When someone dies without a will in Texas, their estate doesn’t simply vanish. It follows a strict legal roadmap called intestate succession that determines exactly who inherits what, often with surprising and unintended consequences for families. Texas intestate succession laws, governed by the Texas Estates Code, create a predetermined hierarchy that may completely contradict your loved one’s wishes, leaving some family members with nothing while others receive unexpected windfalls.
Understanding these laws isn’t just academic—it’s essential for anyone who wants to protect their family’s future or navigate the complex aftermath of losing someone without proper estate planning. Whether you’re dealing with a current intestate situation or want to ensure your own assets are distributed according to your wishes, this comprehensive guide will walk you through every aspect of Texas intestate succession laws and their real-world implications.
For complex family situations or high-value estates, consulting with an experienced Texas estate planning attorney can help you understand how these laws specifically apply to your circumstances and create strategies to protect your loved ones.
Key Insights:
- Surviving spouses don’t automatically inherit everything. Unlike popular belief, surviving spouses in Texas only inherit the entire estate in very specific circumstances. When children from previous relationships are involved, spouses may receive as little as half of community property and one-third of separate property.
- Stepchildren get nothing. No matter how long the relationship or how close the bond, stepchildren who weren’t legally adopted have zero inheritance rights under Texas intestate succession. This can create devastating financial hardship for blended families.
- The probate process becomes significantly more expensive and time-consuming. What might take 6-8 months with a will can stretch to 24 months or more without one, with costs mounting throughout the extended process.
- Community property rules create unexpected outcomes. Many couples assume they jointly own everything, but separate property distinctions can result in parents, siblings, or children inheriting portions of what surviving spouses expected to keep.
- Small oversights can trigger intestate succession. Even assets with beneficiary designations can fall under intestate laws if the named beneficiaries predecease the owner and no alternates are designated.
What Is Texas Intestate Succession and When Does It Apply?
Texas intestate succession is the state’s legal framework for distributing a deceased person’s assets when they die without a valid will. The word “intestate” literally means “without a testament,” and when this occurs, Texas law steps in to make inheritance decisions that the deceased person never made.
Intestate succession only affects probate assets, which means many valuable assets bypass these laws entirely. Non-probate assets that transfer automatically include:
- Life insurance policies with named beneficiaries
- Retirement accounts (401k, IRA) with designated beneficiaries
- Bank accounts with payable-on-death designations
- Real estate with transfer-on-death deeds
- Property held in living trusts
- Jointly owned property with survivorship rights
- Vehicles with transfer-on-death registration
However, if these assets lack proper beneficiary designations or the named beneficiaries predecease the owner, they may fall under intestate succession rules.
Understanding Texas Community Property vs. Separate Property in Intestate Cases
Texas operates under community property laws, creating two distinct categories of assets that are treated dramatically differently in intestate succession. This distinction often determines whether a surviving spouse inherits everything or shares the estate with children, parents, or siblings.
Community Property Under Intestate Succession
Community property includes all assets acquired during marriage, with specific exceptions. This encompasses:
- Salaries and wages earned during marriage
- Real estate purchased with marital funds
- Business interests developed during marriage
- Investment accounts opened during marriage
- Personal property bought with community funds
Key Exception: Gifts and inheritances received by one spouse remain separate property, even if acquired during marriage.
Separate Property Rules
Separate property consists of:
- Assets owned before marriage
- Gifts received by one spouse individually
- Inheritances received by one spouse
- Personal injury settlements for one spouse
- Property acquired with separate funds
The treatment of separate property in intestate succession becomes complex, particularly regarding real estate, where surviving spouses may receive only life estate rights rather than full ownership.
