Dying Without A Will: The Texas Intestacy Statutes

The law gives you the freedom to make a Will that distributes your property how and to whom you wish. But if you die without a Will in Texas, a statutory formula, that does not take into account your wishes and unique circumstances, determines how your property will be distributed.

Below is a summary of how property is distributed when someone dies without a Will in Texas.

Who Inherits Property When a Single Person With No Children Dies Without a Will in Texas?

If a you are single and die without a will in Texas, your property will be distributed as follows:

  1. Your estate will pass equally to your parents if both are living. If one parent has died, and you don’t have any siblings, then your estate will pass to your surviving parent.
  2. However if you do have siblings or descendants of siblings (nieces and nephews), then your surviving parent would receive only half of the estate. The remaining one-half would be divided among your siblings or their descendants.
  3. All of your estate would pass to your siblings or their descendants if you have no surviving parents.
  4. If you have no surviving parents, siblings, or descendants of siblings, then the estate will be divided into two halves. One half will pass to relatives on your mother’s side. The other half will pass to relatives on your father’s side.
  5. If one side of the family has died out, the surviving side of the family would inherit the entire estate.
  6. On rare occasions, when an unmarried person dies without any surviving heirs, his estate will pass to the State of Texas.

Perhaps you have a close friend who you would have wanted to share in your estate. That would not be possible without a will.

Who Inherits When a Single Person with Children Dies Without a Will?

If you are single and have children, then all your property will pass to your descendants. If your descendants are of the same degree of relationship, (meaning, for example, all are your children or all are your grandchildren), then the assets will be divided equally between them.

However, if your descendants are of different degrees of relationship, (meaning some of your children survive while others predecease you, leaving children or grandchildren of their own), then the younger generation will inherit only the share the older generation would have received had he or she survived.

For example, supposed you had three children. If all three survive you, then each will receive 1/3 of your estate. If one dies before you, but has two surviving children, then the two surviving children would inherit 1/3, but the children of the deceased child would split their parent’s share. However, suppose all the children predecease you, and 6 grandchildren in total survive you. In that case, your estate would be split into 6 shares, one for each grandchild.

Who Inherits When A Married Person Dies Without a Will in Texas?

Many people assume that a surviving spouse will inherit all a deceased spouse’s estate if they die without a Will in Texas. This is not always the case. How their property is divided depends on whether it is characterized as community property or separate property.

Community Property

In Texas, there is a presumption that all property acquired during a marriage community property. Under Texas laws, if you are married and your spouse and children survive you, 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.

Separate Property

Separate property is property that you owned before marriage, or acquired, even during a marriage, by gift or inheritance. The intestate distribution formula is different for separate property:

  1. If your spouse and children survive you, your surviving spouse will receive one third of your separate personal property. However, your surviving spouse will only receive a life estate (the right to use the property until his or her death) in one-third of your separate real property. Your children would inherit the remaining interest outright.
  2. If you are married, but have descendants, your separate personal property will be distributed to your surviving spouse . However, if you have surviving parents and siblings, your surviving spouse will receive only one-half of the separate real property. The other half will pass to your parents, siblings or descendants of siblings according to a statutory formula.

If you want the freedom to decide how and to whom your property will be distributed when you die, you need a will.

This post was originally published on October 18, 2010, and updated on April 9, 2020.

Comments

  1. Thank you for your website…I have found it very informative. I purchased a house in 2003 as a divorced mother of two. In 2004 I executed a will leaving everything to my children. In 2011 I remarried. My husband and I have always keep our finances separate. Mine is the only name on the deed and I alone have paid the mortgage. He has always maintained that the children should have the house even if I die first. We have discussed the life estate as long as he can afford the upkeep of the home. My question is since I purchased the home before we married, is it considered community property?

