The Rights in Texas of a Deceased Husband's Second Wife

by Bernadette A. Safrath

    When a person dies, his surviving spouse is typically the first person entitled to inherit from his estate. In Texas, the decedent's estate passes according to the provisions of his will or, if there is no will, the laws pertaining to intestate succession. If the decedent has married a second time, that surviving spouse has a claim to the estate's assets either by will or intestacy.

    Divorce and Subsequent Spouses

    If a decedent was married and divorced and later married a second spouse, the second spouse is entitled to inherit from the decedent's estate. Under Texas law, any claim the first spouse previously had to the decedent's assets is extinguished upon execution of the divorce decree. This termination of beneficiary rights applies to provisions in a will and life insurance policies.

    Will Provisions

    In order to be an eligible beneficiary, the new spouse must actually be named in the will. Bequests to the previous spouse will not be awarded to the new spouse. If someone dies before revising his will to include the new spouse, and if his new spouse is therefore not in the will, she will not receive any of the property that was her spouse's to bequeath -- his so-called separate property. The court considers anything a spouse acquires prior to a marriage separate property, as opposed to marital or community property. A decedent can revise his will either by signing an entirely new will or be executing a codicil with an amendment leaving a bequest to the new spouse. Either way, the will or codicil must be drafted in accordance with Texas's will requirements.

    Community Property

    Even if a second spouse is not named in a will, she is still entitled to inherit at least half of the couple's community property, provided that she and the decedent were married at the time of his death. In Texas, "community property" includes every asset that the spouses acquired during their marriage. If the decedent has children from his first marriage or any other relationship, the second spouse will inherit half of the community property. If there are no children to claim a share, the second spouse is entitled to all of the community property.

    Intestate Succession

    When a decedent dies without a will, his property passes according to Texas's intestacy law. Under Section 38(b) of the Texas Probate Code, a surviving spouse is entitled to the decedent's entire estate if she is the only living descendant. If the decedent is survived by one or more children, the spouse is entitled to one-third of the separate property in the estate and the children will share the remaining two-thirds equally. If the decedent does not have children but is survived by any other relatives, the surviving spouse will inherit one-half of the separate property and the other heirs, including parents, siblings or nieces and nephews, will inherit equal shares of the remainder.

    About the Author

    Bernadette A. Safrath is an attorney who has been writing professionally since 2008. She was published in Touro Law Center's law review and now writes for various websites. Safrath has a Bachelor of Arts in music from Long Island University at C.W. Post, as well as a Juris Doctor from Touro College.