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How Is Community Property Transferred When a Spouse Dies?

In community property states like Texas, most property acquired by either spouse during a marriage is by law jointly owned by both of them. Upon divorce, the community property is evenly split. But what happens when a husband or wife dies while the marriage is in effect? Does the surviving spouse get everything or do other family members have a right to share?

If a person dies without a will (known as dying intestate), how property is transferred depends in part on whether it is community property or separate property. While most assets received by either spouse during the marriage are considered community property, each spouse can also have his or her own separate property. This includes assets that a spouse owned prior to getting married. It also includes inheritances and gifts received by one spouse during marriage. To complicate matters, separate property can become community property through commingling, such as when money inherited by one spouse is placed into the couple’s joint bank account.

As for what happens at death, here is a basic outline of different inheritance possibilities:

  • Married with no surviving children, parents or siblings — All community property and all the decedent’s separate personal property goes to the surviving spouse. Half the decedent’s separate real property goes to the spouse, with other half going to surviving parents, siblings or nephews and niece, in that order. If none of those relatives are living, the real property goes to the spouse alone.
  • Married with children from the marriage and no other children — All community property goes to surviving spouse. All separate real property goes to the surviving spouse until he or she dies, then to the children. The surviving spouse receives one-third of the deceased spouse’s separate personal property and the children receive the rest.
  • Married with children from the marriage and from earlier relationships — The deceased spouse’s share of community property is divided among all the children. All separate real property goes to the surviving spouse for his or her life, then to the children. The children also receive two-thirds of the deceased’s separate personal property, while the surviving spouse gets one-third.

These are the most common scenarios that a family can experience. There may also be more complex inheritance situations involving, for example, adopted children, half siblings and extended family members.

The best way to prevent uncertainty about inheritance is by creating a will or trust. Using such documents, you can, for the most part, dictate how you want your assets distributed and to whom. However, the will or trust must be valid under state law, which can be achieved with the assistance of a qualified estate planning lawyer.

At Hayes, Berry, White & Vanzant, LLP, our attorneys are kind and compassionate, while working to protect your inheritance rights. To discuss estate planning, probate or any related issue, please call 940-230-2386 or contact us online. We have offices in Denton, Flower Mound, and Gainesville.

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