When a Texas resident dies without a valid will, the Texas Estates Code Chapter 201 rules on intestate succession decide who inherits. The order is fixed by family relationship, and the outcome depends on two things: whether the deceased was married, and whether each asset counts as community property or separate property. Those two categories follow separate paths, and the result for a surviving spouse can look very different depending on the family situation.
Community Property vs. Separate Property
Every asset the deceased owned falls into one of two buckets, and the intestacy rules treat them differently.
Community property is what either spouse earned or acquired during the marriage. Each spouse already owns an undivided half, so only the deceased spouse’s half is subject to inheritance rules. Separate property is what the person owned before marriage or received individually as a gift or inheritance during marriage. Anyone who died unmarried leaves only separate property.
Before heirs can be paid, someone has to classify each asset. The first step in any Texas heirship proceeding is sorting community from separate, because the wrong classification puts assets on the wrong distribution path.
What the Surviving Spouse Inherits
The surviving spouse’s share is where the rules surprise people most, especially in blended families.
Community Property
If every one of the deceased spouse’s children is also a child of the surviving spouse, or if there are no children at all, the surviving spouse takes the entire community estate.1State of Texas. Texas Estates Code 201.003 – Community Estate of an Intestate For most first marriages, this matches what the couple would have chosen.
The picture changes the moment there is even one surviving child of the deceased who is not also a child of the surviving spouse. In that case, the deceased spouse’s half of the community estate passes directly to the deceased spouse’s children. The surviving spouse keeps only their original half.1State of Texas. Texas Estates Code 201.003 – Community Estate of an Intestate That means a surviving spouse can end up co-owning the house, joint accounts, and retirement savings with stepchildren.
Separate Personal Property
If the deceased left children or grandchildren, the surviving spouse gets one-third of the separate personal property outright and the children and their descendants take the other two-thirds. If no children or grandchildren survive, the spouse keeps all of the separate personal property.2State of Texas. Texas Estates Code 201.002 – Separate Estate of an Intestate
Separate Real Estate
Land is treated separately. When the deceased left children or grandchildren, the surviving spouse receives a life estate in one-third of the separate land, and the children own the land itself. The spouse can use and benefit from that one-third portion for life, and when the spouse dies the life estate ends and the children hold clear title.2State of Texas. Texas Estates Code 201.002 – Separate Estate of an Intestate
When no children or grandchildren survive, the spouse takes outright ownership of half the separate land, and the other half passes to the deceased’s parents, siblings, or their descendants. If none of those relatives exist either, the spouse inherits the entire separate estate, land included.2State of Texas. Texas Estates Code 201.002 – Separate Estate of an Intestate
The life estate arrangement is a frequent source of confusion. Probate courts record the split ownership in the deed records. Selling the property while the spouse is alive requires cooperation from both the spouse and the children who hold the remainder interest.
Common-Law Spouses
Texas recognizes informal (common-law) marriages, and a common-law spouse inherits on the same terms as a ceremonially married spouse. The catch is proof: courts look for evidence that both parties agreed to be married, lived together in Texas as spouses, and represented themselves to others as married. A Declaration of Informal Marriage filed with the county clerk is conclusive. If the couple separated and more than two years passed with no action, Texas presumes no marriage existed, and inheritance rights can be lost.
When There Is No Surviving Spouse
If the deceased was unmarried or the spouse did not survive, Section 201.001 sets the order for the entire separate estate.
Children and their descendants inherit everything first.3State of Texas. Texas Estates Code 201.001 – Estate of an Intestate Not Leaving Spouse If none exist, the estate splits equally between the deceased’s mother and father. When only one parent is alive, that parent takes half and the deceased’s siblings (and the descendants of any deceased siblings) split the other half. When neither parent is alive, the siblings and their descendants take everything.
If no parent, sibling, or sibling’s descendant survives, the estate divides in half. One half goes up the paternal line and the other up the maternal line, looking first to grandparents, then aunts and uncles, then cousins, continuing outward until a living relative is found on each side.3State of Texas. Texas Estates Code 201.001 – Estate of an Intestate Not Leaving Spouse If no heir can be located on either side, the property escheats to the State of Texas.
Who the Law Counts as a Child or Heir
Subchapter B of Chapter 201 defines which relationships qualify for inheritance. Getting this wrong can shut a rightful heir out entirely.
Maternal Inheritance
A child inherits from their biological or adoptive mother, and inheritance flows both directions through the maternal family.4State of Texas. Texas Estates Code 201.051 – Maternal Inheritance A gestational agreement under the Texas Family Code can make an intended mother the legal mother.
