The Complexities of Intestacy for Blended Families in Texas
Having a will is important for every adult, but especially so if you are part of a blended family. Without a will, your assets will be distributed according to a statutory formula, which may not reflect the way you would want your assets to be distributed.
Intestacy can be complex in blended families
Many couples assume that when one spouse dies, the surviving spouse will inherit all the deceased spouse’s property. They are often surprised to discover that this is not the case when the deceased spouse has children from outside the marriage. Additionally, the characterization of the deceased spouse’s property as separate or community property affects who will inherit the property
In Texas, when a married person dies without a will and leaves children from another relationship, his surviving spouse gets to keep her own one-half interest in the community estate. The deceased spouse’s share of the community estate will pass to his children in equal shares.
Additionally, only one-third of the deceased spouse’s separate personal property will pass to his surviving spouse. The remaining two-thirds of the separate personal property will pass to his children.
If the deceased spouse died owning real estate that is his separate property, the surviving spouse is will receive only a life estate in one-third of that property. The remainder will pass to the deceased spouse’s children in equal shares.
Distribution according to statutory formula can cause unintended results
To illustrate the problems that can result if you have a blended family and die intestate, let’s consider an example. Let’s assume Jack and Jill have been married for 25 years and have two children of their own. Let’s also assume that Jack has two children from a previous marriage.
When Jack dies, he leaves behind the following assets:
- A beach house that he owned before he met Jill.
- A home that he and Jill purchased after they wed and lived in their entire married lives.
- A stock portfolio worth $400,000 to which both he and Jill contributed for their retirement.
The home in which he and Jill lived is community property. But because Jack has children from another marriage, Jill will not inherit Jack’s interest in their home. Although she will retain the right to reside in the home for the rest of her life, Jack’s four children will inherit his interest in their home.
The beach house Jack owned before he met Jill is classified as his separate property. Therefore, Jill will inherit only a one-third life interest in the property. The four children will inherit the beach house. This means she may not have unlimited access to the beach house as she once did, especially if she has a strained relationship with her children or stepchildren.
And what will happen to the stock portfolio that she and Jack spent 25 years saving for their retirement? It will be split in half. Jill will retain $200,000. The remainder will be split equally between John’s four children, which may result in Jill not having enough resources for her retirement.
Do you think this is the way Jack would have wanted his assets distributed?
This article was originally published on March 22, 2010 and updated on April 10, 2023.
March 7, 2014 at 3:27pm
What would have happened if Jack had a Will and specified how he wanted his estate issued? Would the scenario be different?
March 7, 2014 at 4:12pm
If Jack had a Will, his assets would have passed according to the terms of his Will rather than according to the intestacy statutes.
June 11, 2014 at 4:13pm
I was told by an estate attorney, beneficiaries of an insurance policy or retirement account would override what was called out in a will. I was also told, in the event there were children from a previous marriage, that 1/2 of our estate would go to my husband’s children (in the event of his death) regardless of what was in a will or listed on the beneficiary forms. That I would need a Living Trust to avoid that situation. From your comment to Joyce on March 7, it appears that may not be true.
June 24, 2014 at 3:23pm
Beneficiary designations do trump a Will, so it is very important that all beneficiary designations coordinate with the overall dispositive plan. Children from a previous marriage would not be entitled to half of the estate if the beneficiary designations and/or Will provide otherwise.
September 3, 2014 at 1:18pm
In the scenario above, do all four of Jack’s children inherit one half of the home owned by he and Jill, or does his half go to his children from a previous marriage only.
September 4, 2014 at 9:56am
That’s a good question. All four of Jack’s children would inherit one half of the home, not just his children from a previous marriage.
March 23, 2015 at 2:10pm
I have three stepchildren (all grown and married) from my husband’s first marriage and one son (about to be 25 yrs old) from my first marriage; if my husband dies without a will, what will happen to all of our assets? We have some land and house and some money in our accounts… most of our assets are accumulated after we got married.
April 14, 2015 at 4:41pm
Thanks for your question. How property is divided when a married person dies without a Will depends on whether the property is characterized as community property or separate property.
When people who have a blended family die without a Will, their one-half interest in the community estate would pass to their children, with their spouses keeping only their own one-half interest. Additionally only one third of the deceased spouse’s separate personal property and a life estate (the right to use the property for life) in one-third of their deceased spouse’s separate real property would pass to the surviving spouse. The rest would be inherited outright by the children of the deceased spouse.
May 18, 2015 at 3:14pm
Can a surviving spouse be ordered by a court to sell the homestead so that half of the proceeds of the home sale can be distributed to the decedent’s daughter from a previous marriage?
