Texas Intestate Succession: Married With Children

What happens to my property if I die without a will while married, and I also have children or other living descendants?

In Texas, the probate code makes different assumptions about how you would have wanted to distribute your community property versus your separate property, and then makes further assumptions based on whether your surviving spouse is also the parent of all of your children.  

For your separate personal property, your surviving spouse will receive one-third, and your surviving children (or their descendants) will share equally in the remaining two-thirds.

If you owned separate real property (real estate that was not part of the community property estate with your surviving spouse) – your surviving spouse will only inherit a one-third life estate in that property, and your surviving children (or their descendants) will take the remaining two-thirds.  Essentially, your surviving spouse will have the right to use and occupy her one-third share in that property only during her lifetime; once she dies, that “life estate” will go away, and your surviving children (or their descendants) will own all of your separate real property.

For your one-half share of any community property, your surviving spouse would inherit all of your share but only if she is also the parent of all of your surviving children (or the descendants of any deceased children).  If you had any children with someone other than your surviving spouse, she will inherit none of your one-half interest in the community property.  Instead, all of your community property interest would be divided equally among your surviving children (or their descendants).   However, your surviving spouse will always retain her one-half share in the community property estate.  

Since this situation only happens if you die without a valid will, you can avoid these results by simply making a will.  

There is a very good explanation with pie charts of the foregoing here: http://www.co.travis.tx.us/probate/pdfs/DnD_diagrams.pdf.

By: Cynthia W. Veidt, cindy@lpvlaw.com

Texas Intestate Succession: Married Without Children

What happens to my property if I die without a will while married, and I have no children or other living descendants?

In Texas, the probate code assumes that you would want your surviving spouse to inherit all of your one-half interest in your community property, as well as all of your separate personal property.

If you owned any separate real property, though – in other words, you owned real estate that was not part of the community property estate with your surviving spouse – Texas law assumes that you would want to keep some of that real property “in the family.”   

WARNING: THIS GETS COMPLICATED.  

Here’s how the Texas probate court will divide your separate real property:

If you are survived by your spouse and both of your parents (natural or adopted, but not step-parents), your surviving spouse will inherit one-half and each of your parents would inherit one-fourth;

If you are survived by your spouse and only one of your parents, and there are no living siblings or descendants of siblings (nieces, nephews, etc.), your surviving spouse will inherit one-half and your surviving parent will inherit one-half;

If you are survived by your spouse and only one of your parents, and there are living siblings or descendants of siblings (nieces, nephews, etc.), your surviving spouse will inherit one-half, your surviving parent will inherit one-fourth, and any living siblings (or their descendants) will split the other one-fourth into equal shares;

If you are survived by your spouse, but neither of your parents, and there are living siblings or descendants of siblings (nieces, nephews, etc.), your surviving spouse will inherit one-half, and any living siblings (or their descendants) will split the other one-half into equal shares; or

If you are survived by your spouse, but neither of your parents, and there are no living siblings or descendants of siblings (nieces, nephews, etc.), your surviving spouse will inherit all of your separate real property.

Since this situation only happens if you die without a valid will, you can avoid all of that convoluted analysis by simply making a will, which we highly recommend to everyone.

There is a very good explanation with pie charts of the foregoing here: http://www.co.travis.tx.us/probate/pdfs/DnD_diagrams.pdf.

By: Cynthia W. Veidt