Paternal Inheritance
A child is recognized as the father’s child for inheritance only if one of four conditions is met: the child was born during the parents’ marriage or under other circumstances creating a legal presumption of paternity, a court adjudicated paternity, the father adopted the child, or the father signed a voluntary acknowledgment of paternity.5State of Texas. Texas Estates Code 201.052 – Paternal Inheritance
If none of those apply, a child can petition the probate court after the father’s death. The court must find by clear and convincing evidence, typically through DNA testing, that the deceased was the biological father. Once paternity is established, the child takes their place in the inheritance order.5State of Texas. Texas Estates Code 201.052 – Paternal Inheritance
Adopted Children
An adopted child is treated exactly like a biological child. The adopted child inherits from and through the adoptive parents and their extended family, and the adoptive family inherits from the adopted child.6State of Texas. Texas Estates Code 201.054 – Adopted Child The rule with biological family runs only one way: an adopted child can still inherit from their biological parents, but the biological parents and their relatives cannot inherit from the adopted child.
Half-Blood Relatives
When collateral relatives such as siblings or cousins inherit, and both half-blood and whole-blood relatives of the same class survive, each half-blood takes half the share of a whole-blood. If everyone in the class is half-blood, each takes a full share.7State of Texas. Texas Estates Code Chapter 201 – Section 201.057 The half-share rule applies only to collateral relatives. A half-sibling inheriting directly from a parent takes a full child’s share.
The 120-Hour Survival Rule
An heir must outlive the deceased by at least 120 hours (five days) to inherit. If survival for that period cannot be shown by clear and convincing evidence, the law treats the heir as having died first, and their share passes to the next person in line.8State of Texas. Texas Estates Code Chapter 121 – Section 121.052 The rule matters most when family members die close in time, such as in a single accident.
How Shares Are Split Across Generations
Section 201.101 sets the math. The estate is divided into equal portions at the closest generation with at least one living member. Each living person in that generation takes one share. If someone in that generation predeceased the decedent but left descendants, those descendants split the deceased ancestor’s share among themselves.9Justia. Texas Estates Code Chapter 201, Subchapter C – Distribution to Heirs
A worked example makes this concrete. A person dies leaving three children: Alice, Bob, and Carol. Alice and Bob are alive. Carol died years earlier and left two children. The estate splits into three shares, one for each child’s line. Alice takes a third, Bob takes a third, and Carol’s two children each take half of Carol’s third, which works out to one-sixth of the total estate apiece.
Assets That Pass Outside Intestacy
Chapter 201 only governs assets that go through probate. Many of the largest assets a person owns skip the process entirely because they carry their own beneficiary or survivorship designations. Identifying which assets fall outside the intestacy rules is the first practical step when sorting out an estate.
- Life insurance and retirement accounts pass to the named beneficiary, whatever the intestacy rules would say.
- Bank and brokerage accounts held jointly with right of survivorship automatically belong to the surviving co-owner.
- Stocks and bonds registered with a transfer-on-death beneficiary pass directly to that person on submission of a death certificate.
- Real property held under a written survivorship agreement passes to the surviving co-owner.
Employer-sponsored retirement plans like 401(k)s add a federal wrinkle. Under ERISA, the surviving spouse is automatically the beneficiary of most employer retirement plans, even if the account holder named someone else, unless the spouse signed a witnessed or notarized waiver.10Office of the Law Revision Counsel. 29 USC 1055 – Requirement of Joint and Survivor Annuity and Preretirement Survivor Annuity IRAs are not covered by ERISA and follow the standard beneficiary designation on file.
How Heirs Actually Get the Property
The intestacy rules do not apply automatically. A court has to identify the heirs and confirm their shares before banks, title companies, and government agencies will recognize the new owners.
The process begins with an Application to Determine Heirship filed in the county where the deceased lived. The applicant supplies information about family relationships, marital history, and property. Texas requires an attorney ad litem to be appointed to represent the interests of any unknown heirs, and the court hears testimony from a disinterested witness familiar with the family situation. The judge then classifies each asset as community or separate, applies the Chapter 201 rules, and issues a Judgment Declaring Heirship listing each heir and their fractional share. That judgment is the document banks and title companies use to transfer accounts and record deeds.
For smaller estates where the homestead is the only real property, Chapter 205 of the Estates Code offers a simplified small estate affidavit that can avoid the cost and delay of a full heirship proceeding. Eligibility is strict, and it does not fit every situation, but it is worth checking before starting a formal case.