Wrong idea
Too many married couples in Texas believe they don’t need wills. They think everything goes to the surviving spouse anyway when a spouse dies. That’s not always the result.
Unintended Consequences
Who inherits what when there is no will is determined by Texas law. The law is complicated and results in many unintended consequences. The solution is sound estate planning using wills, proper beneficiary designations, and possibly a trust.
Who inherits what when there is no will involves four steps.
- The first step is determining whether the property is decedent’s community property or the decedent’s separate property. This is necessary because the rules are different for each type of property. Generally, separate property is all property the decedent owned before marriage, all property acquired by the decedent in another state during marriage that is not community property under the laws of that state, and all property received by decedent at any time by gift or inheritance. All other property is community property.
- The next step is determining whether the decedent was married and had children or descendants of children at the time of death. An adopted child is regarded as the child of the adoptive parents.
- The third step is determining the nature of the property, whether the property is real estate or personal property (all other property).
- The final step is determining if the spouse, children, and descendants of children survived the decedent by 120 hours.
Scenarios
So, who inherits what when a married decedent dies leaving a surviving spouse? Below are 5 scenarios covering the possibilities.
- Scenario 1: If decedent was married and had no children, decedent’s surviving spouse inherits all community property which includes real estate and other property.
- Scenario 2: If the decedent was married and all children were children of decedent and decedent’s surviving spouse, decedent’s surviving spouse inherits all community property including real estate and other property.
- Scenario 3: If decedent was married and had children outside the existing marriage, decedent’s surviving spouse retains one-half of the community property which includes real estate and other property, and decedent’s children equally divide decedent’s remaining one-half of the community property which includes real estate and other property.
- Scenario 4: If the decedent is survived by a spouse and had children, the surviving spouse receives a one-third life estate in the decedent’s separate real estate and the children receive two-thirds of the separate real estate equally divided and the decedent’s other property is divided one-third to surviving spouse and two-thirds equally among the decedent’s children.
- Scenario 5: If the decedent was survived by a spouse but had no children, decedent’s surviving spouse inherits all separate personal property and one-half of the separate real estate with the remaining one-half going one-fourth to the decedent’s father and one-fourth decedent’s mother. However, if only one parent survives, that parent receives one-fourth of the real estate and the other one-fourth is equally divided between the decedent’s brothers and sisters (siblings) and their decedents. If no siblings or siblings’ descendants survive decedent, then the surviving parent inherits the full one-half of the real estate. If there is no surviving parent, the siblings divide equally the one-half of real estate. Only when the decedent is not survived by parents, siblings, or siblings’ descendants will the surviving spouse inherit all separate real estate.
Understand? Get it? Do you see the unintended consequences when you die without a will? Contact Glavy Law and develop your complete estate plan preventing unintended consequences.
