Texas Descent and Distribution: Spouse, Children, and Heirs

When someone dies in Texas without a will, the Texas Estates Code decides who inherits, and the answer turns on two things: whether each asset is community or separate property, and which family members survived. Texas inheritance without a will can send the entire estate to a surviving spouse in one family and split it among a spouse, stepchildren, and in-laws in another. The rules are mechanical once you know how to classify the property and count the survivors.

Community Property and Separate Property

Every asset in a Texas estate gets sorted into one of two buckets before anything else happens. Property acquired by either spouse during the marriage is community property, owned equally by both.¹ Wages earned during the marriage, investment returns, real estate bought with marital funds, and retirement contributions made during the marriage all qualify.

Separate property is everything else: assets a spouse owned before the marriage, plus gifts, inheritances, and certain personal injury recoveries received by one spouse alone. Texas presumes anything a spouse holds during or at the end of a marriage is community property, and the spouse claiming an asset is separate must prove it with clear and convincing evidence.¹ When separate funds have been mixed with community funds over years of marriage, tracing ownership can require detailed financial records.

This classification matters because community and separate property follow entirely different intestacy paths.

Who Inherits Community Property

The surviving spouse keeps all community property in two situations: when the deceased left no children or descendants, or when every surviving child of the deceased is also a child of the surviving spouse.² Most couples assume this is how it always works. It isn’t.

If the deceased had any child who is not also the surviving spouse’s child, the deceased spouse’s half of the community estate passes to the deceased’s children and their descendants. The surviving spouse keeps only their own half.² This is the blended-family trap. A surviving spouse who expected to inherit the family home outright may discover a stepchild from the deceased spouse’s prior relationship is suddenly a co-owner.

Who Inherits Separate Property

Separate property is divided differently depending on who survives.

When the deceased had children or other descendants, the surviving spouse receives one-third of all personal separate property (bank accounts, vehicles, investments) and a life estate in one-third of separate real estate. The remaining two-thirds of personal property and the full ownership of the real estate (subject to the spouse’s life estate) pass to the children.² A life estate means the surviving spouse can use or live on that portion of land for the rest of their life, but ownership vests in the children once the spouse dies.

When the deceased had no children but left surviving parents or siblings, the surviving spouse inherits all personal separate property but only half of separate real estate. The other half of the land passes to the parents or siblings under the standard rules for collateral heirs.² Only when no parents, siblings, or their descendants survive does the surviving spouse inherit the entire separate estate.

No Spouse, No Children: Who’s Next in Line

When someone dies without a spouse or descendants, the estate passes first to the deceased’s parents in equal shares. If only one parent is alive, that parent takes half and the other half goes to the deceased’s siblings and their descendants. If neither parent survives, the siblings and their descendants take the entire estate.²

When no parents or siblings survive, the estate splits in two: one half to the paternal side of the family, one half to the maternal side. Each half passes to the nearest surviving relatives on that side, starting with grandparents, then aunts and uncles, then cousins, extending outward until a living heir is found.² If no relatives can be located on either side, the estate escheats to the state.

Half-blood siblings, who share only one parent with the deceased, inherit half as much as whole-blood siblings when both types survive. If every surviving sibling is a half-sibling, they share equally.²

Shares among descendants are distributed per capita with representation. Living relatives at the same generational level split their portion equally, person by person. If someone in that generation has already died but left children, those children step into their parent’s share and divide it among themselves.³

How Texas Treats Different Kinds of Children

Adopted children are treated identically to biological children for inheritance. Stepchildren and foster children do not inherit under intestacy unless they were legally adopted. A stepparent can raise a child from infancy, but without a legal adoption that child has no claim.

Children born outside of marriage inherit from their mother automatically. Inheriting from their father requires established paternity through acknowledgment, a court order, or genetic testing. If paternity was never legally established during the father’s lifetime, the child may need to pursue a paternity determination through the probate court, which can involve DNA testing of the deceased or surviving relatives.

Common-Law Marriage and Unmarried Partners

Unmarried partners have no inheritance rights under Texas intestacy law, no matter how long the relationship lasted. The one path for a surviving partner is proving a common-law marriage. Texas recognizes a common-law marriage when both partners agreed to be married, lived together in Texas as spouses, and represented themselves to others as married. All three elements must coexist. A disputed claim after a death often rests on witness testimony, shared financial accounts, joint tax returns, or similar evidence.

Assets That Don’t Pass Through Intestacy at All

Several categories of property transfer automatically at death and never touch the intestacy rules.

Life insurance policies and retirement accounts with named beneficiaries pass directly to those beneficiaries. Bank and brokerage accounts set up as payable-on-death or transfer-on-death accounts work the same way. The beneficiary designation controls, which is why the forms matter more than people realize.

