Many married clients assume that the surviving spouse will automatically inherit the real estate of their deceased spouse. Without a Will however, the Texas Intestate Succession rules govern. For example, in the case of a married couple with children from their marriage only, the surviving spouse will inherit the deceased spouse’s share of the community property real property (for example, the residence). If the deceased spouse owned real property in separately, however, their children would inherit that property and the surviving spouse would only receive a life estate (one-third interest). Imagine that the deceased spouse had children from outside the marriage. The above result with respect to community real property changes so that the surviving receives none of the deceased spouse’s share (the surviving spouse will retain her own ½ community property interest).

In a scenario where the married couple did not have children, the surviving spouse would inherit the decedent’s community property share of the real property. However, if the decedent owned separate real property, the surviving spouse would only inherit half of the interest, with the remaining half divided between the decedent spouse’s surviving parent(s) and/or siblings. The best advice for my married clients is to create a Will and/or Trust and make sure your most valuable assets are passed to your spouse and loved ones according to your wishes, not the State’s.