  2. Hello, my ex-husband and I are still very good friends. We have 3 minor children together. He does not have a will. He does have a girlfriend but they are not married. He owns a home which is not fully paid off. My question is if he passes away, what would happen to his home? I believe his property would all go to the 3 children, correct? But how would this work since they’re all minors and the house isn’t paid off? Would it be possible for me to buy the house from them and put the equity that they earn from the sale in a trust of some sort that they would get when they turn 18?…not sure if that would work since they’re currently minors and I’m not sure if minors can sell a house…

    • Under the Texas intestacy statutes, if a single person dies and has children, his estate will pass to his children. If the children are minors, a guardian will be appointed to act on behalf of minor beneficiaries.

      • JJ Jones says

        I have a question. My dad’s mother passed away. My dad is deceased, but I have a living uncle. She has property. Will it be divided between us or will he automatically get it? We are in Texas.

      • Under the intestacy statutes, the children of a deceased child would inherit the deceased child’s share.

  3. Allison Miesner says

    Hi. My mother passed away two years ago. She bought a house with my father over 19 years ago and didn’t leave a will. Her name is still on the mortgage and my father is in the process of selling the house. I was wondering if my brother and i have any rights to the house. We live in texas and my brother i still live in the house at the moment.

    • Under Texas statutes, if a deceased person was married and is survived by a spouse and children, the surviving spouse will inherit all community property if all the children are also the children of the surviving spouse.

  4. Rachael F. says

    I have a question about legal rights on a broke down vehicle and general personal goods. My mother’s best friend whom was in our lives and lived with out family off and on for almost 40 yrs, died . He was a estranged from his children and x wife. They never divorced though.nonetheless , do they have right to any of his stuff even though they were estranged and they are just being vultures? He truly wanted none of his things to even be given to them and everything stay with the people he lived with. Do the people he lived with have legal right to his things then?

    • The intestacy statutes are rigid and inflexible. They don’t take into account a deceased person’s unique circumstances and may dictate that assets be distributed in a manner the deceased person would have never intended.

  5. My sister passed away in 2018 and did not have a will. She has four siblings one of which she gave a power of attorney. The sibling with the power of attorney transferred all of her assets into his name and has taken possession of them without conferring with the other siblings. In Texas is there a requirement for a probate hearing to determine how her assets be distributed?

    • The power of an agent under a power of attorney expires when the principal dies. The estate of a person who dies without a will is distributed according to the Texas Intestacy Statutes.

  6. My brother passed away without a will, my mom was the administrator and she is a widow. She signed an affidavit saying my brother had no siblings. Now the property is entirely in my mom’s name in Harris county, Texas. Is there a way I can stop her from selling it or someone else inheriting it and make my 50 percent valid?

    • An affidavit is a sworn statement. The legal consequences of lying in a sworn statement can be significant. I recommend that you engage a lawyer with physical offices in Harris county who can meet with you in person to discuss the best course of action in light of the circumstances.

  7. Hello, and thank you for your this excellent article. My divorced sister recently passed away in Texas. She did not leave a will. Our parents are deceased, as well as one other of our sisters. There is just my one sister and I left. She has three adult children, and the other deceased sister has two adult children. Will the estate be divided equally between myself and my remaining sister, or will it be divided with the 5 nieces and nephews? My widowed brother in law from my deceased sister seems to believe he will receive 1/3 of the estate.

    • If an individual dies unmarried leaving no children and has no surviving parents, then the estate is distributed to that individual’s siblings, with a deceased sibling’s share passing to the deceased sibling’s descendants, if any.

  8. My wife has four daughters from another relationship and passed away June 8 2018 with no will.We have a house worth about 200k and owe 55k on the house. I tried to sell the house and found out about some Texas law that her children get half of the house…even though I’m the one that has paid on it. Somebody else told me they get half of the house but only if they help pay the Tax, insurance, and part of the house payment from the day she died. I’m confused. Why should give away half of some they paid zero into? Two if her kids I get along with and two we dont speak….

    • Please accept my condolences for your loss.

      When a married person dies without a Will, the Texas intestacy statutes control how their property will be distributed. Under Texas laws, if you are married and are survived by a spouse and children who are not also yours, you get to keep your one-half interest in the property, with the deceased spouse’s share of the property passing to her children.

      A surviving spouse also has a constitutional right to reside in the homestead for the term of his life, despite the children’s remainder interest in half the property. The following article discusses the rights and responsibilities of life tenants in Texas: What are the Rights and Responsibilities of a Life Tenant in Texas?

