Can a Wife Be Left Out of a Will in Texas Probate?

by Heather Frances Google
Your spouse may keep certain property even if you try to disinherit her.

Your spouse may keep certain property even if you try to disinherit her.

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Texas law allows you to completely cut your spouse out of your will, but only with regard to those assets you control, considered yours to devise in your will. Because Texas is a community property state, your spouse will still be entitled to a share of the combined marital property and to live in the marital home, even if you try to completely disinherit her.

Community Property

Texas is a community property state, meaning that Texas spouses share ownership of nearly everything they acquire during their marriage -- regardless of whose name is on the title. For example, if you purchase a vehicle during your marriage using funds earned during your marriage, Texas law considers that vehicle to be equally owned by you and your spouse, even if the vehicle is in your name only. Texas spouses retain full ownership over their separate property, however, such as property acquired before the marriage and kept separate during the marriage.

Distributing Property

Since each spouse owns half of the spouses’ combined community property, neither spouse can completely disinherit the other without a written agreement, called a prenuptial agreement if it is made before the marriage or a postnuptial agreement if it is made afterward. Without such an agreement, if you attempt to leave all of your property to someone other than your spouse, that person will only receive your separate property and your one-half share of the community property. Since you have no authority to give away something you don’t own, your spouse retains ownership of her half of the community property.

Homestead Rights

In addition to her rights to community property, your spouse has homestead rights, which enable her to keep living in the marital home, even if you tried to give the home to someone else under your will. Homestead rights allow your spouse to live in the marital home for the remainder of her life, and she cannot be removed except under very limited circumstances, such as a failure to make mortgage payments. She is responsible for making repairs and maintaining the home, but she does not have to keep the home in the same condition it was in when you passed away.

Possible Challenges

A disinherited spouse is much more likely to challenge your will than one who received an adequate inheritance, so your will could be tied up in probate court for quite some time if your spouse decides to contest it. Even if the contest is unsuccessful, defending such a challenge can be expensive for your estate. Some people attempt to reduce the likelihood of a contest by including a small inheritance for their spouse along with a clause in their will that denies an inheritance to anyone who unsuccessfully challenges the will. Explaining the reasons for the disinheritance may also help avoid challenges.