Intestacy

The Complexities of Intestacy in Blended Families

If You Are A Part of A Blended Family, You Need A Will

by Rania Combs

I got an email from someone whose husband died without a Will. She and her husband had been married for 17 years. He had three children from a prior marriage, and they had one child together.

Before their marriage, he bought a house and a commercial building. During their marriage, they bought a home together.

She asked: “Wouldn’t I as his spouse inherit all the property?” The short answer is no!

Intestate Distribution in Blended Families

Many people assume that when they die, their spouse will inherit all their property. This is not always the case.

When a married person dies without a will in Texas, and leaves children from another relationship, the surviving spouse keeps her own one-half interest in the community estate. The deceased spouse’s share of the community estate will pass to his children in equal shares.

Additionally, only one-third of the deceased spouse’s separate personal property will pass to his surviving spouse, with the remaining two-thirds passing to his children.

If the deceased spouse died leaving separate real property, the surviving spouse inherits only a life estate in one-third of that property. The deceased spouse’s children inherit the remainder.

The Unintended Result of Intestacy in Blended Families

Texas defines separate property as property a spouse owned before marriage or received as a gift or inheritance, even during marriage. In the scenario above, the house and building the husband purchased before marriage are his separate property. Since he has children from another marriage, his wife inherits only a one-third interest in that property. The four children inherit the remainder.

With respect to their homestead, since the couple purchased it during their marriage, there is a presumption that it is community property. Therefore, she would keep her one-half interest in the property, but the husband’s share of the house would pass to all four children in equal shares. In other words, she would no longer be the sole owner of her own home.

The intestacy laws are rigid and inflexible. They don’t take into account your unique circumstances and may result in your assets passing in a way you may not have chosen.

If you are a part of a blended family and want to be in control of who receives your property after you die, you need a Will.

Learn more about how we can help you.

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Comments

  1. Dana Herrington

    January 9, 2018 at 1:14am

    Hi Rania – I’ve learned so much reading through your posts, however I’m still unclear about dying intestate and how the surviving spouse is entitled to a life estate in 1/3 of the real property. My case is this…my dad passed away a few years ago (he has 4 direct descendants). His wife ( my step mother) was living in the house up until a few months ago, at which time she vacated the home and purchased a new property. We are now working together to sell the home, however I’m not clear on the division of the asset at sale. Based on my reading it seems that his direct heirs will share 2/3 of the asset and our step mother will receive 1/3….am I understanding that correctly? Or because she no longer lives in the home, is the entire property owned by the direct descendants? Another small caveat is that when they married there was around $20,000 left on the mortgage; would that portion of the mortgage be considered community property? I look forward to your response on this inquiry, I feel like I’m so close to understanding it. Best regards – Dana

    1. Rania Combs

      January 11, 2018 at 1:51pm

      When a married person dies without a will in Texas, and leaves children from another relationship, his surviving spouse is entitled to keep her own one-half interest in community property. The deceased spouse’s share of the community estate will pass to his children in equal shares. If the deceased spouse died leaving real property that is classified as “separate property,” the surviving spouse is entitled to only a life estate in one-third of that property.

      The IRS publishes actuarial tables for valuing life estates.

      The following article may also be of interest to you: Can Stepchildren Force a Surviving Spouse to Sell Homestead Property?

  2. Nicole Eveleigh

    July 3, 2019 at 2:36pm

    I have a situation where the person who died had 2 community properties both acquired when married. He had out of wedlock 5 children and 1 child together but did not leave a will. 1 property is homesteaded and where the surviving spouse lives. The other is not homestead and is where the common child lives. Would the same rules apply to both community properties?

    1. Rania Combs

      July 18, 2019 at 11:01am

      The following article discusses how property is distributed when a married person who has children from a prior marriage dies without a Will: Intestacy Can Be A Nightmare in Blended Families.