  9. I am the power of attorney over my oldest brother and I was wondering if I should get him to get a Will made before he passes. He has no kids.

    • A will can help him dictate how he wishes his property to be distributed after he dies. Without a Will, the Texas Intestacy Statutes will control how the property will be distributed.

  10. Hello, my father recently passed away without a will. He had a bank account and did not leave anyone for pay on death. He is currently married to my mom and had only one child in the marriage (me). However, he was in a previous relationship before her and had two children with a different woman but the previous relationship did not end in marriage. They are not around and are even in a different state than what he passed away. They were not around for years but are now asking about a will now that he has passed away. I’m just wondering because they are children not from his current marriage; does the intestate divide differently or can all of it goes towards my mother considering I am the only child of their marriage?

    • Please accept my condolences for your loss.

      Under Texas laws, if the deceased person is survived by a spouse and children from another relationship, all the deceased spouse’s one-half interest in the community estate will pass to the deceased spouse’s children, with the deceased spouse keeping only his or her one-half interest.

  11. Brandy Clanton says

    I have a question. My husband died a few years ago, I didn’t know about the laws of intestate succession until now. We were from NY. We lived and he died in Texas. He didn’t get along with his kids nor talked to them in over 20 years. Is there a statute of limitations for them to claim an inheritance? They lived in a state where the spouse receives everything so they do not know he did not have a will at passing. Please advise.

  12. Main question “How is property divided in Texas?” My mom and dad are considered common-law married; my mom passed 8 years ago and my dad passed 2 years ago and they purchase a home together. Now that they are both deceased how is property divided between and my 3 half-sisters all who are from my mom’s first marriage and me (the only child from my parents?? please provide insight in known. thx.

    • In Texas, when a married person dies owning community property, the surviving spouse will inherit all community property if the children are also the children of the surviving spouse. Otherwise, the deceased spouse’s one-half interest in the community estate will pass to deceased spouse’s children in equal shares, with the surviving spouse keeping only his or her one-half interest.

      When a single person dies leaving children, then all property passes to his children.

      • Reema McMullen says

        My husband and I have one child together and He has two kids from a previous marriage. I understand that in Texas, if he passes then I get 1/2 and all three kids get 1/2 divided equally. What I don’t understand is what happens if I die first without a will? Does he get to keep 1/2 and then other 1/2 goes to child we have together or does it go to all three of his kids or he gets to keep it all as all three kids are his biological kids?

      • If a married person dies intestate, and all the deceased spouse’s children are also the children of the surviving spouse, then the deceased spouse’s share will all pass to the surviving spouse.

  13. Hi and good day,
    My father passed away with no will in Texas and my younger brother and I are to be his beneficiarie. What do we need to do, paperwork that is , in order to have 80% of the benifits to go to my brother. Thank you so kuch for your help.

    • The intestacy statutes provide that if an unmarried person dies without a Will in Texas and is survived by children, the children will inherit in equal shares. Heirs of an estate can disclaim their interest in property, or can gift the inherited property in any way they choose.

  14. My dad did not leave a will. However, he got married to my mom 5 years after buying the house. We are a total of 5 children. Will i be able to transfer the house to my mom?

    • Property purchased before marriage is characterized as separate property. If someone dies without a Will, the deceased person’s estate will be distributed according to the intestacy statutes as outlined in this article.

    • I am an only child from my Dad’s 1st marriage to my mother who is deceased. My dad died without a will. Am I entitled to 50 percent of his estate same as the suriving spouse?

      • When someone dies without a Will leaving a surviving spouse who is not the parent of all the deceased spouse’s children, the deceased spouse’s 50% interest in community property passes to the children of the deceased spouse, and the surviving spouse retains his or her 50% interest in the community property.

  15. My husband of 5 years owned a house prior to our marriage which I understand makes it separate real property even though we used community funds to pay the mortgage. No children. I understand I receive 1/2 and his parents receive half. However, they want to evict me…do I have life estate use?

