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 estate.  Community property laws in Texas and other states have historically provided broader property rights to spouses, particularly married women, however the inheritance rights of the surviving spouse are not as broad as widely believed.*

Under Texas law, marital property consists of separate property and community propertySeparate 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 one-half share of community property. If the deceased spouse did not leave a Will, the one-half share of community property in the deceased spouse’s estate does not necessarily pass to the surviving spouse.  In recent centuries the inheritance rights of the surviving spouse have been improved.  By the early 20th century, under Texas law the surviving spouse inherited all of the community property in the deceased spouse’s estate if the deceased spouse is not survived by any child or descendant.  It was not until 1993 that the law was expanded to allow the surviving spouse to inherit all of the deceased spouse’s community property if all surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse.

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 and descendants.  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.  While the intestate inheritance rights of surviving spouses are broader than in the past, it is essential for spouses to have Wills to avoid unintended and unfortunate consequences for the surviving spouse and family.


*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.   In Spain, the property rights of women were first codified in the early sixth century Forum Judicum, the law code of the Visigoths, who ruled the Iberian peninsula in the Early Middle Ages.  Married women in the Spanish Empire had broader property rights than their counterparts in Europe, however surviving spouses had few inheritance rights under the Spanish rules of instate succession that applied when the first spouse died intestate, without leaving a Will.

**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.