Texas Inheritance Laws & Intestate Succession: Who Gets What When There’s No Will?

Let’s talk about something that makes most people’s eyes glaze over faster than a tax code discussion: Texas inheritance laws. Specifically, what happens in the great state of Texas when someone passes away without a will. A situation lawyers call “dying intestate.”

You can learn more about what it generally means to die intestate (without a will) in my other article.

Now after 25+ years as a financial planner, I’ve seen firsthand the headaches, heartaches, and outright family feuds that can erupt when there isn’t a clear plan.

You might think, “It’s Texas, my spouse will just get everything, right?” Well, hold your horses, because it’s rarely that simple. The state has its own rulebook. And it doesn’t always match what you’d expect or want. Relying on intestacy isn’t a plan; it’s a gamble with your family’s future.

My goal here isn’t to turn you into a legal eagle, but to give you the practical, no-nonsense rundown from a planner’s perspective.

• We’ll cut through the jargon
• Share some (anonymized, of course) real-life client scenarios I’ve encountered
• Bust a few common myths
• And hopefully show you why getting your own estate plan in order is one of the smartest financial moves you can make. 

Did you know that failing to plan can sometimes cost your family more in legal fees than the actual inheritance? Let’s make sure that doesn’t happen to you.

So, What Exactly is “Intestate Succession” in Plain English? (And Why Should You Care?)

When someone dies “intestate,” it simply means they didn’t leave a legally valid will. Instead of their wishes directing where their assets go, the State of Texas steps in with its own set of rules. It’s all outlined primarily in the Texas Estates Code, Chapter 201. Think of it as a default distribution plan for how property is transferred after death without a will.

It sounds organized, and in theory, it is. But here’s the thing: this “one-size-fits-all” approach often doesn’t fit anyone particularly well.

I remember a woman who came to me years ago. Her husband passed unexpectedly. He thought his half of their business would automatically go to her. Because he had adult children from a previous marriage and a good chunk of the business was considered his “separate property” (we’ll get to that), Susan found herself co-owning the business with her stepchildren.

Not exactly the smooth transition he’d envisioned, and it created a lot of unnecessary stress during an already tough time. This situation underscores why understanding Texas intestate succession is so critical.

The law tries to make educated guesses about what most people would want. But it can’t account for unique family dynamics, special needs, or specific intentions. Some studies indicate that a surprising number of folks, around 60-75% of Americans die without a will. Even historical figures like Abraham Lincoln didn’t have a will! So, this isn’t an uncommon problem.

Michael’s “Don’t Make This Mistake!” TIP: 

Assuming intestacy will “sort itself out” fairly is a huge gamble. The #1 cause of inheritance fights isn’t always money. it’s often confusion and a lack of clear direction from the deceased. Your silence now could mean chaos for your family later.

Community Property vs. Separate Property in Texas Intestate Succession: The Two-Step That Confuses Everyone (And How to Figure Yours Out)

Before we get into who gets what under Texas intestate succession, we have to understand a fundamental Texas concept: the difference between community property and separate property. This distinction is the bedrock of Texas inheritance law and, frankly, where I’ve seen the most confusion among my clients over the years. 

If you get this wrong, everything else about who inherits what can go sideways.

Community Property: 

Think of this as the “ours” pile. It’s generally everything a couple acquires during their marriage while living in Texas. This includes income earned by either spouse, assets bought with that income (like the family home or investment accounts), and even retirement benefits accrued during the marriage.

It belongs 50/50 to each spouse.

Michaelryanmoney.com Analogy: 
Imagine you and your spouse are partners in a venture called “Our Marriage Inc.”
Everything the company earns or buys during its operation is community property.

Separate Property: 

This is the “mine” or “yours” pile. It includes:

• Assets owned before the marriage.
• Gifts received by one spouse individually during the marriage.
• Inheritances received by one spouse individually during the marriage.
• Sometimes, personal injury settlements for pain and suffering (though lost wages might be community).

Illustrate Potential Texas Intestate Outcomes Here

To help you visualize how these complex rules might apply, use the simple illustrator below. Remember, this provides a general overview, and real situations can be far more complex and require legal counsel.

Why does this matter so much for intestate succession? 

Because community property and separate property are treated very differently under these default inheritance rules. It’s not uncommon for an asset people think is community property to actually have separate property characteristics, or vice-versa, especially if funds have been mixed (accountants call this “commingling,” and it can be a real mess to untangle).