    • Certain constitutional protections are available for surviving spouses in Texas. A surviving spouse is entitled to a life estate in the homestead and cannot be forced to sell the property as long as he or she occupies and uses it.

  16. Hi my father in law just passed away a month ago. My husband was his only child. He was married to a woman who is not my husband’s mother. Who gets his stuff? They live in Texas and have no will!

    • Please accept my condolences for your loss. The following article describes how property is distributed when someone dies without a Will in Texas: Dying Without a Will in Texas.

      The intestacy statutes apply to probate assets. Assets that have beneficiary designations or POD/TOD designations pass to the designated beneficiary. Likewise, assets held with rights of survivorship pass to the surviving joint owner.

  17. John Juanopulos says

    My father in law passed away without a will and has separate property. Is my mother in law entitled to all his property which is only one house?

  18. My mom passed away suddenly and left no will, She is legally married but separated for the last 54 years she has 5 children. Will her Property go to her children?

    Can any of her Children try selling property with no ones consent?

    In Texas

    • When someone dies without a Will, property is distributed according to the statutory formula. The statute does not make special provisions for married people who are separated. For purposes of the statute, they are married.

  19. Hi Rania, I am a second wife in Texas,and my husband has a child. He will give me no idea what is in his will. I am not sure if he even changed his will. I am concerned about my future if he dies. What are my rights as a second wife and what’s happens if his child dies before I do? Sorry I can’t give more information but I am unable to get it. Thanks for your assistance.

  20. Hi Rania, Three months after I married my husband his ex-wife died and his three children came to live with us. Six years later I adopted them and we added four children of our own. If he dies before me, will my adopted children have the same status as our children together or will they be considered my step-children? We do not have a will.

    • Hi Amy. The Texas Estates Code provides that for purposes of inheritance under the laws of descent and distribution, an adopted child is regarded as the child of the adoptive parent or parents, and the adopted child and the adopted child’s descendants inherit from and through the adoptive parent or parents and their kindred as if the adopted child were the natural child of the adoptive parent or parents.

  21. My husband passed away without a will. He has 2 sons and I have 2 daughters before marriage. Can I make a will and entile all of the properties to my childrend only? I want to ensure that my children inherit whatever I leave to them.

  22. I moved from ND and live in Texas currently. I am a resident of Texas and had my will done in ND. Do I need to redo my will?

  23. Thanks for the help Rania!

    Wife of 32 years expired with no will in Texas. Most accounts have POD which is good. One decades-old at little local branch of small bank seems to be a problem. Account opened after marriage, several bank changes ago. No children. Seems obvious to me, but bank wants “Letters of Testamentary”. Do I have to go get court to declare it is community property?

    • Pleas accept my condolences for your loss.

      Community property does not automatically pass to the surviving spouse at death, which is why the bank is asking for verification that you have the authority to collect the funds on behalf of the estate.

  24. if your adopted by your step dad 40 years ago, can you still receive half of your biological fathers estate after he has been deceased for 13 years?

  25. Stacy Francois says

    My step father passed away recently without a will. He has 1 daughter prior to marriage and 2 step children from his current marriage. His birth daughter is wanting her half of all his stuff, even though they didn’t have a relationship. Is she actually entitled to half or because of the other 2 children is his half divided into 3 parts one for each child?

  26. Hi Rania, I came across your page and you have very helpful information. I have a question, I got married to my spouse in 2005 and purchased a home in 2007 but my name is the only one on the deed. 2 years ago we separated and I was recently awarded full custody of my children. I plan on getting divorced but do not have all the money at this time. I would like to write a will stating if anything should happen to me I would like for my children to keep the home and anything else that is under my name. When their mother left the home 2 years ago she took everything in the home and sold it including the things that belong to our children. This is the only reason I would like to insure that my children inherit whatever I leave to them. Thank You for your time and response in advance.

  27. Hi. Your website is very nice and has a lot of info. This is a great thing. My situation is my step mums only son died without a will. He has two children and his mum. She was there when he passed. She took care of him while he was sick money wise. Now that he’s passed, she’s saying that his children are entilted to all assets. Is the anything she can do? The children live in another state.

