Journal Title

South Texas Law Review





First Page


Document Type


Publication Information



In two recent Texas appellate court decisions, the courts were faced with the problem of deciding whether a testator meant to include, or at least did not intend to exclude, adopted children in a testamentary class gift. Courts across the United States have struggled with this issue in recent years, and an increasing number are holding that gifts to children, issue, or lineal descendants do not necessarily exclude adopted children. However, in both Texas cases, the courts held that the adopted children could not take as members of the class. This result is contrary to both the modem trend of court decisions nationwide and the prevailing public policy regarding adoption, particularly as exemplified by state adoption statutes.

Like many states, Texas has enacted statutory provisions, in both the Family Code and Probate Code, indicating that adopted children should be treated as natural-born children. Although testators may make any conveyances they wish, and exclude any person they wish, it appears to be the public policy of this state to start with a presumption in favor of inclusion of adopted children in testamentary class gifts.

Recommended Citation

Victoria Mather, The Magic Circle: Inclusion of Adopted Children in Testamentary Class Gifts, 31 S. Tex. L.Rev.. 223 (1990).

Included in

Law Commons



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.