Intestate Succession in Texas

What happens if you die without a will? Learn about intestacy in Texas

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Intestate Succession in Texas

If you die without a will in Texas, your assets will go to your closest relatives under state “intestate succession” laws. Here are some details about how intestate succession works in Texas.

Which Assets Pass by Intestate Succession

Only assets that would have passed through your will are affected by intestate succession laws. Usually, that includes only assets that you own alone, in your own name.

Many valuable assets don’t go through your will, and aren’t affected by intestate succession laws. Here are some examples: 

  • property you’ve transferred to a living trust
  • life insurance proceeds
  • funds in an IRA, 401(k), or other retirement account
  • payable-on-death bank accounts, or
  • property you own with someone else in joint tenancy.

These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will.

To learn more about these types of assets, go to the How to Avoid Probate section of Nolo.com or read about Avoiding Probate in Texas.

Who Gets What in Texas?

Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here’s a quick overview:

If you die with: here’s what happens:
  • children but no spouse, parents, or siblings
  • children inherit everything
  • spouse but no children, parents, or siblings
  • spouse inherits everything
  • parents but no children, spouse, or siblings
  • parents inherit everything
  • siblings but no children, spouse, or parents
  • siblings inherit everything
  • a spouse and children who are also the children of your spouse
  • spouse inherits all of your community property, plus 1/3 of your separate personal property and the right to use your real estate for life
  • children inherit everything else
  • a spouse and children who are not the children of your spouse
  • spouse inherits 1/3 of your separate personal property and the right to use your real estate for life
  • children inherit everything else, including your 1/2 interest in the community property
  • a spouse and parents
  • spouse inherits all of your community property, all of your separate personal property, and 1/2 of your separate real estate
  • parents inherit everything else
  • a spouse and siblings, but no parents
  • spouse inherits all of your community property, all of your separate personal property, and 1/2 of your separate real estate
  • siblings inherit everything else
  •  

    The Spouse’s Share in Texas

    In Texas, if you are married and you die without a will, what your spouse gets depends in part on how the two of you owned your property -- as separate property or community property. Generally, community property is property acquired while you were married, and separate property is property you acquired before marriage. There are a couple of big exceptions: Gifts and inheritances given to one spouse are separate property, even if acquired during marriage.

    If you want to learn more about how community property works, read Separate and Community Property During Marriage: Who Owns What?

    Your spouse will inherit your half of the community property. If you have separate property (many spouses mix everything together and don’t have any separate property) your spouse will inherit all or a portion of it. The size of your spouse’s share of your separate property depends on whether or not you have living parents, children, or siblings. If you do, they and your spouse will share your separate property.

    If you and your spouse are legally separated -- but not yet divorced -- when you die without a will, your spouse will not be entitled to your property. If you’re concerned about this area of the law, see an experienced attorney for help.

    Children’s Shares in Texas

    If you die without a will in Texas, your children will receive an “intestate share” of your property. The size of each child’s share depends on how many children you have and whether or not you are married. (See the table above.)

    For children to inherit from you under the laws of intestacy, the state of Texas must consider them your children, legally. For many families, this is not a confusing issue. But it’s not always clear. Here are some things to keep in mind.

    • Adopted children. Children you legally adopted will receive an intestate share, just as your biological children do. (Texas Probate Code Ann. § 40.)
    • Foster children and stepchildren. Foster children and stepchildren you never legally adopted will not automatically receive a share.
    • Children placed for adoption. In Texas, children you placed for adoption and who were legally adopted by another family are usually entitled to an intestate share of your estate. (Texas Probate Code Ann. § 40.)
    • Posthumous children. Children conceived by you but not born before your death will receive a share. (Texas Probate Code Ann. § 41.)
    • Children born outside of marriage. If you were not married to your children’s mother when she gave birth to them, they may receive a share of your estate if (1) you participated in a marriage ceremony that later turned out to be void, (2) you acknowledged your paternity in writing, or (3) your paternity was otherwise established under Texas law. (Texas Probate Code Ann. § 42.)
    • Children born during your marriage. Any child born to your wife during your marriage is assumed to be your child and will receive a share of your estate.
    • Grandchildren. Your grandchildren will receive a share only if their parent (your child) has died before you do.

    This can be a tricky area of the law, so if you have questions about your relationship to your parent or child, get help from an experienced attorney. If you want to read the laws themselves, you’ll find a link to the Texas Probate Code at the end of this article.

    Will the State Get Your Property?

    If you die without a will and don’t have any family, your property will “escheat” into the state’s coffers. However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won’t go to the state if you leave a spouse, children, siblings, parents, grandparents, aunts or uncles, great uncles or aunts, nieces or nephews, cousins of any degree, or the children, parents, or siblings of a spouse who dies before you do.

    Other Texas Intestate Succession Rules

    Here are a few other things to know about Texas intestacy laws.

    • Survivorship period. To inherit under Texas’s intestate succession statutes, a person must outlive you by 120 hours. So if you and your brother are in a car accident and he dies a few hours after you do, his estate would not receive any of your property. If you and your spouse die simultaneously, half of the community property will be distributed as though you had survived, and half will be distributed as though your spouse had survived.
    • Half-relatives. “Half” relatives will often inherit as though they are “whole.” That is, your sister with whom you share a father, but not a mother, may have the same right to your property as she would if you had both parents in common. But there are exceptions to this rule in Texas. If you’re concerned about this area of the law, talk with an experienced estate planning lawyer.
    • Posthumous relatives. Relatives conceived before -- but born after -- will not receive a share of your estate unless they are your children or other descendants.
    • Immigration status. Relatives entitled to an intestate share of your property will inherit whether or not they are citizens or legally in the United States.

    Learn More

    To learn more about intestate succession, read How an Estate Is Settled When There is No Will.

    You can find Texas’s intestate succession laws here: Texas Estates Code Ann. §§ 201.001-201.003.

    For more about estate planning, go to the Wills, Trusts & Probate section of Nolo.com.

    Need a lawyer? Search for an experienced estate planning attorney with Nolo’s Lawyer Directory.

    by: , J.D.

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