    • The Texas intestacy statutes dictate how property is to be distributed when someone dies without a Will. If a single person dies without a Will and is survived by children, then all property will pass to the descendants.

  28. Melinda Russell says

    My ex-husband died without a will. However, I have an old will from when we were married. Is this will still valid?

    • Divorce does not invalidate a Will; however, the Texas statutes provide that if, after making a will, the testator’s marriage is dissolved, either by divorce, annulment or a declaration that the marriage is void, all the provisions in the will, including all fiduciary appointments, shall be read as if the former spouse predeceased the testator

  29. Hi Rania I’m just reading all the comments to get some idea I love your site it will help me a lot.

    My husband passed away recently. We don’t have a will our house is under our names. Do I need to probate it? We have 3 cars and 2 cars are under his name how can I sell the cars.

    Hope you can help me thanks.

  30. Diego Tarcisio says

    Hi Rania ! Congratulations for you website! Excellent work !

    See if you can help me.

    Me and my wife are Non-Resident Aliens. I opened an account in a U.S. Brokerage firm (Joint Tenant With Rights of Survivorship). If one of us die, Which laws would be applicable to the estate ?
    When I opened the account I was forced to indicate one American state but it wasn´t clear why, and I think it´s because legal questions like this one I´m presenting. I indicated the Texas State.

    Thank you very much

    • When spouses own property as joint tenants with rights of survivorship, a deceased spouse’s one-half interest automatically passes to a surviving spouse upon death, regardless of the intestacy statutes.

  31. My dad passed away with no will. He and my mom have a house in both their names, which they still owe. Me and my two sisters want her to keep the house. Because there is no will do we still have to probate? If yes, can we just go to the county clerk office a file for probate and let the judge give mom the house? None of us would contest it, we want her to have it. That’s the only estate he had. We live in Texas. Thanks!

  32. My dad is divorced and I am the only child. He tells me everything that is his will pass on down to me automatically. Is this true? He didn’t put my name as a beneficiary for this reason.

    • Under the intestacy statute, if a single person dies and is survived by children, the children will be his heirs. However, title does not vest automatically in the heirs. For example, if a deceased person owned real property, probate would be required to transfer title to the heirs, unless the deceased person had previously executed a transfer on death deed. Assets such as life insurance proceeds, IRAs, retirement accounts pass outside of probate to the listed beneficiaries

  33. Thanks for this site. It cleared up some info for me. Here’s my situation.

    My sister was married with 2 children (both from the same father). She died without a will. However, I have beed raising them since before my sister died. I have guardianship, but the father still has parental rights.

    From your article above, it says that her husband should inherit all her community property. Does that apply if he has not attempted to ever make contact or support his children? They are both under the age of 18, and I hope that some of my sister’s property would go to her children.

    Thanks for any guidance.

    • The intestacy laws are rigid and inflexible. They don’t take into account your unique circumstances and may dictate that your assets should be distributed in a way you would not have chosen

  34. Clay atkinson says

    If my father went to a lawyer and made a will out, but he hasn’t finalized it. If something was to happen before he finalized it, what would happen to his belongings? He has remarried, has no separate property, and has three kids.

  35. In Texas, if my wife and I die, with no children, and both of our parents are alive, how are our assets handled if we don’t have a will?
    I appreciate your help!!!!!

    • When someone who dies without a Will is married but does not have any children, the surviving spouse will inherit all property classified as “community property.” With respect to property classified as “separate property,” the surviving spouse would be entitled to all the separate personal property; however, if the deceased person has 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.

      • Hello Rania, I am in the situation that you note above, my dear husband of 26 years died a little over a year ago and he did not leave a will. It was just not a discussion that either of could have at the time. He did have a notarized POA naming me for all matters, medical, legal, assets, as well as, all financial concerns. We didn’t have alot but he had a truck, motorcycle, and minimal Texas oil rights, that should be dealt with. I am his only wife, no children of the marriage. He was an only child, even though his mother raised a 2nd cousin as her daughter. His mother and father are deceased. Is there a legal action (probate) that I must take to establish ownership of his property, or how do I get the items in my name? Thank you for any guidance that you might offer. Ruth

      • Hi Ruth. I’m sorry for your loss. The following publication from the Texas Young Lawyers Association may answer many of your questions about the probate process: The Texas Probate Passport.

