claims this is an affirmative misrepresentation that prevented her from knowing with certainty if she was the child of Thelma Little. Even if we assume that Dr. Little’s statement was false and met all the other requirements for actionable fraud, Smith’s claim to a share of Lula Little’s estate had long since been barred by limitations when this conversation took place in 1989. If Dr. Little had instead told Smith that she was indeed the daughter of Thelma Little, Smith could not at that point reopen the estate and demand her inheritance. Any fraud that occurred during the 1989 phone conversation did not result in Smith’s exclusion from Lula Little’s estate.

Smith’s other allegation of fraud and her claims that Dr. Little breached his fiduciary duty or was grossly negligent are more substantive. She contends that Dr. Little should have taken steps to determine heirship under sections 48 and 53(b) of the Probate Code and that these steps might have uncovered the existence of Smith and she would have received her rightful inheritance. Although section 48 does not appear to require an executor to institute proceedings under the circumstances of this case, we construe Smith’s allegations to assert that Dr. Little knew his sister had given birth to a child out of wedlock and that as the executor of Lula Little’s estate, he breached a duty to take steps to find Smith. We do not resolve today what duty, if any, Dr. Little owed to Smith, but assume for purposes of deciding the applicability of limitations that there was an act or omission that amounted to fraud, breach of fiduciary duty, and gross negligence by Dr. Little.

A

Smith acknowledges that the wrongful conduct did not occur until 1983, when Dr. Little closed Lula Little’s estate without distributing Smith her share of the estate and without filing an Application for Determination of Heirship. Generally, in a case of fraud the statute of limitations does not commence to run until the fraud is discovered or until it might have been discovered by the exercise of reasonable diligence. See Ruebeck v. Hunt, 142 Tex. 167, 176 S.W.2d 738, 739 (1944). Similarly, when there has been a breach of fiduciary duty, the statute of limitations does not begin to run until the claimant knew or should have known of facts that in the exercise of reasonable diligence would have led to the discovery of the wrongful act. See Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377, 394 (1945).

Texas courts have refused to apply the discovery rule to claims arising out of probate proceedings in most instances, however, even in the face of allegations of fraud. Such claims are barred by limitations because the claimant has constructive notice of the probate proceedings. That was the case in Mooney v. Harlin, 622 S.W.2d 83, 84 (Tex. 1981), in which the plaintiff claimed that she had cohabited with and cared for the decedent for over thirty years in exchange for his promise that she would be a beneficiary under his will. The decedent executed a will just prior to his death that did not include the plaintiff. She brought suit, but not until more than four years had passed since the will was admitted to probate. We held that her claim was barred because she had constructive notice of the filing of the will for probate. She could have determined that she had been excluded from the estate by examining the public records. Id. at 85.

Similarly, in Neill v. Yett, 746 S.W.2d 32, 33-34 (Tex.App.--Austin 1988, writ denied), a granddaughter sued to set aside her grandfather’s will more than three years after it had been admitted to probate, alleging that the will had been fraudulently probated. The court of appeals held that her suit was time-barred because an examination of the probate records would have revealed there was no bequest to the granddaughter. Id. at 36; see also Estate of Ross, 672 S.W.2d 315, 318 (Tex.App.--Eastland 1984, refd n.r.e.) (holding that four daughters who sought to set an aside order admitting their father’s will to probate had constructive notice because [p]ersons interested in an estate are charged with notice of the contents of probate records).

These decisions are illuminating because they recognize the strong public interest in according finality to probate proceedings. We cannot, however, extend the concept of constructive notice to Smith’s claims. Constructive notice is usually applied when a person knows where to find the relevant information but failed to seek it out. See Champlin Oil & Refining Co. v. Chastain, 403 S.W.2d 376, 388 (Tex.1965) (Means of knowledge with the duty of using them are in equity equivalent to knowledge itself.) (quoting Hexter v. Pratt, 10 S.W.2d 692, 693 (Tex. Comm’n App.1928, judgm’t adopted) (emphasis added)); see also Moore Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 939 (Tex.1972) (charging purchaser of real property with constructive notice of facts that would have been revealed if inquiry of lessee had been made); Southwest Title Ins. Co. v. Woods, 449 S.W.2d 773, 774 (Tex. 1970) (holding that recorded instrument not in chain of title does not establish constructive notice).

At the time Lula Little’s will was filed for probate and at the time the estate was closed, Smith did not know the identity of her biological mother. The probate records cannot be constructive notice to Smith because she did not know which records were applicable to her, and even if she had seen the records regarding Lula Little’s estate, they would not have imparted the fact that she was an heir. She could not know of her exclusion from Lula Little’s estate and the alleged breach of fiduciary duty until she learned the identity of her natural mother.