June 22, 2015 at 2:19pm
Certain constitutional homestead protections are available for surviving spouses in Texas. A surviving spouse is entitled to a life estate in the homestead and cannot be forced to sell the property as long as he or she occupies and uses it.
April 17, 2016 at 3:46pm
What if the surviving spouse doesn’t have the money to pay the children belonging to the deceased spouse their half of the house? i.e. My dad’s wife is not in good health right now. If she should pass before my dad, her two children will want their mother’s half right away. My dad doesn’t have the money to pay them. Also, is the amount based on the appraised value of the house?
June 16, 2016 at 8:20am
The following article may answer your questions: Can Stepchildren Force a Surviving Spouse to Sell Homestead Property?
November 6, 2015 at 11:18am
Does a surviving spouse in a blended marriage have a life estate in the personal property – like the furniture and clothes – in the homestead?
November 10, 2015 at 5:08pm
The surviving spouse is entitled to a 1/3 of the spouse’s separate personal property. The remaining 2/3 passes to the children of the deceased spouse.
March 18, 2016 at 9:02pm
I live in Texas. My mother died in October of last year, she was married for 25 years.They bought a house 20 years ago. How do I keep him from selling the house, or get my name on deed to house?Where do I start? She had no Will that I know of. But she wanted my brother and I to have the house.But he has said stuff about selling it a couple times.
March 23, 2016 at 10:16am
When a married person dies without a will and leaves children from another relationship, her surviving spouse will only be entitled to keep his own one-half interest in the community estate. The deceased spouse’s share of the community estate will pass to her children in equal shares. In order to sell the property outright, all parties would need to consent to the sale.
If the property is a homestead, certain constitutional protections are available for surviving spouses in Texas. A surviving spouse is entitled to a life estate in the homestead and cannot be forced to sell the property as long as he or she occupies and uses it.
For more information, read: Can Stepchildren Force a Surviving Spouse to Sell Homestead Property?
June 9, 2016 at 10:59am
My Father passed away without a will and my stepmother is listed as the beneficiary on his stock and 401k (which i understand will go to her). If she passes does that mean my fathers stock and 401k will now go to my step sisters? Also, my stepmother and father were married 8 years and my father owned a house before they were married. She owns her own home and rents it to my stepsister. Is she entitled to 50% of the house?
June 15, 2016 at 10:16pm
Please accept my condolences for your loss. Certain assets pass according to beneficiary designations. If there is an outright distribution of that asset, the beneficiary will be able to control what happens to that asset after the beneficiary dies. When a married person dies without a Will, the surviving spouse is entitled to a life estate in one-third of real estate that is separate property. For more information about how property is distributed in Texas when someone dies without a Will, click on the link.
July 5, 2016 at 11:12pm
My husbands mother passed away with no will. His father has passed as well. My husband is the only child. Granddaughter claims she has a notarized document the property was left to her but no will. Who gets the property?
July 9, 2016 at 12:29pm
When someone dies without a Will, assets pass according to the Texas intestacy statutes. However, there are ways to pass real property outside of a Will. For example, a Texas Transfer on Death Deed or a Texas Lady Bird Deed, allows Texas to name a beneficiary who will inherit real property after the owner dies. If a valid deed exists, the deed will control.
November 15, 2016 at 9:03pm
My husband was married for 28 years to his first wife. She died 10 years ago. She had 3 children from a previous marriage. He and I got married and later sold that house and bought another house (both in TX) My husband passed away 10 days ago and I got a call from his stepchildren asking for their share of the house that had belonged to their mother (now sold)
Can they make me sell my house to get their share from the other house that had belonged to their mother?
January 29, 2018 at 12:29pm
If spouses have children from prior marriages and die within a week of each other, how will a home acquired before the marriage be distributed under the intestacy statutes?
January 31, 2018 at 5:02pm
Property acquired before marriage is generally classified as separate property. When a married person dies without a Will and leaves children from another relationship, a surviving spouse is entitled to only a life estate in one-third of separate real property. The remainder is inherited outright by the deceased spouse’s children in equal shares.
December 7, 2018 at 12:23am
My husband and I have been married since 01/25/2003, second marriage for both of us with child from other persons, brought a house on 09/25/2012 the deed was only put on my name using my first name and maiden instead of my husband last name. Can his children still be entitled to the house. My husband and I decide to put it in my name with maiden name only, so his children would not have any claim to it. We do not have a will.
December 7, 2018 at 11:30am
Property acquired during a marriage is presumed to be community property. The presumption can be overcome if the property is acquired by gift or inheritance, or funds used to purchase the property is characterized as separate property. Having a Will can ensure the property passes according to your wishes after you die.