Texas is a community property state. The law presumes that all property acquired during the marriage belongs equally to both spouses, unless it was received by gift, inheritance, or descent.
If you have a valid Will, you disinherit your spouse by leaving your separate property and your half of the community property to someone else. But that doesn’t mean your spouse will be left with nothing.
That’s because Texas law provides a surviving spouse with several protections that cannot be overridden by a Will.
Homestead Rights for a Surviving Spouse
A surviving spouse has the right to live in the family home for the rest of their life, even if that home was the deceased spouse’s separate property and even if the Will left it to someone else. This right comes from the Texas Constitution and is codified in Section 102.005 of the Texas Estates Code.
The surviving spouse can remain in the home for as long as they choose to use it as their homestead. During that time, the home cannot be partitioned or sold by the other heirs. Only after the surviving spouse dies or voluntarily gives up their homestead rights does full ownership pass to whoever inherited it under the Will.
Reimbursement Claims
During a marriage, funds often get commingled. Community funds may be used to pay down the mortgage on one spouse’s separate property, or one spouse’s separate funds may be used to improve community property.
When a spouse dies, the surviving spouse may be entitled to reimbursement for any community funds expended on the deceased spouse’s separate property. The same applies to any of the surviving spouse’s separate funds that were spent on community property or on the deceased spouse’s separate property. These claims ensure that a surviving spouse is compensated for financial contributions that benefited the other spouse’s estate.
Exempt Property and Allowance in Lieu of Exempt Property
Under Section 353.051, the court must set aside certain exempt property for the surviving spouse and minor children. This includes the homestead and other personal property exempt from creditors under Texas law.
If the estate does not include this exempt property, Section 353.053 allows the court to award an allowance in its place. The allowance in lieu of a homestead may not exceed $45,000, and the allowance in lieu of other exempt property may not exceed $30,000. These amounts are separate from the family allowance.
The Family Allowance
Texas law also permits a surviving spouse or any other person authorized to act on behalf of a decedent’s minor children or adult incapacitated children to apply to the probate court for a family allowance for one year of maintenance.
This allowance is meant to provide financial support during the period immediately following the spouse’s death.
However, the family allowance is not automatic. Under Section 353.101(d), the court is not required to fix a family allowance for a surviving spouse who has separate property adequate for their own maintenance. The same applies to minor children who have adequate property in their own right. For adult incapacitated children, the court is not required to fix a family allowance if the child has adequate property of their own or if the decedent was not supporting the child at the time of death.
Surviving Spouse Rights to Retirement Accounts under ERISA
Federal law provides additional protections that a Will cannot override. Under the Employee Retirement Income Security Act (ERISA), a surviving spouse is automatically entitled to the benefits of most employer-sponsored retirement plans, including 401(k)s and pension plans.
The only way to name someone other than your spouse as the beneficiary of an ERISA-governed plan is if your spouse signs a written waiver during the marriage. Without that waiver, the surviving spouse has a legal right to the retirement benefits regardless of what the beneficiary designation says.
IRAs are not governed by ERISA and do not carry the same automatic spousal protections under federal law. However, in a community property state like Texas, a surviving spouse may still have a claim to a portion of an IRA funded during the marriage.
Can a Will Override Spousal Rights in Texas?
You can leave your separate property and your share of community property to someone other than your spouse. But Texas law and federal law both provide certain protections for surviving spouses that cannot be bypassed, no matter what your Will says.
If you’re considering a plan that limits what your spouse will receive, it’s important to discuss your options with an experienced estate planning attorney.
