When a Texas resident dies without a will, the Texas Estates Code decides who inherits. The rules of Texas intestate succession split the estate into two buckets, community property and separate property, and then distribute each bucket based on who in the family is still alive: a spouse, children, parents, siblings, or more distant relatives. The single fact that surprises most families is that a surviving spouse does not always inherit everything, even in a long marriage.
Community Property and Separate Property
Texas is a community property state. Nearly everything a married couple earns or acquires during the marriage, including wages, investment gains, and property bought with marital funds, belongs to both spouses equally, regardless of whose name is on the title.1Texas Law Help. Community Property
Separate property is everything else: assets one spouse owned before the marriage, plus anything received during the marriage as a gift, inheritance, or personal injury settlement.1Texas Law Help. Community Property The distinction matters because Texas uses completely different rules for each category when someone dies without a will.
Who Inherits Community Property
The surviving spouse already owns half of the community estate. The question is what happens to the deceased spouse’s half.
If the deceased spouse had no children, or if every child of the deceased is also a child of the surviving spouse, the surviving spouse inherits the deceased’s half too and keeps the entire community estate.2State of Texas. Texas Estates Code Chapter 201 – Descent and Distribution
The rule flips in blended families. If the deceased spouse leaves even one child or descendant who is not also a child or descendant of the surviving spouse, the deceased’s half of the community estate passes to the deceased’s children and descendants. The surviving spouse keeps only their own half.2State of Texas. Texas Estates Code Chapter 201 – Descent and Distribution A surviving spouse who expected to inherit the family home outright can end up co-owning it with stepchildren.
Who Inherits Separate Property
Separate property follows its own rules, and Texas further divides the category into personal property (bank accounts, vehicles, investments) and real estate.
No Surviving Descendants
If the deceased left a spouse but no children or other descendants, the spouse inherits all separate personal property. For separate real estate, the spouse receives half and the other half goes to the deceased’s parents, siblings, or their descendants.2State of Texas. Texas Estates Code Chapter 201 – Descent and Distribution
Surviving Descendants
If the deceased left descendants, the spouse’s share of separate property shrinks. The spouse takes one-third of the separate personal property outright, and the descendants take the remaining two-thirds. For separate real estate, the spouse gets a life estate in one-third, meaning the right to use it for life but not to sell it or leave it to anyone. The descendants inherit full title, subject to that life estate.2State of Texas. Texas Estates Code Chapter 201 – Descent and Distribution
Life estates often create ongoing friction. The surviving spouse must maintain the property and pay taxes but cannot refinance or sell without agreement from the remainder beneficiaries.
No Spouse, No Descendants
When someone dies without a spouse and without descendants, the estate moves up and out through the family tree.
Parents inherit first. If both parents are alive, they split the estate equally. If only one parent survives, that parent receives half and the deceased’s siblings split the other half.2State of Texas. Texas Estates Code Chapter 201 – Descent and Distribution
If no parent survives, the entire estate goes to the deceased’s siblings. Half-siblings inherit on the same basis as full siblings. If a sibling died before the deceased, that sibling’s share drops down to their own children by per stirpes distribution.
If there are no parents, no siblings, and no descendants of siblings, the estate splits in half. One half passes through the maternal line (grandparents, aunts, uncles, cousins) and the other through the paternal line. Texas intestacy reaches quite far into extended family before an estate is treated as having no heirs.
Which Children Count as Heirs
Biological children and legally adopted children inherit equally. Stepchildren do not inherit unless the deceased formally adopted them. If a child died before the parent, that child’s share passes to the child’s own descendants per stirpes.2State of Texas. Texas Estates Code Chapter 201 – Descent and Distribution
Children born outside marriage have the same inheritance rights as any other child, but legal paternity has to be established, whether by a signed Acknowledgment of Paternity, a court order, or DNA testing. When paternity was not established before the father’s death, courts will consider genetic evidence, but the process adds time and cost.
