Community Property vs Separate Property
Texas has community property and separate property. Basically, community property is property acquired during marriage except by inheritance or gift. Separate property is everything else. The Texas laws governing inheritance treat these two kinds of property differently. This article will deal with the inheritance rights of a spouse to the community property if the other spouse dies intestate. If the deceased spouse has a valid will, the will will determine who gets the deceased spouse’s community property.
Prior to 1993
In Texas, prior to 1993, if a spouse died intestate who had children, his community property went to his children, not to his spouse. Of course, his spouse would own her part of the community property and have a homestead right to remain in the home but the deceased spouse’s ownership interest in the home would be owned by the children.
In 1993, the law in Texas changed at least in those cases where the children are the children of both the husband and wife or where the deceased had no children. Now, if the children of the deceased are also the children of the surviving spouse, or if the deceased had no children, the community property of the deceased goes to the surviving spouse. EC 201.003 (formerly TPC 45.) The separate property of the deceased spouse still goes to the children. If some of the children of the deceased are not also children of the surviving spouse, e.g. they are the surviving spouse’s stepchildren, then the children inherit everything as they did prior to 1993.
Texas Property Law and Inheritance
So, the question “does a spouse inherit the community property” is complicated. This article only dealt with community property. Texas also has separate property laws. A person’s separate property is everything they had before marriage and anything they acquire during marriage through a gift or an inheritance. I have written about the sometimes complex issue of Texas property law and inheritance. You can view those articles here.
Pearls of wisdom: Often in handling estates, the ownership of property comes into question. This is especially true if you are dealing with people who died some time ago. For instance, husband dies in 1965 without a will. Wife and kids continue living in the house. Everyone assumes that wife owns the house. However, she doesn’t own it because husband’s half of the house went to the kids and not to his wife when he died in 1965. Instead of looking at wife’s will to see who gets the property, you have to determine the heirship of husband to see who owns his half. Wife can only dispose of her half, not the whole.
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