Texas Attorney General Concludes Portions of “Bad Parent” Statute Unconstitutional

The 2007 Texas Legislature provided that under certain circumstances, a bad parent will not be able to inherit from his or her minor child or, in some cases, from any minor child under Probate Code § 41(e) & (f).  The evil acts which could trigger this disinheritance include:

• The parent voluntarily abandoned and failed to support the child in accordance with the parent’s obligation or ability for at least three years before the date of the child’s death and had not yet resumed support by time of the child’s death.
   
• The parent voluntarily and with knowledge of the pregnancy, abandoned the mother and did not provide adequate support or medical care for the mother during the period of abandonment before the birth of the child and has remained apart from and has failed to support the child since birth.
   
• The parent was criminally responsible for death or serious injury to “a” child according to a laundry list of penal statutes.

Despite the statute’s laudable purpose, it seems fraught with problems:

1. Unconstitutional — Article I, § 21 of the Texas Constitution provides that “[n]o conviction shall work * * * forfeiture of estate.”  Accordingly, it is arguable that this a portion of this new provision is unconstitutional.  Note that Texas does not have a slayer statute applicable to an intestate heir or will beneficiary who murders the intestate or testator to accelerate receiving the property.  Instead, the Texas courts prevent unjust enrichment by imposing a constructive trust so that title to the ill-gotten property actually passes to the murderer who then holds the property as a constructive trustee for the individuals who are “rightfully” entitled to it.
    
2. Too narrow — Disqualification occurs only if the bad acts are done by a parent. Thus, if another heir such as a grandparent or sibling engages in the evil acts, the heir may still be able to inherit.
    
3. Too broad — Section 41(e)(3) references “a child,” not “the child” like § 41(e)(1) and (e)(2).  Accordingly, a person could be precluded from inheriting from a child for conduct that did not involve the intestate child.
    

On May 30, 2008, the Attorney General issued Opinion No. GA-0632 which concludes as follows:

Article I, section 21 of the Texas Constitution provides that “no conviction shall work corruption of blood or forfeiture of estate,” which means that a person may not be denied the right to inherit on the basis of a criminal conviction. Texas courts have found limits to that provision in the Slayer’s Rule and the constructive trust doctrine, which prevent a convicted murderer from receiving life insurance proceeds or inheriting property from the murder victim.

Absent the Texas Supreme Court’s expansion of these two exceptions, a court would likely find that Probate Code section 41(e)(3) contravenes article I, section 21 of the Texas Constitution when applied to bar a person’s inheritance from his own child under circumstances not within either the Slayer’s Rule or the constructive trust doctrine.

Note that the opinion does not address disinheritance on the grounds of abandonment or failure to support the child under the circumstances outlined in section 41(e)(1) & (2).  The bad conduct causing the disinheritance is not based on a conviction under these subsections.