When a person dies without a will in Texas, the Texas Probate Code establishes who shall be entitled to the decedent’s property. The “Law of Intestacy” according to the Texas rules is discussed below. There are certain kinds of assets not controlled by the Texas law of intestacy. For example, bank accounts correctly established as “Joint Tenancy With Right of Survivorship” will pass to the co-owning joint tenants and the law of intestacy does not alter that fact. Another example is life insurance where a person is named as the beneficiary. Texas law would not alter the beneficiary’s right to the proceeds.
Generally, the community property of Texas couples is everything accumulated during marriage. There are exceptions. For example, property purchased in another state may be the separate property of a spouse. In Texas, property purchased by a couple residing in Texas is presumed to be community property. Property a spouse receives by gift or inheritance during marriage is considered separate property and not community property. The distinction between community and separate property is very important because the Texas law of intestacy treats them differently.
Texas Probate Code section 45 controls the intestate distribution of community property. Section 45 provides as follows:
(a) On the intestate death of one of the spouses to a marriage, the community property estate of the deceased spouse passes to the surviving spouse if:
(1) no child or other descendant of the deceased spouse survives the deceased spouse; or
(2) all surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse.
(b) On the intestate death of one of the spouses to a marriage, if a child or other descendant of the deceased spouse survives the deceased spouse and the child or descendant is not a child or descendant of the surviving spouse, one-half of the community estate is retained by the surviving spouse and the other one-half passes to the children or descendants of the deceased spouse. The descendants shall inherit only such portion of said property to which they would be entitled under Section 43 of this code. In every case, the community estate passes charged with the debts against it.
Under Texas law, if all of the decedent’s surviving children and their descendants are also the children and descendants of the surviving spouse, then the entire community estate passes to the surviving spouse. However, the situation changes if, for example, the decedent had children by a prior marriage. In such a case the surviving spouse gets only half of the community property. The rest passes to the decedent’s children (and descendants) who are not the children (or descendants) of the surviving spouse.
SEPARATE PROPERTY – there is a surviving spouse:
Texas Probate Code section 38(b) controls separate property where there is a surviving spouse. Section 38(b) provides as follows:
(b) Intestate Leaving Husband or Wife. Where any person having title to any estate, real, personal or mixed, other than a community estate, shall die intestate as to such estate, and shall leave a surviving husband or wife, such estate of such intestate shall descend and pass as follows:
1. If the deceased have a child or children, or their descendants, the surviving husband or wife shall take one-third of the personal estate, and the balance of such personal estate shall go to the child or children of the deceased and their descendants. The surviving husband or wife shall also be entitled to an estate for life, in one-third of the land of the intestate, with remainder to the child or children of the intestate and their descendants.
2. If the deceased have no child or children, or their descendants, then the surviving husband or wife shall be entitled to all the personal estate, and to one-half of the lands of the intestate, without remainder to any person, and the other half shall pass and be inherited according to the rules of descent and distribution; provided, however, that if the deceased has neither surviving father nor mother nor surviving brothers or sisters, or their descendants, then the surviving husband or wife shall be entitled to the whole of the estate of such intestate.
Thus, children of the decedent receive two-thirds of personal property and two-thirds of real property outright. Where there are children the surviving spouse receives one-third of the personal property outright. If there is real estate, the surviving spouse received only a life estate in one-third of the realty, and a remainder in that one-third is given to the decedent’s children/descendants.IF DECEDENT LEAVE NO SURVIVING CHILDREN or DESCENDANTS then the share that would have passed to those persons passes instead to the decedent’s parents, siblings and their descendants. If there are no such persons, only then does the surviving spouse receive the entire separate property estate.
SEPARATE PROPERTY – there is NO surviving spouse:
If no spouse survives the decedent then Texas Probate Code section 38(a) controls who receives the decedent’s entire estate. Section 38(a) provides as follows:
(a) Intestate Leaving No Husband or Wife. Where any person, having title to any estate, real, personal or mixed, shall die intestate, leaving no husband or wife, it shall descend and pass in parcenary to his kindred, male and female, in the following course:
1. To his children and their descendants.
2. If there be no children nor their descendants, then to his father and mother, in equal portions. But if only the father or mother survive the intestate, then his estate shall be divided into two equal portions, one of which shall pass to such survivor, and the other half shall pass to the brothers and sisters of the deceased, and to their descendants; but if there be none such, then the whole estate shall be inherited by the surviving father or mother.
3. If there be neither father nor mother, then the whole of such estate shall pass to the brothers and sisters of the intestate, and to their descendants.
4. If there be none of the kindred aforesaid, then the inheritance shall be divided into two moieties, one of which shall go to the paternal and the other to the maternal kindred, in the following course: To the grandfather and grandmother in equal portions, but if only one of these be living, then the estate shall be divided into two equal parts, one of which shall go to such survivor, and the other shall go to the descendant or descendants of such deceased grandfather or grandmother. If there be no such descendants, then the whole estate shall be inherited by the surviving grandfather or grandmother. If there be no surviving grandfather or grandmother, then the whole of such estate shall go to their descendants, and so on without end, passing in like manner to the nearest lineal ancestors and their descendants.
In this situation Texas law identifies the decedent’s relatives who shall receive the estate and the portion they are entitled to receive.
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