Most people assume that their spouse automatically just gets everything when they die. This seems reasonable enough, but apparently not to the legislature that produced the Texas Estates Code. The Estates Code only gives your spouse all of your belongings automatically when there are no children, or all of the children you have are from this current marriage. Let’s look at what this means.
1. I’m married, but have no children
In this case, your spouse would get almost your entire estate. Of course, your spouse already has a one half (1/2) ownership interest in all of the community property like the home, cars, retirement plans, and more, but if you die with no will, your spouse will also get your half of everything plus all of your separate property EXCEPT for any separate real estate you owned, half of which would go to your surviving parents or siblings. You can find a discussion of community property in Texas here.
Be advised that your spouse will likely struggle to actually take possession of many of your assets. It may take going to court to get letters of testamentary for him or her to convince the mortgage company, the holder of the car note, the bank, your retirement account administrator and others that he or she is the rightful owner of the various property. Having a will that simply gives your spouse everything you own will save your spouse time and money in the process of taking possession of your estate. Also in this case, if you happen to have some separate real estate, it would also go to your spouse so your spouse does not become a tenant in common with your surviving parents or siblings.
2. I’m married and my only child is a product of the marriage
Here, your entire estate gets divided in a more complex way. Your children will not take any portion of your community property estate. The Estates Code presumes that because your estate will go 100% to your spouse, the other parent of the children, your children will eventually get their share of your estate when your spouse eventually dies. That is, your community estate passes to the children’s other parent and then to the children when that parent also dies.
Any of your separate property including separate real estate property gets divided between your children and the surviving spouse. The division can create serious problems with the surviving spouse.
The advisory paragraph under item 1. of this essay still applies under this scenario. However, there is more to watch out for here. Many widows and widowers will remarry. When that happens, what was your estate will get comingled with your spouse’s new marriage, making eventual inheritance to your children impossible to predict.
3. I’m married but I have a child from another relationship
Most people would never guess how the Estates Code distributes your estate if you have a child from outside the current marriage. Your separate property gets distributed just like it would if all the children were from the marriage. But your share of the community property goes 100% to all the children in equal shares. Immediately. That means your surviving spouse now shares ownership of all of the community assets with the children including the marital residence, the cars, and everything else—even if the children are minors! In this case, I hope your surviving spouse has a good relationship with the parent of the child from the other relationship because now they have to work together to manage the estate!
4. I’m married but I am getting a divorce
In Texas a person is either married or not. If a person is still married on the date of his or her death, the surviving spouse still gets everything he or she is entitled to just as if you were happily married.
Pro tip: There is a rumor out there that in Texas one cannot write his or souse out of the will. Hogwash! If you have a will that leaves everything to your spouse and a divorce proceeding begins, you should ask your lawyer about updating your will to make sure your soon-to-be ex is out and your kids are provided for by a trustee of your choice.
Youngblood Law, PLLC is a Fort Worth, Texas family law firm that uses a holistic approach to help people get on with their new life by getting done with their old life. We believe having a thoughtful will package is family law, and we offer a robust selection of testamentary and other documents our clients need to confidently move on with their new lives. This essay is intended for educational use only, and is not a replacement for competent legal counsel. If you are facing a family law matter, we recommend obtaining competent legal counsel like Youngblood Law, PLLC. For more information, contact us at 817-601-5345, find us on the web at www.youngblood-law.com, or on your mobile device, open your browser and type in lawfw.biz and press Go.
Paul Youngblood #youneedawill #lawfw #youngbloodlaw #somedayistoday #collaborativedivorce #beingdivorceddoesntsuck