B

We have said that fraud vitiates whatever it touches, see Computer Assocs. Int’l, Inc. v. Altai, 918 S.W.2d 453, 456 (Tex.1996), and that the conduct of a fiduciary is measured by finer loyalties exacted by courts of equity, Courseview, Inc. v. Phillips Petroleum Co., 158 Tex. 397, 312 S.W.2d 197, 205 (1957). But when an adopted child asserts a claim against an executor or an administrator long after an estate has been closed, we must bear in mind that the silence of an administrator or executor is not the only reason that an adoptee is unable to discover the identities of the birth parents. The statutes discussed above, coupled with the desire of the natural parents to remain anonymous, are often a barrier. On the date that Dr. Little closed the estate of Lula Little, the identity of Smith’s natural mother remained confidential, as it had for the fifty-one years since Smith’s birth. There is no evidence that Thelma Little made an effort to locate or to contact Smith at any time, and Smith was not acknowledged or remembered in Thelma Little’s will. Thelma Little maintained the confidentiality of her identity, utilizing the statutory right to do so.

Furthermore, as appears to be the case here, adoptive parents may participate in a decision to maintain the anonymity of the natural parents. Smith’s adoptive mother knew the identities of Smith’s birth parents, but chose to remain silent throughout her life. Thus, there were many participants in the withholding of information from Smith, including the State through its enactment of confidentiality provisions.

Given the fact that adoptive parents, biological parents, and other relatives may lawfully choose to conceal the identities of birth parents from adoptees, adoptees should not be entitled to rely on the discovery rule to extend the time for bringing suit against an executor or an administrator of an estate for wrongful exclusion from that estate. This conclusion is also compelled by the decided need for finality of estate matters and because the legislative scheme so strongly protects the identity of biological parents. The prospect that suits by adoptees may be filed many years or even decades after the death of the natural parent or other biological relative further weighs in favor of requiring adopted children to assert any rights of inheritance or derivative claims within the same timeframe as other heirs or claimants without benefit of the discovery rule. The discovery rule should not be applied to claims against an executor, administrator, or heir for failure to seek out or find an adopted child.²

There are arguments for a contrary rule of law. If biological parents want to foreclose the right of inheritance, they may petition to have such a provision included in the order terminating parental rights. See Tex. Fam.Code § 161.206(b). There are also compelling arguments that adoptees have the right to inherit unless the adoption decree otherwise orders and that adoptees who exercise the utmost diligence are sometimes unable to discover the identities of their biological parents within the limitations period. These are valid considerations, but they should not outweigh the need for finality in settling estates, the explicit statutory recognition that the identity of biological parents is confidential absent either good cause or the mutual desire of a biological parent and an adoptee to locate one another, and the considerations that support the imposition of statutes of limitations generally.

With regard to the conspiracy claim, the record contains no evidence of any conspiracy to exclude Smith from the estate of Lula Little. In any event that claim is barred by limitations for the same reasons that Smith’s claims for fraud, breach of fiduciary duty, and gross negligence are barred.

The concurrence argues that the Court retreats from its decisions in Computer Assocs. Int’l, Inc. v. Altai, 918 S.W.2d 453 (Tex.1996), and S.V. v. R.V., 933 S.W.2d 1 (Tex.1996). We do not. The discovery rule is a judicially created principle of law through which [c]ourts out of necessity have made exceptions in order to do justice. Gaddis v. Smith, 417 S.W.2d 577, 580 (Tex.1967). In most discovery rule cases, courts are faced with common-law causes of action and general statutes of limitations. We held in Altai and confirmed in S.V. v. R.V. that the elements of inherent undiscoverability and objective verifiability balance the conflicting policies in statutes of limitations: the benefits of precluding stale or spurious claims versus the risks of precluding meritorious claims that happen to fall outside an arbitrarily set period. S.V. v. R.V., 933 S.W.2d at 6; see Altai, 918 S.W.2d at 457. However, within the confines of the federal and Texas Constitutions, the Legislature is free to determine that the discovery rule should not apply in certain cases, and it has done so. See, e.g., Morrison v. Chan, 699 S.W.2d 205, 208 (Tex. 1985) ([T]he Legislature’s intent in passing Art. 4590i, § 10.01, was to abolish the discovery rule in cases governed by the Medical Liability Act); cf. Neagle v. Nelson, 685 S.W.2d 11, 12 (Tex.1985) (holding that former article 4590i, section 10.01 violated the open courts provision when it abridged the right to sue before the claimant had a reasonable opportunity to discover the wrong).

In the case before us today, clear legislative policies bear directly on whether the discovery rule should be applied. When the Legislature has implemented statutory schemes that inform our decision, we should be guided by the Legislature’s determinations of the weight to be given competing interests.

The Court is sensitive to the desires of many adopted children to find their biological parents, and we recognize that adopted children have inheritance rights from and through their natural parents unless those rights are terminated during the adoption proceedings. We are constrained to conclude, however, that the legislative determinations in several arenas dictate that claims for inheritance and any derivative claims must be asserted within the statutory limitations periods.

The trial court properly entered summary judgment on all claims. The judgment of the court of appeals is affirmed in part and reversed in part.

ENOCH, J., filed a concurring opinion, in which CORNYN and BAKER, JJ., join.

ENOCH,