Categories: General
      Date: Aug 19, 2009
     Title: Ask The Lawyer
"His ex-wife told me that because he committed suicide, his Will is not good and his property must go to his children because they are his next of kin."

Ask The Lawyer

Question: I have a long time friend that committed suicide. Before he died he had written his Last Will and Testament, which left all of his property to my husband and me and then to our children. I have his original Will. When he died he had an ex-wife, three grown children and one grandchild. His ex-wife told me that because he committed suicide his Will is not good and his property must go to his children because they are his next of kin. She also said that the Texas Constitution provides this law. She said that one of their children is filing a case in court to get his property. My friend had not had any contact with any of his children in more than 15 years, and all of them live in another state. He lived in Texas for at least 20 years. Who is entitled to his property?

Answer: The distribution of property upon the death of a person who resides in Texas or owns real property in Texas is covered by the Texas Probate Code. Texas law states that a person may determine whom their property goes to upon their death by writing a Will. When a person dies and leaves a valid Will they are said to be "testate." If a person dies and they have not left a valid Will they are said to be "intestate." The sections of the Probate Code necessary for the distribution of a person’s property depends upon whether or not they died testate or intestate.

When a person dies testate and they have executed a Will, then that Will supercedes what the Texas Constitution states about people who have committed suicide. So while the ex-wife is correct that the Texas Constitution does have a provision regarding the property of a person who committed suicide, it does not apply to a person who left a valid Will. That provision doesn’t actually apply to probate at all, but is a provision that keeps the State from taking a person’s property. A strong principal exists regarding Wills. The State does not interfere with a person’s right to do with their property as they wish.

Laws exist to protect family members from the fraudulent distribution of property. In other words, if a person were coerced or forced to execute a Will giving their property to someone other than their immediate next of kin, then those persons excluded may have grounds to contest the Will. A person may choose to exclude even their own child from their property by writing a Will, so being excluded is not automatic grounds to contest a Will. Evidence of fraud or duress must be demonstrated.

But in the scenario given, the section of the Texas Constitution mentioned does not apply.

What the Texas Constitution states is that the State may not require a person who commits suicide to "forfeit" their property to the State because they committed suicide. Their property shall pass to their next of kin. Specifically, the Texas Constitution, Section 21, entitled "Corruption of Blood; Forfeiture; Suicides" states, "No conviction shall work corruption of blood, or forfeiture of estate, and the estates of those who destroy their own lives shall descend or vest as in case of natural death." What that means is that the State of Texas may never benefit from the death of a person, even if they commit suicide, by taking their property. The property of the deceased person passes as if they had died from natural causes. Any person who passes away, regardless of the manner of death, is treated the same. After a person’s death, a determination is made if they are testate or intestate. In this scenario, the decedent left a valid Will, and his property shall pass to the beneficiaries named in the Will. Provided the Will was executed according to the laws of the State of Texas, it is superior to the provisions in the Probate Code regarding heirs at law (next of kin), when a person dies intestate.

Any person having the original Will of a decedent has a duty to bring that Will to the attention of the court for probate. Assuming that the Will named the husband and wife as executors and beneficiaries, then one or both of them need to present that Will to the court through the filing of an Application for Probate of Will and Issuance of Letters Testamentary. If the family members of the decedent have a valid claim that the Will was not executed properly or that it was obtained through fraud or duress, then the Court will hear their argument; however, basing it on the Texas Constitution as stated herein will not invalidate the Will, as that is a misuse of that section of the Texas Constitution.

This article is meant for informational purposes only and not as a substitute for sound legal advice. Please direct questions to Ask the Lawyer at lawyer@thedalharttexan.com.