Understanding this fundamental Texas property division is crucial to grasping how intestate succession laws will ultimately apply to an estate.

Practical Next Steps: Is It Community or Separate Property? If you’re unsure about an asset, ask yourself these questions (and then discuss with an attorney!):

1. When was it acquired? 
   Before or during the marriage?
2. How was it acquired? 
   Purchased with joint funds? Gifted to one person specifically? Inherited by one person?
3. Are there records? 
   Can you trace the source of funds used to acquire it (e.g., bank statements, deeds showing only one spouse’s name from before marriage)?
4. Has it been “commingled”? 
   Have separate property funds been mixed with community funds in a way that makes them hard to distinguish? (This is a big one!) 
5. Michael Ryan Money Tip: 
   Don’t guess! Get professional advice to classify significant assets. It can save a world of hurt later.

The Surviving Spouse in Texas Intestate Succession: Why They Might Not Get Everything (And What You Need to Know Now)

One of the biggest myths I had to debunk constantly was that the surviving spouse automatically inherits everything. In Texas, when navigating intestate succession, it depends heavily on the property type and whether there are children involved, especially from outside the current marriage. Think your ‘simple’ situation won’t get complicated by these rules? Are you sure about that?

Regarding Community Property:

• No Children: 
  If the deceased has no children (or grandchildren, etc.), the surviving spouse inherits all the community property. Simple enough.
• Shared Children Only: 
  If all the deceased’s children are also the children of the surviving spouse, the surviving spouse still inherits all the community property. The idea here is that these assets will eventually pass to the shared children.
• Children from Another Relationship (The Big “Gotcha”): 
  Now, here’s where Texas intestate succession gets tricky. If the deceased has children who are not children of the surviving spouse (e.g., from a previous marriage), then the deceased’s one-half share of the community property passes directly to those children. The surviving spouse keeps their own one-half share.

Michael’s Client Story (The Reality of Blended Families): 

I had a client, Mark, whose wife passed. They had two young children together. But his wife also had an adult son from a prior relationship. Mark was shocked to learn that his wife’s half of their shared investment account (community property) was now legally split, with a portion going to his adult stepson.

It wasn’t about the money for Mark; it was the sudden complexity and the feeling of having his family’s financial picture unexpectedly redrawn by the default inheritance laws. He asked, “Michael, what could we have done differently?”

A simple will naming him as the primary beneficiary of her share of community assets would have changed everything.

Regarding Separate Property:

The rules for separate property are even more complex for the surviving spouse under Texas inheritance laws:

• No Children: 
  The surviving spouse inherits:
  • All the separate personal property (things like cash, cars, furniture).
  • One-half of the separate real property (land and buildings). The other half goes to the deceased’s parents, or if no parents, then to siblings or their descendants. This can lead to a surviving spouse suddenly co-owning real estate with their in-laws, which can be… awkward.
• With Children: 
  The surviving spouse inherits:
  • One-third of the separate personal property.
  • A “life estate” in one-third of the separate real property. This means they can use that one-third of the real estate for their lifetime, but they don’t own it outright, and it passes to the children upon the spouse’s death. The children get the other two-thirds of the personal property and the outright ownership of the remaining two-thirds of the real estate (plus the “remainder” of the spouse’s one-third life estate).

See what I mean by complex? It’s a far cry from “the spouse gets everything,” especially when Texas intestate succession rules for separate property kick in.

FAQ: Surviving Spouse Rights

• Q: My spouse owned our house before we got married. Do I lose it if they die without a will? 
  A: Not necessarily lose it, but it gets complicated. The house is likely separate property.
  If you have children together, you’d get a life estate in one-third of it.
  If no children, you’d inherit half, and their parents/siblings the other half. 
  This is a classic “talk to an attorney NOW” situation.
• Q: What if we have a prenuptial agreement?
   A: A valid prenuptial (or postnuptial) agreement can definitely alter these default intestate succession rules for property division.
  It’s crucial to have that agreement reviewed by an attorney in light of a death.

What About the Kids? Unpacking Children’s Inheritance Rights Under Texas Law (It’s Not Always Equal)

Texas law generally provides for children, but again, the specifics vary when there’s no will. You might be surprised who counts as a “child” for inheritance purposes, and who doesn’t.