Complete Texas Intestate Succession Distribution Chart
The following breakdown shows exactly who inherits under every possible family scenario:
Single Person Scenarios
| Family Situation | Inheritance Distribution |
|---|---|
| Children but no spouse |
Children: 100% of estate divided equally
|
| Parents but no spouse or children |
Parents: 100% of estate
|
| Siblings but no spouse, children, or parents |
Siblings: 100% of estate divided equally
|
Married Person Scenarios
| Family Situation | Inheritance Distribution |
|---|---|
| Spouse but no children, parents, or siblings |
Spouse: 100% of everything
|
| Spouse and mutual children only (all children from current marriage) |
Spouse: All community property + 1/3 of separate personal property + life estate in 1/3 of separate real estate
Children: 2/3 of separate personal property + 2/3 of separate real estate
|
| Spouse and non-mutual children (at least one child from previous relationship) |
Spouse: 1/2 of community property + 1/3 of separate personal property + life estate in 1/3 of separate real estate
Children: 1/2 of community property + 2/3 of separate personal property + 2/3 of separate real estate
|
| Spouse and parents (no children) |
Spouse: All community property + all separate personal property + 1/2 of separate real estate
Parents: 1/2 of separate real estate
|
| Spouse and siblings (no children or parents) |
Spouse: All community property + all separate personal property + 1/2 of separate real estate
Siblings: 1/2 of separate real estate
|
Complex Family Scenarios
| Family Situation | Inheritance Distribution |
|---|---|
| One parent and siblings (no spouse) |
Parent: 1/2 of entire estate
Siblings: Remaining 1/2 divided equally
|
Consult with an experienced estate planning attorney for guidance on your particular situation.
Who Qualifies as “Children” Under Texas Intestate Law?
Under Texas intestate succession, “children” includes biological children born during marriage, legally adopted children, and posthumous children, but excludes stepchildren and foster children unless they were legally adopted. Children born outside marriage can inherit if paternity is established through specific legal processes.
These distinctions can dramatically affect estate distribution, particularly in blended families where some children may inherit while others receive nothing.
Automatically Qualifying Children
Biological children born during marriage: Any child born to the wife during marriage is presumed to be the husband’s child and inherits automatically.
Legally adopted children: Children who were legally adopted have identical inheritance rights to biological children.
Posthumous children: Children conceived before but born after the parent’s death inherit if they survive at least 120 hours after birth.
Children Requiring Additional Documentation
Children born outside marriage: These children can inherit if:
- The father participated in a marriage ceremony with the mother (even if invalid)
- Paternity was acknowledged in writing
- The child was legally adopted by the father
- Paternity was established by court order during the father’s lifetime
- Paternity is proven posthumously through court proceedings
Children placed for adoption: In Texas, biological parents may still inherit from children they placed for adoption, and those children may inherit from biological parents in certain circumstances.
Children Who Cannot Inherit
Stepchildren: Unless legally adopted, stepchildren have no inheritance rights under intestate succession.
Foster children: Foster children who were never legally adopted cannot inherit through intestate succession.
The 120-Hour Survivorship Rule and Its Impact
The 120-Hour Survivorship Rule in Texas requires that heirs survive the deceased by at least 120 hours (5 days) to inherit under intestate succession laws. This rule prevents complications when family members die in quick succession and ensures clear property transfer.
Practical implications:
- If spouses die within 120 hours of each other, community property is split. Half is distributed as if each spouse survived
- The rule applies to all potential heirs, not just spouses
- It prevents inheritance disputes in accident scenarios affecting multiple family members
Special Circumstances in Texas Intestate Succession
Half-Relatives vs. Full-Blood Relatives
Texas law distinguishes between half-relatives (sharing one parent) and full-blood relatives (sharing both parents), creating different inheritance shares:
When only half-relatives survive: They inherit equally When both half and full-blood relatives survive: Half-relatives receive half the share of full-blood relatives
Example: If you have one full sister and one half-sister as your only heirs, the full sister inherits 2/3 of your estate while the half-sister inherits 1/3.
Immigration Status and Inheritance Rights
Texas intestate succession laws do not require heirs to be U.S. citizens or legal residents. Relatives entitled to inherit will receive their share regardless of immigration status.
Advancement Rules
If you gave property to a relative during your lifetime, that gift may be subtracted from their inheritance but only if:
- You stated in writing when making the gift that it was an advancement, OR
- The relative acknowledged in writing that it was an advancement
Navigating the Texas Intestate Probate Process
When someone dies intestate in Texas, the probate process becomes more complex and time-consuming than standard probate with a will.
Required Court Proceedings
Application for Letters of Administration: Someone must petition the court to begin probate and request appointment as administrator.
Determination of Heirship: The court conducts a formal hearing requiring:
- Testimony from two disinterested witnesses who knew the family
- Documentary evidence of family relationships
- Birth certificates, death certificates, marriage licenses
- Proof of any adoptions or divorces
Administrator Appointment: The court appoints an administrator (equivalent to an executor) who must often post a bond to protect estate assets.
