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
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