What Happens If You Die Without A Will in Texas?
If you die without a Will in Texas, you lose the freedom to decide what happens who receives your property after you die. Instead, Texas’ inheritance laws, known as the Texas intestacy statutes, control what happens to your property.
The inheritance laws are rigid. They do not take into account your wishes and unique circumstances. They are simply the legislature’s best guess about how an average deceased Texan would want their property distributed. And sometimes they result in a distribution that seems neither fair nor equitable.
Below is a summary of the statutory rules that control who receives your property if you die without a Will in Texas, along with quick links to take you to the information you are seeking.
- What happens if you are you a single person without children?
- What happens if you are you a single person with children?
- What happens if you are you married?
Who Inherits Property When a Single Person With No Children Dies Without a Will in Texas?
If a you are single and die without a will in Texas, your property will pass as follows:
- Your property will pass equally to your parents if both are living. If one parent has died, and you don’t have any siblings, then your estate will pass to your surviving parent.
- However if you do have siblings or descendants of siblings (nieces and nephews), then your surviving parent would receive only half of the estate. Your siblings and descendants of deceased siblings would share the remaining one-half.
- All of your estate would pass to your siblings or their descendants if you have no surviving parents.
- If you have no surviving parents, siblings, or descendants of siblings, then your estate will be divided into two halves. One half will pass to relatives on your mother’s side. The other half will pass to relatives on your father’s side.
- If one side of the family has died out, the surviving side of the family would inherit your entire estate.
- On rare occasions, when an unmarried person dies without any surviving heirs, his estate will pass to the State of Texas.
For some, this manner of distribution listed in the Texas intestacy statutes may mimic what they would have chosen. But not always.
For example, I recently received a phone call from someone whose boyfriend had just died. They had purchased a home together. Since both their names were on the deed, they assumed the survivor would inherit their home if one died.
But in Texas, simply purchasing a home jointly, even between spouses, doesn’t create a right of survivorship unless the deed specifically says it does. Since they were not married and the deed did not create a right of survivorship, her boyfriend’s share of the home passed to his legal heirs, not her.
Who Inherits When a Single Person with Children Dies Without a Will?
If you are single, have children, and die without a Will, the Texas intestacy statutes requires that all your property will pass to your descendants. If your descendants are of the same degree of relationship, (meaning, for example, all are your children or all are your grandchildren), then they will each receive an equal share.
However, if your descendants are of different degrees of relationship, (meaning some of your children survive while others predecease you, leaving children or grandchildren of their own), then the younger generation will inherit only the share the older generation would have received had he or she survived.
For example, supposed you had three children. If all three survive you, then each will receive 1/3 of your estate. If one dies before you, but has two surviving children, then the two surviving children would inherit 1/3, but the children of the deceased child would split their parent’s share. However, suppose all the children predecease you, and 6 grandchildren in total survive you. In that case, each grandchild would receive 1/6 of your estate.
Who Inherits When A Married Person Dies Without a Will in Texas?
Many people assume that a surviving spouse will inherit all a deceased spouse’s estate if they die without a Will in Texas. This is not always the case. According to the Texas intestacy statutes, how much property a surviving spouse receives depends on whether the property is community property or separate property.
In Texas, there is a presumption that all property you acquire during a marriage is community property, unless you received it as a gift or inherited it.
The Texas intestacy statutes provide that if you die without a will and do not have any children, then your surviving spouse will inherit all of your community property.
If you are married and your spouse and children survive you, then:
- Your surviving spouse will inherit all your community property if all your children are also your surviving spouse’s children;
- But if you have children from another marriage, all your one-half interest in community property will pass to your children, with your spouse keeping only his or her one-half interest.
Dying without a Will in Texas can be problematic in blended families because it may result in the surviving spouse not having full ownership of the couple’s homestead.
Separate property is property that you owned before marriage, or acquired, even during a marriage, by gift or inheritance. The formula for how the Texas intestacy statutes distribute your property is different for separate property:
- If your spouse and children survive you, your surviving spouse will receive one third of your separate personal property. However, your surviving spouse will only receive a life estate (the right to use the property until his or her death) in one-third of your separate real property. Your children would inherit the remaining interest outright.
- If you are married, but don’t have descendants, your surviving spouse will receive your separate personal property. However, if you have surviving parents and siblings, your surviving spouse will receive only one-half of the separate real property. The other half will pass to your parents, siblings or descendants of siblings according to a statutory formula.
If you want the freedom to decide who gets your property when you die, you need a will.
This post was originally published on October 18, 2010, and updated on July 29, 2023.