A child conceived before but born after a parent’s death inherits as if born during the parent’s lifetime. A child conceived after death using stored genetic material may inherit only if there is evidence the deceased specifically intended it.
Texas also recognizes advancements. If a parent gave a child a substantial gift during life and documented in writing the intent to count it against inheritance, the amount is deducted from the child’s intestate share. Without written documentation, the gift is presumed to be just a gift.
Assets That Skip Intestate Succession Entirely
Several common assets pass directly to named beneficiaries and never touch the intestacy rules.
- Life insurance proceeds go to the named beneficiary.
- Retirement accounts, including 401(k)s, IRAs, and pensions, pass to the listed beneficiary.
- Payable-on-death bank accounts and CDs transfer to the named person.
- Transfer-on-death brokerage accounts pass outside probate.
- Joint accounts with right of survivorship pass automatically to the surviving co-owner.
- Community property survivorship agreements let spouses agree in writing that community property passes directly to the survivor without probate.
These designations override intestacy. If an ex-spouse is still listed as the beneficiary of a life insurance policy, that ex-spouse typically collects, regardless of remarriage or intestate rules.
Homestead and Family Allowance
A surviving spouse has a constitutional right to occupy the family homestead for as long as they choose to use it as a homestead, even when the deceased’s children technically inherit the property. The Texas Constitution also protects the homestead from forced sale by most creditors.
Texas law sets aside certain exempt personal property, including household furnishings and specific personal items, for the surviving spouse and minor children, along with a family allowance for living expenses during administration. These items come out of the estate before creditors or other heirs receive anything.
Debts Come Out First
Heirs inherit what remains after valid debts are paid. The estate’s administrator must notify known creditors and publish notice for unknown ones. Funeral expenses and administration costs are paid first, then secured debts like mortgages, then general unsecured debts such as credit cards and medical bills. If the estate cannot cover everything, lower-priority creditors and heirs receive less or nothing.
Heirs are not personally liable for the deceased’s debts beyond what they inherit. A creditor cannot pursue your own assets for a parent’s unpaid credit card balance. Community property debts can complicate this for a surviving spouse, since liabilities generally follow the classification of the property they attach to.
How Heirs Actually Get Title
Identifying the heirs is one step. Transferring the assets to them is another, and Texas provides two main paths depending on the size and complexity of the estate.
Small Estate Affidavit
If the estate’s assets, excluding the homestead and exempt property, do not exceed $75,000 and are enough to cover known debts, the heirs can use a small estate affidavit. At least 30 days must have passed since the death. The affidavit lists all assets and debts, identifies every heir and their share under the intestacy rules, and must be signed by all distributees. Once a judge approves it, the affidavit authorizes transfer of the assets without appointing a personal representative. This works only for smaller estates with straightforward families and no disputes.
Heirship Proceeding
When the family situation is complex or real property is involved, an heirship proceeding under Chapter 202 of the Estates Code is generally required. An interested party files an application with the county probate court, and the court appoints an attorney ad litem to represent any unknown or missing heirs. At least two disinterested and credible witnesses (people who do not stand to inherit) must testify about the deceased’s family history, in open court, by deposition, or by sworn recorded statement. If a thorough search turns up only one qualified disinterested witness, the court may accept that.3State of Texas. Texas Estates Code Chapter 202 – Determination of Heirship Fees are paid from the estate. An uncontested proceeding generally takes a few months; disputed cases can run past a year.
When No Heirs Can Be Found
If no living heirs can be identified at any level of the family tree, the estate escheats to the state of Texas. Before that happens, the probate court conducts a search, and the attorney ad litem is charged with looking for anyone who might qualify. Once the state takes ownership, the assets are managed by the Texas Comptroller’s Office. A person who later discovers they are an heir can petition the court to recover escheated property, but the window is limited. Because Texas intestacy reaches so far into extended family, true escheat is uncommon, but it does happen when someone dies with no traceable relatives and no will.