I got a note yesterday from a woman whose husband had died without a Will. Her husband was also survived by two children from prior relationships.
She and her husband lived in a home that her husband had purchased before they were married. She asked what her rights were regarding her husband’s property and the home in which they lived. Could her husband’s children force her to sell her home? Would his children be entitled to proceeds from the sale of her home?
The Texas intestacy statutes control how property is distributed when a person dies without a Will in Texas. Many factors, such as whether you are a parent, are married or single, and how your property is characterized, will dictate who will inherit your property when you die.
Texas Intestacy Statutes
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.
Since the home was purchased before marriage, it would be characterized as the husband’s separate property. As a result, she would inherit only a life estate in one-third of that property, with the remainder inherited outright by her husband’s children.
Constitutional Homestead Protections
Does this mean that she can be forced to sell her home or risk being kicked out of it?
The short answer is: no. Certain constitutional protections are available for surviving spouses in Texas. A surviving spouse is entitled to a life estate in the property and cannot be forced to sell her property as long as she occupies and uses it.
The property’s heirs may be able to take possession of the property if they can show that the surviving spouse abandoned it. However, abandonment is hard to prove, and there is authority stating that the surviving spouse can retain her life estate even if she moves out and rents out the property to someone else.
Nevertheless, if the surviving spouse sells her property during her lifetime or elects to no longer use or occupy the property as her homestead, then the proceeds of the sale can be divided among the respective owners of the property.
It’s probably not what her husband would have wanted, but without a Will, the rigid intestacy laws control.