Texas Laws Concerning the Inheritance of a Husband & Wife

By Brette Sember, J.D.

Texas Laws Concerning the Inheritance of a Husband & Wife

By Brette Sember, J.D.

Texas inheritance laws cover situations including inheritances during marriage as well as how spouses inherit from each other with or without a will. Understanding the laws can help you make plans so that you can carry out estate and financial planning to prepare for all eventualities

Couple on couch looking at laptop

Inheritances During Marriage

In Texas, all property owned by married spouses falls into two categories. Community property is property that belongs to both spouses and is usually property that is acquired during marriage. This is the property that is divided in a divorce. Separate property is property that belongs to only one spouse, usually due to a spouse owning the property prior to the marriage.

Property that a spouse receives during a marriage through gift or inheritance is considered separate property in Texas and is not divided in a divorce. An exception occurs if the spouse who receives the gift or inheritance converts it into community property. For example, if a husband receives a $20,000 inheritance from his grandmother during the marriage, that inheritance is separate property. However, if he puts the money into a joint savings account or uses it as part of the down payment on a community property home, that money is no longer his separate property and becomes community property.

Inheritance Through a Will

When a spouse dies and has a will, the will determines how his property is distributed. However, Texas requires that the surviving spouse receive one half of the community property in the estate. If the will does not give the surviving spouse this amount, the survivor can use a "right of election" to take that amount even if the will does not give it to them.

If one spouse leaves an inheritance to the other in a will and the married couple subsequently divorces, Texas law invalidates that provision in the will. If you want to leave something to a former spouse, you need to create a new will after the divorce for the bequest to be valid.

Inheritance Without a Will

If a spouse dies and does not leave a will, the Texas laws on intestate succession determine who inherits the estate.

Separate property is divided as follows:

  • If there is a spouse and no children, the spouse inherits all property.
  • If there is a spouse and children, the spouse inherits one-third and the children share two-thirds.

Community property is divided as follows:

  • If there is only a spouse and no children, the spouse inherits all property.
  • If there is a spouse and children of the marriage, the surviving spouse inherits it all.
  • If there is a spouse and the decedent had children from another marriage or relationship, the children take half of the community property and the surviving spouse takes the other half.

Common Law Marriage Inheritance

In Texas, if a couple informally agrees to be married, lives together, and presents themselves to others as married, then you have what is called a common law marriage, even if there was no marriage ceremony. You can sign and file a formal declaration of information marriage if you want a legal record. The same inheritance rules apply to both informal marriages and legal marriages.

Understanding marital inheritance laws allows you to plan for your future and be knowledgeable about how the state laws will apply to you. Because Texas has its own laws for how assets are divided in the case of no will or a divorce, it's important to create a last will and testament and keep it updated.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.