• Biological and Legally Adopted Children: 
  These children are treated equally and have the same inheritance rights. If a parent dies intestate, they typically inherit:
  • The parent’s share of community property (if the deceased parent was married and had children from another relationship, as discussed above).
  • All separate property (if there’s no surviving spouse).
  • Two-thirds of separate property (if there is a surviving spouse).
• Children Born Outside Marriage: 
  These children can inherit if paternity is legally established, either through a court order, a formal acknowledgment of paternity, or by clear and convincing evidence presented in court. Without this, they face significant hurdles in the intestate succession process.
• Stepchildren: 
  Here’s a crucial point many blended families miss: Stepchildren have no automatic inheritance rights under Texas intestate succession. 
  Let me repeat that: stepchildren get nothing automatically. If a stepparent wants to leave assets to a stepchild, it must be done through a will or another estate planning tool like a trust or beneficiary designation. I’ve seen too many heartbroken stepchildren unintentionally left out.
• Half-Blood Relatives: 
  When it comes to siblings inheriting (if there’s no spouse, children, or parents), Texas law states that a half-sibling inherits only half as much as a full-sibling. So, if you have a full sister and a half-brother, and they are your closest heirs, your sister would get two-thirds of your estate, and your half-brother would get one-third. This nuance of Texas inheritance law can surprise many.

Michaelryanmoney.com “Red Flag” Alert for Blended Families: 
If you’re in a blended family, intestate succession is a minefield. Your wishes for your current spouse versus children from a previous marriage, or for stepchildren, will almost certainly NOT be met by default Texas law. This is a prime reason to get a will drafted by an experienced attorney.

How Assets are Divided by Texas Intestate Succession: Per Stirpes vs. Per Capita (And Why It Matters for Your Grandkids)

When assets are divided among descendants (like children or grandchildren) under Texas intestate succession, Texas generally uses a method called “per stirpes” (Latin for “by roots” or “by branch”).

• Michael’s Analogy: 
  Imagine a tree. Each main branch is one of your children. If one of your children has predeceased you but left their own children (your grandchildren), that branch still gets its share, which then trickles down to those grandchildren.
  So, if you had three children, and one passed away leaving two kids, your estate would effectively be divided into three shares.
  Your two living children would each get a third, and the two grandchildren from your deceased child would split their parent’s third (getting one-sixth each).

This is different from “per capita” (“by head”), where everyone at the same generation level would get an equal share, potentially cutting out grandchildren whose parent had died. Texas prefers per stirpes for descendants, ensuring fairness down the family lines. 

The core idea is that the share belonging to a deceased child passes to their own children, rather than being redistributed among the surviving children only.

Special Texas Twists in Inheritance Law: The 120-Hour Rule (Yes, Really Five Days!)

Texas has a quirky but practical rule affecting inheritance: to inherit, an heir must survive the decedent by at least 120 hours (that’s five full days). More details on this can be found in resources explaining the 120-hour inheritance survival requirement.

• Michael Ryan’s Insider Tip: 
  This “survivorship period” is designed to prevent “double probate” and assets passing unintentionally if, say, a husband and wife are in a common accident and one outlives the other by only a few hours.
  If an heir doesn’t make it 120 hours, the law treats them as if they died before the person whose estate is being settled. This can significantly change who inherits under Texas intestate succession.
  Most well-drafted wills also include similar survivorship clauses, often for 30 or 60 days, to make things even clearer.
  • Action Step: 
    If a loved one passes, and another potential heir is critically ill, note the exact times of death. This 120-hour window can be critical.

The Order of Operations for Intestate Succession: Who’s Next in Line if There’s No Spouse? (The Family Tree Gets Complicated)

If someone dies without a surviving spouse, Texas intestate succession law has a clear pecking order for distributing assets:

1. Children and their descendants: They are first in line.
2. Parents: If no children/descendants, the estate goes to the deceased’s parents equally.
   • If only one parent is alive, that parent gets half, and the other half goes to the deceased’s siblings (and their descendants).
   • If no siblings, the surviving parent gets everything.
3. Siblings and their descendants: If no children/descendants and no parents, it all goes to siblings (and their descendants, per stirpes).
4. More Distant Relatives: If none of the above, the law looks to grandparents, then aunts/uncles, and so on, splitting the estate between the maternal and paternal sides. It can get very complicated, and the state might even end up with the property (called “escheat”) if no heirs can be found. This hierarchical system is a core component of Texas inheritance laws when no will is present.

What if No Heirs Are Found?

