Betty and George had been happily married for 15 years when he became ill. She stood by him as the illness progressed and eventually claimed his life. They did not have any children together but George had a son and daughter from his first marriage. Betty and her step children were friendly but not close.
George died without a will. He and Betty had lived a modest life and he felt there was not enough there to worry about. However, that is not the way things turned out. George’s children wanted all the family heirlooms and anything else the law entitled them to receive. They hired a lawyer and demanded Betty turn over their inheritance.
The Texas statutes addressing inheritance state that if the children of the person who has died are not all also the children of the surviving spouse then the community property does not go to the surviving spouse. The surviving spouse retains their half of the community property but the community property of the person who died is divided between the children. In this case, George’s children will each get half of his community property or one fourth of George and Betty’s community property.
The difficulty often arises in how to divide the assets. The children are entitled to one half of the value of the assets but they cannot prevent Betty from remaining in the house or force her to sell the house. In your typical case you create an inventory of the assets and assess a value. This value is then divided in half to determine how much the surviving spouse can retain and what goes to the children.
In George and Betty’s case they owned a home, 2 cars, household furnishings, they each had an IRA and a modest checking and savings account. Betty will sell one of the cars, give them the family heirlooms and each child will own a small portion of the home. If Betty decides to sell the home the children will collect according to their ownership share at the time of the sale. Otherwise they will collect when Betty dies and her estate is distributed.
If George had a will he could have prevented this family discord. He could have given his share of the community property to whomever he chose. This would at the very least have prevented the legal battle.