Elder Law Blog

Monday, November 1, 2021

Spouse Dies, No Will

What happens when a spouse dies and there is no Will?  There is a common, but mistaken, belief that when a spouse dies without leaving a Last Will, the surviving spouse inherits all of the deceased spouse’s property.  Community property laws, like those in Texas, which include marital property and inheritance rules, have traditionally extended greater protection to women and spouses,* however the rules are not as broad as widely believed.

There are two types of marital property under Texas law, separate property and community property.  Separate property includes property acquired by a spouse before marriage, or by gift or inheritance during marriage.  Community property is property acquired by either spouse during marriage, except for separate property.  During marriage, the spouses co-own their community property in equal shares.

When the first spouse dies, the surviving spouse keeps his or her share of community property, however if there is no Will, the deceased spouse’s share does not necessarily pass to the surviving spouse.  When a spouse dies without a Will, the surviving spouse inherits all of the community property in the estate only if certain conditions are met:

  • All of the surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse or
  • The deceased spouse is not survived by any child or descendant.

For example, if there is no Will and the deceased spouse is survived by children from a previous marriage, the deceased spouse’s one-half share of community property passes to his or her surviving children.  The result is the surviving spouse co-owns the community estate with the deceased spouse’s children.

When there is no Will, separate property in the estate – property owned before marriage or acquired by gift or inheritance during marriage - is usually divided between the surviving spouse and children, or other heirs at law.  If the deceased spouse is survived by children, the surviving spouse will co-own separate property with the children.

Separate property may consist of real property, or real estate, and personal property, which includes goods and money.  If the deceased spouse is survived by any child or descendant, his or her separate personal property is divided among the surviving spouse (1/3) and the children or other descendants (2/3).

The surviving spouse inherits only a life estate in one-third of separate real property, with the remainder descending to the children or other descendants.**  If the deceased spouse is not survived by any child or descendant, the surviving spouse takes all of the separate personal property, but only one-half of the separate real property, while the other one-half passes to the deceased spouse’s parents, siblings, or other heirs at law.

In conclusion, under Texas law the surviving spouse will not necessarily inherit all of the estate of a deceased spouse who died without leaving a valid, written Will.


*The legal tradition of community property in marriage was introduced by the Spanish.  Most states that adopted community property laws – including California, Arizona, New Mexico, Nevada, Louisiana, and Texas – were part of the Spanish Empire.  At the time, Spanish law afforded broader rights for married women than English common law.  In Spain, the legal rights of women were first codified in the early sixth century Forum Judicum by the Visigoths, an Indo-European group that migrated from Northern Europe and ruled the Iberian peninsula in the Early Middle Ages.

**Legal traditions applied to separate property originated in medieval England.  Traditionally, the husband controlled all marital property and only sons could inherit real property.  If the husband died, the wife received only a life estate – an ownership interest for her lifetime – in one-third of the husband’s lands.  The distinction between personal and real property dates to 13th century England.  If the husband died without a Will, one-third of his personal property went to his wife, one-third to his children, and one-third to the Church. 

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Attorney Nancy Stone assists clients with Elder Law, Medicaid Planning, and Estate Planning throughout Harris County, TX. I am now based in Sugar Land and serve all of Houston, Harris County, Bellaire, Jersey Village, Cypress, West University, The Heights, Pearland, Alvin, Sugar Land, Missouri City, Kingwood, Humble, The Woodlands, Spring, Tomball, Richmond, Rosenberg Pasadena, Baytown, La Porte, Clear Lake, Texas City, Katy, Friendswood, Stafford, as well as Fort Bend County, Brazoria County, Montgomery County, Galveston County, Liberty County, Chambers County, Waller County and throughout Southeast TX.

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