Q: You mentioned “escheat.” What happens if the state can’t find any relatives? 
A: If, after a thorough search, no legal heirs can be identified according to the Texas Estates Code, the deceased’s property “escheats” to the State of Texas. 
Essentially, the state becomes the beneficiary of last resort. This is rare, but it highlights how far the law goes to try and find someone before taking the property.

The Probate Process for Intestate Estates in Texas: Brace Yourself, It’s Not a Walk in the Park

When there’s no will, the estate still has to go through a court-supervised process called probate. Without a will, it’s often more complicated, time-consuming, and expensive under Texas law. Think of it as navigating a maze without a map – you’ll get through it, but it’ll take longer and cost more.

Key Steps Generally Include (A Simplified Timeline):

• Filing an Application (Weeks 1-4): 
  Someone (often a family member) applies to the probate court to determine heirship and potentially administer the estate.
• Heirship Proceeding (Months 1-6, can be longer): 
  This is a formal court process to legally identify all the deceased’s heirs according to Texas law. It often involves appointing an “attorney ad litem” to represent unknown or missing heirs. This step alone can be a significant delay and expense.
• Witness Testimony: 
  Typically, two disinterested witnesses (people who don’t stand to inherit) must testify in court about the deceased’s family history.
• Appointing an Administrator: 
  The court appoints an “administrator” (similar to an executor, but chosen by the court/statute, not by the deceased) to manage the estate – gather assets, pay debts, and eventually distribute what’s left. This person might have to post a bond (an insurance policy, another cost).
• Inventory & Debt Payment (Months 3-9+): 
  The administrator inventories assets and pays valid debts (creditors get a chance to make claims).
• Distribution & Closing (Months 6-12+, often much longer): 
  Assets are distributed to the legally determined heirs, and the estate is formally closed with the court.

This Texas probate process can take months, sometimes years, especially if heirship is complex or contested. I’ve seen families spend significant sums on legal fees just to navigate this when a simple will could have streamlined things immensely, avoiding many pitfalls of intestate succession.

For more on this, see my article on transfer of property after death without a will.

Practical Next Steps: If a Loved One Dies Intestate in Texas

1. Secure Assets: Protect property from damage or loss. Gather important documents if possible.
2. Do NOT Distribute Anything: Wait for court approval. Distributing assets prematurely can create huge legal problems.
3. Consult a Texas Probate Attorney IMMEDIATELY: Don’t delay. An attorney can guide you through the heirship determination and administration process.
4. Gather Family Information: Start compiling names, addresses, and relationships of all potential heirs. This will be needed for the heirship proceeding.
5. Be Patient: The process takes time. Having an attorney helps manage expectations.

Let’s Talk Taxes (The Good News, and the Not-So-Bad News, for Texas Inheritance)

One silver lining regarding Texas inheritance: Texas does not have a state inheritance tax or an estate tax. So, heirs generally don’t pay Texas taxes on what they inherit.

You might still want to understand if inheritance is taxable at the federal level or in other contexts, or about capital gains on inherited property in Texas.

However, very large estates (currently those over $13.61 million per person in 2024) can be subject to federal estate tax. This is a complex area, and if an estate is near that size, specialized advice is crucial. 

The key takeaway is that for most Texans, the primary financial burden of intestacy isn’t taxes, but the legal and administrative costs of a more complex probate.

Why Bother With a Will, Then? Michael Ryan’s Top Reasons to Avoid the Texas Intestate Succession Default Plan

After walking through all that, you might be wondering, “Why is Michael harping on about wills?” Here’s why, from decades of seeing the alternative when Texas intestate succession takes over:

1. You Control Your Legacy, Not the State: 
   A will lets you decide who gets what, when, and how, unlike the rigid formulas of intestate succession. Want to leave something to a stepchild, a favorite charity, or a close friend? 
   Intestacy won’t do that for you.
2. Protect Your Loved Ones from Unintended Consequences: 
   You can prevent the kinds of scenarios I mentioned earlier – like a spouse suddenly co-owning property with distant relatives or stepchildren they barely know – which are common outcomes under default Texas inheritance laws.
3. Name Guardians for Minor Children: 
   This is HUGE. If you have young children, a will is the primary place you name who you want to raise them if something happens to you and the other parent. Without it, the probate court decides under the Texas intestate framework, which can be a lengthy and stressful process for everyone. 
   Can you imagine a judge who doesn’t know your family making that choice?
4. Simplify the Probate Process: While a will still goes through probate, it’s generally a much smoother, faster, and less expensive process (called an “independent administration” in Texas if drafted correctly) than an intestate proceeding.
   You get to name your executor, the person you trust to handle things, unlike the court-appointed administrator in intestate cases.
5. Create Trusts for Specific Needs: 
   Want to provide for a child with special needs without disrupting their government benefits (consider a Special Needs Trust)? Want to ensure assets for young adult children are managed until they’re more mature? A will can establish trusts to do this.
   Intestacy offers no such flexibility.
6. Minimize Family Conflict: 
   Clear instructions in a will can significantly reduce the chances of arguments and legal battles among heirs. Ambiguity inherent in applying general intestate succession rules is often the spark that ignites family fires.
   • Michael’s Hard Truth: 
     I’ve seen families torn apart not by malice, but by confusion and the stress of navigating a loved one’s undefined wishes when left to the defaults of Texas inheritance law.
     A well-thought-out will is an act of love for those you leave behind.

