TN 39 (02-12)

GN 00306.640 Texas Intestacy Laws

NOTE: If an alleged child does not qualify under any of the provisions in this section, and it is not clear that the alleged father is not the child’s father, submit the case for a Regional Chief Counsel (RCC) opinion in accordance with GN 01010.815.

REMINDER: Under Texas law all provisions that confer inheritance rights but do not legitimate the child, those preceded by an (I) in POMS GN 00306.640A. through GN 00306.640C., operate prospectively from the date of the act conferring those rights.

A. Child or father acquires status of child or parent if:

  1. effective 01/01/56, the parents intermarry subsequent to the child's birth; or

  2. effective 01/01/74, a court decree that complies with state law standard of proof requirements designating the father as parent of the child is issued in an involuntary paternity proceeding under Texas law; or

  3. effective 09/01/75, a court decree that complies with state law standard of proof requirements designating the father as a parent of the child is issued in a voluntary legitimation or paternity proceeding under Texas law; or

  4. (I) effective 09/01/75, parentage tests that show the possibility of an alleged father's paternity and create a presumption of paternity:

    1. (I) prior to 09/01/93, parentage test excludes at least 95% of the male population from the possibility of being the father; or

    2. (I) effective 09/01/93, parentage test excludes at least 99% of the male population from the possibility of being the father; or

    3. (I) effective 06/14/01, parentage test excludes at least 99% of the male population from the possibility of being the father and indicates a combined paternity index of at least 100 to 1. In addition, the test report must be authenticated as follows:

      1. Testing must take place in a laboratory accredited by the American Association of Blood Banks (AABB), the American Society for Histocompatibility and Immunogenetics, or another accrediting body designated by the Secretary of the United States Department of Health and Human Services;

      2. A laboratory designee must sign the test report under penalty of perjury; and

      3. Testimony or documentation establishes a reliable chain of custody of the samples. Documentation from the testing laboratory is sufficient to establish a reliable chain of custody without further testimony if the documentation includes:

        1. The name and photograph of each individual whose specimens have been taken;

        2. The name of each individual who collected the specimens;

        3. The places in which the specimens were collected and the date of each collection;

        4. The name of each individual who received the specimens in the testing laboratory; and

        5. The dates the specimens were received in the laboratory.

      NOTE: Effective 06/14/01, the results of genetic testing can only be rebutted by other genetic tests. Parentage tests that show the possibility of paternity (i.e., do not exclude the alleged father) but do not exclude 99% (95% prior to 09/01/93) of the male population are still considered relevant evidence of paternity; or

  5. effective 08/27/79, the father properly executed a statement of paternity under the requirements listed in (a.) through (e.) below for their respective time periods, or executed a similar statement in another State:

    1. (I) prior to 09/01/89, the father executed a statement of paternity as an affidavit executed before a person authorized to administer oaths in the State of Texas and witnessed by two credible adults, clearly stating that (1) the father acknowledged the child as his child, (2) he and the mother, who must be named in the affidavit, were not married to each other at the time of conception or at any subsequent time, and (3) the child was not the legitimate child of another man; or

    2. (I) effective 09/01/89 through 08/31/93, the father executed a written and signed statement of paternity before a person authorized to administer oaths in the State of Texas, clearly stating that (1) the father acknowledged the child as his child, (2) he and the mother, who must be named in the affidavit, were not married to each other at the time of conception or at any subsequent time, and (3) the child was not the legitimate child of another man; or

    3. (I) effective 09/01/93 through 04/19/95, the father executed a written and signed statement of paternity before a person authorized to administer oaths in the State of Texas, clearly stating that the father acknowledged the child as his biological child, and which included the social security number of the father; or

    4. (I) effective 04/20/95 through 06/13/01, the father executed a written and signed statement of paternity before a person authorized to administer oaths in the State of Texas, clearly stating that the father acknowledged the child as his biological child, which stated whether or not the man claiming paternity was a minor at the time, and which included the social security number of the father; or

    5. (I) effective 06/14/01, the father executed an acknowledgement of paternity that is in a record; signed or otherwise authenticated, under penalty of perjury, by the mother and the man seeking to establish paternity; states that the child whose paternity is being acknowledged does not have a presumed father or has a presumed father whose full name is stated, and does not have another acknowledged or adjudicated father; states whether there has been genetic testing and, if so, that the acknowledging man’s claim of paternity is consistent with the results of the testing; and states that the signatories understand that the acknowledgement is the equivalent of a judicial adjudication of the paternity of the child and may be challenged only under limited circumstances. An acknowledgement is void if it states that another man is the presumed father, unless a denial of paternity by the presumed father has been filed with the bureau of vital statistics.

