Many people assume that when a married person dies the surviving spouse gets everything. In Texas, that may not always be the case. If a married person dies without having made a Will, directing to whom their property passes, the person dies “intestate”. The Texas laws of intestacy determine who gets the deceased’s property, which may be different than how the property would pass if the person were alive to say so. In this article we will discuss Texas laws regarding intestacy for a married person. To make sure your property passes to those you want and avoid intestacy, it is wise to contact a probate attorney
such as Austin probate lawyer Farren Smith
for help drafting a Will.
If the Person Did Not Have a Will
If a person died in Texas without a Will, his property passes to his heirs under Texas law. This is known as intestate succession. Without a Will, the estate passes to the descendants according to Texas law even if the decedent said while he was alive that he preferred that his property be left in a different way.
How the property passes and to whom under Texas intestate laws is very complicated. Texas laws look at the type of property and other factors to determine who gets the property. Often families in Austin, Round Rock, Pflugerville, and Cedar Hill will need an Austin probate
attorney to help figure this out, sometimes with surprising results. There are a number of considerations, including whether the person was married or single, if the estate property was community or separate property, and who and what lineage the survivors hold.
Intestate Distribution for a Person Who Died While Married
Texas laws favor the surviving spouse inheriting the estate, but she may not always inherit the entire estate. This is because Texas laws distinguish property between separate and community property. Separate property is property that is owned before a marriage or obtained during marriage by gift or inheritance and kept separate from a spouse. Community property is all property, other than separate property, that is obtained by either spouse during marriage. Property acquired during a married is presumed to be community property.
Property may also be real property (i.e., land) or personal property (i.e., things). Real property may be separate or community property and personal property may be separate or community property, depending on when and how it was received and kept.
When a person dies without a Will and leaves a surviving spouse, Texas laws provide how the real or personal community property is distributed. Many people think all of the community property will pass to the surviving spouse, but that may not always be the case. There are three possible scenarios with the following distributions under Texas intestacy laws:
- Scenario 1: If the deceased is survived by his spouse and did not have any children, all of the community property passes to the surviving spouse. For example, Husband (H) dies without a Will, and is survived by Wife (W). They did not have any children. All of the community property passes to W.
- Scenario 2: If the deceased is survived by his spouse and all of his children were also the children of the surviving spouse, all of the community property passes to the surviving spouse. For example, Husband (H) dies without a Will, and is survived by Wife (W) and by their three children that they had together (A, B, and C). All of the community property passes to W.
- Scenario 3: If the deceased is survived by his spouse and children or descendants that were not also the children of the surviving spouse, the surviving spouse keeps her one-half share of the community property, and the other one-half of the community property is divided equally among the children or descendants of the deceased. For example, Husband (H) dies without a Will, and is survived by Wife (W) and by their three children that they had together (A, B, and C) and another child (D) that H had before he married W.
Did your spouse forget to complete a will? Contact our offices
and let an experienced probate attorney help you!