  36. Rene Wimmer says

    Hi Rania
    My mother-in-law moved in with my wife and I 7 years ago. She moved here from VA and divided her belongings with her 3 daughters. My wife, one of the 3 siblings, was her POA. My mother-in-law recently passed leaving basically nothing except enough money to bury her and her clothing. She died intestate. Will we still need to file an SEA with the court?

  37. David Lopez says

    Hello Rania, your website is so helpful. We live in Texas and this is our situation: my wife’s dad passed away 20 years ago and didn’t have a will. He owned several properties (one being his business shop) and a home which were all acquired while being married to my wife’s mom. Nothing was ever done about distributing his assets. Now we found out that her mom has given (as a gift) all properties, including the home, to my wife’s sister. Does my wife have a right to the properties and home? Can she claim that since their dad never had a will, she inherited part of the assets? Or were the assets all inherited by the mom and she is free to give them away? Thank you

    • Thanks, David. I’m glad you find my website helpful.

      Under Section 201.003 of the Texas Estates Code, if a married person dies without a Will, the entire community estate of the deceased spouse passes to the surviving spouse, if the surviving spouse is also the parent of all the deceased spouse’s children.

  38. Hi Rania. Thank you for this post and for very kindly assisting all of us trying to sort through the loss of a loved one. My father just recently passed away without a will in Texas. I am one of 4 siblings and my father is divorced. I understand that we, the heirs, are all entitled to 1/4 of his “estate” which only includes an old beater car and less than $5,000 in cash. Do we HAVE to file something? We are my father’s only 4 heirs and we are all united on how Dad’s assets will be divided so there won’t be any arguing between us over what remains. Should we file a Small Estate Affidavit? Or if we don’t file anything other than my father’s death certificate, is that enough?

  39. My dad passed away two months ago and left a reasonable amount in the form of retirement and life insurance, but did not leave a will. Would my mom inherit all of the money or would my sister and I receive any? I only ask because she is not good with money and we want to set up a security account with our inheritance just in case she spends too much and needs emergency funds.

    • Please accept my condolences for your loss.

      Assets such as retirement plans and life insurance policies typically pass by beneficiary designations. If a beneficiary is identified, the proceeds of the retirement plan and life insurance policy pass to the named beneficiary rather than through a Will.

      It’s always a good idea to consult a financial adviser after receiving an inheritance for sound financial advice.

  40. Hi Rania. My mother in law recently passed away. Right before her passing she and my husband had consulted a lawyer and were in the process of getting a p.o.a and will done, but she passed before anything was finalized. She did write down everything and signed it. What would be our best option to move forward knowing what she wanted done.

    • Please accept my condolences for your loss. I recommend you consult the attorney to determine whether the writing you mentioned would constitute a valid holographic Will. If not, the intestacy statutes would control the disposition of your mother in law’s property.

  41. Hi Rania,

    Your site is full of great information!

    My mother is an only child and her father passed away last year in Texas. His wife (my mother’s step mom) didn’t inform my mother until almost a full year later of his death. My mother and her father lost contact over the years.

    What is my mother entitled too exactly? The stepmother had offered my mother $5,000 to take her name off some title so she can sell the home, but I feel my mother should be getting part of his personal property and part of the equity in their home. It was very strange, they only reached out to my mother when they needed something done, which I thought was very odd and a little fishy.

    Again, thank you so much for your time.

    • Hi Adam,

      I’m glad you’ve found my site helpful.

      When someone dies without a Will and has children from another marriage, one-half interest in the community estate will pass to the deceased person’s children, with the surviving spouse keeping only his or her one-half interest. With respect to separate property, the surviving spouse is entitled to one-third of the deceased spouse’s separate personal property and only a life estate (the right to use the property until his or her death) in one-third of the deceased spouse’s separate real property. The rest would be inherited outright by the children of the deceased spouse.

