When someone dies "intestate," it means that he hasn't left a will. When this happens, the state distributes his property to his surviving family members in an order called "intestate succession" which is provided for by law. Texas' intestate succession statutes aren't particularly complicated, but you may need the help of a lawyer to sort through them because it's a community property state and this can complicate things a bit.
Surviving Spouse's Share
Community property is everything spouses acquire during their marriage. It's owned equally by both of them. A surviving spouse inherits all the community property if the decedent didn't leave any children or if she's also the parent of his children. If the decedent had any children who aren't also the surviving spouse’s children, she's entitled to only half of the community property and the children receive the rest. The decedent's separate property -- which Texas law defines as anything that's not community property -- is divided a little differently. If he left any children, his surviving spouse receives one-third of his separate personal property and a life estate in one-third of his separate real estate. A life estate gives her the right to reside there until her own death. Otherwise, if he didn't have any children, she would receive all his separate personal property and half of his separate real property, with the remainder going to his parents or siblings.
Decedent's Children's Share
When a decedent isn't married at the time of his death, Texas' laws for intestate succession give his children his entire estate. If he is married and he leaves even one child who isn't also his spouse's child, all the children receive his half of the community property in equal shares. For example, if he had three children, his half of the community property would be divided into thirds, one share going to each of them. His children receive the separate property left over after his spouse receives her share.
Other Relatives' Shares
Other more distant relatives can't inherit under Texas' intestacy laws if the deceased left a surviving spouse or at least one child. Otherwise, his parents inherit his entire estate. If his parents are already deceased, his siblings have a claim to the estate. If a sibling dies before the decedent, her child inherit her share. For example, if the decedent had two brothers and one sister and the sister is deceased but she left two children, the children would equally share one-third of the estate -- their parent's portion. Each of the two brothers would receive one-third of the estate each.
The State's Share
Very rarely, a decedent dies and is not survived by any heirs at all. When this happens, his entire estate passes to the state of Texas, but the court usually exhausts all efforts to find a living relative before this happens.
- Nolo: Intestate Succession in Texas
- Texas Wills & Trusts: Rania Combs; Dying Without a Will: The Texas Intestacy Statutes; October 18, 2010
- Onecle: Texas Probate Code Section 38, Persons Who Take Upon Intestacy
- HG.org Legal Resources. "What Are the Laws of Intestacy?" Accessed Oct. 7, 2020.
- Wisconsin State Legislature. "Chapter 852 Intestate Succession." Accessed Oct. 7, 2020.
- Duhaime's Law Dictionary. "Per Stirpes Definition." Accessed Oct. 7, 2020.
- Sterling Law Offices. "What Is Survivorship Marital Property?" Accessed Oct. 7, 2020.
- IRS. "Estate Tax." Accessed Oct. 7, 2020.
Bernadette A. Safrath is an attorney who has been writing professionally since 2008. Safrath was published in Touro Law Center's law review and now writes legal articles for various websites. Safrath has a Bachelor of Arts in music from Long Island University at C.W. Post, as well as a Juris Doctor from Touro College.