Estate Law Questions? Ask an Estate Lawyer.
Hi; My goal is to provide you with great service - if you have any questions during our chat, please ask! I'll do my best to ensure your satisfaction! If a spouse dies intestate (without a will) in Texas, the surviving spouse is entitled to his estate; however, if the deceased spouse had children, then the surviving spouse is entitled to 1/3 of the estate. Please see http://www.statutes.legis.state.tx.us/Docs/PB/htm/PB.II.htm
1. If the deceased have a child or children, or their descendants, the surviving husband or wife shall take one-third of the personal estate, and the balance of such personal estate shall go to the child or children of the deceased and their descendants. The surviving husband or wife shall also be entitled to an estate for life, in one-third of the land of the intestate, with remainder to the child or children of the intestate and their descendants.
2. If the deceased have no child or children, or their descendants, then the surviving husband or wife shall be entitled to all the personal estate, and to one-half of the lands of the intestate, without remainder to any person, and the other half shall pass and be inherited according to the rules of descent and distribution; provided, however, that if the deceased has neither surviving father nor mother nor surviving brothers or sisters, or their descendants, then the surviving husband or wife shall be entitled to the whole of the estate of such intestate.
After reading the paragraph in the probate code, it sounded like if it were all community property, then it would go to the surviving widow, regardless of whether there were children or not?
If all the decedent's children are also the children of the surviving spouse, then that would be true. Otherwise, the decedent's one-half interest in the community estate of the marriage passes to his children, with the surviving spouse keeping only her 50% interest. A person may change this distribution through a will and leave his portion of the community property to whoever he chooses. (and yes, the personal estate reference in the above statute refers to the separate property of the decedent). Hope this clarifies!