What Happens If You Die Without a Will in Texas

Die without a Will in Texas and the state has already written one for you. It is in Chapter 201 of the Texas Estates Code, it applies to everyone who leaves no instructions, and a great many people would not have chosen its terms.

Community property, and the result that surprises people

If you are married and all of your children are also your surviving spouse's children, your half of the community estate passes entirely to your spouse — Tex. Est. Code § 201.003(b)(2).

If you leave even one child who is not also your surviving spouse's child, the result reverses. Your undivided one-half interest in the community estate passes to your children, not to your spouse — Tex. Est. Code § 201.003(c). Your spouse keeps only her or his own half.

One child, from decades ago, whom your spouse may have helped raise, is enough to change the answer.

What that means in a house

A surviving spouse in that position can end up co-owning the family home with the decedent's children.

Co-owners have to agree. The house cannot be sold without agreement, and it cannot be refinanced without agreement. If any of the children are minors, there may be no one who can agree on their behalf without a court proceeding. And the person who could have explained what was intended is not there.

Separate property divides differently

Separate property follows its own schedule. Where there are children, a surviving spouse takes one-third of the separate personal property, and a life estate in one-third of the separate real property, with the remainder passing to the children — Tex. Est. Code § 201.002(b).

A life estate is a right to use property for life, not ownership of it. It ends at death.

None of this requires an unusual family

These are not rules for complicated estates. They are the default, and they apply by operation of law to anyone who leaves nothing else.

A Will is simply how you replace the default with your own instructions — who receives what, and who administers the estate.

More questions about Wills prepared online, with citations: Wills, Powers of Attorney and Directives in Texas — Questions and Answers. To prepare documents: Online Client Services.