When you die without a will in Texas, you are said to have died intestate and your estate will be distributed according to the Texas Estates Code, which distinguishes between separate and community property.

The Code defines separate property as anything that:

  • You owned prior to getting married
  • You inherited or received as a gift from someone else

Community property consists of all property you acquired or accumulated while married, with the exception of gifts and bequests. If you die intestate, it is handled differently than any property you owned individually.

How is Property Distributed When There is No Will?

If you are survived by a spouse and children, your spouse receives all of your half of the community (marital) property and retains their half, and receives one-third of your separate personal property and a ⅓ interest in your separate real property for their lifetime (real estate). The remainder of your separate property (⅔) is divided equally among the children.

However, this arrangement only applies if your spouse is the children’s other parent. If you have children from another relationship, the following arrangement applies:

  • Your spouse retains their half of the community property, 1/3 of your separate personal property, a ⅓ interest in your separate real property for their lifetime and the right to use the real property for their lifetime.
  • Your children receive everything else, including your half interest in the community property

If you are divorced or your spouse predeceases you, your children and their descendants receive the contents of your estate. For example, if you had three children but one died and left two children, your property would be divided as follows:

  • Each surviving child gets 1/3 of the estate
  • Your two grandchildren would divide their deceased parent’s share equally.

If you were married but never had children or they predeceased you, your spouse inherits all of your separate personal property and your half of the community property. Your spouse will also inherit all of your separate real property, unless your parents and/or siblings are still alive, in which case the following division(s) will take place: Your spouse receives half of your separate real property, and of the remaining half:

  • If both parents are still living, ¼ goes to Mother and ¼ goes to Father
  • If one parent and siblings (or siblings’ descendants) are still living, ¼ goes to surviving parent and ¼ to siblings
  • If one parent and no siblings are still living, ½ goes to surviving parent
  • If siblings but no parents are still living, ½ goes to surviving siblings

If you have no spouse or children, your property will be split among your parents and/or siblings, depending on who survives you:

  • If both parents are still living, ½ goes to Mother and ½ goes to Father
  • If one parent and siblings (or siblings’ descendants) are still living, ½ goes to surviving parent and ½ to siblings
  • If one parent and no siblings are still living, all goes to surviving parent
  • If siblings but no parents are still living, all goes to surviving siblings

What About Half-Siblings?

If you only have half-siblings, they would inherit in the same manner as a full sibling would. However, if you have both half and full-blooded siblings, Texas Estate Code § 201.057 specifies that all half-relatives will receive only half of the share that a full-blooded relative is entitled to.

Assets That Aren’t Affected by Intestate Succession Laws

The laws of intestacy only apply to assets that would normally have passed through a will. This does not include:

  • The proceeds of life insurance
  • Retirement fund accounts such as IRAs and 401(k)s
  • Property you own in joint tenancy with someone else
  • Property in a living trust
  • Payable-on-death bank accounts

This type of property passes to named beneficiaries or surviving co-owners, regardless of whether or not you left a will.

Laws of Survivorship

A relative must outlive you by a minimum of 120 hours in order to inherit under the laws of intestate succession. If you and your sister are in a catastrophic car accident and she dies within 120 hours of your death, she is considered to have predeceased you for the purposes of intestate succession. If she dies more than 120 hours after you do, her estate is eligible to inherit from yours.

On a similar note, any relatives that are conceived before your death (for example, your sister is pregnant at the time of your passing) but born after are entitled to a share of your estate if they survive for at least 120 hours after being born.

Contact a Texas Probate Attorney

When you die intestate in Texas, your property can be divided in ways that you never anticipated or wanted. It can also cause hostility among your loved ones and, in some cases, escalate to litigation.

Preparing a will can ensure that your estate is distributed in accordance with your wishes. At Romano & Sumner, we can help you put together a thorough estate plan that preserves your assets and lets your heirs benefit from them in ways that you intended. For more information, contact Romano & Sumner today.