If you don’t already have a will, the distribution of your property after your death may not flow how you expect, or how you want it to be distributed. Real estate during intestacy (dying without a will) in Texas can be a confusing process – in some cases, the ownership of the property could be split among several of your loved ones with none of those being your spouse.
First, it’s important to know that Texas is a community property state. Community property rules mean that any property acquired during the marriage is considered co-owned by the spouses even if only one spouse’s name is on it. Property that either spouse owned before the marriage, or received as a gift or inheritance during the marriage, remains separate property. Each person will retain their separate property upon the death of their spouse but only their half of the community property. Understanding the characterization of property is a key element in intestacy, as community and separate property are distributed differently.
In intestacy, if you are married and have children, all of which are also children of your surviving spouse, your spouse will receive one-third of your separate personal property, and a one-third life estate (right to live in the property for the rest of their life) in your separate “real” property, or your owned real estate. They will also receive the entirety of the real and personal community property, and your children will inherit the remaining two-thirds of your separate personal property and all of your separate real property.
Therefore, if your house is considered part of the community property of your marriage, it will be fully transferred to your spouse. If it was obtained outside of or separate from your marriage, it will be fully transferred to your children, with your spouse having only a right to live there.
If you have children from one marriage and are now married to a different partner, the process will be similar but with some significant differences. Instead of your current spouse receiving your half of the community property, it will be distributed to your children. The current spouse still receives a third of your separate personal property and a one-third life estate in separate real property. Most importantly, your current spouse will have the lifetime right to occupy your real property, meaning that even though your children may possess the majority of the interest, the spouse retains the ability to live in the home for the rest of their life.
To avoid conflict and issues in the assignment of your assets, ensure that you have a will in place. With a proper estate plan, you’re able to ensure that your property is distributed exactly as you desire. The Law Offices of Debbie J. Cunningham are here to help – to start with your estate planning, call us today at (972) 292-7199.
Law Offices of Debbie J. Cunningham
Latest posts by Law Offices of Debbie J. Cunningham (see all)
- Wills & Appointments Of Guardians For Children - November 6, 2023
