Dying Without a Will in Texas

Texas does not hand a surviving spouse the whole estate when there is no will. Chapter 201 of the Texas Estates Code writes the distribution instead, and it turns on two questions: is a given asset community property or separate property, and is every one of the decedent's children also a child of the surviving spouse?

Section 201.003 handles the community estate and section 201.002 the rest, both only where a spouse survives. Otherwise section 201.001 governs.

The community estate turns on whose children survive

Subsection (b) of section 201.003 gives the deceased spouse's community estate to the surviving spouse in two situations and only two:

• the deceased spouse is survived by no child and no other descendant; or
• every surviving child or descendant of the deceased spouse is also a child or descendant of the surviving spouse.

Subsection (c) covers everything else. If the deceased spouse is survived by a child or other descendant who is not also a child or other descendant of the surviving spouse, the deceased spouse's undivided one-half interest in the community estate passes to the deceased spouse's children or other descendants. That undivided half is all the section moves.

The trigger is a child or other descendant, so a grandchild through a child who died earlier sets it off. Those descendants inherit only the portion section 201.101 gives them, and in every case, the subsection adds, the community estate passes charged with the debts against it.

Separate property splits on different lines

Where a spouse survives, section 201.002 governs the estate other than the community estate, and inside it personal property and land part company.

If the decedent left one or more children, or a descendant of a child, subsection (b) gives the surviving spouse one-third of the personal estate and the other two-thirds to the children and the descendants of a child. Land behaves differently. Subsection (b)(3) entitles the spouse to a life estate in one-third of the land, the remainder descending to the children and their descendants. A life estate is a right to use property for life. It is not ownership of that third, and it is all the spouse takes out of the separate land.

If the decedent left no child and no descendant of a child, subsection (c) applies, subject to one exception. The spouse takes all of the personal estate, plus one-half of the land without a remainder to any person, meaning that half is owned outright rather than held for life. The other half passes under the rules of descent and distribution, to the decedent's other kindred rather than the spouse.

The exception is subsection (d), and it is conjunctive. Where that childless decedent also left no surviving parent and no surviving sibling or sibling's descendant, the spouse takes the entire estate. One surviving parent keeps subsection (c) in play, and so does one niece whose parent was the decedent's sibling.

No surviving spouse: the order of takers

With no spouse, the estate descends in parcenary to the decedent's kindred in the order section 201.001 sets. Parcenary is the old word for co-heirs holding together.

1. Children, and the children's descendants

   The estate descends and passes to the decedent's children and the children's descendants.

2. Both parents, in equal portions

   If no child and no child's descendant survives, the estate passes in equal portions to the decedent's father and mother.

3. One parent, sharing with the decedent's siblings

   If only one parent survives, the estate divides into two equal portions, one to that parent and one to the decedent's siblings and the siblings' descendants. With no sibling and no sibling's descendant, that parent inherits it entirely.

4. Siblings alone, where neither parent survives

   If neither the father nor the mother survives, the entire estate passes to the decedent's siblings and the siblings' descendants.

5. Two moieties, one to each side of the family

   If none of the kindred above survive, the estate divides into two moieties, paternal and maternal. Inside the paternal moiety: equal portions to the grandfather and grandmother if both survive; if only one survives, half to that grandparent and half to the other's descendants, or the whole moiety to the survivor where there are none; and if neither survives, the moiety passes to their descendants, and so on without end, to the nearest lineal ancestors and their descendants. The maternal moiety passes in the same order and manner.

How a share moves down a generation

Section 201.101 answers what the sections above keep deferring: what becomes of the share of someone who would have taken but died first?

Relatives standing in the first or same degree of relationship alone who come into the distribution take per capita, which the statute translates as by persons. Where some of that group are dead and some living, each descendant of one who died takes a distribution, but only the portion the parent through whom that descendant inherits would have taken if alive.

An illustration. A widower dies intestate leaving three children, one of whom died before him leaving two children of her own. The two surviving children take per capita, one-third each. The remaining third does not move to them: the deceased daughter's two children divide it by representation, one-sixth of the estate apiece. Had she left four children, each would take one-twelfth. This is the rule section 201.003(c) reaches for when a community half goes to descendants who are not the surviving spouse's.

Rules that decide who counts as an heir

Subchapter B settles status rather than shares. Three of its provisions decide cases the fractions cannot.

The 120-hour rule

Section 201.056 imposes two requirements together. No right of inheritance accrues to a person unless the person was born before the intestate's death, or was in gestation at the time of it, and unless that person then survives at least 120 hours. Five days. An heir who outlives the decedent by an afternoon takes nothing, because the right never accrues. A person born before the 301st day after the death is presumed to have been in gestation then.

Adopted children

Section 201.054(a) treats an adopted child as the child of the adoptive parent or parents for descent and distribution. The child and the child's descendants inherit from and through those parents and their kindred as if the child were their natural child, and the parents and their kindred inherit from and through the adopted child on the same terms. Subsection (b) runs one way only: the adopted child still inherits from and through the natural parents, subject to an exception for Family Code section 162.507(c), while those parents and their kindred may not inherit from or through the adopted child.

Half blood among collateral kindred

Section 201.057 operates in one place: where an inheritance passes to collateral kindred, the relatives off the direct line, such as siblings, nieces, and cousins. Where part of that group is of the whole blood and part of the half blood, each half-blood relative inherits half as much as each whole-blood relative. One full brother and two half sisters, by way of illustration, take one-half, one-quarter, and one-quarter. If all of the collateral kindred are of half blood, each inherits a whole portion.

Subchapter B holds more than these three, among them the rules on maternal and paternal inheritance and on a probate court's power to bar a parent who abandoned or failed to support a child from inheriting from that child. Every section named here links to the Legislature's official text, the sourcing standard on every page of Texas Legal Answers.

What the default is actually doing

Chapter 201 makes no attempt to guess what a family wanted. It is a fixed order applied to everyone who leaves the question open, and it sorts property into categories families themselves never use: community or separate, personal estate or land, child of this marriage or of an earlier one, whole blood or half. That mismatch is why an intestate estate can land where nobody at the kitchen table expected. A will is the instrument that displaces the default, and what a court does with one afterward belongs to the other probate and inheritance section.