• James D. Lynch

Intestate Succession

When a person dies without a will, his or her property passes according to the "intestate succession" laws. Every state has different rules for distributing property, and the rules can be very complicated. Below is a description of the intestate succession rules in Texas, which make a distinction between community property (i.e. property acquired during marriage) and separate property (i.e. property acquired outside the marriage or by gift or inheritance).


Distribution of community property:


The surviving spouse retains his/her half share of the community property (i.e. this is NOT a part of the distribution of the estate). The other half of the community property (i.e. decedent’s half) is distributed to the surviving spouse in all cases except one:


● If the decedent has at least one child who is not also a descendant of the surviving spouse (e.g. a child from a previous marriage), the decedent’s community property is divided equally among all of the decedent’s children (including children who are descendants of the surviving spouse).


Note that questions of community property only arise when the decedent is survived by a spouse. If there is no surviving spouse at the time of decedent’s death, then there is no community property.


Distribution of separate property:


● If the decedent is survived by a spouse and children, the surviving spouse takes one-third of the decedent’s separate personal property (i.e. non-land assets) as well as possession for life of one-third of the decedent’s separate real property (i.e. land), with that one-third life estate going to the children upon that surviving spouse’s death. The remaining two-thirds of the separate property (real and personal) is divided equally among the children.


● If the decedent is survived by a spouse but no children, the surviving spouse takes all of the decedent’s separate personal property and half of the decedent’s separate real property. The other half of the land would go to the decedent’s parents in equal portions. If either parent did not survive the decedent, that parent’s share would go to the decedent’s siblings or their descendants. If the decedent is not survived by any parents, siblings, or their descendants, the other half of the land would go to the surviving spouse.


● If the decedent is survived by children but no spouse, all of the decedent’s property is divided equally among the children.


● If the decedent is not survived by a spouse or children, then follow the next five steps in order:


1) If both parents survive the decedent, the estate passes to the decedent’s parents in two equal portions.


2) If one parent survives the decedent and the decedent is also survived by siblings, one-half of the estate passes to the surviving parent and the other half passes to the decedent’s siblings (or the descendants of those siblings who fail to survive the decedent, i.e. nieces and nephews of the deceased).


3) If one parent survives the decedent and the decedent is not survived by siblings, the entire estate goes to the surviving parent.


4) If neither parent is alive but the decedent is survived by siblings, the entire estate passes to the siblings (or the descendants of those siblings who fail to survive the decedent).

5) If the decedent is not survived by parents, siblings, or descendants of siblings, the estate is divided into two equal parts, with half going to the maternal kindred and the other half to the paternal kindred, in the following order:


a. To the decedent’s grandparents, if both are living.


b. If only one grandparent is still living, the surviving grandparent takes half and the other half passes to the surviving descendants of the deceased grandparent (i.e. the decedent’s aunts and uncles).


c. If there are no surviving grandparents, the entire estate goes to the grandparents’ descendants.


d. If there are no surviving grandparents or descendants of grandparents, the estate goes to the next nearest lineal ancestor (i.e. the great-grandparents) and/or their descendants in the same fashion, then to the great-great-grandparents and/or their descendants, and so forth until an heir can be found.


e. If there is no heir on the maternal side, the entire estate passes to the paternal side. If there is no heir on the paternal side, the entire estate passes to the maternal side.


f. Finally, if there is no heir on either side, the decedent’s property escheats to the state government.



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Law Office of James D. Lynch, PLLC

3000 Joe Dimaggio Blvd #90, Round Rock, TX 78665

info@jimlynchlaw.com

(512) 745-6347

(714) 745-3875

©2020 by Law Office of James D. Lynch, PLLC. The information contained in this website is for informational purposes and is not to be considered legal advice.  Any correspondence between you and the Law Office of James D. Lynch is not intended to create an attorney-client relationship.  Please do not send confidential information to us until after an attorney-client relationship has been established by an engagement letter signed by the proposed client and our attorney.