STATE OF TEXAS

                                               DESCENT  AND  DISTRIBUTION

            (Legal Effect of Not Having Will) (Not apply if non-probate asset, insurance, trusts, or survivorship agreement.)

 

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I.  MARRIED MAN OR WOMAN

WITH

CHILD OR CHILDREN

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DEFINITIONS:

"SEPARATE PROPERTY" - all property acquired prior to this marriage and all property received by gift, devise or descent. Also, this term can include certain community income and/or community property if a valid pre-nuptial and/or post-nuptial agreement has been entered into by the spouses.

"COMMUNITY PROPERTY" - all property acquired during this marriage is presumed to be community property unless proven by clear and convincing evidence that it was a gift, devise, descent or nuptial agreement affecting the same.

"CHILDREN" - includes illegitimates, adopted children and those adopted out or which parental  rights were terminated.

"HOMESTEAD" - constitutional and statutory homestead is granted the surviving spouse for the balance of the surviving spouse's life, unless that surviving spouse disclaims or abandons it earlier. Such homestead right prevails over the following inheritance rights of the children, parents and/or siblings of the decedent. Further, such homestead rights includes the exclusive right of possession and control over the home. This homestead in a city/urban area is limited to one acre and in the country/rural is limited to 200 acres (for a family)  or 100 acres (single person). The surviving spouse may solely select the homestead tract; and a "homestead" can include a place of business along with a residence. Further, the homestead tracts need not be connected to each other. Another memo will explain the various duties and rights of the homestead life tenant and the remaindermen.

 

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                                                   A. SEPARATE PROPERTY:

 

Realty: Surv­iving Spouse inherits only a LIFE ESTATE  in  one-third interest in separate realty; and the child/children inherit 2/3 FEE  title plus remainder 1/3 interest.

Personalty--surviving spouse inherits FEE simple one-third undivided interest and child/child­ren inherit 2/3 fee interest.

 

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                                      C. COMMUNITY PROP­ERTY: AFTER 9/1/93

No Prior Children and No Illegiti­mates:

 

No Will; Decedent survived by spouse and children/descendant:

[1]  IF ALL CHILDREN/DESCENDANTS OF THE DECEDENT ARE ALSO THE CHILDREN/DESCENDANTS OF THE SURVIVING SPOUSE, THEN ALL OF THE COMMUNITY PROPERTY VEST IN THE SURVIVING SPOUSE AND NONE IN THE CHILDREN.

 

                                                          REAL ESTATE and ALL OTHER PROPERTY

CHILDREN ARE ALL OF SURVIVING SPOUSE:

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                                      C. COMMUNITY PROPERTY: AFTER 9/­1/93

 

Children of prior marriage or ille­gi­timates: (CH. 846, H.B. 1200, 73rd Legis, §33, eff. 9-1-93)

 

No Will; Decedent survived by spouse and children/descendant:

 

[2]  IF ALL CHILDREN/DESCENDANTS OF THE DECEDENT ARE NOT THE CHILDREN/DESCENDANTS OF THE SURVIVING SPOUSE: THEN ONLY ONE-HALF OF THE COMMUNITY PROPERTY VEST IN THE SURVIVING SPOUSE AND ONE-HALF VEST IN ALL THE CHILDREN., INCLUDING THE SURVIVING SPOUSE'S CHILDREN.

 

                                                          REAL ESTATE and ALL OTHER PROPERTY

CHILDREN ARE NOT OF SURVIVING SPOUSE:

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II.  MARRIED MAN OR WOMAN

WITH

NO CHILD OR CHILDREN

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                                                   A. SEP­ARATE PROP­ERTY:

 

                                          1. PARENT(S) OF DECEDENT SURVIVE:

 

REALTY: Surviving Spouse inherits 1/2 of separate realty; Surviving parents of decedent inherit 1/2 (Father=1/4; Mother=1/4); however, if only ONE PARENT SURVIVES  the decedent, then the surviving parent receives 1/4 of separate realty and the decedent's siblings/descendants  receive the other 1/4 undivided interest in the realty only. 

 

PERSONALTY:  The surviving spouse receives all of the separate personalty and the decedent's parents and/or siblings receive no part of the separate personalty.

 

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                           2. NEITHER PARENT SURVIVES - BUT, SIBLINGS SURVIVE:

 

REALTY: Surviving Spouse inherits 1/2 of separate realty; and the decedent's sib­lings/des­cendants inherit the other 1/2.

 

PER­SONALTY: Surviving s­pouse gets 100%.

 

               REAL ESTATE                                                                      ALL OTHER PROP­ERTY

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                         3. NO SUR­VIVING PAR­ENT and NO SIB­LINGS/DESC­ENDANTS:

Realty and Personalty:  ALL TO SURVIVING SPOUSE.

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NOTE: The 1993 amend­ment to Section 45, Texas Probate Code, did not affect the above division of sepa­rate estate of the decedent.

                                                  B.  COMMUNITY PROPERTY:

 

                                               1. NO CHILDREN OR THEIR DESCENDANTS SURVIVING:

All realty and all personalty vest in the surviving spouse

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III.  NO SURVIVING SPOUSE

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1.  NO SURVIVING SPOUSE; THERE ARE SURVIVING CHILDREN/DESCENDANTS:

All realty and all personalty vest in the surviving children and/or their descendants, per stirpes.

 

2.  NO SURVIVING SPOUSE and NO SURVIVING CHILDREN/DESCENDANTS:

All realty and all personalty vest in the father and mother of the decedent, 1/2 to each parent.

 

3.  NO SURVIVING SPOUSE, NO SURVIVING CHILDREN, ONLY ONE SURVIVING PARENT:

All realty and all personalty vest ONE-HALF in the surviving parent and ONE-HALF in the siblings/descendants.

 

4.  NO SURVIVING SPOUSE, NO SURVIVING CHILDREN, NO SURVIVING PARENT:

All realty and all personalty vest in the siblings and/or their descendants, per stirpes.

 

5.  NO SURVIVING SPOUSE, NO SURVIVING CHILDREN, NO SURVIVING PARENT and NO SIB­LINGS/DESCENDANTS:

All realty and all personalty vest in the decedent's grandparents, one-half to each grandparent.

However, if only one grandparent survives, then one-half vests in the surviving grand-parent and the remaining one-half vests in the deceased grandparent's descendants.

If neither grandparents surviving, then the entire estate vests in the descendants of the grandparents, per stirpes.