Questions to Ask Your Estate Attorney (When Making a Will):

1. “How can I ensure my blended family is treated fairly according to my wishes?”
2. “What’s the best way to title my assets to simplify things for my spouse/children?”
3. “Do I need just a will, or should I consider a trust for certain assets or beneficiaries?”
4. “How can we structure this to minimize potential conflict if I pass?”
5. “Are my beneficiary designations on my retirement accounts and life insurance aligned with my will?” (Crucial!)

Don’t Make This Mistake: Thinking Texas Intestate Succession is “Good Enough” (It Rarely Is)

It’s tempting to put off estate planning. It deals with uncomfortable subjects. But isn’t it more uncomfortable for your loved ones to sort out a mess later? Relying on Texas intestate succession as your default estate plan is like letting a stranger decide how your life’s work gets distributed. 

It’s a passive choice with active consequences.

Actionable Steps You Can Consider TODAY:

1. Talk to an Estate Planning Attorney: 
   This is the gold standard. A qualified Texas attorney can help you create a will, and potentially other documents like powers of attorney, that reflect your specific wishes and family situation, ensuring you bypass the generic Texas inheritance laws for those without a will.
2. Review Beneficiary Designations (IMMEDIATELY!): 
   For assets like life insurance, 401(k)s, IRAs, and some bank accounts, your named beneficiaries on those accounts override what a will says (and certainly override intestacy). Make sure these are up-to-date! I can’t tell you how many times I saw an ex-spouse still listed as a beneficiary—a costly oversight that a will can’t fix for these specific assets.
3. Understand Your Property: 
   Take stock of what you own and try to understand if it would likely be considered community or separate property. This can help you see potential intestate outcomes under Texas law. Use the checklist earlier in this article.
4. Have Open Family Conversations (If Appropriate): 
   Sometimes, talking about your wishes (once you’ve decided them) can help prevent misunderstandings later, smoothing the path regardless of whether a will or intestate succession rules apply.
   • Sample Script (Gentle Approach): 
     “Hey [Family Member], I’ve been doing some thinking about the future and making sure everything is in order. I’d love to share some of my plans with you when you have a moment, just so you know my wishes. No big drama, just want to make things easier down the road.”
5. Quick Tip for Overwhelmed Readers: 
   If you do nothing else this week, check your beneficiary designations on your largest financial accounts (retirement, life insurance). It takes minutes and can prevent a world of pain.

The Bottom Line on Texas Inheritance Laws from Your Friendly Retired Planner: Your Legacy, Your Rules

Texas intestate succession laws are a safety net, but they’re a very generic one. They exist to provide an orderly (if sometimes surprising) distribution of assets when someone fails to make their own plan.

But “orderly” doesn’t mean “ideal,” and it certainly doesn’t mean “what you wanted.” My years of experience have shown me that a little proactive planning – getting a proper will and keeping beneficiary designations current – provides immense peace of mind and can save your loved ones a world of trouble.

Don’t leave it to the State of Texas and its default inheritance laws to write your final chapter. Isn’t your legacy worth more than a state-issued template? 

The truth is, proper estate planning is one of the greatest gifts you can give your family – the gift of clarity and peace during a difficult time.

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Disclaimer: I’m a retired financial planner, not an attorney. This information is for educational purposes only and should not be considered legal advice. Laws can change, and individual situations vary. Please consult with a qualified Texas attorney for advice specific to your circumstances.

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Note: The content provided in this article is for informational purposes only and should not be considered as financial or legal advice. Consult with a professional advisor or accountant for personalized guidance.