The Rigidity of the Intestacy Statutes

I received an email this week from a grieving and very frustrated man.

He lost his wife this month after sixteen years of marriage. Both he and his wife had been married before, and each of them had children from their previous marriages.

They owned a home in Texas. His wife never worked outside the home and never contributed financially to the mortgage payments. But Texas is a community property state, and all property acquired during the marriage, as well as all income earned during the marriage is presumed to be community property.

He was stunned to discover that her community interest in their home would pass to her children rather than to him because she died without a will.

Every state has intestacy laws, which provide an orderly way to dispose of assets for those who die without a will. In Texas, if you die without a will and are survived by children from a previous marriage, your half of the community passes to your children, not your spouse.

I’ve written before that the intestacy laws are rigid and inflexible. They don’t take into account your unique circumstances and may dictate that your assets should be distributed in a way you would not have chosen.

Depending on your circumstances, they may seem neither fair nor equitable. But unfortunately, without a will, the intestacy laws control.

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