It depends on when the spouse died.
Prior to 1993
In Texas, prior to 1993, if a spouse died intestate who had children, his estate went to his children, not to his spouse. Of course, his spouse would own her part of the community property and have a homestead right to remain in the home but the deceased spouse’s ownership interest in the home would be owned by the children.
In 1993, the law in Texas changed at least in those cases where the children are the children of both the husband and wife or where the deceased had no children. Now, if the children of the deceased are also the children of the surviving spouse, or if the deceased had no children, the community property of the deceased goes to the surviving spouse. EC 201.003 (formerly TPC 45.) The separate property of the deceased spouse still goes to the children. If some of the children of the deceased are not also children of the surviving spouse, e.g. they are the surviving spouse’s stepchildren, then the children inherit everything as they did prior to 1993.
Texas Property Law and Inheritance
So, the question “does a spouse inherit the community property” is complicated. This article only dealt with community property. Texas also has separate property laws. A person’s separate property is everything they had before marriage and anything they acquire during marriage through a gift or an inheritance. I have written about the sometimes complex issue of Texas property law and inheritance. You can view those articles here.
Pearls of wisdom: Often in handling estates, the ownership of property comes into question. This is especially true if you are dealing with people who died some time ago. For instance, husband dies in 1965 without a will. Wife and kids continue living in the house. Everyone assumes that wife owns the house. However, she doesn’t own it because husband’s half of the house went to the kids and not to his wife when he died in 1965. Instead of looking at wife’s will to see who gets the property, you have to determine the heirship of husband to see who owns his half. Wife can only dispose of her half, not the whole.
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By Robert Ray a Board Certified attorney. The foregoing information is general in nature and does not apply to every fact situation. We handle litigation involving inheritance disputes. We don’t prepare wills. We don’t file wills for probate or distribute estates except when we are contesting a will or protecting a will from a contest. We handle a select few cases on contingency. Don’t use a comment to ask a personal question about an inheritance issue because your name and comment will be public. To ask a litigation question and to protect your privacy, click the red button to the right.