A will is an important part of ensuring that your property is distributed according to your wishes after your death. If you die without a will in Texas, your property will be divided based on a set of probate rules that prioritize heirs based on their legal relationship to you. If you leave a surviving spouse, the amount she will be entitled to will depend on how the property is classified, and whether you left any children.
Overview of Intestacy
Texas residents who are at least 18 years old and mentally competent are eligible to make a will. A will gives you the freedom to determine who will receive your property after death. If you die without a will, your property will pass according to Texas law, which is inflexible and may conflict with how you intended your property to pass. This process is known as intestate succession, and the rules place priority on the surviving spouse, then children, followed by siblings and parents.
If you are married and die without a valid will in Texas, the amount of property your spouse will receive will depend on how the property is classified and if you have any children. Property that was acquired by you and your spouse during the marriage is referred to as community property, and will pass entirely to your spouse if you have no children, or if your children are also your spouse's children. If you have children and they are not your spouse's, your spouse will be entitled to one-half of the community property interest, and the other half will be divided equally between the children.
Separate Personal Property
Property that you acquired before marriage is treated differently in Texas. This is referred to as separate property, and the law makes a distinction between personal property and real estate. If you have no children or other descendants, your surviving spouse is entitled to all of your separate personal property. If you have children or other descendants, your surviving spouse is entitled to one-third of your separate personal property and your children will share the remaining two-thirds.
Separate Real Property
If you have real estate and children, your surviving spouse is entitled to a one-third interest in the property during her lifetime. The remaining two-thirds passes immediately to your children and the other one-third will pass to the children upon the death of your spouse. If you have no children or other descendants, but have surviving parents or siblings, your spouse is entitled to a one-half interest in the separate real property and your parents and siblings will share in the other half.
No Surviving Spouse
Texas law provides that your children or their descendants inherit all of your property if you have no will and are unmarried at the time of death. However, the exact share each will be entitled to depends on the degree of relationship. If all of your children are alive, they will share in the estate equally. Deceased children still receive their share, but the assets pass to their children in equal shares. For example, if you had three children, but only two are living at the time of your death, they would each be entitled to one-third of the estate. The remaining one-third would be split equally between the children of your deceased child.
Read More: Legal Rights of a Surviving Spouse
Wayne Thomas earned his J.D. from Penn State University and has been practicing law since 2008. He has experience writing about environmental topics, music and health, as well as legal issues. Since 2011, Thomas has also served as a contributing editor for the "Vermont Environmental Monitor."