OFFICE OF THE All-ORNEY GENERAL OF TEXAS
AUSTIN
HonorableGeorge H. Sheppard
comptrollerof i'ublioAccounts
Aud.n, Texas
Ilearsir: Opinion No. O-7273
Bet Classirioationof daughter of
a divoroed husband for inheritance
tax purpoeee.
Your request for opinioh on the caption
hae been given oareful oonsiderationby th
The faots are stated by you as tollowr:
"Xrs. Lula Kellogg died a
County, testate, and she d
to Mrs. Annie Pettus, a da
band. km. Kellogg again
ing this aate r
departmenthas
provides a $500
rloodardof co1
.W. 2nd 379)."
be plaoed in Clam A for
ied in Artlole 7113,
rtinent, reads a8
direct lineal deaoehdaht of
or any direot lineal deeoendaht
of thh deoedent. or to lenallY adocted ohild or
ohildr\ba/orany direot lineai de&ondent of
adopted ohild or ohildren of the deoedent, or to
the husband of a daughter,or the wire or a aon,
the tax shall be ons (1) per oent of any value
in exoess of Twenty-FiveThousand Dollere
($25,000.00)",etc. (EmphasisAdded)
The O'Hair oase, 130 2.X. 211379, oan have ho
bearing on the 0888 in issue. The iaote in that oaee were
these: Uris.Hattie OVIair, the party aeserting the right
-norable Worge IL Sheppard, Pa$e 2
to be plaoed in alas8 A, ta the surviving wire (not having
-remarried) of Will O%air, who died in 1919. To thea was born
a son, who was living at the time of the t&al. kill OWair
*as the son of X. J. and Mary OWalr, who died in 1936 and
1937 rospeotively, eaoh testate, and eaoh leaving a bequest
tqM.rti.Kattio O'Hair. The oourt, in deoidlng that this
surviving wire should bs plaoed ih Olass A, said:
"The Wand of deoision and legislation has
been to give a liberal oonstruotlon of and to
liberalize the statute in ths interest of those
hewing some legitimate oharaoter or olaim to the
donor*a bounty, end this regardlees of whetkr
there bs a legal kinship by bA6od or marriage.
n. . .
"In the generality of oases -- and In olasrl-
i8yiw for taxing purposes only generality saribe
taken Into aooount -- thr considerations whioh
motivate a father or mother-in-law to pro-
wo'xl.d
vide for the da Cer-In-law would be at least as
oogent after a8v lfora the dsath or the son. so
also would be the oonslderatione motivating legis-
lative olassirloation in this regard. Thass oon-
siderations are SO obvioue M not to requtro
statsment or elaboration.
We thlnktthsrsSor8 the leglelativb lntont
to make.no PAstlnotian between the wiie of a lti-
ing hueband and ths eurriving wiie or ~a deasased
husband oan be drawn Srom the artiole without
doing vlolenoe to its lataguagr.*~
A oonsideratlon OS the erfeot of dlvoroe upon the
relation of Mrs. Kellogg and her divoroed husband is dlsmed
0r value at thie point. It ie said IA 15 Tax. Jur. 560,
Seo. 938
*In Texas, a deoree oS divoroe Is abeolute
from the date of its ontry unless set aside or
appealed from. It hse the legal effoot OS oon-
olusl~el~ establishing the status of thr barties
az sin&s nerson8, operating, it has been said
‘inrem and tsrminating thr marriage relatlon."'
(Kmphasfs added)
In Stuart v. Dole, 92 S.W. 1040, the 0oUrt said
that a dearer ot divoroe "terminates the msrriage relation."
Under t&OS. authorities, the dm@tw ot a diroroad
h&kEXid,i8 nat a pewon “AsTiag aosw logitiaat* oharaotar 0r
~ld.m to the donor’s bounty, and eOn88qUULtl~ there Is no
000a8fon r0r a liberal gonatruotioa 0r btiolo 7118, oven
&ou.ld it be a88uIQedthat there is baSi8 for oonstruetion OS
OS "direot lineal desoendant oi husband" to attompt
the ffieeaning
to inoludo dlxeat lineal deroendant of divorord husband or
SorneE himband.
It 18 th8 Opioiom OS this d@pU%Em&, thWS@Ze,
thst tha &u&d of a divoroed husband ior iaheritano. tar
pwposem should be oltusiried a8 suoh a~thor person* roar-
rod to in Artiole '?u& and that 8hO i8~Subjo& to the pro-
tiSiOll8 thU’.Of.
Opinion 80. O-70430,ha?qtofon addressed to you,
18 on a ol.osely related qurrtion e#d is reIo@red to your
attention.
TOUWS T*r;l t-y