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Reed: Inheritance of community property absent a will

Staff Writer
Glen Rose Reporter
Sandra Reed

By Sandra W. Reed

Barbara and Ken recently celebrated their 30th wedding anniversary, even though theirs is a second marriage. When they married, each had two grown children by previous marriages. All their property is community property, including their home and the business they built together.

Ken had no will when they married and kept postponing making one. When he contracted COVID-19 and died after being placed on a ventilator, he still had no will. Ken and Barbara assumed that she would inherit Ken’s community property since they had accumulated all of it during their marriage. Barbara was devastated to learn that she was wrong.

Decedent Intestate: Who inherits the community property?

In Texas, community property is owned one-half by each spouse. When a person dies without a will, all of the decedent’s community property (that is, one-half of all community property) will pass to the surviving spouse only if all children of the decedent are children of the surviving spouse. Texas Estate Code § 201.003.

Since Ken died without a will and his children are from a previous marriage, his community property (that is one-half of all the community property) will pass to his children and Barbara will retain only her community property, meaning the other half of all community property. Barbara’s children by her previous marriage, will, of course, inherit nothing.

Community property homestead

Following Ken’s death, his children inherited one-half of any real estate he and Barbara owned as community property - meaning she will own such property with them as tenants-in-common. As to their homestead, Barbara will be entitled to the possession and use of that for her lifetime.

Community property business

To Barbara, one of the worst outcomes of Ken’s failure to make a will was that she now shared with his children ownership of the business she and Ken had operated, side-by-side, for decades. That meant she could no longer independently make decisions regarding the business but had to consider the children’s opinions. If the two children agreed between themselves, but not with her on a decision, they were able to outvote her.

Ken’s wishes had been for Barbara to carry on their business unencumbered following his death. He expected Barbara alone to enjoy all the fruits of their labor. Had he made a will, his wishes could have been carried out. Sadly, he waited too late and Barbara has suffered the consequences.

Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth, Texas. She lives in beautiful Somervell County, near Chalk Mountain. She may be contacted by phone at (254) 797-0211 or by email at sreed2@kattenbenson.com.