Thursday, October 18, 2012

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:

By: Cynthia W. Veidt,