No Texas Will

It is difficult to contemplate one’s mortality.  Life can be fleeting and one must prepare for not only their interests but for their family’s interest as well.  By creating a will you may ensure that your assets are inherited by the people of your choosing rather than the state’s idea of what is proper.

To die without a will is to die “Intestate”.  This means that the State (Texas) will determine the percentage of property that each family member will inherit after an individual dies.

An individual’s “property” is defined in two categories in regard to property of a husband and wife.

1.) Separate Property: (Texas Family Code§ 3.001) A spouse’s separate property consists of:

(a) The property owned or claimed by the spouse before marriage

(b) The property acquired by the spouse during marriage by gift, devise, or descent

(c) The recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.

2.) Community Property: (Texas Family Code § 3.002)

(a) Community property consists of the property, other than separate property, acquired by either spouse during marriage.

The difference between separate and community property is significant when discussing inheritance. If a husband or wife dies without a will then the property will be divided differently depending on whether the property in question is community or separate property.

If a person dies leaving children from his or her marriage then his spouse will receive all of the community property. If there is a child or children from the deceased that have no relation to the surviving spouse, then the surviving spouse will receive ½ of the community property and the non-related child as well as the related children will receive the other half divided equally among themselves. Tex. Estate Code Ann. § 201.003 (West)

If a person dies leaving children from his spouse, or with children of no relation to the spouse, the separate property will be divided as follows: the spouse will receive 1/3rd of the separate property, and the children of relation will receive 2/3rds of the separate property to be dived equally among themselves. The spouse will also receive 1/3rd of the real property (land) in life estate with a remainder going to the related and unrelated children. This means that the spouse will only receive 1/3rd of the land for her/his lifetime then it will be equally divided between all the related and unrelated children equally. The other 2/3rd of the land will be equally divided between all the related and unrelated children when the individual dies.

Real Property has other exceptions and the Homestead Statues must be consulted if a Homestead is involved. If there are no children then the spouse will receive all of the separate property. (Tex. Estates Code Ann.§  201.002 (West)).

This is a general overview of the laws for an individual who does not create a will before he/she dies. The Intestate Statutes in Texas attempt to make an amicable inheritance of an individual’s property that will prove to be fair and just for the majority of the State’s citizens. These Intestate Statutes are automatic and non-negotiable. If you wish to leave your assets and property to specific family members or non-related people, then you must have a will. A will gives you, not the state, the power to dictate how your property will pass when you die. Take some initiative and meet with an attorney so you can confirm and assume your specific desires are met upon death.


8144 Walnut Hill Lane
Suite 1190
Dallas, Texas 75231
Office Hours
Monday – Thursday, 8am – 5pm
Friday, 8:30am – 5pm




Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization

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