Dying Without A Will Can Be A Nightmare!

As an estate planning lawyer, I get weekly calls and emails from people struggling to cope death of someone they love. In addition to the grief they experience, many struggle financially because their loved ones died without engaging in any type of estate planning.

Some people don’t write Wills because they believe death is too unpleasant to consider. I had one client tell me his wife refused to engage in any type of planning because she believed it would hasten her death. Others misunderstand how property will pass upon their death. They think their property will all go to a surviving spouse, a domestic partner, or a specific family member even without legal documentation.

In reality, dying without a Will in Texas can be a nightmare for those you leave behind!

Much of the nightmare scenarios revolve around the rigidity of the intestacy statutes. The Texas intestacy statutes dictate who will receive the property of a deceased person who dies without a Will. It is the legislature’s best guess as to how someone in various life circumstances would want property distributed.

Intestacy Can Be a Nightmare in Blended Families

The Texas legislature assumes that if a married person dies without a Will and the surviving spouse is also the parent of all his children, he would want the surviving spouse to inherit all his share of community property. However, it also assumes that if the deceased spouse had children from another relationship, the deceased spouse would want his share of community property to pass to his children instead of his surviving spouse.

As a result, dying without a Will may result in a situation where estranged stepchildren end up owning all or a portion of a surviving spouse’s home or part of a stock portfolio the surviving spouse was counting on for retirement. This would be the case even if the surviving spouse had been the sole earner during the marriage. This is because all income earned during the marriage is presumed to be community property.

Intestacy Can Be A Nightmare in Non-Traditional Families

The intestacy statutes are also a nightmare in non-traditional families. An increasing number of people are choosing to cohabitate rather than marry. For them, dying without a Will can have unintended consequences.

The Texas intestacy laws do not give any inheritance rights to domestic partners. Therefore, if you die without a Will, your property will pass to those the state defines as your heirs rather than the person with whom you share your life. This can be especially devastating if your legal heirs have a contentious relationship with your partner.

And while the Texas Constitution gives surviving spouses a right to reside in a homestead for the term of their lives, that right does not extend to unmarried couples. So if your partner is living in a home you own and you die without a Will, your heirs can evict your partner from the home you shared.

Intestacy Can Be A Nightmare in Estranged Families

In some situations, the Texas Intestacy statutes can result in estranged family members inheriting property. For example, several years ago, I wrote an article about a deadbeat dad claiming a part of his deceased son’s estate.

Timothy Cole’s mother raised him after his father abandoned them when Timothy was seven years old. He died of an asthma attack when he was 39 years old while incarcerated in the Texas Prison System for a crime he did not commit. In 2009, the state of Texas posthumously cleared him of any wrongdoing and expunged his record. His estate received $1 million in compensation for wrongful imprisonment.

Guess who reappeared to claim half of the award? The father who abandoned him and had not seen him for decades. Why? Because under the Texas intestacy statutes, he was a legal heir.

Intestacy laws are rigid and inflexible. They don’t consider the deceased person’s unique circumstances and may result in a distribution that seems neither fair nor equitable.

A Will give you the freedom to decide how and to whom your property will be distributed when you die. Without one, the people you love most may have to deal with a nightmare.

This article was originally published on October 31, 2018 and updated on October 31, 2021.