    1. Rescission of acknowledgment of paternity

      1. effective 06/14/01 through 08/31/11, signatory may rescind the acknowledgment of paternity by commencing an action to rescind before the earlier of the 60th day after the effective date of the acknowledgment or the date of the first hearing in a proceeding related to the child in which the signatory is a party.

      2. effective 09/01/11, signatory may rescind the acknowledgment of paternity by filing a prescribed rescission form with the bureau of vital statistics before the earlier of the 60th day after the effective date of the acknowledgment or the date a proceeding related to the child in which the signatory is party is filed.

    2. Challenge to acknowledgement of paternity after the period for rescission expires

      1. effective 06/14/01 through 08/31/11, a party must commence a proceeding to challenge the acknowledgement on the basis of fraud, duress, or material mistake of fact within four years of the date the signatory filed the acknowledgement with the bureau of vital statistics. However, if the signatory was a minor on the date he executed the acknowledgment, a party must commence the proceeding within four years of the signatory’s 18th birthday or the removal of the signatory’s minority status by court order, marriage, or other operation of law.

      2. effective 09/1/11, a party may commence a proceeding to challenge the acknowledgement on the basis of fraud, duress, or material mistake of fact at any time before the issuance of an order affecting the child, including an order relating to child support; or

  6. (I) effective 09/01/87, where the purported father is deceased and the child born out of wedlock was not legitimated during the father's lifetime, there is clear and convincing evidence that the purported father was the child's father; or

  7. prior to 01/01/74, the father signed a statement acknowledging paternity or an obligation to support the child.

B. A man is presumed to be a child’s biological father if:

  1. Effective 09/01/89 through 08/31/99:

    1. he and the child's biological mother are or have been married to each other and the child is born during the marriage or not more than 300 days (“within the period of gestation” for the period of time between 01/01/74 and 09/01/89) after the date the marriage terminated by death, annulment, divorce, or by having been declared void; or

    2. (I) before the child's birth, he and the child's biological mother attempted to marry each other by a marriage in apparent compliance with the law, although the attempted marriage is or could be declared void, and the child is born during the attempted marriage or not more than 300 days after the date the attempted marriage terminated by death, annulment, divorce, or by having been declared void; or

    3. (I) after the child's birth, he and the child's biological mother have married or attempted to marry each other by a marriage in attempted compliance with law, although the attempted marriage is or could be declared void or voided by annulment, and:

      1. he has filed a written acknowledgment of his paternity of the child (see section A.5. above for proper form); or

      2. he consents in writing to be named as the child's father on the child's birth certificate, and is so named; or

      3. he is obligated to support the child under a written voluntary promise or by court order; or

    4. (I) without attempting to marry the mother, he consents in writing to be named as the child's father on the child's birth certificate; or

    5. (I) before the child reached the age of majority, he receives the child into his home and openly holds out the child as his biological child; or

  2. Effective 09/1/99 through 06/13/01, a man is presumed to be the child’s biological father if:

    1. he and the child's biological mother are or have been married to each other and the child is born during the marriage or not more than 300 days (“within the period of gestation” for the period of time between 01/01/74 and 09/01/89) after the date the marriage terminated by death, annulment, divorce, or by having been declared void; or

    2. (I) before the child's birth, he and the child's biological mother attempted to marry each other by a marriage in apparent compliance with the law, although the attempted marriage is or could be declared void, and the child is born during the attempted marriage or not more than 300 days after the date the attempted marriage terminated by death, annulment, divorce, or by having been declared void; or

