When a Texan dies without a will, Chapter 201 of the Estates Code decides who inherits. The answer turns on three questions: was the person married, did they have children, and was each asset community or separate property? A surviving spouse often takes all of the community property, but separate property, such as land or minerals inherited from a parent, is divided with the children, and the spouse receives only a life estate in a third of the land. Blended families are where the default rules most often produce results no one expected.
What families should know
Intestacy rules are the Legislature's guess at what most people would want. For a couple married once, with all of their children in common and a home bought together, the guess is usually close: the surviving spouse keeps the community estate. The further a family departs from that pattern, the more the default rules diverge from what the deceased would likely have chosen.
The single most important distinction is between community and separate property. Community property is, broadly, what either spouse acquired during the marriage. Separate property is what a spouse owned before marriage or received by gift or inheritance, such as the family ranch, a parent's house or a royalty interest passed down a generation. A surviving spouse often assumes everything passes to them. With separate property, it frequently does not.
The rules also govern who must sign, and whose interests must be accounted for, before property can be sold or royalties released. Identifying every heir correctly is therefore the first step in any small estate affidavit, affidavit of heirship or determination of heirship.
The legal detail
Community property of a married decedent
The deceased spouse's community estate passes entirely to the surviving spouse if the decedent left no descendants, or if all of the decedent's surviving descendants are also descendants of the surviving spouse (Tex. Est. Code § 201.003(b)). If the decedent is survived by a child or other descendant who is not also the surviving spouse's descendant, the decedent's one-half interest in the community passes to the decedent's descendants; the surviving spouse retains only his or her own half (§ 201.003(c)). In every case the community passes charged with community debts.
Separate property of a married decedent
Separate property is divided between personal property and land, and the result depends on whether the decedent left descendants (§ 201.002).
With descendants: the surviving spouse takes one-third of the separate personal property and a life estate in one-third of the separate land; the descendants take two-thirds of the personal property and the land, subject to the spouse's life estate.
Without descendants: the surviving spouse takes all of the separate personal property and one-half of the land outright. The other half of the land passes to the decedent's parents, siblings and their descendants under the general rules, unless none survive, in which case the spouse takes the entire estate.
Oil, gas and mineral interests are interests in land, so these land rules govern them. That is why a widow or widower frequently ends up with only a life estate in a fraction of an inherited royalty interest, with the decedent's children owning the rest.
An unmarried decedent
Without a surviving spouse, the estate passes first to the decedent's children and their descendants (§ 201.001(b)). If there are none, it passes equally to the father and mother. If only one parent survives, half goes to that parent and half to the decedent's siblings and their descendants (or all to the parent if there are no siblings or sibling descendants). If neither parent survives, everything passes to the siblings and their descendants (§ 201.001(c)–(e)). Beyond that, the estate is divided into paternal and maternal halves and traced through grandparents and their descendants (§ 201.001(f)–(h)).
Draw the family tree before deciding what procedure to use. Missing a child from a prior relationship is the most common heirship mistake.
Rules that change the shares
Representation. Heirs of the same degree take per capita; the descendants of a deceased heir take that heir's share by representation (§ 201.101).
Half blood. When the estate passes to collateral relatives and some are of the whole blood and some of the half blood, each half-blood relative takes half as much as each whole-blood relative (§ 201.057).
Adoption. An adopted child inherits from and through the adoptive parents as a natural child would, and still inherits from the biological parents, although the biological parents cannot inherit from the adopted child (§ 201.054).
Paternity. A child inherits from the father if born under the presumptions of the Family Code, adjudicated, adopted, or acknowledged by a valid acknowledgment of paternity; otherwise the child may petition the probate court for a determination of the right to inherit (§ 201.052).
Survival and gestation. No right of inheritance accrues to a person who is not born or in gestation at the decedent's death and who does not survive by at least 120 hours (§ 201.056).
| Family situation | Community property | Separate property |
|---|---|---|
| Spouse; all children are also the spouse's | All to spouse | Personalty: 1/3 spouse, 2/3 children. Land: spouse life estate in 1/3; children own the rest |
| Spouse; a child who is not the spouse's | Spouse keeps own half; decedent's half to decedent's descendants | Same as above |
| Spouse; no descendants | All to spouse | Personalty all to spouse. Land: 1/2 to spouse; 1/2 to parents, siblings and their descendants (all to spouse if none) |
| No spouse; descendants | All to descendants by representation | All to descendants by representation |
| No spouse; no descendants | Parents, then siblings and their descendants, then more remote kindred | Same |
Two examples
Maria dies without a will. She and her husband Joe bought their house during the marriage, and she inherited a royalty interest in Karnes County from her father. Joe is the father of both of her children. Joe keeps the entire house, which was community property. The royalty interest, as separate land, passes to the two children, subject to Joe's life estate in one-third of it.
David dies without a will. He and his wife Ana bought their home during the marriage, but David also has a son from a prior marriage. Because one of David's children is not Ana's, Ana retains her own half of the community, and David's half passes to his children. Ana and her stepson now own the house together, a result that a simple will would have avoided.
Frequently asked questions
Does the State take your property if you die without a will?
Only in the rare case that no relative qualifies as an heir. Chapter 201 reaches grandparents and their descendants, and more remote ancestors and their descendants, without end (Tex. Est. Code § 201.001(g)).
Do grandchildren inherit?
Yes, by representation. If a child died before the parent, that child's descendants take the share their parent would have received (§ 201.101(b)).
Do stepchildren inherit?
Not under intestacy. A stepchild inherits only if legally adopted (§ 201.054), or if provided for by will or beneficiary designation.
What is a life estate in minerals worth to the surviving spouse?
A life estate gives the right to use the property and receive its income for life. With oil and gas, whether the life tenant receives royalties outright or only the income from them depends on Texas doctrine, including the open-mine doctrine, so the division between the spouse and the children should be analyzed before division orders are signed.
Do these rules apply to older deaths?
The law in effect at the date of death governs. Texas descent and distribution rules have changed over the decades, so an older estate in a mineral chain of title may follow earlier rules.
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About the author
Todd Worrich is a San Antonio native and Texas attorney. He earned his undergraduate degree from Texas A&M University, his law degree from St. Mary’s University School of Law and an LL.M. in Taxation from SMU Dedman School of Law, and he has been recognized multiple times by Texas Super Lawyers. His practice focuses on estate planning, probate and helping Texas families recover oil and gas royalties. More about Todd
This article is general information about Texas law, not legal advice for your situation, and reading it does not create an attorney-client relationship. Laws change, and results depend on the facts of each matter. Attorney responsible for this content: Todd Worrich, San Antonio, Texas.
