When a Texas resident dies without a valid will, the Texas Estates Code decides who inherits their property. The split depends on three things: whether the property is community or separate, whether a spouse survives, and which blood relatives are still living. The rules run in a fixed order, and they apply automatically whether or not the family agrees with the result.
Community Property and Separate Property Are Treated Differently
Before anything else, the estate has to be sorted into two piles. Texas is a community property state, so almost everything a married person owns at death falls into one of two categories, and each category follows its own inheritance formula.
Community property is anything either spouse earned or acquired during the marriage: wages, a home bought with marital income, retirement contributions made during the marriage, joint accounts. Each spouse is already an equal owner of the whole pool.
Separate property is everything else. Assets one spouse owned before the marriage stay separate, and so does anything received during the marriage as a gift, an inheritance, or a personal injury recovery. A house bought before the wedding is still separate property years later. Money a grandmother left behind is separate property too.
The distinction matters because the surviving spouse gets a much larger share of community property than of separate property.
What the Surviving Spouse Inherits
Community Property
If every child the deceased left behind is also a child of the surviving spouse, the spouse inherits the deceased’s half of the community estate. Added to the half the spouse already owned, that means the spouse keeps all of it.1State of Texas. Texas Estates Code Chapter 201 – Descent and Distribution
If the deceased had even one child from an earlier relationship, the result changes sharply. The surviving spouse keeps only their own half of the community estate. The deceased’s half passes to the deceased’s children and their descendants, including the ones from the prior relationship.1State of Texas. Texas Estates Code Chapter 201 – Descent and Distribution This surprises a lot of blended families.
Separate Property
Separate property is less generous to the spouse. When the deceased leaves children or grandchildren, the surviving spouse receives:
- one-third of the deceased’s separate personal property (bank accounts, vehicles, investments) outright, and
- a life estate in one-third of the deceased’s separate real property, meaning the spouse can use and occupy that portion during their lifetime, after which it passes to the children or their descendants.
The remaining two-thirds of the personal property and full ownership of the remaining real property go directly to the deceased’s children and their descendants.2State of Texas. Texas Estates Code 201.002 – Separate Estate of an Intestate
If the deceased had no children or descendants, the surviving spouse inherits all of the separate personal property and half of the separate real property outright. The other half of the land passes through the normal order of descent, usually to the deceased’s parents or siblings. If no parents, siblings, or their descendants survive either, the spouse takes the entire separate estate.2State of Texas. Texas Estates Code 201.002 – Separate Estate of an Intestate
What Happens When There Is No Surviving Spouse
With no surviving spouse, Texas stops distinguishing between community and separate property. Everything passes through a single chain of relatives, starting with the closest and working outward.1State of Texas. Texas Estates Code Chapter 201 – Descent and Distribution
- Children inherit the entire estate in equal shares. If a child died before the deceased but left children of their own, those grandchildren split their parent’s share.
- If no children or grandchildren survive, the estate passes equally to the deceased’s mother and father.
- If only one parent is living, that parent takes half the estate and the deceased’s siblings (and their descendants) take the other half.
- If neither parent survives but siblings do, the siblings and their descendants inherit everything.
- If none of the above relatives survive, the estate splits in two. Half passes up the paternal side of the family and half up the maternal side, continuing outward to more distant relatives on each side.
If no living relative can be found anywhere on either side, the property escheats to the State of Texas.
Situations That Change the Math
Adopted Children
Adopted children inherit exactly as biological children do. Once an adoption is finalized, the legal relationship with the adoptive family is treated identically to a birth relationship for inheritance purposes. The other side of the rule is that adopted children generally lose inheritance rights from their biological parents and biological relatives.
Half-Siblings
When property passes to siblings, a half-sibling inherits half the share a full sibling receives. If every sibling in the picture is a half-sibling, each takes an equal full share.1State of Texas. Texas Estates Code Chapter 201 – Descent and Distribution
Common-Law Spouses
Texas recognizes informal marriage. A surviving partner who can show that both agreed to be married, held themselves out as married to others, and lived together in Texas as spouses has the same inheritance rights as a ceremonially married spouse. The challenge is proof after one partner has died. Without a written declaration of informal marriage already on file, surviving partners sometimes face a difficult fight in probate court.
The 120-Hour Survivorship Rule
An heir must outlive the deceased by at least 120 hours (five days) to inherit under Texas intestacy law. If an heir dies within that window, the law treats them as if they died first and their share passes to the next person in line.3State of Texas. Texas Estates Code Chapter 121 – Survival Requirement The rule matters most when family members die close together, such as a car accident involving both spouses, because it prevents an estate from passing briefly through someone who then redirects it to their own family.
Assets That Skip Intestacy Entirely
Not every asset the deceased owned flows through these rules. Property that transfers by contract or by beneficiary designation passes directly to the named person, regardless of what the Estates Code says. These nonprobate transfers often account for most of a person’s wealth.
- Life insurance proceeds go to the beneficiary named on the policy.
- Retirement accounts and IRAs pay out to the designated beneficiary.
- Payable-on-death bank accounts transfer to the named person automatically.
- Transfer-on-death brokerage and securities accounts pass to the named beneficiary.
- Real estate covered by a transfer-on-death deed passes to the beneficiary on the deed. Texas allows an owner to sign such a deed while keeping full ownership and control during life.4State of Texas. Texas Estates Code 114.051 – Transfer on Death Deed Authorized
- Property held in a living trust passes according to the trust’s terms.
If a beneficiary designation is out of date, naming an ex-spouse or someone who has already died, the asset can fall back into the estate and become subject to the intestacy rules above.
How Heirs Are Formally Identified
Dying without a will does not let the family divide property on their own. Before title can change hands, Texas requires a legal process to establish who the heirs are. Two paths exist, and the right choice depends on the estate.
Affidavit of Heirship
For simple estates, often a single home with clear family relationships, an affidavit of heirship is the quicker and cheaper option. It is a sworn statement that identifies the deceased, lists their marital history and family, confirms there was no will, and names the heirs. Someone with personal knowledge of the family signs it, and it is typically filed in the county deed records where the property sits.5State of Texas. Texas Estates Code Chapter 203 – Nonjudicial Evidence of Heirship Professional drafting costs usually run between $500 and $1,000. Title companies and banks sometimes accept it and sometimes don’t.
Judicial Determination of Heirship
A judicial determination of heirship is a probate court proceeding that produces a court order naming the legal heirs and each one’s share. Any interested person can file the application. The court appoints an attorney ad litem to represent any unknown or missing heirs, which protects against someone being accidentally cut out.6State of Texas. Texas Estates Code Chapter 202 – Proceedings to Declare Heirship It costs more and takes longer than an affidavit once attorney ad litem fees, court costs, and legal fees are added in, but the order carries greater legal weight. For estates with real property in several counties, disputed family relationships, or institutions that refuse to accept an affidavit, it is often the only workable route.