  42. My brother passed away with no will (single, no children). My father passed away several years ago leaving just myself and my mother. However my father had children from a previous marriage that we have no contact with. Are my half siblings entitled to my brothers estate? What does the breakdown look like?

  43. In the state of Texas if a parent dies and has a child under age 18 and a child who is over the age of 18 and both have different mothers one whom has passed away do both children get the estate split equally or does everything go to the minor child

    • When a single person dies without a Will and has children, all property will pass to his or her descendants. If all descendants are of the same degree of relationship, (meaning, for example, that all are the decedent’s children or all are his or her grandchildren), then the assets will be divided equally between them.

  44. My husband and I have a two year old daughter, he also has a 28 year old daughter that is not mine, he is sick now with cancer and has not made a will, what will happen with all of our stuff

  45. Hi I have a question. My dad recently passed away, and the land that his home is sitting on was purchased when he and my mom were together. His new wife and stepchildren not willing to share anything that he had with me or even allow me to have just a few things that belonged to him. Do I have any legal claim to what he had since the land was purchased before he’s married to his new wife? I don’t believe he left a will.

    • Property purchased before marriage is classified as separate property. Under the Texas Intestacy Statutes, when a married person dies without a Will owning real property that is characterized as separate property, the surviving spouse is entitled to only a life estate (the right to use the property until his or her death) in one-third of that property. The rest would be inherited outright by the children of the deceased spouse.

      However, a surviving spouse has a constitutionally protected life estate in homestead property and cannot be forced to sell the property as long as he or she occupies and uses it.

  46. My brother recently passed away in Texas. He and his wife have been divorced for about a year. He has 4 siblings, no children and no will. Both of our parents are passed. If his ex wife is still the designated beneficiary on a savings account will she inherit the money?

    • The Texas Estates Code provides that if after a decedent designates a spouse as a P.O.D. beneficiary on a P.O.D. account or other multiple-party account, the decedent’s marriage is dissolved by divorce, annulment, or a declaration that the marriage is void, the designation provision on the account is not effective as to the former spouse unless:

      1. the court decree dissolving the marriage designates the former spouse or the former spouse’s relative as the P.O.D. payee or beneficiary;
      2. the decedent redesignated the former spouse or the former spouse’s relative as the P.O.D payee or beneficiary after the marriage was dissolved; or
      3. the former spouse or the former spouse’s relative is designated to receive the proceeds or benefits in trust for, on behalf of, or for the benefit of a child or dependent of either the decedent or the former spouse.
  47. My husband recently passed away. We own 2 homes, one we purchased together before we were married and the other one during our marriage. Is the house we bought before we were married community property or separate property? I am in Texas

    • Texas subscribes to the inception of title rule, which bases the property’s character on the time and manner in which a person first acquires an interest in the property. If property is purchased before marriage, then it would be characterized at separate property. Property purchased during a marriage is presumed to be community property.

      • shari Prouhet says

        In relation to this question, my husband and I purchased the home we have lived in all of our marriage 9 months before the marriage but both of our names are on the deed to the home. Is it community property or seperate property for each of us?

      • Property purchased before marriage is characterized as separate property.

  48. My father-in-law has stage 4 cancer. My mother-in-law has been dead for 2 years. In his will, he left everything to her. He has never changed it. Will the 4 children get everything equally? And does the state get any of the assets? This is in Texas

    • Wills usually identify contingent beneficiaries who will inherit if the primary beneficiary predeceases the testator. Those named as the contingent beneficiaries will inherit. The only time property escheats to the state is if a person dies intestate and has no heirs.

  49. Hi, What are the obvious benefits of having a will versus not having one in the event one dies? If one has no will and the state has to manage your estate, what percent of your estate goes to the state? Thank you

    • One of the biggest benefits of having a Will is that it allows you to choose how and to whom you want your assets distributed. If you don’t have a Will, your assets will be distributed according to a statutory formula. That does not mean, however, that the state will manage your assets or a percent of your estate goes to the state. It is only in rare circumstances when no heirs can be found that property will pass to the state.

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.