How Will My Property Be Distributed If I Die Without A Will Before My Divorce is Final?

If you and your spouse are planning to divorce, you probably wouldn’t want your property distributed to him or her if you died while your divorce is pending.

But if you don’t have a Will and die while married, your estate will be divided according to a statutory formula that doesn’t take into account the status of your relationship.

According to the Texas intestacy statutes, if you are married and are survived by a spouse and children, then:

  1. Your surviving spouse will inherit all your community property if all your children are also the children of your surviving spouse;
  2. Otherwise, all your one-half interest in the community estate will pass to your children, with your spouse keeping only his or her one-half interest.

If you do not have any children, then your surviving spouse will inherit all of your community property.

The statutory formula is different if your property is characterized as separate property:

  1. If you are survived 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.
  2. 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.

If you want control over how your property is distributed, you need a Will.

Leave a Comment

If you would like to add your perspective to this post or have a general question, please leave a comment. However, if you have a fact-specific legal question, please email me, or communicate with me through my secure client area. To do so, simply login if you are an existing client, or request an introductory conference if you are interested in becoming a new client.