Most people assume that if there is no will, everything goes to the spouse, or that the children split things evenly. Texas law takes a different approach. The Estates Code sets out precise fractions for specific relatives, and they apply no matter what the person said they wanted.
Knowing how intestate succession in Texas works matters whether you are deciding to finally sign an estate plan or sorting out a parent’s estate after the fact. Here is what the statute assigns.
What “Intestate” Covers
Dying intestate means dying without a valid will, and it also covers a will that cannot be enforced because it was never properly signed or because a court set it aside. Either way, the probate court applies Chapter 201 of the Texas Estates Code, a formula that ignores who provided care and who was estranged.
Community Property and Separate Property Are Treated Differently
Texas is a community property state, so the first question is not who inherits but what type of property is on the table. Community property is generally what a couple acquired during the marriage. Separate property is what a spouse owned before marriage, plus anything received during it by gift or inheritance.
For the deceased spouse’s half of the community estate, one detail controls the result. If all of that spouse’s children are also children of the surviving spouse, or there are no children, the surviving spouse takes that half and owns the whole community estate. If even one child or grandchild is not also a descendant of the surviving spouse, that half goes to the deceased spouse’s descendants and the survivor keeps only their own half. This provision catches blended households off guard more than any other rule in the code.
Separate Property Splits Along Different Lines
- Separate personal property, with descendants: the surviving spouse takes one-third, and the children or their descendants take two-thirds.
- Separate real estate, with descendants: the spouse receives a life estate in one-third of the land, meaning the right to use it for life. The children own the land, subject to that interest.
- Separate personal property, no descendants: the spouse takes all of it.
- Separate real estate, no descendants: the spouse takes half outright, and the other half passes to the decedent’s parents, siblings, or their descendants. If none survive, the spouse inherits everything.
When There Is No Surviving Spouse
Everything passes to the children and their descendants. With no descendants, the estate goes to both parents in equal shares. If one parent survives alongside siblings, that parent takes half and the siblings and their descendants divide the rest. A surviving parent with no siblings takes it all. With no parents or siblings, the estate splits in half between the paternal and maternal sides, working outward through grandparents, aunts, uncles, and cousins until a living relative is found.
Some Assets Are Never Touched by These Rules
Intestacy governs probate assets only. Life insurance, retirement accounts, and payable-on-death bank accounts pass to whoever is named on the beneficiary form, and property held with rights of survivorship passes to the surviving owner. That produces results nobody planned for, such as a former spouse still listed on a 401(k) from 15 years ago collecting the full balance.
The Practical Cost of Skipping a Will
Without a will, the court usually needs a formal determination of heirship before assets can move. That step often involves an attorney appointed to represent unknown heirs, witness testimony, and a longer timeline than probating a valid will. Selling a house can require every heir to agree, including a cousin no one has spoken to in years. Entering the Texas probate process with clear direction tends to shorten that road.
Key Takeaways
- Texas assigns fixed shares by statute, and they do not adjust for circumstances or verbal wishes.
- Community property passes fully to the surviving spouse only when every descendant of the decedent is also a descendant of that spouse.
- Separate land can leave a surviving spouse with a one-third life estate rather than ownership.
- Beneficiary designations and survivorship titling override intestacy entirely.
- Estates without a will generally require more court involvement and time.
Deciding Your Own Terms Instead of the Statute’s
The default rules under intestate succession in Texas work well enough for some households and create real problems for others. The way to find out which applies to you is to compare the statutory result to what you want. At Bromlow Law, PLLC, we help clients in Katy and the greater Houston area close that gap, and we can explain the heirship steps if a loved one has already died without a will. You are not alone in this, and an attorney can review your situation and outline your options. Book your discovery call to learn more.
References: Texas Estates Code, Chapter 201, Descent and Distribution, and Yahoo (January 27, 2023) “What Happens If I Die Without a Valid Will?“
