Most people may assume that if they are married and die without a Will, their surviving spouse will inherit their entire estate. This is not always the case. The way property is characterized is important in determining who inherits the property when its owner dies.
Separate vs. Community Property
Property is characterized as either separate or community property in Texas depending on when and how it was acquired. Property that is acquired before marriage is classified as separate property. Property acquired during the marriage is presumed to be community property unless it was acquired by gift, under a Will, through an inheritance, or you agree otherwise.
The distinction between separate and community property can get a bit confusing at times, but it is very important in determining how property is distributed at death. If you die without a Will, the Texas intestacy statutes will dictate how the property is distributed based on its characterization as separate or community.
Texas Intestate Distribution for Separate Property
If your property is characterized as separate property and you are survived by a spouse and children, your surviving spouse is entitled to one third of your separate personal property and only a life estate (the right to use the property until his or her death) in one-third of your separate real property. The rest would be inherited outright by the children of the deceased spouse.
If you are married but have no children or other descendants, your surviving spouse would be entitled to all the separate personal property. But if you have 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.
Unintended Consequences of Dying Without a Will
This statutory formula may not reflect the way you would want your assets to be distributed when you die.
For example, suppose you’re married and have two children from another relationship. During your marriage, you inherit a piece of beachfront property where you and your wife spend every summer. Because the property was inherited it will be characterized as separate property. You’d likely want that piece of property to pass to your wife when you die, but without a Will, that property would instead pass to your children and your wife would inherit only a life estate in one-third of that property.
Or perhaps you’re married but don’t have any children. Before you were married, you purchased a beautiful home in the mountains. Since the property was purchased before you were married, it is characterized as separate property. You’d likely want that property to pass to your wife when you die. But if you die and are survived by your wife, your mother and your sister, your wife would only be entitled to a one-half interest in that property. The other half would pass to your mother and sister. Imagine what could happen if your wife had a strained relationship with them.
The intestacy statutes are rigid and inflexible. Having a Will ensures that your assets pass according to your wishes to the people you choose.