Will My Wife Inherit All My Separate Property If I Die Without A Will?

Most people may assume that if they are married and die without a Will in Texas, 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 in Texas, 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 Texas Will ensures that your assets pass according to your wishes to the people you choose.


  1. If a spouse dies without a will and has two children by a previous relationship does the living spouse have a right to stay in the home for life?

  2. I been with a man for 6 years. Never formally married but we move in together with intent of getting married. We shared the bed together. My family and are friend saw us as a couple. My work place knowledge us a couple. Does this make us common law married.He has no children. I have no children. He does have two living sister and a brother. He owed his house It homesteaded paid for. If I am common law married I am least have the right to half of his property and can I stay till I die.

    • In Texas, a common law marriage may be proved by evidence that the couple:

        agreed to be married; and
        after the agreement they lived together in this state as husband and wife; and they
        represented to others that they were married.
  3. Teresa Powell says

    Hi Rania. What if your husband had a 401k and didn’t have a beneficiary named? how would these funds be distributed?

  4. Martina Willis says

    I own 50% of a house (my mom’s portion left to me in a will) with my dad who owns the other 50%. My dad remarried after my mom died, and he, his new wife, and her separate children are currently in the house. If my dad dies without a will, would his new wife be able to live in the house for as long as she wants?

    • A surviving spouse has a constitutional right to reside in a homestead for the term of his/her life or until he/she abandons the homestead, unless this right has been waived.

  5. Antoinette Boulet says

    My husband and I are married and have three children. Neither of us has been married before, and all of the children belong to both of us. If one of us dies, without a will, will the property be divided up as you previously described, or in that case, does 100% of the property transfer to the surviving spouse? And if it does not, can we simply record a statement signed before witnesses that we each desire rights of survivorship be granted to our spouse? It is our desire that all of the property we accumulate together will transfer to the surviving spouse, with that person leaving it to the children upon his/her death as he/she sees fit (we do not necessarily plan to divide our estate equally among them). We do not desire to have any portion of our estate transfer to our siblings or parents unless all of our children are deceased, and even then, I’d rather see it go to my nieces and nephews. I guess we need to write a will spelling out all of these intentions.

  6. If a married couple have been living on separate property for 15 years as homestead property, does the surviving spouse who was not the buyer inherit the right to remain in his homestead property or own it?

  7. Regina Jones says

    My grand parents built a home in an US island but my grandmother died and my grandfather remarried. The new wife could not have children.My grandfather did not leave a will bur has 5 children from first marriage. Who inherits the house when new wife passes? They were married for 35 years.

  8. Kristina Pruett says

    Married couple, each with two children from previous marriages, purchase a house 50-50. If one of the spouses dies, who is entitled to the house, and what is the entitlement (there is no will)?

  9. My father died with out a Will. We have gone through probate. Between my mother and I, do we share equal in the house? I am a beneficiary? Thanks.

  10. Joe Phillips says

    Assuming my wife and I die at the same time, accident. No will, does the house automatically go to my two children without going to court?

  11. Does a surviving spouse have a right to life estate in his dead spouse’s separate property if there are no children? Thank you.

    • If at the time of his death, a decedent is married, has no children or other descendants, and has surviving parents and/or 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. A surviving spouse is entitled to a life estate in the couple’s homestead, even if it is the separate property of the deceased spouse and it was left to someone else.

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