Who inherits under Texas law when someone dies intestate (without a valid will) is determined by Sections 38 and 45 of the Probate Code. Community property is treated differently than separate property. Real estate is treated differently than personal property. Lets go through the analysis.
The first issue is determining whether the deceased's property is separate or community. If the deceased is not married, the property will be separate. If the deceased is married, we start with the presumption in Texas that all property is community. Generally speaking, separate property is all property owned before marriage, all property acquired in another state during marriage that is not community property under the laws of that state, and all property received anytime by gift or inheritance. Everything else is community. Separate property can "become" community property under certain circumstances such as whether there is commingling. These general rules are riddled with exceptions. Specific questions should be addressed to an attorney.
Community Property (Section 45)
(1) On the death of one spouse in a marriage, with no valid will, the community property passes to the surviving spouse if:
(a) no child or other descendant of the deceased spouse survives the deceased spouse; or
(b) all surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse.
(2) If a child or other descendant of the deceased spouse survives the deceased spouse, and that child or descendant is not a child or descendant of the surviving spouse, the spouse retains one-half of the community estate and the other half goes to the children or descendants of the deceased spouse.
Separate Property (Section 38)
(1) If both a spouse and children survive the deceased:
(a) As to personal property, the spouse gets one-third and the children equally divide the remaining two-thirds.
(b) As to real property (land), the ownership of the land goes to the children equally, subject to a life-estate in one-third of the land by the spouse.
(2) If the deceased is survived by a spouse, but no children:
(a) As to personal property, the spouse gets it all.
(b) As to real property, the spouse gets one-half, one-fourth goes to the deceased's father and one-fourth goes to the deceased's mother.
(i) If only one parent survives, that parent gets one-fourth of the land and one-fourth is divided equally between the deceased's brothers and sisters, and their descendants. If there are no brothers or sisters, then the surviving parent receives a full one-half of the land.
(ii) If there is no surviving parent, the brothers and sisters divide that one-half of the land. If there are no surviving parents, brothers or sisters, then the spouse inherits all the land.
(3) If the deceased has no surviving spouse, but leaves surviving children, both the personal property and the land are divided equally among the children.
(4) If the deceased has no surviving spouse or children:
(a) If both parents survive the deceased, each parent gets one-half of everything. If only one parent survives, one-half of everything goes to the surviving parent and one-half is divided equally among the brothers and sisters. If there are no brothers and sisters, the surviving parents inherit everything.
(b) If no parents survive, then everything goes equally to the brothers and sisters.
(c) If no spouse, children, parents, brothers or sisters survive the deceased, there are complicated formulas that apply to control the distribution of the property.
This outline is by necessity somewhat simplified. Exceptions exist to the broad principles outlined. Please contact an attorney for a detailed analysis of your particular situation.
Written by Donald Ray Burger, Attorney at Law
Last revised: July 27, 2009
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