How Property Distributed When Someone Dies Without A Will

Dying Without A Will Can Be A Nightmare!

by Rania Combs

I get calls and emails every week from people struggling to cope death of someone they love. In addition to the grief they experience, many struggle financially because their loved ones died without engaging in any type of estate planning.

Some people don’t write Wills because they believe death is too unpleasant to consider. I had one client tell me his wife refused to engage in any type of planning because she believed doing so would hasten her death. Others misunderstand how property will pass upon their death, believing that their property will all go to a surviving spouse, a domestic partner, or a specific family member even without legal documentation.

In reality, dying without a Will in Texas can be a nightmare for those you leave behind!

Much of the nightmare scenarios revolve around the rigidity of the intestacy statutes. The Texas intestacy statutes dictate how property is distributed if someone dies without a Will. It is the legislature’s best guess as to how someone in various life circumstances would want property distributed.

Intestacy Can Be a Nightmare in Blended Families

The Texas legislature assumes that if a married person dies without a Will and the surviving spouse is also the parent of all his children, he would want the surviving spouse to inherit all his share of community property; however, if the deceased spouse had children from another relationship, the deceased spouse would want his share of community property to pass to his children instead of his surviving spouse.

As a result, dying without a Will may result in a situation where estranged stepchildren end up owning a portion of a surviving spouse’s home or part of a stock portfolio the surviving spouse was counting on for retirement. This would be the case even if the surviving spouse had been the sole earner during the marriage, since all income earned during the marriage is presumed to be community property.

Intestacy Can Be A Nightmare in Non-Traditional Families

The intestacy statutes are also a nightmare in non-traditional families. An increasing number of people are choosing to cohabitate rather than marry, and for them, dying without a Will can have unintended consequences.

Domestic partners are not entitled to inherit under Texas’ intestacy laws, so if you’re unmarried and you die without a Will, your property will pass to those the state defines as your heirs rather than the person with whom you share your life. This can be especially devastating if your legal heirs have a contentious relationship with your partner.

And while the Texas Constitution gives surviving spouses a right to reside in a homestead for the term of their lives, that right does not extend to unmarried couples. So if your partner is living in a home you own and you die without a Will, your heirs can evict your partner from the home you shared.

Intestacy Can Be A Nightmare in Estranged Families

In some situations, the Texas Intestacy statutes can result in estranged family members inheriting property. For example, several years ago, I wrote an article about a deadbeat dad claiming a part of his deceased son’s estate.

Timothy Cole was abandoned by his father when he was seven years old and raised by his mother.  He was wrongly convicted for a crime he did not commit, and died of an asthma attack when he was 39 years old while incarcerated in the Texas Prison System. In 2009, he was posthumously cleared of any wrongdoing and his record was expunged. As compensation for being wrongfully imprisoned, his estate was awarded $1 million.

Guess who reappeared to claim half of the award? The father who abandoned him and had not seen him for decades. Why? Because under the Texas intestacy statutes, he was a legal heir.

Intestacy laws are rigid and inflexible. They don’t consider the deceased persons unique circumstances and may result in a distribution that seem neither fair nor equitable.

A Will give you the freedom to decide how and to whom your property will be distributed when you die. Without one, the people you love most may have to deal with a nightmare.

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  1. Debbie Friend

    February 1, 2020 at 2:57pm

    Dad dies intestate. He has a wife who has 4 adult children from previous marriage. He has 3 children from previous marriage. He has assets including a car collection, 2 homes, and an IRA that rolled over to his wife when he died. Are HIS children entitled to anything? What happens to the IRA when she dies?

    1. Rania Combs

      February 1, 2020 at 8:57pm

      How property is distributed in this situation will depend on whether the property is characterized as separate property or community property. A surviving spouse who is named as the beneficiary of a retirement plan can roll it into her IRA and controls the right to dispose of it as she wishes when she dies.