Timeline and Costs
Intestate probate typically takes 12-24 months, significantly longer than probate with a will. Extended timelines result from:
- Additional court hearings for heirship determination
- Complex asset identification and valuation
- Potential disputes among multiple heirs
- Administrator bonding requirements
Increased costs include:
- Additional attorney fees for heirship proceedings
- Court costs for multiple hearings
- Administrator bond premiums
- Extended asset management expenses
Intestate probate requires additional steps and takes longer
When Texas Claims Your Estate: Escheat Laws
If no eligible heirs can be located, the deceased’s estate “escheats” to the State of Texas. However, this rarely occurs because Texas law casts a wide net for potential heirs, including:
- Spouses and descendants
- Parents and their descendants
- Grandparents and their descendants
- Great-grandparents and their descendants
- Cousins, aunts, uncles, nieces, and nephews
The state only claims property when absolutely no family members can be found through extensive genealogical research.
Critical Mistakes That Complicate Texas Intestate Succession
Assuming Stepchildren Inherit
One of the most common misconceptions is that stepchildren automatically inherit from stepparents. Without legal adoption, stepchildren have no inheritance rights under Texas intestate succession, regardless of the length or closeness of the relationship.
Misunderstanding Community Property Rules
Many people incorrectly assume that surviving spouses inherit everything in community property states. In Texas, when children from previous relationships exist, the surviving spouse may inherit only half of community property, creating unexpected financial hardship.
Ignoring Separate Property Complications
Separate property often creates the most complex inheritance scenarios, particularly with real estate. Life estate arrangements can create ongoing management challenges and family conflicts that last for decades.
Overlooking Beneficiary Designations
Failing to update beneficiary designations on retirement accounts, life insurance, and bank accounts can result in assets passing through intestate succession when they were intended to bypass probate entirely.
Why Texas Intestate Succession Rarely Matches Family Wishes
Rigid Legal Framework vs. Family Dynamics
Texas intestate succession laws apply the same rigid formula to every family, regardless of:
- Individual relationships and circumstances
- Financial needs of different family members
- Contributions to the deceased’s care or business
- The deceased’s known wishes or promises
Blended Family Challenges
Modern blended families face particular challenges under intestate succession:
- Stepchildren receive nothing while biological children inherit
- Surviving spouses may receive less than expected when stepchildren are involved
- Children from multiple relationships may have competing claims
- Long-term partners without marriage receive nothing
Timing and Financial Hardship
The extended probate timeline for intestate estates can create severe financial hardship for surviving family members who:
- Cannot access estate assets for monthly expenses
- Must continue paying property taxes and maintenance
- Face potential asset deterioration during lengthy proceedings
- Incur mounting legal and administrative costs
Protecting Your Family from Texas Intestate Succession
Essential Estate Planning Documents
Last Will and Testament: The most fundamental protection against intestate succession, allowing you to:
- Designate specific heirs and inheritance amounts
- Name guardians for minor children
- Choose your executor
- Include specific gifts and personal property distributions
Living Trust: Avoids probate entirely while providing:
- Privacy in asset distribution
- Continued management during incapacity
- Potential tax advantages
- Flexibility for complex family situations
Beneficiary Designations Strategy
Regularly review and update beneficiary designations on:
- Life insurance policies
- Retirement accounts (401k, IRA, 403b)
- Bank and investment accounts
- Real estate transfer-on-death deeds
Advanced Planning Considerations
Business Succession Planning: If you own a business, intestate succession can create management chaos and force unwanted sales to pay estate costs.
Digital Asset Planning: Cryptocurrency, online accounts, and digital properties require specific planning to avoid intestate complications.
International Assets: Properties or accounts in other countries may not be covered by Texas intestate succession and require specialized planning.
Taking Action: Your Next Steps to Avoid Intestate Succession
Understanding Texas intestate succession laws reveals why proper estate planning is essential for every Texas family. The state’s predetermined distribution formula rarely aligns with individual wishes and can create lasting financial and emotional hardship for your loved ones.
The complexities of community property, separate property distinctions, and modern family dynamics make professional legal guidance invaluable. Whether you’re currently navigating an intestate estate or want to ensure your own family is protected, experienced estate planning attorneys can help you create a comprehensive plan that reflects your wishes and protects your beneficiaries.
Don’t let Texas intestate succession laws make crucial decisions about your family’s future. Contact Kelly Legal Group today to schedule a consultation and take control of your legacy with proper estate planning that ensures your wishes are honored and your family is protected.
