A surviving spouse has important legal rights (also known as widow’s rights) under Texas law, including:
- Intestate Share
- Community Property
- Homestead Rights
- Exempt Property
What if a Spouse Dies Without a Will In Texas?
When an individual dies without a will, intestate succession law will govern. Under Texas law, a statutory framework determines how a decedent’s estate will be distributed. This is referred to as Intestate Administration. If a spouse dies without a Will, the surviving spouse receives an intestate share determine by Texas law.
Surviving Spouse’s Share – No Children
If the only survivor is a surviving spouse then the surviving spouse receives the entire estate of the decedent. The surviving spouse retains the one-half of the community property that the surviving spouse owned once the marriage was dissolved by death and inherits the deceased spouse’s one-half of the community property.
Surviving Spouse’s Share – No Non-Spousal Descendants
If all of the deceased spouse’s surviving descendants are also descendants of the surviving spouse, then the surviving spouse will own all of the community property, that is, the surviving spouse retains his or her one-half of the community and inherits the other half.
Surviving Spouse’s Share – Non-Spousal Descendants
If there are any descendants who survive the decedent and are not descendants of the surviving spouse, the decedent’s one-half interest in the community probate assets will pass to the decedent’s descendants per capita with right of representation.
Elective Share or Election Against a Will
Surviving Spouse Homestead Rights and Allowances
Surviving Spouse Rights In Exempt Property
Marital agreements which are often referred to as prenuptial agreements, ante-nuptial agreements, and post-nuptial agreements, can waive or create rights upon the death of a spouse. It is imperative to have a lawyer review these agreements who is familiar with the probate process to properly address any rights you may have at death or as a surviving spouse. It is also important to have these documents properly reviewed by experienced probate lawyers to ensure any death time provisions are properly addressed prior to signing any of these agreements. Many of the rights of a surviving spouse can be waived or increased in properly drafted agreements. Tex. Fam. Code § 4.103.