The Complexities of Intestacy for Blended Families in Texas

Having a will is important for every adult, but especially so if you are part of a blended family. Without a will, your assets will be distributed according to a statutory formula, which may not reflect the way you would want your assets to be distributed.

Intestacy can be complex in blended families

In Texas, when a married person dies without a will and leaves children from another relationship, his surviving spouse will only be entitled to keep her own one-half interest in the community estate. The deceased spouse’s share of the community estate will pass to his children in equal shares.

Additionally, only one-third of the deceased spouse’s separate personal property passes to his surviving spouse, with the remaining two-thirds passing to his children. 

If the deceased spouse died leaving separate real property, the surviving spouse is entitled to only a life estate in one-third of that property. The remainder is inherited outright by the deceased spouse’s children in equal shares.

Distribution according to statutory formula can cause unintended results

To illustrate the problems that can result if you have a blended family and die intestate, let’s assume Jack and Jill have been married for 25 years and have two children of their own. Let’s also assume that Jack has two children from a previous marriage.

When Jack dies, he leaves behind the following assets:

  1. A beach house which be owned before he met Jill.
  2. A home that he and Jill purchased after they got married and lived in their entire married lives.
  3. A stock portfolio worth $400,000 to which both he and Jill contributed for their retirement.

The home in which he and Jill lived is community property. But because Jack has children from another marriage, the home will not be inherited by Jill alone. Although she will retain the right to live in the home during her lifetime, Jack’s children will inherit his half of the home in equal shares.

Since Jack owned the beach house before he met Jill, it is classified as separate property. Therefore, the beach house will be inherited by Jack’s children, instead of Jill. Although Jill will retain a one-third life interest in the property, she may not have unlimited access to the beach house as she once did, especially if she has a strained relationship with her children or stepchildren.

And what will happen to the stock portfolio that she and Jack spent 25 years saving for their retirement? It will be split in half. Jill will retain $200,000, but the rest will be split equally between John’s four children, which may result in Jill not having enough resources for her retirement.

Do you think this is the way Jack would have wanted his assets distributed?

Comments

  1. What would have happened if Jack had a Will and specified how he wanted his estate issued? Would the scenario be different?

  2. Charlotte says:

    Rania,
    I was told by an estate attorney, beneficiaries of an insurance policy or retirement account would override what was called out in a will. I was also told, in the event there were children from a previous marriage, that 1/2 of our estate would go to my husband’s children (in the event of his death) regardless of what was in a will or listed on the beneficiary forms. That I would need a Living Trust to avoid that situation. From your comment to Joyce on March 7, it appears that may not be true.

    • Beneficiary designations do trump a Will, so it is very important that all beneficiary designations coordinate with the overall dispositive plan. Children from a previous marriage would not be entitled to half of the estate if the beneficiary designations and/or Will provide otherwise.

  3. In the scenario above, do all four of Jack’s children inherit one half of the home owned by he and Jill, or does his half go to his children from a previous marriage only.

  4. I have three stepchildren (all grown and married) from my husband’s first marriage and one son (about to be 25 yrs old) from my first marriage; if my husband dies without a will, what will happen to all of our assets? We have some land and house and some money in our accounts… most of our assets are accumulated after we got married.

    Thanks!!

    • Thanks for your question. How property is divided when a married person dies without a Will depends on whether the property is characterized as community property or separate property.

      When people who have a blended family die without a Will, their one-half interest in the community estate would pass to their children, with their spouses keeping only their own one-half interest. Additionally only one third of the deceased spouse’s separate personal property and a life estate (the right to use the property for life) in one-third of their deceased spouse’s separate real property would pass to the surviving spouse. The rest would be inherited outright by the children of the deceased spouse.

  5. Can a surviving spouse be ordered by a court to sell the homestead so that half of the proceeds of the home sale can be distributed to the decedent’s daughter from a previous marriage?

  6. Does a surviving spouse in a blended marriage have a life estate in the personal property – like the furniture and clothes – in the homestead?

  7. Tina Stanglin says:

    I live in Texas. My mother died in October of last year, she was married for 25 years.They bought a house 20 years ago. How do I keep him from selling the house, or get my name on deed to house?Where do I start? She had no Will that I know of. But she wanted my brother and I to have the house.But he has said stuff about selling it a couple times.

    • When a married person dies without a will and leaves children from another relationship, her surviving spouse will only be entitled to keep his own one-half interest in the community estate. The deceased spouse’s share of the community estate will pass to her children in equal shares. In order to sell the property outright, all parties would need to consent to the sale.

      If the property is a homestead, certain constitutional protections are available for surviving spouses in Texas. A surviving spouse is 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.

      For more information, read: Can Stepchildren Force a Surviving Spouse to Sell Homestead Property?

  8. My Father passed away without a will and my stepmother is listed as the beneficiary on his stock and 401k (which i understand will go to her). If she passes does that mean my fathers stock and 401k will now go to my step sisters? Also, my stepmother and father were married 8 years and my father owned a house before they were married. She owns her own home and rents it to my stepsister. Is she entitled to 50% of the house?

    • Please accept my condolences for your loss. Certain assets pass according to beneficiary designations. If there is an outright distribution of that asset, the beneficiary will be able to control what happens to that asset after the beneficiary dies. When a married person dies without a Will, the surviving spouse is entitled to a life estate in one-third of real estate that is separate property. For more information about how property is distributed in Texas when someone dies without a Will, click on the link.

  9. My husbands mother passed away with no will. His father has passed as well. My husband is the only child. Granddaughter claims she has a notarized document the property was left to her but no will. Who gets the property?

  10. My husband was married for 28 years to his first wife. She died 10 years ago. She had 3 children from a previous marriage. He and I got married and later sold that house and bought another house (both in TX) My husband passed away 10 days ago and I got a call from his stepchildren asking for their share of the house that had belonged to their mother (now sold)
    Can they make me sell my house to get their share from the other house that had belonged to their mother?

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