TEXAS PROBATE ATTORNEY: IF I DIE WITHOUT A WILL WHAT’S THE BIG DEAL, EVERYTHING GOES TO MY SPOUSE, RIGHT?

Posted on | June 18, 2011 | No Comments

Because Texas is a community property state, It is a common misconception that if a decedent dies without a will (“intestate”), his or her entire estate will pass automatically to his or her surviving spouse. This does not always hold true.

Sections 38, 43 and 45 of the Texas Probate Code dictate the intestate distribution scheme in Texas. Section 43 sets forth the distribution when a person dies intestate leaving a husband or wife. It specifically states that when a person dies without a will and leaves a surviving spouse, the community estate is divided accordingly:

1. If the married intestate has no surviving descendants, then all community property is now owned by the surviving spouse. The surviving spouse (a) retains the one-half of the community property that the surviving spouse owned once the marriage was dissolved by death, and (2) inherits the deceased spouse’s one-half of the community.
2. Community property is distributed as follows if the married intestate has at least one child or other descendant.
   1. No Non-Spousal Descendants—If all of the deceased spouse’s surviving descendants are also descendants of the surviving spouse, then the surviving spouse will own all of the community property, that is, the surviving spouse retains his or her one-half of the community and inherits the other half.
   2. Non-Spousal Descendants—If any of the deceased spouse’s surviving descendants are not also descendants of the surviving spouse, then the community property is divided. The surviving spouse retains one-half of the community property, that is, the one-half the surviving spouse already owned by virtue of it being community property. The descendants of the deceased spouse inherit the deceased spouse’s one-half of the community property.

Separate property of the decedent is divided differently, however. Pursuant to Section 38(b) of the Texas Probate Code, when a person dies without a will and lives a surviving spouse, the separate property is divided accordingly:

1. If the married spouse has surviving descendants, the surviving spouse receives one-third of the deceased spouse’s separate personal property with the remaining two-thirds passing to the descendant’s children. In regards to real property, the surviving spouse receives a life estate in one-third of the deceased spouse’s separate real property. The remainder interest passes the deceased spouse’s children.
2. If the married spouse has no surviving descendants, all separate personal property passes to the surviving spouse. However, if there are no descendants, but there are surviving parents, siblings, or descendants of siblings, the surviving spouse inherits one-half of the separate real property outright with the remaining one-half passing to the parents, siblings, and descendants of siblings.

Since your half-siblings are not children of both your mother and father, their shares will be half of what you and your full siblings shares will be.

In order to insure that your assets and family are fully protected in the event of a tragedy, please contact The Wright Firm, LLP for all your estate planning needs contact the firm at 972-353-4600 or visit our website at www.thewrightlawyers.com.

Comments