Texas Intestacy FAQs

What Is Intestacy?

Intestacy refers to the legal process that determines how a person’s estate is distributed when they die without a valid will. Texas intestacy laws establish default rules for inheritance. Below are answers to some frequently asked questions about intestacy:

Who Inherits If I Die Without a Will in Texas?

When someone dies without a will in Texas, their estate is distributed according to the state’s intestacy laws. The rules prioritize close family members, but the exact distribution depends on the deceased’s marital status, children, and other surviving relatives.

For a detailed breakdown of how assets are divided under Texas intestacy law, read What Happens if You Die Without a Will in Texas?

Does My Spouse Inherit All My Property If I Die Without a Will?

Not necessarily. In Texas, what your spouse inherits depends on whether the property is classified as community property or separate property and whether you have children from another relationship.

• Community Property: If all your children are from the marriage, your spouse inherits all community property. However, if you have children from another relationship, your half of the community property goes to your children, not your spouse.
• Separate Property: Your spouse will receive part of your separate property, but not all of it.
  • Separate personal property – Your spouse inherits one-third, and your children inherit the rest.
  • Separate real estate – Your spouse gets a life estate (the right to use it for life) in one-third, and your children inherit the remainder.

If you have no children, your spouse may still have to share your separate property with your parents or siblings.

To ensure your spouse inherits exactly what you intend, creating a will is essential.

Does Texas Intestacy Law Recognize Common-Law Marriage?

Yes, Texas recognizes common-law marriages, but the surviving partner must prove the marriage met the legal requirements. If recognized, the common-law spouse has the same inheritance rights as a formally married spouse.

What Happens to Minor Children If Both Parents Die Intestate?

If both parents die without a will in Texas, the court will appoint a guardian for their minor children. Since no legal document names a preferred guardian, the decision is left to a judge, who will consider the child’s best interests. Family members may petition for guardianship, but disputes can arise, and the court’s choice may not align with what the parents would have wanted.

For a deeper discussion on this topic and the importance of naming guardians, read my full article: Who Will Raise my Children if I Die Without Naming Guardians.

Can the State Take My Estate If I Die Without a Will?

The state of Texas only inherits if no living relatives can be found, which is rare. The law prioritizes distributing assets to extended family before escheating (transferring) the estate to the state.

Why Should I Still Make a Will If Texas Has Intestacy Laws?

Intestacy laws provide a one-size-fits-all approach that may not align with your wishes. A will allows you to:

• Control who receives your assets.
• Name a guardian for minor children.
• Choose an executor to manage your estate.
• Reduce disputes among family members.

How Can I Avoid Intestacy in Texas?

The best way to avoid intestacy is to create a legally valid Texas will or establish an estate plan that may include trusts, beneficiary designations, and other tools to ensure your assets are distributed according to your wishes.

Don’t leave these important decisions to Texas intestacy laws. Contact an experienced Texas estate planning attorney today to get started.