Determining Heirs – Deciphering the Law of Descent and Distribution
The Texas law of descent and distribution is a bit complex so, just for fun, let’s kill off Bob, an imaginary person who lacked the foresight to have a will, and see how the law applies to his estate. If you are reluctant to play the game, just remember that you could be personally touched by the law if you live in Texas, have relatives in Texas, or have any property interests in Texas.
Since the outcome depends upon whether Bob is married or single, has children or is childless, has community or separate property, and has surviving parents, we’ll go through several scenarios.
If Bob is single and does not have children, then ½ of his property goes to his mother and ½ goes to his father. If one parent is deceased, then ½ goes to his surviving parent and ½ goes to his siblings or their descendants. If both parents are deceased, then all goes to his siblings or their descendants.
If Bob is single and does not have living parents, siblings or descendants of siblings, then we go back up the family tree and divide ½ of his property among his paternal relatives and ½ among his maternal relatives. We start with grandparents and then move down to their descendants. If we still can’t find a living relative, we reach back to great-grandparents and their descendants, and so on.
If Bob is single and has children, then all of his property goes to his children or their descendants.
If Bob is married and has no children, then his separate real property is divided ½ to his spouse, ¼ to his mother and ¼ to his father. His separate personal property and his community property all go to his spouse.
If Bob is married with children, then his separate real property goes to his children, subject to a 1/3 life estate held by his spouse. When the spouse dies, her life estate goes away, with the result that the real property will be owned 100% by his children. His separate personal property goes 2/3 to his children and 1/3 to his surviving spouse. The division of his community property depends upon whether his children are also the children of his spouse. If they are also his spouse’s children, then all of the community property goes to his spouse. If they are not his spouse’s children, then the community property is divided ½ to children and ½ to surviving spouse.
You may have noticed that the law of descent and distribution pits the interests of parent against child, spouse against in-laws and step-children, and siblings against each other and their nieces and nephews. That is true even for simple estates; as you might suspect, the hostility increases exponentially when significant money is involved.
For everyone’s interests to be legally declared, someone has to file an application for declaration of heirship.
Perhaps we can all agree on this simple point: Bob should have had a written will.
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The information contained in this article is general information only and does not constitute legal advice.