When someone dies without a will in Texas, the estate passes under the intestacy statutes, and the court must hold a determination of heirship to establish who the legal heirs are. A surviving spouse does not automatically inherit everything — how the estate divides depends on whether property is community or separate, and whether the decedent's children are also the spouse's children.
How Texas divides an intestate estate
Texas draws two distinctions that drive everything: community versus separate property, and whether the children are shared with the surviving spouse.
| Situation | Who inherits |
|---|---|
| Spouse, and all children are of that marriage | Spouse keeps all community property; children share the decedent's separate property under the rules below |
| Spouse, and a child from a prior relationship | The decedent's half of the community property passes to the children — not to the spouse |
| Separate personal property, spouse and children | Spouse takes one-third; children share two-thirds |
| Separate real property, spouse and children | Spouse takes a one-third life estate; children take the remainder |
| Spouse, no children or descendants | Spouse takes all community property and personal separate property; separate real property may be shared with the decedent's parents or siblings |
| No spouse, children survive | Children share equally |
| No spouse, no children | Parents, then siblings and their descendants, then more distant relatives |
The second row is the one that damages families. A surviving spouse can find themselves owning a house jointly with stepchildren they may barely know — with no power to sell without their agreement. It is the most common painful outcome in Texas intestacy, and a one-page will would have prevented it.
The determination of heirship
Because no document names the heirs, the court has to establish them on evidence. That proceeding involves:
- An attorney ad litem, appointed by the court to represent unknown or missing heirs. Their fee is paid by the estate.
- Two disinterested witnesses who knew the family and can testify to the marriages, children and deaths — people who inherit nothing themselves.
- A detailed family history, covering every marriage, divorce, child, adoption and death, going back further than most families expect.
- A judgment declaring the heirs, which then allows an administration to be opened.
This is why probate without a will costs $12,500 at this firm rather than $4,500. It is a second proceeding stacked in front of the first, and in practice it takes at least three times the work of probating a will — the family history alone can consume more time than an entire uncontested will case.
Assembling the family history
The single most useful thing you can do before calling us is to write down what you know: every marriage with approximate dates, every child including those from prior relationships, anyone who has died and when, and current addresses for the living. Adoptions and children born outside marriage matter and must be disclosed.
Incomplete family history is the most common reason an heirship stalls. The court is being asked to declare, permanently, who a person's legal family is — and it will not do that on guesswork.
What intestacy does not change
Assets with beneficiary designations still pass to the named beneficiary. Life insurance, retirement accounts, payable-on-death accounts and property held with a valid survivorship agreement are untouched by the intestacy rules, because they were never part of the probate estate to begin with.
Homestead rights and exempt property allowances for a surviving spouse and minor children also continue to apply, and can matter a great deal in a modest estate.
Common questions
Are common-law spouses treated as heirs?
Can we skip the heirship if everyone agrees?
This page is general information about Texas law, not legal advice, and reading it does not create an attorney-client relationship. Every estate is different. For advice about your situation, call 713-588-5914 for a free consultation.
Questions about your situation?
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