The Complexities of Intestacy in Texas

Many people may assume that if they are married and die intestate (without a will), their surviving spouse will inherit their entire estate.

You might be surprised to learn that this is not always the case. The way property is characterized is important in determining who inherits the property when its owner dies.

In Texas, property owned by a married person is classified as either community property or separate property.

Community Property in Texas

It is presumed that all property acquired during marriage is community property. Under Texas laws if a married person dies without a valid will, and is survived by a spouse and children, then:

    1. The surviving spouse will inherit all community property if all the decedent’s children are also the children of the surviving spouse;
    2. Otherwise, all the decedent’s one-half interest in the community estate of the marriage passes to his or her children, with the surviving spouse keeping only his or her one-half interest.

Separate Property in Texas

Property is characterized as separate property if it is: (1) acquired before marriage, (2) obtained by gift under a will or through inheritance, or (3) obtained with directly traceable separate property funds.

Under Texas laws, if a married person dies without a valid will, and is survived by a spouse and children:

    1. The surviving spouse is entitled to one third of the deceased spouse’s separate personal property,
    2. And the surviving spouse receives only a life estate (the right to use the property until his or her death) in one-third of the deceased spouse’s separate real property. The rest would be inherited outright by the children of the deceased spouse.

In cases where the deceased spouse has no children or other descendants, the surviving spouse would be entitled to all the separate personal property.

But if the deceased spouse has surviving parents and siblings, the surviving spouse would only be entitled to one-half of the separate real property with the other half passing to the parents, siblings or descendants of siblings in a manner set forth by the statutes.

What types of problems could you foresee occurring in cases of blended families or spouses who have strained relationships with in-laws?  Please leave your comments below and stay tuned. . .

Comments

  1. Hello- question- my husband inherited his dad’s home and we have lived in this home for the past 15 years. My husband has just died without a will. We have two biological adult children. Is this home considered separate property with me (as surviving spouse) only receiving a one third interest? Can I continue to live here for my remaining life? If we decided to sell the house and if my children want me to have 100% of home, what will the courts allow? A grant deed from them to me? Thanks

    • Dear Julie,

      Please accept my condolences for your loss. When someone dies without a Will in Texas, that person’s property is distributed according to the intestacy statutes. The intestacy statues in Texas provide that when a married person dies owning separate real property (property owned before marriage or acquired before marriage by gift, devise or descent), the surviving spouse is entitled to a life estate in 1/3 of the separate real property. That being said, a surviving spouse is also entitled to a life estate in the homestead and cannot be forced to sell the property as long as he or she occupies and uses it. Of course, anyone who inherit property have the option of transferring their interest to whomever they choose. Contact an attorney in your community to discuss your options on how to best proceed.

      • Scott Langer says:

        Greetings,
        I’ve read your article on The Complexities of Texas Intestate Succession, and I’m still a bit confused (Chemistry and Math = good; Law = clear as mud). I’m the only child of my mother by a previous marriage. She remarried, moved to Texas, and had two children, T1 and T2. My mother and my stepfather purchased a house in the Austin area. I gather this is community property. She passed intestate several years ago (more than 4). What is unclear to me is the division of the community property. I understand that my stepfather gets to keep his 1/2, with a lifetime right to live in the house. Now, do I inherit the other 1/2, or do I get 1/3 of the remaining 1/2, with T1 and T2 also each getting 1/3 of the other 1/2? Thank you for clearing up my confusion.

      • When someone dies without a Will and is survived by a spouse as well as children from another relationship, the spouse gets to keep his or her 1/2 share of the community, and the other 1/2 share of the community is split among all children.

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