    3. (I) after the child's birth, he and the child's biological mother have married or attempted to marry each other by a marriage in attempted compliance with law, although the attempted marriage is or could be declared void or voided by annulment, and:

      1. he has filed a written acknowledgment of his paternity of the child (see section A.5. above for proper form); or

      2. he consents in writing to be named as the child's father on the child's birth certificate, and is so named; or

      3. he is obligated to support the child under a written voluntary promise or by court order; or

  3. Effective 06/14/01, a man is presumed to be a child’s biological father if:

    1. he and the child's biological mother are or have been married to each other and the child is born during the marriage or not more than 300 days (“within the period of gestation” for the period of time between 01/01/74 and 09/01/89) after the date the marriage terminated by death, annulment, divorce, or by having been declared void; or

    2. (I) before the child's birth, he and the child's biological mother attempted to marry each other by a marriage in apparent compliance with the law, although the attempted marriage is or could be declared void, and the child is born during the attempted marriage or not more than 300 days after the date the attempted marriage terminated by death, annulment, divorce, or by having been declared void; or

    3. (I) he married the mother of the child after the birth of the child in apparent compliance with the law, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child, and:

      1. the assertion is in a record filed with the bureau of vital statistics;

      2. he is voluntarily named as the child’s father on the child’s birth certificate; or

      3. he promised in a record to support the child.

    4. (I) during the first two years of the child’s life, he continuously resided in the household in which the child resided and he represented to others that the child was his own.

NOTE: For periods prior to 06/14/01, a presumption based on a child’s birth during a marriage or within the 300 days after the termination of the marriage or attempted marriage may only be rebutted by clear and convincing evidence. If two or more presumptions arise that conflict, the presumption that is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing paternity of the child by another man.

Effective 06/14/01, a presumption of paternity based on a child’s birth during a marriage or within the 300 days after the termination of the marriage or attempted marriage may be rebutted only by court adjudication.

Effective 09/1/03, a presumption of paternity based on a child’s birth during a marriage or within the 300 days after the termination of the marriage or attempted marriage may be rebutted only by court adjudication or the filing of a valid denial of paternity by a presumed father in conjunction with the filing by another person of a valid acknowledgement of paternity.

C. In assisted reproduction cases, a child or father acquires the status of child or parent if:

NOTE: If the alleged father is deceased and assisted reproduction took place after his death, submit all claims for a RCC opinion in accordance with GN 00306.001C.1.

  1. Effective January 1, 1974:

    1. The child results from assisted reproduction during the marriage using sperm provided by the husband.

    2. The husband consents in a record to the assisted reproduction during the marriage of his wife using sperm from a donor.

    3. The child results from fertilization during the marriage of a donor egg with the husband’s sperm and placement of the resulting fertilized egg in the wife’s uterus. The husband must have consented in writing to the assisted reproduction.

    4. The child results from assisted reproduction during the marriage using a donated embryo. The husband must have consented in writing to the assisted reproduction.

  2. Effective June 14, 2001:

    1. The child results from assisted reproduction during the marriage using sperm provided by the husband.

    2. The husband consents in a record to the assisted reproduction during the marriage of his wife using sperm from a donor.

    3. The child results from fertilization during the marriage of a donor egg with the husband’s sperm and placement of the resulting fertilized egg in the wife’s uterus. The husband must have consented in writing to the assisted reproduction.

    4. The child results from assisted reproduction during the marriage using a donated embryo. The husband must have consented in writing to the assisted reproduction.

    5. (I) In accordance with an OGC opinion finding such, after divorce or the death of the husband, a child results from assisted reproduction and the husband consented in writing that, if assisted reproduction occurred after divorce or his death, he would be a parent of the child.

NOTES:

  1. If the husband did not consent to the assisted reproduction and did not provide the sperm, but he and his wife openly treated the child as their own, obtain an RCC opinion.

  2. If there is reason to question the adequacy of consent, obtain an RCC opinion.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/0200306640
GN 00306.640 - Texas Intestacy Laws - 03/13/2012
Batch run: 03/13/2012
Rev:03/13/2012