Spouses can also sign a community property survivorship agreement, which causes shared property to pass directly to the surviving spouse at death without probate. The agreement must be in writing, signed by both spouses, and include specific survivorship language. Simply titling an account as “joint” is not enough in Texas. The agreement must use phrases like “with right of survivorship” or “will become the property of the survivor.”⁴

For real estate, Texas allows a transfer on death deed. The property owner names a beneficiary who receives the property automatically at death, bypassing probate. The deed must be recorded in the county where the property is located before the owner dies, and it can be revoked at any time.⁵ The beneficiary has no ownership until the owner dies.

Getting Title to Inherited Property

Even when the intestacy rules make clear who inherits, somebody usually has to open a probate proceeding to move legal title. The process starts when a family member or other interested person files an application with the county court where the deceased lived.

Formal Administration

Without a will, the court appoints an administrator, typically a close relative, and issues letters of administration giving that person legal authority to manage estate assets, access bank accounts, and deal with creditors.⁶ If all heirs agree, they can request an independent administrator who handles the estate without needing court approval for each step. Otherwise, the court supervises most actions as a dependent administration.

The administrator must post a bond to protect the estate unless the court waives it, which the court can do if all beneficiaries consent and the court finds a bond is not in the estate’s best interest.⁷

Small Estate Affidavit

For smaller estates with no will, Texas offers the small estate affidavit. If the value of all estate assets (excluding the homestead and exempt property) does not exceed $75,000, the heirs may bypass formal probate by filing a sworn affidavit with the court. The affidavit cannot be filed until at least 30 days after the death, and the only real estate the deceased may have owned is a homestead. All distributees must agree and sign. Once approved by the court, the affidavit functions as legal proof of the heirs’ right to the property.

Debts Get Paid Before Heirs

Heirs often focus on who inherits what and overlook what comes first: valid debts. The estate must settle them before anyone receives a distribution.

The Estates Code ranks claims into eight classes, and the personal representative pays each class in full before moving to the next. If the estate runs out of money partway through, lower classes get nothing:

Class 1: Funeral expenses and final illness costs, each capped at $15,000. Anything above those caps drops to the unsecured claims class.
Class 2: Administration expenses, including court costs, attorney fees, and costs of managing estate property.
Class 3: Secured claims the creditor elected to have paid through administration, paid from the collateral.
Class 4: Delinquent child support and child support arrearages confirmed by a court.
Class 5: State and local taxes.
Class 6: Costs of confinement owed to the Texas Department of Criminal Justice.
Class 7: Claims for repayment of state Medicaid benefits.
Class 8: All other claims not otherwise classified.

Secured creditors can choose between treating the debt as a matured secured claim paid through the estate, or keeping the lien on the specific property and continuing to be paid under the original loan terms.⁸ A mortgage lender often keeps the lien in place so the heir who takes the house simply keeps making payments.

Within one month of being appointed, the personal representative must publish a notice to creditors in a newspaper of general circulation in the county.⁹ Known creditors should also receive direct notice. Beneficiaries do not inherit the deceased’s debts personally. Someone who co-signed a loan or was jointly liable on a debt remains responsible for their own obligation, but inheritance alone does not transfer liability.

Protections for the Surviving Spouse and Minor Children

Even when creditors are circling, Texas gives the surviving spouse and minor children protections that override normal payment priorities.

When the deceased is survived by a spouse or minor child, the homestead is shielded from almost all estate debts. The only exceptions are debts tied to the property itself: the purchase mortgage, property taxes, home equity loans meeting constitutional requirements, and certain other liens.¹⁰ Credit card companies, medical providers, and other unsecured creditors cannot force a sale of the family home.

The homestead also cannot be partitioned among heirs during the surviving spouse’s lifetime, as long as the spouse continues living there.¹⁰ An heir who inherits a fractional share of the home under the intestacy rules cannot force a sale while the surviving spouse remains in the house. If there are minor children and no surviving spouse, a court-appointed guardian can continue using the homestead under court order.

The court can also set a family allowance to support the surviving spouse, minor children, and adult incapacitated children for one year after the death. The amount is based on what the family needs for maintenance during that year, and it takes priority over most creditor claims.¹¹ The allowance is not available if the surviving spouse already has enough separate property to cover their own maintenance.

Texas does not impose a state estate tax or inheritance tax, so heirs owe nothing to the state simply for inheriting.

1
State of Texas. Texas Family Code Section 3.002 – Community Property
2
State of Texas. Texas Estates Code Chapter 201 – Descent and Distribution
3
State of Texas. Texas Estates Code Section 201.101 – Determination of Per Capita With Representation Distribution
4
State of Texas. Texas Estates Code Chapter 112 – Community Property With Right of Survivorship
5
State of Texas. Texas Estates Code Chapter 114 – Transfer on Death Deed
6
Texas State Law Library. Formal Administration
7
State of Texas. Texas Estates Code Section 401.005 – Bond; Waiver of Bond
8
State of Texas. Texas Estates Code Chapter 355 – Presentment and Payment of Claims
9
State of Texas. Texas Estates Code Chapter 308 – Notice to Beneficiaries and Claimants
10
State of Texas. Texas Estates Code Chapter 102 – Probate Assets
11
State of Texas. Texas Estates Code Chapter 353 – Exempt Property and Family Allowance